The daunting task of overturning the death penalty

More than two years ago, While reporting on Covid-19 in Kentucky prisonsI started getting calls from Brian Keith Moore.

He told me about his troubled childhood, his penchant for petty crimes, and the man he believed set him up for a murder that put him on death row in Kentucky in 1979. Moore, 66, maintained his innocence for more than four decades, and for much of that time remained resolutely optimistic that the courts would intervene.

“I always felt like there was a light at the end of the tunnel, I was going to get this thing off my chest,” Moore said in an interview with the Kentucky Center for Investigative Journalism earlier this year.

Many courts have reviewed Moore’s case and reached the same conclusion: The evidence of his guilt is “equally consistent” with the evidence presented to him. However, this was not enough to overturn his conviction.

At the beginning of this month we Released a recording of Moore’s fight to free himself from prison – and we highlighted a breakthrough that his lawyers claim will be enough to get him back in court for a judge to overturn his conviction.

In reporting Moore’s story, I learned that reversing a death penalty sentence is a nearly impossible task.

Across the country, scores of people who make credible claims of innocence are seeking to overturn death penalty convictions. At the same time, a large number of executions brought capital punishment to the fore.

Moore probably won’t know his fate for at least a few months. Jefferson Circuit Judge Annie O’Connell gave the Kentucky Attorney General’s Office until February to explain why Moore’s conviction should stand. O’Connell will then decide what happens next.

While Moore awaits a decision, there are three things to consider.

A unique moment

On September 24, as we were preparing our story about Brian Keith Moore, Missouri officials executed him Marcellus Williams Prosecutors have joined the victim’s family in calling for a stay of execution, even though their claims of innocence are so strong.

On October 9, the U.S. Supreme Court heard arguments in the case. Richard Glossipcase. Oklahoma’s attorney general said he could no longer side with the prosecution and the U.S. Supreme Court was asked to overturn his conviction.

In Texas, state lawmakers had to get a last-minute subpoena to stay the execution. Robert Roberson On October 17th. The entire scientific basis for Roberson’s conviction is in doubt, but his execution will be rescheduled in 90 days.

These are just high profile cases. Robin Maher, executive director of the Death Penalty Information Center, said executions all over the United States are taking place under a cloud of uncertainty.

“We’re in a very special time right now in the implementation of the death penalty; we have a number of high-profile cases with strong, convincing cases of innocence,” Maher said. “We’re seeing a lot of cases like this that raise really troubling concerns about how courts view these cases and the fairness and accuracy of the death penalty system.”

The Death Penalty Information Center tracks executions and innocence claims. The group found that for every eight people executed in the United States, one person sentenced to death was exonerated More than 200 people sentenced to death were acquitted Since 1973, according to the group’s research.

Innocence is not enough

On April 19, 1995, a truck loaded with 4,800 pounds of explosives exploded in front of the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people.

After the bombing, Congress accelerated the process Anti-Terrorism and Effective Death Penalty Act 1996This limited how federal courts could intervene in death penalty cases.

“From now on, criminals sentenced to death for serious crimes will no longer be able to make endless applications to postpone their sentences.” Former President Bill Clinton said at the signing ceremony: On April 24, 1996.

The new law places time limits on federal habeas corpus appeals, the process someone can use to challenge their incarceration in federal courts.

The law prohibited federal courts from hearing new evidence unless that evidence provided clear and convincing evidence of the petitioner’s innocence and something prevented them from developing that evidence in state court.

And the new law states that petitions to federal courts “shall not be granted” unless lower courts consider the case unreasonably.

Emily Olson-Gault, director of the American Bar Association’s Death Penalty Representation Project, said the precise definition of “unconscionable” was debated in the libraries’ court opinions, but the justices found it meant “beyond wrong.”

“The federal court cannot issue an injunction because the state court got it wrong, unless there was something unreasonable in the process of obtaining that order,” Olson-Gault said. “Even if federal courts believe the defendant is truly innocent and his or her constitutional rights have been violated, (the law) prohibits that court from awarding relief unless the state court does more than reach the wrong answer.”

Before this law, 68% of all death penalty sentences challenged through habeas corpus appeals were overturned by state or federal courts; According to the UCLA Law Review. From 2000 to 2007, after the law took effect, this number dropped to 12%. Looking at a smaller sample size, UCLA Law Review researchers found similar patterns throughout 2020.

And the current U.S. Supreme Court, with a conservative majority appointed by President Donald Trump, has adopted a narrow interpretation of that law and has refused to intervene in death penalty cases for technical and procedural reasons, instead considering new evidence and grappling with innocence or guilt.

For example, the Oklahoma Court of Criminal Appeals, Richard Glossip’s innocence claims were dismissed last year because he did not meet certain deadlines and his objections were based on issues he could not raise at the beginning of the process.

When the U.S. Supreme Court heard arguments in Glossip’s case earlier this month, spent most of their time in court arguing over whether the court had jurisdiction to handle the casebecause his appeal was rejected by a state court on procedural issues.

Essentially, Olson-Gault said actual innocence is not enough to vacate the death penalty.

Instead, successfully appealing a death penalty conviction means that one must navigate a complex legal process filled with opportunities to end a case on technical grounds.

Success often depends on the quality of legal representation offered to people sentenced to death, and this varies greatly between state and federal systems, it said.

Robin Maher of the Death Penalty Information Center.

“Innocence does not defend itself,” Maher said.

Death penalty in limbo in Kentucky and across the country

If Moore’s conviction is upheld, Kentucky prison officials are unlikely to execute him or anyone else any time soon.

A Franklin County Circuit Court judge halted executions in Kentucky in 2010, saying the state did not have safeguards to prevent the execution of mentally ill people. The judge also noted problems with the state’s lethal injection regulations.

While Kentucky officials said they were addressing the issues behind the initial injunction, Attorney General Russell Coleman asked the courts to proceed with the executions.

The Kentucky Supreme Court denied Coleman’s request earlier this month.

Kentucky Governor Andy Beshear said: He believes that the death penalty should be used as punishment for heinous crimes.

Gallup polls It shows public support has declined since its peak in the 1990s, but a 53% majority still supports the death penalty.

The death penalty remains a powerful political tool, and most elected judges and prosecutors do not want to be portrayed as soft on crime. According to the Death Penalty Information Center.

The organization examined Supreme Court decisions in Georgia, North Carolina and Ohio and found that courts upheld twice as many death sentences in election years as in other years. They found that most decisions to grant clemency were made by officials who were not running for re-election. Death Penalty Information Center It also found that officials who could grant clemency to people sentenced to death had done so four times in one election year alone over a 50-year period.

That creates an uneven playing field, Maher said, where the outcome of a death penalty trial and subsequent appeals depends largely on where a person is charged.

Maher said “arbitrariness” is part of the problem.

“Injustice,” he said. “Inconsistency in its use across the country.”