On Wednesday, December 11, 2019, my client Kurt Smith slept outside of a correctional facility for the first time since he was a teenager, after receiving a pardon from Governor Bevin. He was not the only one, many people received commutations and pardons that either resulted in release, or gave them hope for release for the first time ever.
While the newly released and those who worked with them rejoiced in the news, a media firestorm was starting. Latching on to complaints from aggrieved prosecutors, the press started to report that Governor Crazypants had struck again, releasing people willy nilly without regard for safety of justice. What’s more, the stories insinuated that this was the result of a deep corruption in the Governor’s office, with people paying for pardons with campaign donations. Since then, those of us who worked with these cases have watched helplessly from the sidelines as the media got the story exactly backwards. The story of Governor Bevin’s pardon spree is not that about corruption, but the opposite. This is what happens when a Governor takes the pardon power seriously enough to look beyond those with political influence, and chooses to review all the applications, and in so doing, finds himself confronted with the shocking level of routine injustice in our criminal justice system.
The story of Kurt’s pardon is rooted in family tragedy. Kurt had just turned 17 when his son Blake was born. The black sheep of the family even before he became a teenage parent, Kurt was anxious to show the world what a good parent he could be. He took two jobs, while alternating weeks of parental care with Blake’s mother. Over the early morning hours of March 21, 2001, having recently finished a double shift, Kurt was alone in his parents basement with a colicky child who could not keep food down, and cried from hunger. Exhausted, unsupported and entirely alone, at about 4:00 a.m. Kurt “lost it”, shook his baby and dropped him on the floor. Baby Blake died as a result of his injuries. As a result, Kurt has a sentence which will never be commuted: he wakes up every morning knowing what he did to somebody he dearly loved.
In most cases where the evidence was that the child was killed by an otherwise loving parent, juries have recognized that there is a natural consequence, and mitigated the sentence accordingly. Reviewing cases with facts similar to this case over the 15 years that followed his case, we could find nobody who got a sentence longer than 20 years. Most were around 5 years, and in many cases the defendant was shock probated.
However, Kurt’s case was different. Kurt’s parents hired a private attorney who deplored experts, and refused to hire one. Instead, she went to trial with “no defense” (her words) and put Kurt on the stand at a time when he had still not fully processed his role in the crime. The prosecutor had his way with Kurt, and at the end of trial the jury was ready to bury him under the courthouse, giving him a life sentence. Kurt eventually sought post-conviction relief, but the state court found that counsel had a “strategy” behind not seeking an expert, and denied relief. The Sixth Circuit was “ inclined to conclude that counsel’s purported strategic decisions on expert consultation were based on insufficient investigation because she failed to consult a mental health expert . . ..” However, in what has become the “new normal”, the Sixth Circuit found that it was required to defer to the Kentucky court’s contrary conclusions, and let the verdict stand.
This is an increasingly common story. The standards for effective counsel are vague and easily perverted. Changes to federal habeas corpus law have left the application of these standards almost exclusively to state courts, who frequently find in favor of the state in questionable cases. In this environment, when the court system refuses to address an injustice, the only option that remains is clemency.
Prior to the end of the Bevin administration, that system was largely limited to those with the resources to get their case squarely in front of the Governor. This was not a “pay to play” system as has been reported, just a fact of modern government. Every Governor, regardless of party, had gatekeepers who job included stopping politically risky things like clemency applications from reaching the Governor’s desk. With the exception of a few high profile cases, or cases being pushed by an influential advocacy group, the only way to get a clemency petition with any hint of controversy to it in front of a sitting Governor was to have a politically influential person support it, who could get a meeting with the Governor or the senior staff. The presence of these gatekeepers largely kept my indigent clients from ever getting their application heard.
To his considerable credit, Governor Bevin was against letting most of these applications die in the drawer of a government filing cabinet, and tried to review all of the thousands of applications he received. What did he find when he bothered to look at the justice system? That it is a very ugly place, where justice is neither the goal nor a reliable byproduct of the process. I believe he was genuinely surprised by the extent to which the Court system is now largely immune to serious instances of injustice. As we look at the most serious cases the Governor commuted or pardoned, we see similar stories repeating themselves:
- Kathy Williams’ attorney failed to put forth evidence of her extreme emotional disturbance at the time of the offense, which was caused by the death of her son and subsequent traumatic events in her own life. Then, post-conviction counsel failed to properly present her IAC claim. She was a model inmate for 15 years until Bevin pardoned her.
- Jason Jackson’s attorney persuaded him to plead to life without parole for his role as an accomplice in the murder, convincing Jackson that a death sentence was a real possibility at trial. That advice proved to be unsound when the shooter in the case then went to trial and got 27 years, and another accomplice in the case got 21 years. Bevin commuted his sentence to 21 years, the same as the other accomplice.
- Barbara Gordon’s lawyer elected not to present the mountain of evidence of abuse, and the connection between the victims of her crime and that abuse, because he thought it would make the crime appear premeditated. Bevin commuted her sentence from 70 years – which was nearly twice what was typical for that offense – to 30 years, resulting in her immediate release.
- Kathie Harless’ attorney failed to present any evidence on her behalf, even though the medical evidence supported her innocence, and other information would have mitigated her culpability in any case. Bevin pardoned her as well, releasing her after 18 well behaved years in prison.
And then there is the story of Delmar Partin. Much has been made of Mr. Partin’s pardon, which the prosecutor in his case called an “atrocity of justice.” That same prosecutor later submitted an article to the Lexington Herald-Leader in which he described the case in sensational terms: “After an intense search in the lab, Kentucky State Police found a few old blood stains but nothing that would be expected from such a brutal beating and beheading. Later it was learned that the defendant liked to go to Florida and hunt alligators. He had created a tool, a ligature, that allowed him to loop a piano wire around the head of the gator and immobilize it long enough for him to shoot it. Dr George Nichols, State Forensic Pathologist, explained that Betty had some kind of ligature around her neck that prevented blood flow to the head. This would prevent any blood flow from an injury. Partin used his skills in killing an alligator to kill Betty [Carnes].” You would think with that kind of vivid description that of course the implement he is describing was found and presented to the jury, but you would be wrong.
Indeed, you would even be wrong to believe that the evidence clearly established that Mr. Partin had been alligator hunting more than once in his life. There was testimony that Partin, an avid hunter, had been on an alligator hunt at least once, and that he enjoyed discussing the process of hunting alligators, which interested him. However, none of that would explain how he was capable of committing a bloodless beheading. This is critical because what the prosecutor does not bother to say is that the window of opportunity for Partin to have committed this crime was extremely narrow, and that at both ends of that window Partin was seen by many people looking completely normal. It was virtually impossible for Partin to have committed this offense without doing something superhuman.
In short, the Partin case is a great example of prosecutorial magical thinking, where a prosecutor used a vivid story to make up for his lack of evidence, resulting in the conviction of an innocent man. In the years after conviction DNA testing advanced considerably allowing for touch-DNA testing and hair follicle DNA testing which would have identified the true killer. Instead the prosecutor held fast to his story, refusing to allow potentially exculpatory DNA testing. In an environment where stories substitute for evidence, where trials resemble high stakes gambles, and where the court is afraid to fix problems, what is a Governor to do? Bevin erred on the side of fixing what he could. His decisions were not perfect, as he himself has noted, but they made a lot of things a lot better, for a lot of people.
Nevertheless, the environment the story remains that he was out of control. Unfortunately, this story is being told largely without the participation of the defense. Kurt’s pardon has been separately reported close to a dozen times now, with several of those reports speaking with Blake’s mother, or with prosecutors, but no reporter has yet to reach out to anybody on the Smith team. These stories punish Kurt all over again, as he has invariably been portrayed not as the faithful, giving person that he has become, but the teenager he was at the time of the crime. We have started to fight back, but the fact that we have to fight to get our voice heard is a function of the media’s bias against Bevin’s actions. This is a shame, because the story we could be telling – that we should be telling – is how a single Governor, armed with the pardon power, an open mind, and a desire to do right, managed to fix hundreds of injustices in less than week. It is a remarkable story, indeed.
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