Attorney: Keith case could get review
BY DAN CLUTTER • Telegraph-Forum • April 7, 2010
COLUMBUS — David Mills, one of the attorneys who worked on a brief with the U.S. Supreme Court on behalf of Ohio death row inmate Kevin Keith, said there is a chance the court will review the case.
Keith, 46, formerly of Crestline, is scheduled to die Sept. 15 for a triple murder that occurred at Bucyrus Estates on Feb. 13, 1994.
"A lot of times in the capital context, with a lot of cases where it's not as much about guilt or innocence, often turn on whether the death penalty is properly imposed in a particular case," Mills said. "It seems to me that, when you have a case of an innocence claim, the Supreme Court is, at the least, going to give that a close look.
"In the few cases where there is a real innocence claim, I don't think the Supreme Court is comfortable with the idea of an innocent man getting executed, to say the least."
Mills, a Cleveland attorney who specializes in appellate cases, along with Keith's attorney, Rachel Troutman of the Ohio Public Defender's Office, filed a brief with the high court March 2.
Several briefs in the case were filed Monday. Among the names listed on the briefs are David Loftis and Nina Morrison of the Innocence Project, Vernon Broderick, Aaron Y. Huang and Adam Banks of Weil, Gotshal and Manges of New York; and Daniel S. Medwed, professor of law at the University of Utah.
Keith has exhausted his regular state and federal appeals, and the Ohio Supreme Court denied his appeal March 11, 2009.
Troutman said that a response from the state is due May 5, then Keith's lawyers will have a chance to respond before the court decides whether to hear the case.
"While they don't have to take any cases, I think it's fair to say this will get a second look if they think there is potential," Troutman said.
The attorneys said they are seeking a new trial for Keith.
"We kind of keep whatever options are open on the table," Mills said. "No jury has ever considered all the evidence. Basically, the position is that is what should happen."
"That's all the U.S. Supreme Court can do is order a new trial," Troutman said. "They can't wipe the conviction clean and exonerate him."
Mills said that, while there is precedence for the court hearing death penalty cases, most of those cases involved DNA evidence, which does not exist in the Keith case.
"Usually DNA evidence is involved," Mills said. "There are at least 250 cases that have been overturned when DNA is involved. Now, there's no DNA for us to evaluate. But about 75 percent of the cases that were overturned used partial or faulty DNA evidence. It's the primary evidence that has convicted people."
Mills said the main reason for optimism in this case is the fact that the Ohio Supreme Court analyzed the facts that were placed into evidence in the original trial and failed to look at new evidence uncovered during the last two years.
"The Ohio courts, who last rejected Kevin's claims, did an entirely improper analysis," Mills said. "When you bring a new claim of new evidence that was withheld, that affects the outcome, courts are supposed to look at whether the new evidence would impact the outcome. They're not supposed to simply look at the earlier evidence presented at trial and see if it's sufficient to hold up the original verdict.
"These are sort of well-established principles in the Supreme Court that it's not how you're supposed to analyze the question."
Troutman said the new evidence is reason enough to provide Keith with another trial.
"Just because there may have been sufficient evidence to point to one person, to assess whether the trial has been fair you have to look at the new evidence to see if it's actually material," Troutman said.
"It's especially egregious in this case where the evidence actually contradicts the evidence that was presented at trial."
Bucyrus police and the Crawford County prosecutor's office have steadfastly maintained the evidence speaks for itself and that Keith was the man who committed the crimes in 1994.
Prosecutors say Keith opened fire on a group in retaliation for a drug arrest he blamed on an informant related to the victims.
Police Capt. John Beal, who was a patrolman at the time of the killings and was one of the first officers on the scene, said on July 1, 2009, "in my heart and in my head I know the right man was convicted."