The daunting task of overturning a death sentence

More than two years ago, while covering a story about Covid-19 in Kentucky prisonsI got calls from Brian Keith Moore.

He told me about his troubled childhood, his penchant for petty crime and the man he believes set him up for a 1979 murder that landed him on Kentucky's death row. Moore, 66, has maintained his innocence for more than four decades, and for much of that time has remained steadfastly 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 rid of this thing,” Moore said in an interview with the Kentucky Center for Investigative Reporting earlier this year.

Multiple courts have reviewed Moore's case and reached the same conclusion: The evidence of his guilt is “equally consistent” with the evidence he presented. But that wasn't enough to overturn his conviction.

At the beginning of this month we have published a report on Moore's fight to get out of prison – and we've highlighted a breakthrough that we believe should be enough to get him back in court, where a judge will have to overturn his conviction.

In reporting Moore's story, I learned that overturning a death sentence is a nearly impossible task.

Across the country, several people with credible claims of innocence are trying to overturn a death penalty conviction. At the same time, a spate of executions has brought the death penalty into the spotlight.

Moore likely won't learn his fate for several months. Jefferson Circuit Court Judge Annie O'Connell gave the Kentucky attorney general until February to explain why Moore's conviction should stand. Then O'Connell will decide what happens next.

Here are three things to keep in mind as Moore awaits a decision.

A unique moment

On September 24, as we were preparing our story on Brian Keith Moore, Missouri officials were executed Marcellus Williams Although protestations of innocence were so strong that prosecutors joined the victim's family in calling for the execution to be stopped.

On October 9, the U.S. Supreme Court heard arguments Richard Glossip's case. Oklahoma's attorney general said he could no longer stand by the prosecution and the U.S. Supreme Court was asked to overturn his conviction.

In Texas, it took a last-minute subpoena from the state legislature to stop the execution Robert Roberson on October 17th. The entire scientific basis for Roberson's conviction is questionable, but his execution is postponed after 90 days.

These are just the highest profile cases. Across the U.S., executions are taking place under a cloud of uncertainty, said Robin Maher, executive director of the Death Penalty Information Center.

“We are in a very special time in the use of the death penalty, where we have a number of high-profile cases with strong, credible evidence of innocence,” Maher said. “We are seeing a number of cases like this that raise really worrying concerns about how the courts view these cases and whether the death penalty system itself is fair and accurate.”

The Death Penalty Information Center tracks executions and claims of innocence. The group noted that for every eight people executed in the United States, one person on death row is exonerated More than 200 people sentenced to death were exonerated 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 outside the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people.

After the bombing, Congress tracked speed Anti-Terrorism and Effective Death Penalty Act of 1996which limited the ability of federal courts to intervene in death penalty cases.

“From now on, criminals sentenced to death for their heinous crimes will no longer be able to delay their sentence through endless appeals.” said former President Bill Clinton at the signing ceremony on April 24, 1996.

The new law sets deadlines for federal habeas corpus appeals, the process by which someone can challenge their detention in federal court.

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

And the new law says petitions to federal courts “may not be granted” unless the lower courts have improperly handled the process.

The exact definition of “unreasonable” is debated in library court opinions, but judges have found it means “more than wrong,” said Emily Olson-Gault, the director of the American Bar Association's Death Penalty Representation Project.

“The federal court cannot grant relief simply because the state court made a mistake, unless the decision-making process was inadequate,” Olson-Gault said. “Even if the federal courts assume that the defendant is actually innocent and his constitutional rights have been violated, (the law) prohibits that court from granting relief unless the state court has done more than simply agree to an incorrect answer come.”

Prior to this law, 68% of all death sentences challenged through habeas corpus appeals were overturned by state or federal courts. according to the UCLA Law Review. After the law came into force, this number fell to 12% between 2000 and 2007. Researchers at the UCLA Law Review found similar patterns with a smaller sample size through 2020.

And the current U.S. Supreme Court, whose conservative majority was appointed by President Donald Trump, has adopted a narrow interpretation of that law, refusing to intervene in death penalty cases on technical and procedural grounds rather than considering new evidence and grappling with innocence or guilt .

The Oklahoma Court of Appeals, for example rejected Richard Glossip's claims of innocence last year because he failed to meet certain deadlines and his appeals were based on issues he had not raised at the start of the trial.

When the U.S. Supreme Court heard arguments in the Glossip case earlier this month, they said spent much of their time in court debating whether the court even has the authority to hear the casebecause his appeal was rejected by a state court on procedural issues.

Essentially, Olson-Gault said actual innocence is not enough to overturn a death sentence.

Rather, successfully challenging a death penalty conviction means a person must navigate a complex legal process that is fraught with opportunities to suppress a case on technical grounds.

Success often depends on the quality of legal representation offered to people on death row, which varies widely across different states and federal systems, he said

Robin Maher of the Death Penalty Information Center.

“Innocence is no defense,” Maher said.

The death penalty is pending in Kentucky and across the country

If Moore's conviction is upheld, it is unlikely that Kentucky prison officials will execute him or anyone else any time soon.

A Franklin County Circuit Court judge halted executions in Kentucky in 2010, saying the state lacked safeguards to prevent the execution of mentally ill people. The judge also pointed to problems with the state's regulations on lethal injections.

Kentucky officials said they had addressed the issues behind the original injunction, and Attorney General Russell Coleman urged courts to resume 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 show that public support has declined since its peak in the 1990s, but a 53% majority still supports the death penalty.

The death penalty is still a powerful political tool and many elected judges and prosecutors do not want to be portrayed as soft on crime. according to the Death Penalty Information Center.

The organization reviewed Supreme Court rulings 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 pardon decisions were made by officials who were not running for re-election. The Death Penalty Information Center It also found that officials who could grant clemency to people on death row only did so four times during an election year over a 50-year period.

This creates an unlevel playing field because the outcomes of a death sentence trial and subsequent appeals depend largely on where someone is charged, Maher said.

The “arbitrariness” is part of the problem, said Maher.

“The injustice,” she said. “The inconsistency with which it is used across the country.”