Statement from Attorneys for Kevin Keith in Response to Today’s Parole Board Recommendation Against Clemency

The Governor’s ultimate responsibility is to ensure that no human being is executed in Ohio absent absolute certainty. In Kevin Keith’s case, too many questions remain unanswered, and his execution should not proceed as planned.

The Parole Board’s own recitation of facts and brief findings cannot avoid facts pointing to the existence of doubt about Mr. Keith’s guilt. For example, the Parole Board found that the lineup used to identify Mr. Keith for this crime was “arguably suggestive,” and recognized that the “science of measuring the extent to which an event is ‘encoded’ into memory is imprecise.” The Parole Board also noted the there was no “biological evidence linking Keith to the crime.” Unfortunately, however, the Parole Board gave “considerable deference” to the jury and courts in making its recommendation. But it is undisputed that no court or jury has ever considered the entirety of the new evidence that raises serious questions about Mr. Keith’s guilt.

Mr. Keith and his attorneys have not had the opportunity to fully utilize this new evidence to defend against the State’s theory, and Mr. Keith and his attorneys have not had the opportunity to challenge State witnesses through the crucible of cross-examination regarding the numerous inconsistencies in their testimony revealed by this discovery of new evidence. Under these circumstances, the Governor cannot be absolutely certain – as he must be – that Mr. Keith is guilty of this crime and deserves the most final of punishments: execution.

We urge the Governor to review the facts of the case on his own, without deferring to courts that have not completely reviewed the evidence before us today. For example, the Governor should consider that, absent questionable “eyewitness” testimony, there is nothing connecting Mr. Keith to this crime. Indeed, the chief eyewitness against Mr. Keith initially told four people — in a coherent and stable state — that he could not identify the shooter because the shooter was wearing a mask. Another survivor initially excluded Mr. Keith as the shooter entirely, noting that the shooter did not have certain physical features possessed by Mr. Keith. Thereafter, Mr. Keith’s face was projected prominently in a highly suggestive photo line-up to these witnesses that would run afoul of the very procedures recognized as unreliable and inaccurate and corrected by reform legislation signed by the Governor. And after Mr. Keith’s arrest, still other witnesses who had indicated that the shooter was wearing a mask or could not be identified suddenly were “re-interviewed” by police and pointed to Mr. Keith. What’s more, by the time of the clemency hearing, eyewitness descriptions has further changed — some now stating that the shooter was not wearing a mask at all.

Moreover, brand new evidence — never heard by a jury — shows that another man admitted he was paid to commit the crime for which Mr. Keith stands to be executed. And still other evidence shows Mr. Keith has a strong alibi for the time of the crime, supported by four witnesses. These circumstances do not present an absolute certainty of guilt.

That is why prominent individuals and nonpartisan organizations – including more than 30 former state and federal judges and prosecutors, the Ohio Innocence Project, the National Innocence Network (comprised of 61 innocence projects and legal organizations), more than 100 Ohio faith leaders and organizations, 13 leading eyewitness and memory experts, law enforcement, death row exonerees, and thousands of citizens across Ohio and the U.S. — support clemency for Mr. Keith.

The Parole Board’s recommendation to Governor Strickland is advisory and non-binding, and we urge the Governor to grant Mr. Keith clemency.

Rachel Troutman, Assistant State Public Defender
Andrew King, Assistant State Public Defender
Tyson Fleming, Assistant State Public Defender
John Q. Lewis, Partner, Jones Day
David Mills, The Mills Law Office LLC

August 19, 2010