More than two years ago, while reporting a story about Covid-19 in Kentucky prisons, I started getting calls from Brian Keith Moore.
He told me about his troubled childhood, his penchant for petty crime and about the man he believes set him up for a 1979 murder that led him to Kentucky’s death row. Moore, 66, has maintained his innocence for more than four decades, and for most of that time he’s held a steadfast optimism that the courts would intervene.
“I've always felt like there's a light at the end of the tunnel, I'm going to get this thing off of me,” Moore said earlier this year in an interview with the Kentucky Center for Investigative Reporting.
Multiple courts have reviewed Moore’s case and came to the same conclusion: The evidence he’s guilty is “equally consistent” with the evidence he was set up. But that’s not been enough to overturn his conviction.
Earlier this month, we published an account of Moore’s fight to free himself from prison — and we highlighted a breakthrough his attorneys contend should be enough to get him back in court to hear a judge toss out his conviction.
While reporting Moore’s story, I learned that reversing a death penalty sentence is a nearly impossible task.
Nationwide, several people with credible claims of innocence are trying to overturn a death penalty conviction. At the same time, a spate of executions has put the death penalty in the spotlight.
Moore likely won’t know his fate for at least several months. Jefferson Circuit Court Judge Annie O’Connell gave the Kentucky Attorney General until February to explain why Moore’s conviction should stand. Then, O’Connell will decide what happens next.
Here are three things to consider as Moore awaits a decision.
A unique moment
On September 24, as we prepared our story about Brian Keith Moore, Missouri officials executed Marcellus Williams despite claims of innocence so strong that prosecutors joined the victim’s family in calls to stop the execution.
On October 9, the U.S. Supreme Court heard arguments in Richard Glossip’s case. The Oklahoma Attorney General said they can no longer stand by the prosecution, and the U.S. Supreme Court has been asked to overturn his conviction.
In Texas, it took a last minute subpoena from state lawmakers to stop the execution of Robert Roberson on October 17. The entire scientific basis for Roberson’s conviction is in question, but his execution will be rescheduled after 90 days.
These are just the high profile cases. All across the U.S., executions are taking place under a cloud of uncertainty, said Robin Maher, the executive director of the Death Penalty Information Center.
“We're at a very unique time right now in the use of the death penalty, where we have a number of high profile cases with strong, credible cases of innocence,” Maher said. “We are seeing a number of cases like this that raise really troubling concerns about how the courts are viewing these cases and the fairness and accuracy of the death penalty system itself.”
The Death Penalty Information Center tracks executions and innocence claims. The group found that one person on death row is exonerated for every eight people executed in the U.S. More than 200 people sentenced to death have been exonerated since 1973, according to the group’s research.
Innocence isn't enough
On April 19, 1995, a truck loaded with 4,800 pounds of explosives detonated in front of the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people.
After the bombing, Congress speedtracked the Antiterrorism and Effective Death Penalty Act of 1996, which limited how federal courts can intervene in death penalty cases.
“From now on, criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences,” former President Bill Clinton said at the signing ceremony on April 24, 1996.
The new law put time limits on federal habeas corpus appeals, the process someone can use to challenge their incarceration in federal courts.
The law barred federal courts from hearing new evidence unless that evidence provides clear, convincing proof of the petitioner's innocence and something prevented them from developing that evidence in state court.
And the new law said petitions to federal courts "shall not be granted" unless the lower courts handled the trial unreasonably.
The exact definition of “unreasonable” is debated in libraries’ worth of court opinions, but judges have established that it means “more than wrong,” said Emily Olson-Gault, the director of the American Bar Association’s Death Penalty Representation Project.
“The federal court can’t grant relief simply because the state court got it wrong, unless there was something unreasonable about the process of making that decision,” Olson-Gault said. “Even if the federal courts believe the defendant to be actually innocent and think his constitutional rights were violated, (the law) bars that court from granting relief unless the state court did something more than just arriving at the wrong answer.”
Before that law, 68% of all death penalty sentences challenged by habeas corpus appeals were overturned by state or federal courts, according to the UCLA Law Review. After the law took effect, from 2000 to 2007, that number plummeted to 12%. UCLA Law Review researchers looking at a smaller sample size found similar patterns through 2020.
And the current U.S. Supreme Court, with a conservative majority appointed by President Donald Trump, has taken a narrow interpretation of that law and declined to intervene in death penalty cases for technical, procedural reasons rather than considering new evidence and grappling with innocence or guilt.
The Oklahoma Court of Criminal Appeals, for example, rejected Richard Glossip’s innocence claims last year because he didn’t meet certain deadlines and his appeals were based on issues that he failed to raise earlier in the process.
When the U.S. Supreme Court heard arguments in Glossip’s case earlier this month, they spent much of their time in court debating whether the court has the authority to take up the case at all, since his appeal was denied by a state court on procedural issues.
Essentially, Olson-Gault said actual innocence is not enough to set aside a death sentence.
Instead, successfully challenging a death penalty conviction means a person must navigate a complex legal process that is loaded with opportunities to squash a case for technical reasons.
Success often hinges on the quality of legal representation offered to people on death row, something that varies widely across state and federal systems, said
Robin Maher of the Death Penalty Information Center.
“Innocence doesn't defend itself,” Maher said.
The death penalty is in limbo in Kentucky and nationwide
If Moore’s conviction is upheld, it’s unlikely Kentucky prison officials will execute him or anyone else anytime soon.
A Franklin County Circuit Court judge halted executions in Kentucky in 2010, saying the state lacked safeguards to prevent the execution of mentally ill people. The judge also noted issues with the state’s lethal injection regulations.
Kentucky officials say they’ve addressed the issues behind the original injunction, and Attorney General Russell Coleman asked the courts to resume executions.
The Kentucky Supreme Court rejected Coleman’s request earlier this month.
Kentucky Governor Andy Beshear said he believes the death penalty should be used as punishment for heinous crimes.
Gallup polls show public support has been waning since its peak in the 1990’s, but a 53% majority still favor the death penalty.
The death penalty is still a powerful political tool and many elected judges and prosecutors don’t want to be portrayed as soft on crime, according to the Death Penalty Information Center.
The organization reviewed Supreme Court rulings in Georgia, North Carolina and Ohio and found the courts upheld twice as many death sentences during election years than other years. They found most decisions to grant clemency were made by officials who were not running for re-election. The Death Penalty Information Center also found officials who could grant clemency to people on death row only did so during an election year four times over a 50 year period.
This creates an uneven playing field, where the results of a death penalty trial and subsequent appeals depends largely on where someone is charged, said Maher.
The “arbitrariness” is part of the problem, Maher said.
”The unfairness,” she said. ”The inconsistency with which it is used around the country.”
