Mimesis Law
10 August 2020

The System: San Andreas Fault Edition

Mar. 9, 2016 (Mimesis Law) — Last year, as you know if you pay attention to these things, 149 men and women across the country who had been convicted of serious crimes were exonerated.  It was a record.

149! Wow!

Or, of course, and depending on how you look at it,

Only 149? Out of the 2.2 million or so we have incarcerated?  Wow!

Glass half full? Glass half empty?  Either way, we’ve got evidence of how well the system works.  It frees the innocent.  And so rarely convicts them.  Ain’t we good!

Actually, no, we’re not.

Let me tell you about Michael Keenan who spent decades on death row in Ohio for crimes . . . well, thereby hangs this tale.*

It was September, 1988 when Anthony Klann was murdered. Eddie Espinoza, Joe D’Ambrosio, and Michael Keenan were charged with killing him.  Espinoza rolled on the others in exchange for a plea to voluntary manslaughter.  In separate trials, D’Ambrosio and Keenan were convicted of aggravated murder and sent to death row.

In 1993, by a vote of 5-2, the Ohio Supreme Court reversed his conviction and ordered a new trial.  Chief Justice Moyer, writing for the majority, explained.

Here, we find that the prosecutor’s pattern of misconduct throughout much of the trial and during closing argument did deprive the defendant of a fair trial.

It was a dramatic ruling, in part because the court had, time after time, found pervasive patterns of prosecutorial misconduct in capital cases but declined to reverse.

After all . . . . In dissent, Justice Paul Pfeifer agreed that the prosecutor committed misconduct, but holding him accountable under the circumstances would hamstring the state in future cases.

In a vacuum, the prosecutor’s behavior could have constituted prosecutorial misconduct severe enough to warrant reversal. However, the leeway that Judge Corrigan gave to the prosecutor was also given to the defense counsel. By overturning the appellant’s conviction on the grounds of prosecutorial misconduct, this court is sending a strong message to the bench and bar.  Prosecutors must now try these ugly cases handcuffed by the demand of dispassionate presentation. Defense counsel remain entitled to argue with no holds barred.

Keenan was tried again. Convicted again.  Sent to death row again.  This time the Ohio Supreme Court said things were just fine.**

Some years later, D’Ambrosio’s lawyers began turning up the evidence of more state cheating, hiding evidence that contradicted the story they (and Eddie Espinoza) spun out at his trial and at both of Keenan’s. He won a new trial and, after yet more (and new) prosecutorial misconduct, and after Espinoza died, he won his freedom when a federal judge ordered that he could not be tried again..

Keenan’s case took longer, but he too won a new trial based on the prosecutor’s having hidden the evidence and repeated misconduct. This time, it was the state judge overseeing the trial who dismissed the case.  It would simply be impossible, he said, for Keenan to get a fair trial.

In light of the State’s egregious prosecutorial misconduct and the Brady violations in Keenan’s prior two trials, Keenan cannot receive the fair and Constitutional trial that he is entitled to today. . . . Keenan’s case is the unique and extraordinary case where the prejudice created cannot be cured by a new trial.

The prosecutor appealed. Last year, by a vote of 4-3, the Ohio Supreme Court reversed.  The majority opinion, written by Justice Pfeifer (he’s the longest serving member of the court, the only one to have been there for all three of these opinions) says, in effect, that the state is entitled to give it the old college try.  Try him again.  Then we can decide if you shouldn’t have been allowed to.

We conclude that whether it is possible for Keenan to receive a fair trial remains to be seen and that the trial court’s decision to dismiss the case with prejudice was premature and, therefore, not justified. We remand to the trial court with instructions to proceed to trial.

At which point, the state basically gave up. Keenan entered pleas to a couple of lesser offenses, was sentenced to 20 years in prison, and since he’d served far more than that, was set free.

And so, you know, the system . . . .

Justice Pfeifer did more than write the majority opinion in Keenan’s last case. He also wrote a concurrence.

Although I authored the majority opinion in this case, I write separately to emphasize that this case underscores one reason that the death penalty should be abolished.

This is no small thing from the man who’s actually been referred to as the “father of Ohio’s death penalty,” since he was the head of the Ohio Senate’s Judiciary Committee when our current capital law was enacted. It’s also not that much of a surprise, since he’s been seemingly heading in that direction for years.***

Anyway, so things have stood. Until Sunday when the Justice, in an op-ed for the Highland County Press, wrote about the “long and complex history” of the Keenan case and formally called on the Ohio General Assembly to “abolish the death penalty.”  Imagine that they’d got away with it and executed Keenan, he wrote (echoing his concurring opinion to his majority opinion from last year).

It would be an unspeakable travesty if the great state of Ohio were to execute a defendant and then determine that it had done so based on deliberate prosecutorial misconduct.

Not even an exoneration. Just a conviction where the prosecutor intentionally cheated.

Fortunately, though,

The system worked in this case.

Which is the bottom line. And, of course, is wrong.

Oh, it’s fortunate enough.  Sure.  But the fact is that the system didn’t work in this case.  Nor did it work for Michael Wearry, as you’ll see if you read Wearry v. Cain, Monday’s per curium opinion from the US Supreme Court or Greg Pickett’s post about it from yesterday.  Nor for Devonia Inman, as Andrew Fleischman told us, also yesterday.

Nor, and you’ll notice here how I cunningly return to where I began, did it work for the 149 men and women who were exonerated last year. Or the countless others who are convicted of crimes they didn’t commit – or even if they did wouldn’t have been convicted had the police or prosecutors not cheated, the snitches not lied, the defense counsel performed with even marginal competence.

The system doesn’t work for any of the people who are convicted when they shouldn’t be, who spend time in prison when they shouldn’t have to, who plead guilty to avoid another day in jail waiting for trial, who . . . .

The system doesn’t work for them, even if it eventually issues an oops. Not even if it eventually coughs up a few hundred or thousand or million dollars in exchange for the day, weeks, months, years – and the ongoing certainty among the public that they never would have been convicted if they hadn’t done something.  Smoke and fire, after all.

And besides, you know, the system works.

No. The system only works when it gets the right result fairly and honestly the first fucking time.  Not when chance or clever appeals work magic.  Not when innocent men and women spend decades behind bars hoping that they’ll be one of the lucky 149.

We pat ourselves on the back because we don’t screw up more often or because we occasionally fix a screw up after the fact.

Yippee, we have a conviction integrity unit now. Fuck.  We shouldn’t need one.

* Disclosure: I represented Keenan for something like seven of the years he was on the row.

**There was a partial dissent by Moyer and Pfeifer, but even had they been in the majority Keenan would have remained on death row.

*** Note that it’s a policy preference he’s stating. He does not say, and has not indicated that he believes, the law is unconstitutional.

7 Comments on this post.

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  • Richard G. Kopf
    9 March 2016 at 11:30 am - Reply


    I have a serious question, although it may appear to be flip. If the People decide they want their government to kill people who kill other people, doesn’t a sane person have to accept that some innocents will die?

    All the best.


    • Jeff Gamso
      9 March 2016 at 12:27 pm - Reply

      I’m not sure it’s a matter of sanity, so much as honest acknowledgement of consequence and human imperfection.

      No system designed and run by humans will perform perfectly all the time. It’s the infinite number of monkey’s issue. Collateral damage is inevitable. So we will, necessarily, wrongly convict some folks and wrongly acquit others.

      And, as If we execute enough people, it’s inevitable that some innocent person will be executed. What’s the acceptable percentage? How do we hold it to that? And is it worth it? Surely, not to the innocent guy we kill. So just how important is it that we kill some folks?

      Ultimately, that last is, as you know I’ve argued repeatedly, a moral question not about what they did but about who we are.

      Still, innocence is for many the strongest argument against the death penalty. It at it doesn’t allow for post-hoc error correction.

      There’s a related back and forth between Tom Horn, former Arizona AG, and your colleague Jed Rakoff in the letters of the New York Review of Books:


      • shg
        9 March 2016 at 1:04 pm - Reply

        I was awaiting your reply, Jeff, as I didn’t want to step on your toes jumping in. But now that you’ve done so, my turn. Judge Kopf asks:

        If the People decide they want their government to kill people who kill other people, doesn’t a sane person have to accept that some innocents will die?

        Of course. No sane person would believe that any system dependent on human frailties, not to mention our system which is fraught with inequities in financial wherewithal, investigative ability and evidentiary rules, compound the problem, could achieve perfection.

        But then, there’s the tyranny of the majority problem. It’s not all about what the majority wants. Every individual is entitled under the Constitution to substantive due process. Not just procedural, as the late-Justice Scalia says, but fundamental fairness. It cannot be fundamentally fair to convict the innocent. That’s not to say it doesn’t happen, but when it does, it’s fundamentally unfair. The execution of a factually innocent person in a flawed system cannot satisfy the constitutional mandate of substantive due process. And add in our peculiar inequities and we’re not even close.

        So does the sane person have to accept that innocents will die? If the tyranny of the majority trumps the Constitution, yes. But if not, then the issue wouldn’t arise for the sane person since the death penalty wouldn’t be constitutionally permissible until we can achieve perfect assurance that no innocent will die. And anybody who thinks that can happen is nuts.

        • Jeff Gamso
          9 March 2016 at 1:39 pm - Reply

          As I said, innocence is for many the best argument – and as Scott points out, it encompasses others. But for those who accept that it’s OK to kill the few for the sake of killing the many (which is really the point), it won’t carry the day.

          There are many good reasons to oppose the death penalty even for those comfortable with the necessary collateral damage (omelets and broken eggs, etc.). It’s expensive, it’s inefficient, it’s racist and classist and sexist and geographicalist. It’s unavoidably arbitrary and capricious. (Potter Stewart’s line about being struck by lightening remains accurate.) Its relationship to whatever passes for justice is tenuous at best. It’s the logical absurdity of killing to show the error of killing. It’s constitutional only if you take a cramped view of the Constitution.

          And then there are questions of morality and decency. And, finally (where I always end up though I’ll happily argue any and all of the above), it’s about us. It’s about who we are and who we aspire to be. And that’s not pretty.

  • Richard G. Kopf
    9 March 2016 at 2:20 pm - Reply

    Jeff and Scott,

    A few quick observations:

    1. Especially ’cause I’m a TTT in the hierarchy, I do law and not morals.

    2. I would do “justice” if I knew what it meant. I don’t.

    3. No snark intended, but the phrase “tyranny of the majority” could just as easily be reformulated rhetorically to the phrase “the will of the People.”

    I wish this thing had an emoji. On second thought, maybe not. Even if this platform possessed the magical powers of the mystical emoji, I am unquestionably the wrong person to pick one.

    All the best.


    • Jeff Gamso
      9 March 2016 at 2:40 pm - Reply

      Calling it the “will of the people” rather than “tyranny of the majority” may make it sound better. It still doesn’t trump the Constitution.

      And we all “do” morals. I understand that as a judge you’re bound by various constraints, but your initial question here (“doesn’t a sane person have to accept that some innocents will die”) wasn’t a judicial one.

      • Richard G. Kopf
        9 March 2016 at 3:02 pm - Reply


        If “rational basis” is the proper standard of review then my question was a judicial one. More seriously, I hope our discussion (including Scott’s comments) show the perfectly understandable abyss that can exist between the bar and the bench depending upon one’s role definition. All the best.