Justice: ‘Abolish death penalty’


By Justice Paul E. Pfeifer - Contributing columnist



In the late 1980s, Thomas M. Keenan owned a small landscaping company in Cleveland. He had several men working for him, including Joseph D’Ambrosio and Anthony Klann. In September 1988, after a night out with Keenan and D’Ambrosio, Klann’s body was found floating in a creek. Keenan and D’Ambrosio were subsequently arrested and tried separately. Both were convicted for Klann’s murder and sentenced to death. But the case was far from over at that point.

Keenan filed an appeal. In 1993, we — the Ohio Supreme Court — reversed his conviction because of misconduct by the prosecutor throughout much of the trial. After a second trial, Keenan was tried, convicted and sentenced to death again. Our court affirmed that conviction and sentence in 1998. But it still wasn’t over.

Ultimately, after “a long and complex history,” a United States District Court in northern Ohio reviewed the case and, in 2012, found that “Keenan was denied the right to due process” in accordance with the Fourteenth Amendment of the United States Constitution.

The district court reached that conclusion based on a 1963 United States Supreme Court decision — called Brady v. Maryland — that forbids the prosecution from suppressing material information that is favorable to an accused. The district court ordered the state of Ohio to either set aside Keenan’s conviction and death sentence or “conduct another trial within 180 days.”

The trial court commenced a new trial and Keenan quickly filed a motion to dismiss. On Sept. 6, 2012, the trial court granted the motion, stating, “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.”

The court of appeals affirmed, concluding that “we cannot state that the trial court’s decision to grant Keenan’s motion to dismiss the indictment with prejudice was so arbitrary, unreasonable, or unconscionable as to be an abuse of the trial court’s discretion.”

After that, Keenan’s case once again came before us. If anything, the district court’s assessment of the history of this case as “long and complex” was something of an understatement. By our count, at least 40 judicial decisions have been rendered in this case since the original conviction in 1989. Nevertheless, more are in the offing.

We concluded 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.

Just as the court of appeals did, we reviewed the trial court’s decision under an abuse-of-discretion standard, meaning that a “trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

The issue in this case isn’t whether Keenan’s rights have been violated — they have been, and that’s why the district court reached the conclusion it did. Rather, the issue is whether, given those violations, it’s possible for Keenan to receive a fair trial.

Obviously, this is a highly subjective determination, requiring the analysis of a massive record with appropriate adjustments for the absence of certain key witnesses who are unavailable because they have died.

Without first giving the parties the opportunity to develop the record, the trial court determined that it’s impossible for Keenan to receive a fair trial. We considered that an abuse of discretion. Although it may not be possible for Keenan to receive a fair trial, it is impossible for us to reach that determination at this time.

Keenan argued that the absence of a key witness will be detrimental to his efforts to defend himself. We did not doubt that was true. However, just because something is hard to do does not mean that it is unconstitutional.

We understand that Keenan will have difficulties based on the passage of time, deceased witnesses, decreased memories, and so forth. But so will the state; for example, Keenan’s key witness was also the state’s sole source of direct eyewitness testimony about Klann’s murder.

In the event that these difficulties render it impossible for Keenan to defend himself, the trial court can at that time determine that a fair trial is not possible. But that day, if it comes, is in the future — at least after it is determined whether the state is able to establish its case in chief.

We therefore concluded — by a five-to-two vote — that the trial court acted unreasonably, unconscionably, and arbitrarily when it found that it was impossible for Keenan to receive a fair trial, without first giving the parties the opportunity to develop the record. Accordingly, we reversed the court of appeals’ judgment and sent the case back to the trial court with instructions to proceed to trial.

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

More than 17 years ago, our court affirmed Keenan’s death sentence. I concurred in that decision. It is possible that Keenan could have been executed before it became known that the prosecution had suppressed evidence that may have helped his case.

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.

The system worked in this case — in that Keenan now has access to information that should have been made available to him years ago. That’s encouraging, but it’s not a guarantee that the system will work in every instance or that it will always work in time.

In this case, because Keenan has not been executed, there is still time for justice to be rendered appropriately. If he had been executed, there would have been no way for the state to cleanse itself from the awful reality of having executed a person who had not received his full measure of legal protection.

To ensure that never happens, the Ohio legislature should — in my opinion — abolish the death penalty.

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By Justice Paul E. Pfeifer

Contributing columnist

The writer is a justice on the Ohio Supreme Court.

The writer is a justice on the Ohio Supreme Court.

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