Now What? It's Up to Ted

When a man's partner is killed he's supposed to do something about it. It doesn't matter what you thought of him. He was your partner and you're supposed to do something about it.

Sam Spade in Dashiell Hammett's The Maltese Falcon (and also in the John Huston film).

Anything approaching the change that came over his features I have never seen before, and hope never to see again. Oh, I wasn't touched. I was fascinated. It was as though a veil had been rent. I saw on that ivory face the expression of sombre pride, of ruthless power, of craven terror -- of an intense and hopeless despair. Did he live his life again in every detail of desire, temptation, and surrender during that supreme moment of complete knowledge? He cried in a whisper at some image, at some vision -- he cried out twice, a cry that was no more than a breath:
"The horror! The horror!"
I blew the candle out and left the cabin. The pilgrims were dining in the mess-room, and I took my place opposite the manager, who lifted his eyes to give me a questioning glance, which I successfully ignored. He leaned back, serene, with that peculiar smile of his sealing the unexpressed depths of his meanness. A continuous shower of small flies streamed upon the lamp, upon the cloth, upon our hands and faces. Suddenly the manager's boy put his insolent black head in the doorway, and said in a tone of scathing contempt:
"Mistah Kurtz -- he dead."

Joseph Conrad, Heart of Darkness.

I represented a guy some years ago after he had been convicted of murder entirely on the testimony of one witness, a co-defendant, who had, repeatedly (there's no disagreement about this) told the police lies about what happened.  Take away his testimony, and there's nothing else.  Nothing, even, to indicate my client was on the continent (let alone at the scene) at the time of the murder.

In fact, the co-D told police some 16 different versions of what led to the shooting, implicating my client only in version 13.  (There was actually a version 17, again implicating my client, that he told on the witness stand.)  Somewhere around version 8 or 9, the co-D conceded that he had participated in the crime.  By the time my client's name came up, the co-D was claiming that he shot the victim first but that my client (at the co-D's direction) finished the victim off.

I wasn't there.  I don't know what happened at the shooting.  What I know is that no fair and rational juror should have been able to conclude that my client was guilty beyond a reasonable doubt.  But the jury did find him guilty.  And the court of appeals (which is where I came in) deferred to their view of the evidence.

The victim in that case was a 13-year old boy.  As far as the evidence went, and I have no reason to doubt it, he'd done nothing to either of these guys.  Just an innocent kid in the wrong place at the wrong time.

But see, someone was dead.  A young boy.  An innocent.  It was heartbreaking.  (It didn't help much that trial counsel broke down in tears during closing argument while holding up a picture of the victim.)  Someone had to pay for that death, and the co-D was getting off easy for rolling on my client.

See, we call it the "justice system," and "justice" apparently cries out for someone to blame.  Juries? Well, they're supposed to do something about it.

I mean, that's not the theory.  The theory is juries as a dispassionate check on government excess.  But really, they're too often the anguished voices joining with Kurtz.  The horror!  The horror!

I never represented Kevin Keith.  I don't know exactly what happened in Bucyrus that evening in February 1994.  Frankly, I don't much care.  It's not that I'm being callous, it's that the details no longer matter.

But if the details don't matter at this point, the broader picture does.  Six people were shot.  Three were children.  Three, including one of the children, died.  On September 15, the State of Ohio intends to murder Kevin Keith in response.

Oh, there's one other thing that matters.  A lot.

The case is a mess.

Keith has a compelling alibi.  Eyewitnesses who are sure now that the killer was he were unsure or were clear at the time it was not.  There is substantial evidence pointing to a third person, Rodney Melton, as the killer, some of which police and prosecutors concealed from trial counsel.  What physical evidence there is, points as readily to the other potential killer as to Keith.  Trial counsel rushed the case and did, frankly, a lousy job.  I could go on, but I won't because, once again, the details don't really matter.  The sum of it is that there's plenty of evidence indicating Keith didn't do it.  There's evidence indicating Melton did.

What matters is that the case was a mess when it was tried and it's a mess now.

Still.

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.

Last week was the hearing before the Parole Board.  Keith asked for a pardon.  The state asked that he be killed.  There's not much middle ground there.

Set him free!
Off with his head!

Six people were shot.  Three died.  Kevin Keith was convicted of the killings.  Ohio plans to murder him on September 15.  The Parole Board spoke today.  They said he should be killed.

So this is what it comes to.

Eight respectable citizens.  Responsible.  Reliable.  Chosen to be fair.  They heard all of that.  And they said to kill him.

But six people were shot.  Three died.  Kevin Keith was convicted of the killings.

Forget the new evidence.  Forget the hidden evidence.  Forget the shoddy defense.  Forget Rodney Melton.  The jury said he should die.  The Board agreed.

In an assertion of actual innocence, we believe that considerable deference should be afforded the findings of the jury and trial court as well as subsequent appellate and post-conviction reviews.

Oh, sure.  The jury didn't get all the evidence.  The trial court didn't get all the evidence.  None of the appellate or post-conviction reviews heard all the evidence.

So what.  Six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  Isn't that enough?  We've got someone to throw against the wall.

Except, in the last analysis, it's not up to them.  It's up to Governor Ted.  He's said that he finds some things about the case "troubling."  Me too.  But, well, will that matter?

After all six people were shot.  Three died.  Kevin Keith was convicted of the killings and the jury said he should die.  And it is an election year.  And the horror! The horror!  And well, when someone dies, you're supposed to do something about it?

But

The thing is, Sam Spade wasn't willing to take the fall for Brigid O'Shaughnessey.  He figured she might get out in 20 years.  And he'd be waiting for her.  Because it wasn't just any old something he was supposed to do.  It was the right thing.

The Ohio Public Defender released a statement in response to the Parole Board's ruling.

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.

They went on.  Read it yourself.

I've asked the question before, and I'm sadly sure I'll ask it again:  Do we care?  Does it matter?

Six people were shot, three of them children.  Three of the victims died, including one of the children.  That's a horrible thing.  It's inexcusable.  Something really should be done.

The question is what.  The answer, and really, it's beyond sensible argument, is that we don't add to the tragedy.  We shouldn't kill at all, but if we're going to (and this is Ohio, so we are), we need to be damn sure we're killing the right people.  This time we can't be.

I don't know what happened in Bucyrus that night in February 1994.  Neither does any member of the Parole Board.  Neither does Governor Ted.

How sure is sure enough?  However sure that is, we're not there.  Not even close.

But the horror! The horror!

Except the real horror?

That's in getting it wrong, Ted.

That's in getting it wrong.