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