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Comprehensive capital reforms must be implemented now

Kentucky should not proceed with the prosecution of death penalty cases or executions until the recommendations of the 2011 impartial, independent, comprehensive 2011 Kentucky-specific Audit, the American Bar Association's Evaluating Fairness and Accuracy in State Death Penalty Systems: Kentucky Assessment Report (December 2011) are assured in every case. To do otherwise would cast significant doubt on our justice system and the propriety of imposing the ultimate punishment. We have a fundamental responsibility to avoid the possibility of making an unjust and irreversible mistake.

Kentucky public defender leaders have long sought adequate resources, the implementation of national standards of practice in capital cases, and since 1997 a moratorium on executions pending implementation of necessary reforms. Defenders issued a call for a moratorium in June 1997 based on the experience in Kentucky and the ABA Call for a Moratorium, Resolution No. 107 (February 1997). Defenders have repeatedly renewed the call for a moratorium. [1]

DPA continues to urge comprehensive reform of the extremely defective death penalty process in Kentucky that cannot assure fair and reliable results. Full reform must take place now. Gradualism is not acceptable in this matter of life and death. If comprehensive reforms are not enacted, the penalty should be eliminated.

KY defenders have extensive capital litigation experience

Since 1976, public defenders have provided representation to capital clients at trial, appeal and in post-conviction. These decades of statewide experience provide the basis of our professional judgments.

Error, waste, abuse is pervasive

There is much error, waste, and abuse in our capital process. The deficiencies are systematic and require substantial changes to rectify. The necessary reforms have been identified by an independent body after its comprehensive review of our system. None have been enacted. To ensure fairness and reliable results, the death penalty process must be fixed or the penalty of death should be eliminated. There are some people who should be imprisoned for the rest of their life. Life without parole as a maximum sentence meets the public safety needs of our society.

Kentucky has an expensive, time-consuming process of prosecuting many death penalty cases but almost all cases end with a life or life without parole sentence. Since 1976, hundreds of millions of dollars have been spent on this Kentucky capital process. Those that do result in a sentence of death have an extremely high rate of reversal due to serious errors, and most of those reversed result in a penalty other than death upon re-sentencing.

29 on death row

The Kentucky death penalty was reinstituted in December 1976. Currently, there are 29 persons on death row. There are individuals on death row who are severely mentally ill, who were represented by unqualified lawyers lacking adequate resources, and who had trials in which significant errors occurred that remain uncorrected.

Few sentences of death

Since 2006, there has been an average of 181 murders per year with up to 60 of those eligible to be prosecuted as death penalty cases. On average, prosecutors exercise their discretion to prosecute 30-50 of these as death penalty cases.

Between 1976 and 2011 there have been 78 people sentenced to death in Kentucky, about 2 per year. This rate has continued to decrease in recent years. Since 2006, there have only been five death sentences in Kentucky:

  • None from December 2006 to February 2010
  • Two in 2010
  • One in 2011
  • One in 2012
  • None in 2013
  • One in 2014
  • None in 2015
  • None in 2016

Few executions

There have been three executions since 1976, and two of them involved inmates who dropped their appeals and agreed to be executed, Edward Lee Harper, Jr. on May 25, 1999 and Marco Allen Chapman on November 21, 2008. The only person to have been executed after exhausting all his appeals was Harold McQueen, Jr. on July 1, 1997.

High cost

The cost to the courts, prosecutors, and defense of litigating death penalty cases in Kentucky is high.As a matter of common sense, prosecuting a homicide in Kentucky as a death penalty case greatly increases the cost to the court, prosecution, defense, and taxpayers. It substantially delays the ultimate resolution of the case.

These costs are frontloaded. See March 2012 Dick Dieter testimony to KY Judiciary Committee.  Most capital prosecutions do not result in death sentences and those that do are most frequently reversed. Of the cases reversed, 70% resulted in a non-death sentence when remanded. Because capital prosecutions are so time consuming, judges are unable to timely resolve the other important civil and criminal cases in front of them.  This exacerbates the waste and the costs.

Our estimate is that $3 to $4 million each year is spent by DPA on capital representation, an equal amount by prosecutors, and $1-2 million by the courts.  At $10 million per year, Kentucky has spent since 1976 some $400 million on capital punishment, or $130 million per execution.

Extraordinary error rate

The error rate is striking. From 1976 until "November 2011, seventy-eight people have been sentenced to death. Fifty-two of these individuals have had a death sentence overturned on appeal by Kentucky or federal courts, or been granted clemency."[2]

This means 67% of the individuals have had their death sentence vacated. The reversals over these 40 years are an average of more than one reversal per year. 

Since 1920, 12 Kentucky Governors have granted clemency to 39 persons sentenced to death. Governor Patton commuted the death sentence of Kevin Stanford on December 8, 2003. Governor Fletcher commuted the death sentence of Jeffrey Leonard on December 10, 2007.


Nationally, as of July 2016, 156 people since 1973 have been released from death row because of their innocence. See Death Penalty Information Center. Kentucky has had 19 documented wrongful convictions in capital and noncapital cases.

Imprudent prosecution of marginal cases

The indiscreet prosecution of a marginal case as capital when it is not a serious capital case is a significant problem in Kentucky.  Prosecutors have the discretion to decide whether to prosecute a capital-eligible case as a death penalty case or not. Some prosecutors decide always to prosecute a capital-eligible case as a death penalty case, in effect exercising no discretion. However, other prosecutors are careful only to prosecute a case as a death penalty case if it merits that resource-intensive procedure. The waste these overbroad prosecutions causes occurs in Kentucky in a variety of ways across the state.

There are a significant number of death penalty prosecutions that proceed to trial but still result in non-capital sentences and even in jury verdicts that the defendant is not guilty of murder. Some examples of extensive wasteful death penalty cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts are:

  • Kendrick Hunt (Hickman County 12-CR-0002) charged with robbery and/or complicity to robbery, murder and/or complicity to murder, kidnapping and/or complicity to kidnapping; acquitted on all robbery and murder charges; guilty of wanton endangerment 1st, and unlawful imprisonment 1st. Sentence of 10 years,  nonviolent.
  • Raymond Clutter (Boone County 04-CR-00791) charged with Murder, Rape 1st, Tampering with Physical Evidence, and PFO 1st.  Convicted of Murder, Tampering and PFO 1st.  Sentenced to Life (with Parole) for Murder and five years for Tampering, enhanced to 20.  
  • Robert Yell (Logan County 04-CR-00232) charged with arson 1st, murder, attempted murder, assault 3rd, assault 4th, resisting arrest, menacing, terroristic threatening, alcohol intoxication, PFO 1st.  Convicted of arson first, manslaughter 2nd, assault 1st (instead of attempted murder), AI and PFO 2nd Sentence of 56 years. 
  • Joshua Cottrell (Hardin County 03‐CR‐00465) charged with murder, first-degree robbery, tampering with physical evidence and second-degree persistent felony offender. After a jury trial, he was convicted of second-degree manslaughter, tampering with physical evidence, theft by unlawful taking over $300, and being a second-degree persistent felony offender.  He was sentenced to 20 years in prison.
  • Scot Gaither (Daviess County 02-CR-446) charged with murder, kidnapping victim death, robbery 1st, tampering with physical evidence. Convicted of manslaughter 1st, kidnapping victim death, theft by unlawful taking, and tampering. Mr. Gaither received an illegal sentence of LWOP, which was vacated in a post-conviction action and which resulted in a sentence of life.
  • Wesley Meeks (Greenup County 01-CR-155) charged with Burglary 1st, 3 counts of theft by unlawful taking over $300, sodomy 1st, and murder. Convicted by a jury of second-degree manslaughter, first-degree burglary, and theft by unlawful taking (felony). He was sentenced to 35 years in prison.
  • Larry Osborne (Whitley County 98-CR-00006-001) charged with murder, arson, robbery, burglary, and theft. Reversed on appeal, acquitted of all charges.

Fayette County Capital Prosecutions where Defendant was Acquitted of Murder

  • Joel Searcy (Fayette County 13-CR-01096) Charged with Murder and first degree robbery. Found guilty of second-degree manslaughter and first-degree robbery. The jury recommended a 10-year sentence for manslaughter and 15 years for robbery, with the sentences to be served consecutively, for a total of 25 years.
  • Adrian Benton (Fayette County 06-CR-01043-001) charged with murder, 3 counts robbery 1st, 2 counts wanton endangerment 1st, tampering, PFO 2d. Convicted of complicity to manslaughter 2d, two counts robbery 1st, complicity to robbery 1st, wanton endangerment 1st, wanton endangerment 2nd, PFO 2nd, acquitted of tampering. Sentence of 27 years. Death was excluded after completing voir dire, but before the jury was sworn.
  • Sam Duff (Fayette County 01-CR-00869) charged with murder, violation of a DVO aggravator. Convicted of manslaughter 1st. Sentence of 19.5 years.
  • Carlos Cortez (Fayette County 99-CR-00369-002) charged with murder, robbery 1st, and burglary 1st; acquitted on all charges.
  • Myron Wilkerson (Fayette County 98-CR-00631-002) charged with murder, burglary 1st; robbery 1st. Convicted of  manslaughter 2nd , 10 years, acquitted of burglary, guilty of robbery 1st , 20 years
  • Gene Tapp Perry (Fayette County 97-CR-00741) charged with murder, rape 1st and PFO 1st. Acquitted of rape 1st. Convicted of manslaughter 1st and PFO 1st. Life sentence.
  • Mark Dixon (Fayette County 95-CR-00577) charged with murder, robbery 1st, 3 counts of wanton endangerment 1st; acquitted on all charges.
  • Earl Cheeks (Fayette County 90-CR-00049-002) charged with murder and robbery 1st; convicted of manslaughter 2nd, acquitted of robbery. Sentence of 20 years.
  • C.H. Brown (Fayette County 87-CR-00506-001) charged with murder and robbery 1st; acquitted of murder, Convicted of robbery. Sentence of 20 years.

Jefferson County Capital Prosecutions where Defendant was Acquitted of Murder

  • Nashawn Stoner (Jefferson County 98-CR-02446) charged with murder and two counts of Robbery 1st, acquitted on all charges.
  • Donnez Porter (Jefferson County 97-CR-01951) charged with two counts of murder, robbery 1st, assault 1st, acquitted on all charges. (Motion to exclude death penalty pretrial due to prosecutorial misconduct was denied.)

Jefferson County Capital Prosecutions where Notice of Aggravating Factors was Filed then Death Excluded by Prosecution

  • Taiwan Lewis  (09-CR-002874) charged with two counts of Murder, 2 counts Attempted Murder and 2 counts Assault, Notice of Aggravating factors filed  12/10/2009, and amended shortly before trial so as not to include death.  Defendant was convicted and sentenced to life.  Case is on appeal.
  • Gary Bond (10-CR-001550) charged with Murder and Sodomy, Notice of Aggravating factors filed 10/29/2010, and amended shortly before trial so as not to include death.  Defendant was convicted and sentenced to life.  Case is on appeal.  
  • Conrai Kaballah (11-CR-002821) charged with 2 counts of Murder, Notice of Aggravators filed 10/05/2011 and amended shortly before trial so as not to include death.  Defendant was convicted and sentenced to life.  Case is on appeal.  

Jefferson County Capital Prosecutions where at Trial for Murder Defendant was Found Guilty of Manslaughter

  • Isiah Fugett (04-CR-000391) charged with 2 counts of Murder, 1 count of Robbery, Notice of Aggravating factors filed 03/02/2005.  Defendant was convicted by the jury of Manslaughter, Acquitted of Robbery.  Case was reversed on appeal and settled before retrial.
  • Adam Barker (07-CR-000691) charged with Murder, Attempted Murder and Criminal Mischief, Notice of Aggravators filed 08/15/2007, convicted by jury of Manslaughter (case was reversed, retried, and the defendant was again convicted of manslaughter).

Jefferson County Capital Prosecutions where Prosecution was Withdrawn or the Case Amended to Class D at or on Eve of Trial

  • Andrew Cochran (07-CR-002782) charged with Murder, Robbery and Burglary, Notice of Aggravating factors filed 10/08/2007.  After nearly a week of individual voir dire and all the usual pre-trial preparation and expense, the case was settled for credit for time served (almost three years) on facilitation to Murder, Robbery and Burglary.
  • John Warren Noble (10-CR-00029) Defendant was indicted for a "cold case" murder and robbery, and the prosecutor filed Notice of Aggravating Factors.  After the defendant spent nearly a year in jail, the case was dismissed on the literal eve of trial because the prosecution did not believe it had enough to proceed against him. 

Five Ways to Reduce Error, Waste, Abuse in Capital Prosecutions in Kentucky

The Department of Public Advocacy's recommendations to address the serious problems in the administration of Kentucky's death penalty practices include:

1.       Limit when the death penalty can be sought to cases that have

  • Biological or DNA evidence that links the defendant to the murder;
  • Videotaped, voluntary interrogation and confession of the defendant to the murder; or
  • Video recording that conclusively links the defendant to the murder.

A 2009 Maryland law limited capital prosecutions to these circumstances and specifically prohibited the death penalty if the state relies solely on eyewitness evidence. See attached Michael Millemann, Limiting Death: Maryland's New Death Penalty Law

2.       Require timely, complete open file discovery, including requiring an agent of the Commonwealth

Attorney to provide all of their information timely.  North Carolina adopted these procedures in 2004 and improved enforcement of these procedures in 2011. This process is recommended as a best practice by The Justice Project, a policy review funded by the Pew Charitable Trust.[3]  "The beauty of full open-file discovery is obvious as a remedy for the difficulty of subjective choice in a competitive adversarial environment."[4] 


3.       Statutorily authorize a judge to eliminate death as a possible punishment when legally appropriate.
This judicial authority should be explicitly recognized in statute for all capital cases as it is now explicitly authorized for capital cases that involve intellectual disability.[5]  This will reduce the wasteful prosecutions of cases as capital when they are only marginally capital cases.

In particular, Kentucky should not prosecute those who are severely mentally ill for death and judges should be authorized to prohibit the seeking of a death sentence prior to trial similar to their authority now for those who are intellectually disabled.  Since 1990, Kentucky prohibits prosecuting a person who has a serious intellectual disability, KRS 532.140. But Kentucky does not prohibit prosecuting a person who is severely mentally ill for death. In 2006, the American Bar Association adopted Resolution 122A. It stated, "Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law…." This exclusion assures that the penalty of death is not imposed on those who do not have sufficient culpability and who are not able to be deterred.  See attached

4.       Ensure meaningful and comprehensive individual voir dire and comprehensible jury instructions in death penalty cases to avoid trials with jurors who do not fully qualify to meet their constitutional obligations. The grade level necessary to fully understand and accurately apply Kentucky capital jury instructions 12.6 – 23.8 grade level. Empirical data shows Kentucky capital jurors have a poor understanding of the instructions, especially as they pertain to mitigating circumstances:

  • Nearly half failed to understand that they could consider anything in mitigation;
  • Over 60% failed to understand that they need not find mitigation beyond a reasonable doubt;
  • Over 80% failed to understand that the jury did not need to be unanimous in its interpretation of mitigating evidence;
  • 15% failed to understand that they must find aggravation beyond a reasonable doubt.[6]

5.       Enact all of the reforms recommended by the 2011 Kentucky specific Audit by the American Bar Association's Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report (December 2011). Bills have been introduced that would substantially improve the administration of the death penalty in our state by implementing many of the reforms recommended in 2011. See SB 86 (2013) and SB 202 (2014), which addressed the following:

  • Improvements in the collection, preservation, and testing of DNA and other types of evidence
  • Law enforcement identifications and interrogations
  • Crime laboratories and medical examiner offices
  • Prosecutorial professionalism
  • Defense services
  • Direct appeal process
  • State post-conviction proceedings
  • Clemency process
  • Jury instructions
  • Matters relating to judicial independence
  • Treatment of racial and ethnic minorities
  • Mental retardation and mental illness issues

2011 Kentucky Capital Audit recommends many changes BUT none have been implemented

A 2011 Kentucky-specific Audit, the American Bar Association's Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report (December 2011), uncovered major deficiencies in the way the death penalty has been implemented in Kentucky since 1976.[7]

The statewide Audit evaluated Kentucky procedures and practices against national ABA capital punishment best practice protocols. The comprehensive 438 page Audit Report considered all death penalty cases prosecuted in Kentucky since 1976 and makes a series of critically important Findings and Recommendations to address the problems identified with the way the death penalty is administered in our state. The 2011 Audit focuses on fairness and accuracy in capital cases. The Assessment team, as well as the ABA, took no position with regard to whether or not the death penalty should be abolished. It was only concerned with its proper administration. The 2011 Program Audit recommended changes which must be made to eliminate waste, abuse and error.

The Kentucky Assessment Team consisted of two retired Kentucky Supreme Court Justices, a former chair of the House Judiciary Committee, distinguished law professors, and bar leaders. Over two years, it conducted the most extensive evidence-based analysis of the manner in which the death penalty is administered in Kentucky in the history of the Commonwealth.

The Team issued scores of recommendations to address the problems identified in the assessment. They included:

  • Kentucky must guarantee proper preservation of all biological evidence in capital cases, and courts should order DNA testing if the results could create a reasonable probability that a defendant should not have been sentenced to death.
  • Law enforcement training and practices should comport with well-known best practices to promote apprehension of the guilty and prevent conviction of the innocent.
  • Kentucky should adopt statewide standards governing the qualifications and training required of defense attorneys in capital cases.
  • Kentucky should provide additional funding to ensure defense attorneys who represent indigent capital defendants are paid at a rate to ensure the high quality provision of legal services in such complex and demanding cases as a death penalty case.
  • Guidelines governing the exercise of prosecutorial discretion in death penalty cases should be adopted for statewide application.
  • Kentucky should establish a statewide clearinghouse to collect data on all death eligible cases.
  • Kentucky's post-conviction rules and practices should be amended to permit adequate development and consideration by the courts of an inmate's claims of constitutional error.
  • To improve death penalty juror comprehension, the state must revise the jury instructions typically given in capital cases.
  • Shortcomings of the Kentucky Racial Justice Act must be corrected to ensure that the Act serves as an effective remedy for racial discrimination in death penalty cases.
  • Kentucky should adopt legislation exempting the severely mentally ill from the death penalty.

The ABA numbers of Recommendations by topic are:


ABA Number of Recommendations Per Chapter



2Collection, Preservation & Testing of DNA and Other Types of Evidence


Law Enforcement Identifications and Interrogations

4Crime Laboratories and Medical Examiner Offices

5Prosecutorial Professionalism

6Defense Services

7The Direct Appeal Process

8State Post-Conviction Proceedings


10Capital Jury Instructions

11Judicial Independence

12Racial and Ethnic Minorities

13Mental Retardation, Mental Illness, and the Death Penalty

Total Recommendations93


The report's recommendations are in line with the views of Kentuckians. Yet, none of the Recommendations have been realized.

ALI withdrawal of capital provision

KY's statutory scheme for capital prosecutions is based on the American Law Institute's (ALI) Model process. Significantly, the ALI withdrew support for its capital punishment provision (MPC § 210.6) from the Model Penal Code in light of what the ALI regards as "the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." In March 2012, Jordan M. Steiker testified to the KY Senate Judiciary Committee on the reasoning for this dramatic decision by the ALI. 

Public opinion

"Widespread support for capital punishment no longer exists" in Kentucky. See Gennaro F. Vito, Attitudes Toward the Death Penalty in Kentucky: A Comparison of results – 1989, 1997, 1999, Kentucky Justice and Public Safety Bulletin, Volume 3, No. 1 (September 2001) p 3. Recent public opinion polling has reiterated this finding and others:

Findings from a recent poll by the University of Kentucky Survey Research Center gauged Kentuckians' opinions on issues related to the cost of administering capital punishment, the possibility of executing an innocent person and other matters. The poll, conducted between March 4 and April 30, 2016, included interviews with 684 Kentuckians over the age of 18. Its margin of error was plus or minus 3.8 percent. Its findings are:

  • Kentuckians overwhelmingly support a halt to executions until problems with the state's capital punishment system are solved, and most believe that lengthy prison terms, including life without parole, are preferable to the death penalty as punishment for people convicted of first-degree murder.
  • Nearly three-fourths of the respondents, 72.4 percent, told interviewers they would support the governor taking such an action. That exceeded the level of support for the death penalty reflected in the poll (69.3 percent). Even among those who support the death penalty, 62.6 percent said there should be a halt in executions until the system's problems are addressed.
  • Support for the death penalty also declined when respondents were given a choice of punishments for people convicted of first-degree murder, posed in the following question:
  • A query about the high cost of administering the death penalty found 68 percent of the respondents strongly or somewhat support replacing it with life imprisonment without parole.
  • The possibility of executing an innocent defendant also concerns most Kentuckians. Overall, 71.6 percent strongly or somewhat agreed that the capital punishment system risks executing the innocent. Of those who support executions, 61.4 percent agreed that there are risks of executing the innocent.
  • When considering the negative effect on victims' families of the lengthy capital punishment process in Kentucky, nearly two-thirds of the survey respondents (64 percent) strongly or somewhat agreed that life without parole should replace the death penalty as a punishment.

The questions and the details of the responses are attached.

The capital process

The three stage process of review of a death sentence is: state trial and appeal, state post-conviction petition and appeal, and federal post-conviction petition and appeal. It is essentially no different from the review of a non-capital case. The only reason most non-capital defendants do not go through the entire three stage process is because these defendants run out of money, are released from prison, have no good issues in their case worth challenging, or their life is not at stake.

First Stage: Trial and State Direct Appeal

In Kentucky, those defendants sen­tenced to 20 years or greater, or to death, have the appeal of the conviction and sentence heard in the Kentucky Supreme Court. After all the records in the case are sub­mitted to the Kentucky Supreme Court (7 Justices), the defendant and the Attorney General review the lengthy written transcript or video transcript (a very time‑consuming process). They then research, write and submit briefs. The defendant can submit a reply to the Attorney General's brief. The case is orally argued before the Kentucky Supreme Court. About six months to a year later, the Kentucky Supreme Court issues its decision. If the court reverses the defendant's conviction or sentence, the defendant faces a second trial or second sentencing proceeding. If the court affirms the defendant's sen­tence, he usually asks the court to reconsider its decision. Most of the time, the court will not do so. The defendant then prepares a Petition for Writ of Certiorari to the United States Supreme Court, asking it in its discretion to take a look at what happened in the trial and the appel­late courts and decide whether the verdict and sentence were constitu­tionally fair

Second Stage: State Post‑Conviction Petition and Appeal

After an unsuccessful direct appeal, a defendant can return to the trial court on an RCr 11.42 petition. In this pro­ceeding, the defendant tells the trial court what was wrong with the trial due to collateral matters, occurrences not in the trial record.

A common ground for relief is that the defendant received ineffective assistance of counsel to which he is entitled under Section 11 of Kentucky's Constitution and the Sixth Amendment to the Unit­ed States Constitution. Other grounds can include improprieties by jurors, the prosecutors and the judge. An evidentiary hearing can be ordered.

If the trial court grants the petition, the defendant may receive a complete new trial, or just a new sentencing hearing. If the court does not grant the petition, the defendant asks the Kentucky Supreme Court to review the denial of relief. The defendant may also submit a Petition for Writ of Certiorari to the United States Supreme Court. 

Third Stage: Federal Post‑Conviction Petition and Appeal

The defendant can now turn to the federal courts to assert any constitutional violations. The issue in federal court is: did the state violate a federal constitutional right in convicting and sentencing this defendant. In Kentucky, there are two federal district courts ‑ the Eastern and Western Districts of Kentucky. The defendant prepares a Petition for a Writ of Habeas Corpus and asks the federal court to look at everything that went on at trial, on direct appeal, and in state post‑conviction which violates a federal constitutional right. First, a Magistrate looks at the pleadings and issues recommendations as to whether to take evidence and whether the petition should be granted. Then a United States District Judge looks at everything and can decide to accept or reject the Magistrate's findings. The judge may also decide to hold a hearing on all or any of the claims raised in the defendant's petition. The judge then writes an opinion denying or granting the petition. If the court denies the petition, the defendant appeals to the Sixth Circuit Court of Appeals, which is based in Cincinnati, Ohio and hears cases in panels of three judges. Briefs are prepared and the case may be orally argued before the court. If that panel affirms the district court's opinion, the defendant can ask the entire Sixth Circuit to hear arguments on the case. The full panel of judges can affirm or reverse the panel's decision. After that, the defendant has the right to ask the United States Supreme Court to look at everything. Whether the court reviews the case is a matter of its discretion.

After the Third Stage

If the death sentence is affirmed on direct appeal and in state and federal post-­conviction, the defendant may be back in either or both the state and federal courts if a new issues has been discovered, like newly discovered evidence. The defendant has to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent. It is not unusual that evidence never before known comes to light at this time in the case in a way that questions the validity of the sentence.

Why Do Death Penalty Challenges Take So Long?

Death row inmates are entitled to no more appellate review than any other person convicted of a crime. But death penalty cases usually involve court proceedings which are extended in every aspect. For instance, the pretrial motion practice and voir dire of prospective jurors is lengthier than any non‑capital trial. Prosecutors generally put on a lot of witnesses to try to show the defendant is guilty and should die. The defendant must defend himself to the full extent of the law because his life is at stake. Also, the penalty phase of a capital trial is longer than the penalty phase of a non-capital felony because the defendant's character and back­ground must be thoroughly considered since the determination is twofold: should this defendant die for this crime. Consequently, the record from capital trials is lengthy.  On appeal, every issue must be investigated and raised to ensure that the condemned is not wrongly convicted and executed. The Court will even review unpreserved issues unless it can determine that the lack of preservation is due to a trial tactic. This means it takes longer for de­fense counsel and the Attorney General to review the record, research and prepare every meritorious issue. The appellate court carefully considers every issue so that no mistake is made when someone's life is on the line and that takes some time. A significant number of death penalty cases are overturned because this process uncovers a violation of constitutional law in the trial or that the accused did not have adequate representa­tion. Appeals in even the most routine felonies can take at least a year to resolve because of the large number of cases, criminal and civil, heard by both the state and federal courts, and because of the limited resources of the courts.

The review process is appropriately deliberate and time‑consuming because we want to make sure the decision‑making process is fair, reliable, and free of human mistakes, and not in violation of any of our fundamental constitutional guarantees.


[1] See The Advocate Volume 19, No. 4 (July 1997) p. 9-14; Volume 23, No. 1 (January 2001) pp. 52, 53; The Death Penalty in Kentucky: the System is Broken KBA Bench and Bar (November 2003) pp. 8-13; DPA Press Release November 2009.

[2] See American Bar Association's Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report (December 2011), p. xii.

[3] Expanded Discovery in Criminal Cases, The Justice Project (2007).

[4] Robert P. Mosteller, "Exculpatory Evidence, Ethics, and the Road to Disbarment of Mike Nifong: the Critical Importance of Full Open-File Discovery," Duke Law School Legal Studies Research Paper Series, No 182 (January 2008).

[5] See: KRS 532.130 – 532.140.

[6] Marla Sandys, Ph.D. "Misunderstanding of Capital Instructions: Clarification is Possible" The Advocate (August 2014) found at:  

[7] See: