Strange bedfellows in fight to save Kevin Keith

‘Misery acquaints a man with strange bedfellows’, as the fool in The Tempest says. Few would deny that a man on death row and a death penalty supporter fall into the category of strange bedfellows.

But with Kevin Keith facing execution on 15 September, and with copious evidence suggesting his innocence, he is certainly in a miserable situation – and now even self-declared death penalty supporters have pulled together with public defenders to ask Ohio Governor Ted Strickland to spare Kevin’s life.

Kevin, 46, was convicted of murdering three people and wounding three more in February 1994. Prosecutors claim that he fired into an apartment in Bucyrus, Ohio, in retaliation against an informant who had cooperated with a drugs raid. The informant was related to the victims of the shooting.

However, there is significant evidence to suggest that Kevin was not the gunman. His defence lawyers claim that another man, being prosecuted separately on drugs charges, admitted committing the crime to a confidential informant. This man was also identified as the gunman by his co-defendant in that prosecution. The photo identification of Kevin, on the other hand, which counted so strongly against him at trial, was conducted in a manner which would now be illegal under Ohio law due to its propensity to produce false results. The Republican state senator who sponsored the bill outlawing this form of identification, David Goodman, has joined the calls for clemency.

Similarly concerning is the fact that one of the key pieces of evidence against Kevin appears to be highly unreliable. At trial, much weight was placed on the testimony of a police officer, who claimed that a nurse who treated the only adult survivor phoned the police station to report that the survivor identified the gunman as ‘Kevin’. But the nurse herself did not testify; this was simply the word of the survivor, passed onto a nurse, passed onto a policeman. In the UK, this would be hearsay evidence, unlikely to be admissible in court. Later investigation shows that there is no nurse with the name given by the police officer. A nurse with the same first name but a different surname treated the victim, but she formally stated in 2007 that she never heard or relayed the name of the gunman.

This unusual alliance of those calling for Kevin’s life to be spared includes some who generally support capital punishment, such as Republican Jim Petro, a self-declared death penalty supporter and former Ohio attorney general. Petro has written to Governor Strickland expressing his ‘grave concern’ about the impending execution.

Also amongst the diverse group of Kevin’s supporters are 31 former judges and prosecutors from around the US, the Innocence Network and its 61 affiliates, and 100 religious leaders and organisations. Former Ohio Supreme Court justice Herbert R. Brown is amongst those who have written to Governor Strickland, noting in particular the ‘mass of exculpatory evidence, suppressed evidence, faulty eyewitness identification and forensic reports that support legitimate claims of innocence.’

Being executed for a crime you did not commit is one of the most terrifying misuses of state power, yet it is a well-known fact that innocent people are sentenced to death. 86 people have been released from death row since 1973 after evidence of their innocence emerged – all vivid reminders that the criminal justice system can and does make mistakes. Most of these exonerations have come as a result of improved scientific techniques, further investigation, and legal expertise which are not typically available to indigent defendants at trial.

A case in point is the state of Illinois, which suspended the death penalty in 2000 following concerns about the number of innocent people on death row. Since capital punishment was reinstated in 1976, Illinois has exonerated more people on death row than it has executed.

Worryingly, the question remains: if nearly one hundred of these judicial errors have been caught, how many have passed unnoticed? Kevin’s clemency hearing is set for Wednesday 10 August. It’s up to Governor Strickland to ensure that he does not become the victim of a fatal mistake.