DATE TYPED: August 18,2010 DATE PUBLISHED: August 19, 2010

IN RE: KEVIN KEITH, OSP #A295-769

Date of Meeting: August 11, 2010

Kevin Keith, A295-769

Death Penalty Clemency Report

IN RE: Kevin Keith. OSP #A295-769

SUBJECT:

CRIME, CONVICTION:

DATE, PLACE OF CRIME: COUNTY: CASE NUMBER: VICTIM:

INDICTMENT:

TRIAL: SENTENCE:

ADMITTED TO INSTITUTION: JAIL TIME CREDIT: TIME SERVED:

AGE AT ADMISSION:

CURRENT AGE:

DATE OF BIRTH:

JUDGE:

Death Sentence Clemency

Aggravated Murder with aggravating circumstance specification (3 counts); Attempted Aggravated Murder (3 counts).

February 13,1994 in Bucyrus, Ohio

Crawford

94 CR 042

Marichell Chatman (age 24) Linda Chatman (age 39) Marchae Chatman (age 4) Quanita Reeves (surviving victim) Quinton Reeves (surviving victim) Richard Warren (surviving victim)

2/22/1994: Counts 1-3: Aggravated Murder with aggravating circumstance specification; Counts 4-6: Attempted Aggravated Murder.

5/26/1994: Found Guilty by Jury as indicted.

5/31/1994: Counts 1-3: Sentenced to DEATH; Counts 4-6: 7-25 years on each count consecutive, and consecutive with Counts 1-3.

June 1,1994

106 days

16 years, 2 ^lA months (does not include jail time credit)

30 years old

46 years old

December 18,1963

Honorable Nelfred G. Kimerline

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PROSECUTING ATTORNEY:        Russell B. Wiseman

FOREWORD:

Clemency in the case of Kevin Keith, A295-769 was initiated by the Ohio Parole Board, pursuant to Section 2967.03 and 2967.07 of the Ohio Revised Code and Parole Board Policy #105-PBD-01.

On July 22, 2010, Kevin Keith was interviewed via video-conference by the Parole Board at the Ohio State Penitentiary. A Clemency Hearing was then held on August 11, 2010 with eight (8) members of the Ohio Parole Board participating. Arguments in support of and in opposition to clemency were presented.

The Parole Board considered all of the written submissions, arguments, information disseminated by presenters at the hearing, prior investigative findings as well as judicial decisions and deliberated upon the propriety of clemency in this case. With eight (8) members participating, the Board voted eight to zero to provide an unfavorable recommendation for clemency to the Honorable Ted Strickland, Governor of the State of Ohio.

DETAILS OF THE INSTANT OFFENSE (94 CR 042):

The following account of the instant offense was obtained from the Ohio Supreme Court opinion, decided October 1, 1997:

On the evening of February 13, 1994, Marichell Chatman, her four-year-old daughter, Marchae, and Richard Warren, who had been living with Marichell and Marchae for several weeks, were at MaricheH’s apartment in the Bucyrus Estates. At the time, Marichell was babysitting her young cousins, Quanita and Quinton Reeves. At approximately 8:45 p.m., Marichell’s aunt, Linda Chatman, arrived at the apartment to pick up Quanita and Quinton, Linda’s niece and nephew.

A few minutes after Linda arrived, Warren, momentarily diverted from a basketball game he was watching on television, noticed a man standing outside the apartment door. Although the man began to walk away without knocking, Warren opened the door. The man turned and asked for Linda.

While Linda went outside and spoke with the man, Marichell told Warren the man’s full name. Although Warren could recall only the first name, Kevin, he later identified Kevin Keith as the man at the door. Marichell also mentioned that Kevin had been involved in a big drug bust.

After a short time, Linda and Keith returned to the apartment, where Keith and Warren had a brief conversation. According to Warren, Keith appeared to have his turtleneck shirt pulled up over the bottom part of his face and even drank a glass of water through it.

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Death Penalty Clemency Report

After drinking the glass of water, Keith pulled a nine-millimeter handgun from a plastic bag he carried and ordered everyone to lie on the floor. Keith repeatedly scolded Marichell for using his first name when she asked what he was doing and why. Despite Marichell’s pleas with Keith on behalf of the children, Keith placed the gun to her head. After ordering Marichell to be quiet, Keith said, “Well, you should have thought about this before your brother started ratting on people.” Marichell responded, “Well, my brother didn’t rat on anybody and even if he did, we didn’t have anything to do with it.” Testimony at trial confirmed that Marichell’s brother, Rudel Chatman, was a police informant in a drug investigation involving Keith. According to the presentence report, the month prior to the murders, Keith was charged with several counts of aggravated trafficking.

Next, Warren heard a gunshot but was forced to turn away when a bullet struck him in the jaw. Warren heard ten to twelve additional shots, two more striking him in the back. After he heard the apartment door close, Warren ran out of the apartment, across a snow-covered field to Ike’s Restaurant, yelling for help. Four or five more shots were fired, one striking him in the buttocks and knocking him down. Warren was able to get up and obtain help from the restaurant.

Another Bucyrus Estates resident, Nancy Smathers, heard several popping noises at approximately 9:00 p.m. As she looked out her front door, Smathers saw a large, stocky black man run to the parking lot and get into a light-colored, medium-sized car. As the car sped away, it slid on the icy driveway and into a snowbank. When the driver got out of the car, Smathers noticed that the car’s dome light and the light around the license plate did not work. The driver rocked the car back and forth for nearly five minutes before he was able to free the car from the snowbank. Several weeks later, Smathers informed Bucyrus Police Captain Michael Corwin that, after seeing Keith on television, she was ninety percent sure Keith was the man she had seen that night.

When medical personnel arrived at the Bucyrus Estates apartment, Linda and Marichell Chatman were dead, having suffered multiple gunshot wounds, including fatal wounds to the neck or head. All three children initially survived the attack. However, Marchae’s two gunshot wounds to her back proved fatal. The Reeves children each sustained two bullet wounds and serious injuries.

Approximately eight hours after the shootings, Warren was recovering from surgery at a Columbus hospital. During a postoperative interview with a nurse, Warren wrote “Kevin” on a piece of paper as the name of his assailant. Later that day, Bucyrus Police Captain John Stanley had two telephone conversations with Warren. During the second conversation, Stanley mentioned three or four possible last names for Kevin. At trial, Stanley could only recall that he mentioned the names Kevin Thomas and Kevin Keith. Warren stated that he was seventy-five percent sure the name he heard from Marichell was Kevin Keith. When shown a photo array of six suspects, Warren chose Keith’s picture and told police he was ninety-five percent sure that Keith was the murderer.

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Investigators recovered a total of twenty-four cartridge casings from the crime scene area, which had all been fired from the same gun. In addition to those, investigators recovered a casing found on the sidewalk across from the entrance to a General Electric plant. On the night of the murders, Keith picked up his girlfriend, Melanie Davison, from work at the entrance to the General Electric plant where the casing was found.

At the snowbank where Smathers witnessed the getaway car slide, investigators made a cast of the tire tread and of the indentation in the snowbank made by the car’s front license plate number-“043.” The indentation from the license plate matched the last three numbers of a 1982 Oldsmobile Omega seized from Melanie Davison shortly after she visited Keith in jail, under the pseudonym of Sherry Brown, a few weeks after the murders.

The Oldsmobile was registered to Alton Davison, Melanie’s grandfather, and was also regularly used by Melanie. Davison had put four new tires on the Omega six months prior to the murders. Davison estimated that by February 1994, the new tires had been driven less than 3,000 miles without any problems or need for replacement. Although the cast taken of the tire tread at the crime scene did not match tires found on the Oldsmobile Omega one month later, the cast did match the tread of the tires purchased by Alton Davison as shown on the tire’s sales brochures. Additionally, the tires found on the Oldsmobile Omega had been manufactured in January 1994 and showed a minimal amount of wear.

The grand jury indicted Keith on three counts of aggravated murder, each carrying a specification that the murder was committed as part of a course of conduct involving the killing of two or more persons. Keith was also indicted on three counts of attempted aggravated murder.

PRIOR RECORD

Juvenile Offenses: Kevin Keith has no known juvenile arrest record.

Adult Offenses: Kevin Keith has the following known adult arrest record:

Date

12/21/1987 (Age 24)

05/12/1988 (Age 24)

Offense

Petty Theft

Petty Theft, Failure to File City Income Tax

Location

Canton, Ohio Canton, Ohio

Disposition

20daysjail,$50fine and costs, 2 years good behavior.

60 days jail.

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08/12/1988     RobberyCanton, Ohio2-15 years; Admitted on

(Age 24)(88-8468)11/23/1998; Granted Shock

Probation on 9/13/1989.

Details: On 8/11/1988, Kevin Keith struck a female victim in the chest with a closed fist, knocking her to the ground. He tore her purse from her grasp. The purse and contents were valued at $131.90.

12/20/1989     Probation Violation    Stark County, Ohio     12-20-1989: Probation revoked;

(Age 25)3-15 year sentence imposed;

Granted furlough on 11/8/1991; Paroled on 1/2/1992; Final Release on 3/24/1993.

Details: On 11/30/1989, the Canton Police Department executed a search warrant at Kevin Keith’s residence due to suspected drug sales and located marijuana, cocaine, drug paraphernalia and $1,972.00 in cash.

02/13/1994     Aggravated Murder   Bucyrus, Ohio12/19/1988: Counts 1-3:

(Age 30)        (Counts 1-3);DEATH; Counts 4-6:

Attempted Aggravated7-25 years on ea. count

Murder (Counts 4-6)consecutive and

(94CR042)consecutive to Counts 1 -3.

INSTANT OFFENSE

Dismissed, Nolled and/or Unknown Dispositions:

On 10/25/1986, Kevin Keith was cited for No Operator’s License, pled guilty, final disposition unknown. On 5/28/1987, Keith was charged with Failure to Appear and No Operator’s License; dispositions unknown. Between 6/23/1986 to 12/5/1993, Keith was cited with four (4) Speeding offenses; dispositions unknown.

Kevin Keith was indicted in January of 1994 in Crawford County Case 94CR011 for Counts 1-4: Aggravated Trafficking in Drugs (Sale of Cocaine) with prior violence specification for offenses occurring between 8/31/1993 and 9/3/1993. All charges were for felonies of the third degree. On 6/22/1994, this case was dismissed.

Institutional Adjustment:

Kevin Keith was admitted to the Department of Rehabilitation and Correction on June 1, 1994. His work assignments while incarcerated at the Mansfield Correctional Institution included Laundry Attendant, Recreation Worker and Porter. Since his transfer to the Ohio State Penitentiary, his work assignments have been as a Recreation Worker and as a Porter. Keith has participated in community service projects while at the Mansfield Correctional Institution and the Ohio State Penitentiary. He has been housed in the extended privilege unit at the Mansfield Correctional Institution and is currently housed in

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Death Penalty Clemency Report

the extended privilege unit at the Ohio State Penitentiary. Keith actively participates in religious services activities, including worship services and educational classes. He completed “The Film Group Project – Creating Personal Meaning amidst Difficulties” in March, 2010 and is currently enrolled in “The Film Group Project – Part II.”

Since his admission, Keith has accumulated the following disciplinary record which resulted in placement in disciplinary control:

• 07/24/1996: Fighting – with or without weapons, including instigation of, or perpetuating fighting. Keith was involved in a physical altercation with another inmate. He received 15 days in disciplinary control for this rules infraction.

Keith has received approximately four (4) additional conduct reports since he was admitted to the Department of Rehabilitation and Correction in 1994. These offenses have included Possession of Contraband (dates of occurrences 2000 and 2008), and Disrespect to Staff (dates of occurrences 1995 and 1996).

APPLICANT’S STATEMENT:

Kevin Keith was interviewed by members of the Parole Board via video-conference on July 22, 2010. Mr. Keith was polite, cooperative, and attentive to Board Member’s questions. He began with an exclamation of his innocence and expressed his belief that he should at least be afforded a new trial to consider evidence obtained since his conviction. Mr. Keith related that he was seeking an unconditional pardon. Mr. Keith then provided an overview of his life prior to his conviction in this case. In addition to educational achievements and an impoverished upbringing, he described how the murder of his niece, Holly, impacted his family. He was angry but learned compassion from his brother Charles who told Mr. Keith that he would be praying for Holly’s murderer. He later met family members of Holly’s killer and these experiences taught him how to forgive. Mr. Keith reviewed his criminal history and mentioned that he felt extremely bad after committing a robbery offense as he injured a woman and frightened a child. Later, he confessed to a Drug Trafficking offense and informed on his supplier. Mr. Keith explained that he was relating these events to let the Parole Board know a “piece of my soul”; that his is compassionate and non-retaliatory. He has never used firearms and could never have killed women and children due to his past experiences. Mr. Keith next provided an overview of the new evidence uncovered since his trial and, in response to questions from various Board Member’s, provided an articulate and thorough understanding of the various issues later submitted in his formal application for executive clemency.

ARGUMENTS ADVANCED IN SUPPORT OF CLEMENCY:

Mr. Keith, both in his written application and through counsel at the August 11, 2010 Clemency Hearing, requests a full pardon on the basis of innocence. The written application and presentation at the clemency hearing asserts, in major part, the following:

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• Mr. Keith was not in Bucyrus at the time of the shootings and had no involvement whatsoever with the shootings. Mr. Keith did not learn of the shootings until he picked up his girlfriend, Zina Scott, at the GE Plant in Bucyrus several hours after the shootings. Mr. Keith knew the victims. He had previously babysat Quanita Reeves and visited Marichell Chatman earlier in the day.
• No physical evidence links Kevin Keith to the crime. No DNA, fingerprint, gunshot residue, or fiber evidence is available. The firearm used in the shootings was never recovered. The sole basis for conviction was eyewitness testimony. No Court has reviewed the new evidence accumulated since trial.
• Multiple alibi witnesses place Mr. Keith at distant locations just prior, during, and immediately after the shootings. At the time of the shootings, Mr. Keith was with another girlfriend, Melanie Davison. Melanie provided a written statement to police documenting her activities with Mr. Keith that night and a later affidavit concerning Mr. Keith’s lack of access to her grandfather’s car, which came to be identified as the getaway vehicle. Her neighbor, Judith Rogers, observed them leaving her apartment at about 8:45 p.m. and testified to same at trial. They travelled to the residence of Kevin’s aunt, Gracie Keith, arriving at about 9:00 p.m. At the residence were Gracie, Roy Price, and Yolanda Price. Yolanda observed Melanie waiting in Zina Scott’s blue car. They then returned to Ms. Davison’s residence in Mansfield where Kevin remained until 10:20 p.m. He then left to pick up Zina Scott in Bucyrus. Had the additional alibi witnesses testified at trial, Mr. Keith would have been acquitted.
• Richard Warren misidentified Kevin Keith as the shooter. He told the first four people he encountered, including a police officer, that he did not know who shot him, and the man wore a mask. Warren later denied telling them the shooter wore a mask and described it at trial as a turtleneck pulled up over the lower half of the shooter’s face. Thus, his recollection about some of that night’s event is wrong.
• Eyewitness misidentification is a leading cause of wrongful convictions. The Ohio Innocence Project, in an amicus brief to the Ohio Supreme Court, reported that seventy-five percent of the wrongful convictions in DNA exonerations were based in whole or part on eyewitness misidentification. Richard Warren’s memory of the event was never sufficiently “encoded” due to the mask and his attention to a basketball game. He became attentive upon the display of a firearm, but his stress level increased dramatically and his focus went to the weapon. The difficulties of cross-racial identification further impacted his ability to accurately identify the shooter. The day following the shooting, when he identified “Kevin”, his cognitive function was diminished as evidenced by his inability to recall the names of his nurses or what he told them. He had recently been shot four times, had undergone surgery and was under the influence of narcotic drugs. The photo lineup improperly displayed Mr. Keith, and both the photo lineup and its manner of presentation are improper by today’s standards. The surviving children, Quentin

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Death Penalty Clemency Report

and Quanita Reeves, were unable to positively indentify the shooter. In fact, Quanita Reeves excluded Keith as the shooter.

• Richard Warren did not provide the name of Kevin Keith to the police. He did not record enough detail to identify his attacker. Had he really heard and remembered his attacker’s name he would have reported it at Ikes Restaurant; to the first people he encountered. His memory would not have improved with time, anesthesia, surgery and pain medication. The prosecution’s claim that he remembered the name “Kevin” the next morning is problematic given what we know of memory.
• The trial testimony of Nurse John Foor and Richard Warren were inconsistent. Foor testified Richard wrote the name “Kevin” on a piece of paper but Warren denies writing the name down. Foor claimed that he called police at 5:00a.m. with the first name, yet there is no evidence of this call in official police radio logs other than the report prepared by Lieutenant John Beal. Had Richard Warren supplied the name to Nurse Foor at 5:00 a.m., and then forwarded it to police, the hospital security report taken at 1:00 p.m. would not have stated the attackers name was unknown. Handwritten notes from Warren were obtained in 2004 after Nurse Foor claimed he had thrown them away. Those notes reveal that someone other than Warren wrote down the name “Kevin”.
• Captain Stanley testified at trial that Richard Warren identified the name of his shooter to his second nurse, Amy Gimmets. This is an impossibility as Amy Gimmets does not exist. She has never been employed at Grant Hospital or registered as a nurse in the state of Ohio. There was a nurse on duty named Amy Whisman, who submitted an affidavit in 2007, but she asserts that she called police only to inform them that Warren had been extubated and could now speak. In the affidavit, she denies asking Warren who shot him and denies that he told her who shot him. Despite the destruction of every other recording, there is a taped conversation of Stanley’s conversation with Gimmets. The prosecution’s refusal to relinquish the recording fails to account for who the speaker is, and proves someone was discussing “Kevin” with Warren before Warren independently provided the name to police.
• Kevin’s first and last names were given to Richard Warren by the police. This, in conjunction with Richard Warren’s unreliable memory, means that the identification of Kevin was inaccurate. Thus, Richard Warren’s identification cannot be relied upon as a basis for believing Kevin was the shooter. The Ohio Innocence Project, in their amicus brief to the Ohio Supreme Court, concluded “This is beyond improper influence or suggestion- it is nothing short of planting evidence. It is of no consequence that Warren later identified Keith from a photo lineup”. Thirteen memory and eyewitness experts donated their time and expertise and reported the photo lineup was biased toward Kevin Keith. They concluded that “based on our training and understanding of the eyewitness memory literature, the eyewitness evidence presented against Kevin Keith was very weak”.

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• Rodney Melton is probably the real killer. He has killed before, for which he was imprisoned until age twenty-one. Members of Melton’s own family report his involvement in five other killings. He has engaged in subsequent criminal activity. The person Melton reported as an alibi recently refuted Melton’s account of his whereabouts at the time of the shootings. He recalled seeing Melton at the hospital in a confrontation with Rudel Chatman accusing Rudel of being the reason for the shootings. Rudel was believed to be the informant resulting in the drug arrests of nine people in January 1994. As reported in a Pharmacy Board investigation, Rodney told a police informant that he had been paid $15,000 to cripple the man responsible for the drug raids. Two weeks later, Rodney shot and killed Rudel’s sister, aunt and niece. He then went to the hospital and told Rudel that the shootings happened because Rudel had been snitching. Kevin Keith’s jury never heard what the police already knew: that Rodney Melton had told a confidential informant about his plan, that Rodney Melton had a habit of wearing a mask like the one worn by the shooter, and that another of Melton’s accomplices told police after Kevin Keith’s arrest that Rodney Melton was paid to kill Rudel Chatman. Keith’s trial counsel was contacted by one of Melton’s family members, and advised that Rodney “is in on the killings”. Trial testimony also revealed that Rodney Melton showed up at the crime scene, knew the type of bullets involved, and specifically mentioned that his car (matching the description given by Smathers) had been broken down that night.
• An inadequate police investigation snowballed into the wrongful conviction of Kevin Keith. The police never considered Rodney Melton a suspect and no other suspects were ever investigated. Rodney may have had an accomplice, Karie Walker, as evidenced by a 2009 affidavit indicating Walker told another that he had shot Quanita Reeves when she was younger. Kevin Keith was arrested within 42 hours of the crime, and before evidence processing and witness interviews had been completed. No physical evidence linked Keith to the crime, and the single eyewitness identification should have been considered unreliable. Keith was never questioned and exculpatory evidence suggesting Keith was not the shooter was ignored. The investigators developed “tunnel vision” which misdirected their subsequent investigation to develop a case against Keith, to the exclusion of other suspects.
• Keith had multiple alibi witnesses to include Melanie Davison, her neighbor, and those present at Gracie Keith’s house the night of the crime. Days after Keith was arrested for the shootings, Quanita Reeves told police that she was shot by her father’s friend (Bruce) and excluded the picture of Keith as the shooter. Quentin Reeves was unable to identify Kevin as the shooter when shown the photo lineup. Five witnesses described seeing a large black man around the complex the night of the shootings. This man was actually Keith’s half-brother, Karie Walker. The size discrepancy between Keith and Walker, as described by Warren was never investigated.

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• Evidence discovered post-arrest failed to strengthen the police conclusion that Keith was the shooter. The alleged getaway car, owned by Melanie Davison’s grandfather was never linked to Kevin, the apartment or the shootings. Expert testimony at trial was that a prior set of tires on the car were similar. This conclusion was drawn from a brochure picture of what was believed to be the previous tires. Recent evaluation by track evidence expert William Bodziak disputes and discredits the expert testimony given at trial. Rodney Melton’s license plate could have just as easily left the impression in the snow. Nancy Smathers incorrectly identified Keith as the person fleeing the scene. She identified Keith at trial but told police at several initial interviews that she could not identify the man she saw. It was only after she saw Keith’s picture on the news that she became ninety percent sure that Keith was the man she observed. Thirteen memory and eyewitness experts found that Smather’s identification of Keith “had great prejudicial value and no probative value”.
• Police misconduct was pervasive both before and after the shootings. Galion police officers failed to protect their informant, Rudel, despite being aware that Rodney Melton had been paid to cripple the informant. After Marichell’s apartment was shot up, they failed to pass on the information they had on Rodney Melton, and instead directed the Bucyrus Police Department in the direction of Kevin Keith. Just prior to trial, the Bucyrus Police Chief fed false information to the press concerning who had identified Keith as the shooter. Despite the trial judge’s ruling that the article had little or no effect on the jurors, this incident precluded Keith from receiving a fair trial.
• Evidence favorable to Keith’s defense was not provided to trial counsel. Captain Stanley testified that Nurse Amy Gimmets provided the name Kevin. It has since been discovered that Amy Gimmets does not exist. The nurse on duty, Amy Whisman, provided an affidavit in 2007 denying she ever asked or received the name “Kevin” from Richard Warren. Had Stanley’s testimony been revealed as false, it would have undermined Warren’s identification of Keith as the shooter. Rodney Melton’s threats, as documented in the Pharmacy Board report, would have provided jurors with information suggesting that another person could be responsible for the killings. Taken together, the non-existence of Amy Gimmets and Melton’s threats in the Pharmacy Board report are powerful evidence of Keith’s innocence. Additionally, police radio logs indicate that Nurse John Foor never called Lt. Beal reporting the name Kevin. Foor reported and testified that Warren wrote the name down but Warren later denied writing the name. Notes found, which Foor claimed had been destroyed, had the name “Kevin” written in handwriting that does not resemble the notes known to have been written by Warren. Had this information been available to trial counsel, the testimony of both Beal and Warren could have been impeached.
• Both Keith’s trial and appellate counsel failed to do their jobs. Trial counsel refused to waive speedy trial. His trial began three months after arrest leaving inadequate time for investigation. Appellate counsel, in a submitted affidavit,

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describes the proceedings against Keith as error riddled and unfair, but was unable to develop issues that were outside the record. Trial counsel would not provide his records to the appellate team and resources to conduct a proper investigation were limited.

• Prominent supporters have recognized the injustices in the case against Kevin Keith. These include the Ohio Innocence Project and the National Innocence Project. A former Ohio Attorney General, a former Ohio Supreme Court Justice, a state senator, and many others have written the governor expressing their concerns. Thousands of e-mail messages and letters have been directed to Governor Strickland in support of Kevin Keith.

Attorney John Lewis and attorney Rachel Troutman represented Mr. Keith at the clemency hearing conducted on August 11, 2010. Each presented the arguments enumerated in the application and provided the following additional information:

• Dr. Scott Gronlund, a recognized memory expert, presented the following in a video presentation. The memory issue in this case is important to establish the reliability of eyewitness identification in light of other problematic evidence. Memory consists of three phases: encoding, maintenance, and retrieval. That Richard Warren was unable to recall the name Kevin to the first people he encountered indicates the name was never encoded in memory. The photo lineup presented to Warren was biased and unreliable. Students shown the lineup picked Keith as the "big black man" a statistically improbable number of times. Similarly, Nancy Smathers gave police an initially vague description of the man she saw but became confident of her identification of Keith only after seeing him on TV. Quanita Reeves was unable to identify Keith and, in fact, excluded him. This is evidence of innocence which was ignored by investigators.
• Robert John Belloto, Jr., a hospital pharmacist, forensic toxicologist and statistician, provided a video presentation concerning the effects of the various medications given to Richard Warren and their likely impact upon his memory. Many of the medications given to Warren were for pain but to also make him compliant with surgical procedures and interventions, such as intubation. Morphine, specifically, has been found to lessen or eliminate post-traumatic stress disorder in combat injured soldiers, as it tends to eliminate memory of the trauma. Investigators appeared to be making a case rather than verifying facts.

Professor Keith Findley, president of the National Innocence Network, presented in support of clemency. The National Innocence Network, by vote of the Board of Directors, selected this case due to the risk that an innocent man might be executed. Common to all innocence cases is the “tunnel vision” adapted by investigators. Confirmation bias then directs investigators to seek, recall, and interpret data in a manner that reinforces preconceived beliefs. In Keith’s case an arrest was made in forty two hours. Evidence and information retrieved after arrest pointing away from Kevin Keith was ignored. The eyewitness identification of

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Keith was flawed and alibi witnesses were disregarded. Rodney Melton had greater motive and made threats, yet was never pursued as a suspect. The risk of executing an innocent man is unacceptably high in this case.

• Retired Columbus Police Detective Robert Britt, now a Private Investigator, presented in support of clemency. Mr. Britt presented concerning the faulty processing and/or lack of evidence in this case. None of the shell casings were processed for either fingerprints or DNA. Shoe prints were found near the scene yet no follow-up was done to discover who made the impressions. None of the evidence found with the shell casing located across the street from the GE plant was processed as evidence. Fingerprints from the water glass used by the attacker had insufficient detail to match to anyone. The photographs of tire and license plate impressions were of poor quality and unknown tires were used for comparison. Insufficient tire impressions were left at the scene to make a determination of their origin. The license plate from the Davison vehicle was not taken off the car and matched to the cast of the impression in the snow. Thirty-two vehicles in the Crawford County area had license plates containing the numerals “043”. Nancy Smathers was never asked to look at the Davison vehicle and identify same as the car she observed leaving the scene, and no physical evidence was recovered from the Davison vehicle. Investigators never examined Rodney Melton’s car, even though it closely matched the description given by Smathers. Mr. Britt interviewed Quanita Reeves and found her unable to remember whether the shooter wore a mask as she originally told police. During this interview, Rodney Melton was in another part of the residence where Quanita now lives. Mr. Britt concludes that the investigation was hampered by “tunnel vision”; the tendency of investigators to make the crime fit their preconceived notions.
• Karla Hall, an attorney with the Ohio Innocence Project, presented about the lack of physical evidence and the unreliability of the eyewitness testimony. New evidence of alternative suspects and the questionability of existing evidence has never been investigated or considered in court. These features are prominent in those later found to be wrongfully convicted. Ms. Hall recovmted the cases of Raymond Towler, Robert McLendon, and Clarence Elkins. Each had their convictions overturned.
• Dale Johnston presented concerning his own wrongful conviction for the murder of his daughter and her boyfriend. No DNA evidence was present and the conviction was overturned by the Ohio Supreme Court due to faulty eyewitness testimony
• Attorney David Mills presented after describing his qualifications as an appellate attorney and former law clerk to Judge Cole. Mr. Mills related that he is convinced of Kevin Keith’s innocence. No court has ever considered the evidence accumulated since trial. Keith’s jury never considered the threats and statements of Rodney Melton, his habit of wearing a mask, the alibi testimony of Melanie Davison and Yolanda Price, the absent logging of John Foor’s phone call, and the

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expert tire track analysis of William Bodziak. Most of this new evidence was unavailable until 2007; after federal review. Only one motion for post-conviction relief and habeas corpus is permitted; yet at least one judge voted to grant a second habeas motion.

Charles Keith, Kevin’s brother, asserted his belief in his brother’s innocence. Charles dropped out of college to be present for his brother’s trial and has put all his resources into pursuing his brother’s innocence. Very little was done by Kevin’s former attorneys. Both the Keiths and the Chatmans have been victimized by the Bucyrus Police Department.

•

A video presentation included brief statements from Kevin’s fiance, future mother-in-law and sister-in-law, and high school friends. Each shared their knowledge of Kevin Keith, and belief in his innocence and support clemency.

Jennifer Thompson-Cannino spoke concerning her own misidentification of her rapist despite exceptional efforts to memorize his physical description and characteristics during the attack. The man she misidentified was later cleared by DNA evidence.

•

Ohio Public Defender Tim Young presented in support of a pardon. Ohio has become second only to Texas in the rate of executions. Form over substance has permeated death penalty prosecutions and appeals to achieve finality of judgment. Public outcry has sought to speed up death penalty cases and provide for faster review of appeals; often to the detriment of the accused. Kevin Keith suffered both poor lawyering and investigative tunnel vision. A grant of executive clemency is the only remaining remedy to correct the errors in the case against Kevin Keith.

On August 16,2010, Attorney Rachel Troutman submitted a supplement to their clemency application pertaining to several issues raised during the August 11, 2010 clemency hearing: These include discussion of Famella Graham’s testimony, the exclusion of the 1982 Oldsmobile by their expert, the inconsistent statement’s of the Reeves’ children and Richard Warren’s faulty identification and the suggestive line-up.

ARGUMENTS ADVANCED IN OPPOSITION OF CLEMENCY:

Crawford County Assistant Prosecuting Attorney Clifford Murphy and Assistant Attorney General Brenda Leikala presented arguments in opposition to clemency. Jim Slagle, Chief of the Criminal Justice Section of the Ohio Attorney General’s Office, also provided brief testimony at the August 11, 2010 clemency hearing. Extensive written materials and exhibits were provided prior to the hearing. Major arguments in opposition to clemency include:

• The only real issue is Kevin Keith’s claim of innocence. None of his claims directly attacks his conviction but instead attacks immaterial surplusage to the facts clearly supporting his conviction and sentence. State and federal courts have

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Kevin Keith, A295-769

Death Penalty Clemency Report

repeatedly upheld his conviction even though Keith made the same innocence claims he asserts in his application for clemency. If Keith could actually demonstrate a claim of innocence, any procedural bars would be removed for introducing evidence outside the trial record, and would permit Keith to continue to litigate. Keith’s inability to further litigate is not the result of a system based on form over substance, but is the result of his inability to substantiate any of his claims of actual innocence. Keith has never taken responsibility for the offense or shown remorse.

• Keith had considerable motive for committing the offense. In June of 1993, Keith and members of his family assaulted Rudel Chatman, Marichell’s brother. Later that summer, Keith, his cousin, and Duet Price accused Rudel of being an informant. On four later occasions, Rudel was working as a confidential informant and purchased crack cocaine. Gene Keith, Jr. participated in three of four transactions. As a result of Rudel’s work as a confidential informant, Keith and others were indicted for drug trafficking in January, 1994. Rudel and his family received numerous threats including some from the Keith family. Rodney Melton warned Rudel that the Keiths were looking to kill him. Officers of the Galion Police Department received information that Damon Chatman had heard the Keiths were going to “kill every Chatman alive”. Rodney Melton had no motive to silence Rudel Chatman; Rudel was his nephew. Rudel was not the informant against him and the Chatmans were his family. There were no criminal charges pending against Melton at the time of the murders. It is unlikely that the hearsay statements in the Pharmacy Board report describing threats made by Melton would be admissible at trial.
• At the time of the offense, Linda Chatman went outside to talk to the man who had come to the door. Richard Warren asked Marichell Chatman who the man was and Marichell replied it was Kevin who had been involved in a large drug bust. Marichell mentioned the man’s last name but Warren was unable to remember it. After Linda Chatman and Kevin reentered the apartment, Kevin engaged in small talk with Warren regarding the weather and the basketball game Warren was watching on television. After Kevin produced a gun, Marichell engaged in conversation with Kevin and called him by name. This prompted Kevin to reply on several occasions, “Don’t use my name”. When Marichell expressed concerns about harm coming to the children who were present, Kevin told Marichell that “you should have thought about this before your brother started ratting on people”. Marichell was then shot in the head. The gunman then turned to shoot the others.
• A neighbor, Nancy Smathers, witnessed Keith flee the scene to a vehicle which got stuck in the snow. Smathers described a large man running to a mid-sized, light colored car with vertical rear window glass, tail lights with two rectangles and an emblem in between. After viewing Keith on TV, she was sure he was the same man. She noted the man rocked the car out of the snow bank using a bare hand on the frame of the car. She also noted that the interior dome light and license plate

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Death Penalty Clemency Report

light were inoperative. Police later arrested Keith’s girlfriend, Melanie Davison, in a 1982 Oldsmobile Omega matching the description given by Ms. Smathers.

• At the snow bank where Ms. Smathers observed Keith get his vehicle stuck officers discovered a partial tire imprint as well as a partial license plate impression in the snow. The license plate impression revealed the numbers “043”. An impression of the cars bumper was also in the snow bank. Photographs, measurements, and plaster casts were taken of the tire and license plate impressions.
• Additional witnesses placed Keith at the scene of the shooting. At 3:00 p.m. the day of the shootings, Kathy Gale observed Keith pass her door and knock on Marichell Chapman’s door. Marichell told her the man’s name was Kevin Keith. She later observed Keith at Marichell’s door at 9:00 p.m., the approximate time of the shootings. She was positive this was the man whose name Marichell mentioned at 3:00 p.m. She also was sure the man was not Karie Walker and she was able to describe their differing physical characteristics. Ms. Gale’s son, Jesse, heard shots and looked out the window. He observed Keith from a distance of about six feet shooting at Richard Warren as Warren fled to Ikes Restaurant. Both Ms Gale and her son provided written statements to the Bucyrus Police Department.
• Three weeks after Keith was arrested for the murders, Melanie Davison was arrested after conveying marijuana to Keith in the county jail. The 1982 Oldsmobile Omega she was driving matched the description of the vehicle Nancy Smathers described. The vehicle was found to have inoperable interior dome and license plate lights. A hand print was found on the door frame in the exact location described by Ms. Smathers. The handprint, however, was unable to be identified due to insufficient detail.
• The license plate on the Davison vehicle matched the license plate impression in the snow. Both the location of the license plate at the end of the bumper and the actual impression of the bumper appeared to match. A forensic scientist determined the license plate and bumper on the front of the Davison vehicle were consistent with the placement of the impression left in the snow. The analysis also revealed that the tread design of the tires on the car did not match the photographs or the plaster cast; the photographs and plaster cast did match the tires Mr. Davison purchased in August, 1993. Analysis revealed the tires had been changed without Mr. Davison’s knowledge. The tires found on the vehicle were not manufactured until the third week of January, 1994. The tires were not professionally balanced suggesting they were not installed by a tire dealer. The license plate on Rodney Melton’s Impala was centered in the middle of the bumper. Melton’s license plate began with the numerals “043” rather than ending with “043”.
• Famella Graham testified that her residence is located across the street from the GE plant driveway on Walnut Street. She further testified that she picked up trash

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Kevin Keith, A295-769

Death Penalty Clemency Report

from in front of her residence, which included a 9mm shell casing matching the other 24 shell casings recovered from the shooting scene. Keith picked up girlfriend Zina Scott on Walnut Street at 11:00 p.m. the evening of the shootings, after she finished work at the GE plant.

• Quanita Reeves, age six at the time of trial did not testify. Despite Keith’s contention, Quanita positively identified Keith as the shooter. She pointed to his photo in the lineup and said it looks like him but the man she saw did not have a bump on his head. She told Captain Corwin the man’s name was “Bruce”. Quanita’s mother, however, explained that Quanita was familiar with Keith and had previously referred to him as “Bruce”. To this day, Quanita is certain Keith was the shooter. Quanita also confirmed the events leading up to the shooting as previously described by Richard Warren.
• Quentin Reeves was four years old at the time of the shootings. Quentin did not testify at trial. When interviewed, he repeatedly told Captain Corwin the shooter was Kevin and that no one told him the name; he just knew it.
• Richard Warren positively identified Kevin Keith as the shooter and testified at trial. Nurse John Foor testified at trial that, approximately eight hours after the shootings, Warren was able to sign and write the name “Kevin” on a clipboard. Foor called the Bucyrus Police Department with this information. That this telephone call is not recorded in the radio log of the Bucyrus Police Department is insignificant as the radio log records only radio transmissions between the dispatcher and police units. The telephone call from Nurse Foor is recorded in the investigative notes. Nurse Foor was later relieved by Nurse Amy Whisman. Nurse Whisman extubated Warren who immediately began speaking. Warren told Ms. Whisman the perpetrator of the crime was “Kevin” but he did not remember his last name but would recognize it if he heard it again. Captain Stanley provided Warren with several last names and he immediately indicated the shooter’s last name was Keith.
• The videotaped interview with Richard Warren is consistent with his testimony at trial. He does not appear to have been lead by investigators, and he appears lucid and coherent. Most significantly, he recalled asking Marichell who the man was at the door. She told him Kevin, who was recently involved in a large drug bust, but Warren could not remember the last name. Warren also recalled and testified to a later conversation where Marichell referred to the shooter by his first name and was cautioned, “Don’t use my name”.
• Nurse Amy Whisman is the mysterious “Nurse Gimmets” Keith alleges does not exist. The mystery is explained by transcription error. The phone call from Nurse Whisman was recorded and the static and interference in the recording results in her name being unclear but sounding like “Gimmets”. Captain Stanley, rather than perjuring himself at trial, mistakenly related the name “Gimmets” from the transcript. Both the transcript and tape recording of this conversation have been

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Death Penalty Clemency Report

submitted as exhibits. Amy Whisman (now Petryk) submitted an affidavit to defense counsel in 2007 claiming she did not ask, nor did, Warren identify his shooter when she cared for him. The Office of the Ohio Attorney General obtained an affidavit, submitted as an exhibit, from Ms. Petryk in 2010 after refreshing her memory with the tape recording made by the Bucyrus Police Department. She now admits that she made the call and told police not only that the shooter was identified as “Kevin” but also that Marichell and Damon Chatman could provide Kevin’s last name. She did not recall signing the 2007 affidavit but remembered signing a document “hoping this matter would just go away”.

• Keith’s alibi witnesses, all family and friends, had a motive to lie for him. The only alibi witness to testify at trial was his aunt, Gracie Keith. Aunt Gracie testified she was home with Yolanda Price, Dwayne Price, and "some girl Zina". Zina testified she was at work at the GE plant. Gracie Keith also testified that she looked at her watch and noticed it was 9:00 p.m. when Keith entered her residence. The jury chose not to believe Aunt Gracie after viewing a television interview where she indicated she didn’t know what time it was and did not look at her watch. The other alibi witnesses had issues which prevented Keith’s trial counsel from putting them in front of the jury. Melanie Davison was caught bringing drugs into the jail to Keith. Yolanda Price wrote an affidavit claiming she remembers Keith was at Grace’s house. However, she never testified. The reason Yolanda was not put before the jury was that her relationship with Roy Price would have been revealed. Yolanda was Roy’s wife at the time. Roy was Keith’s friend who was also indicted for trafficking drugs at the same time Keith was arrested. Rudel Chatman was the confidential informant against Roy, and therefore, he too had a motive to see Rudel silenced. Therefore, there was a benefit to Yolanda to protect Keith. The same can be said for Gene Keith. Both Gene Keith Sr. and Gene Jr. were indicted for trafficking drugs at the same time Keith was indicted. For both, Rudel Chatman was the informant. In fact, Gene Jr. was involved in three of the four transactions between Rudel and Keith. Therefore, both had reason to protect Keith; and Keith’s trial attorney recognized both would have no credibility in front of the jury.
• • Kevin Keith was more than adequately represented at trial. James Banks was a talented attorney who tried hard to win the case. Attorney Banks had alternative suspects stand side-by-side with Kevin Keith. Rodney Melton was called as a witness for the defense. Attorney Banks was afforded full access to police reports and case file information during discovery.

On August 12, 2010, supplemental information was received from the Office of the Ohio Attorney General indicating the following: At the time of the murder, there were no pending charges against Rodney Melton for which Rudel Chatman was the confidential informant; and that Rodney Melton was not indicted for drug charges until April 1994.

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Kevin Keith, A295-769

Death Penalty Clemency Report

VICTIMS’ REPRESENTATIVES:

Joyce Reeves is the sister of Linda Chatman and the mother of Quentin and Quanita Reeves. Ms. Reeves testified that her children told her when they were still in the hospital that Kevin was the man that shot them. She discounted the claims that Rodney Melton was the probable shooter noting that Melton is a family member and the children would today be terrified of him if he was involved. Ms. Reeves noted that the shooter engaged in conversation prior to the shootings and Quanita picked Kevin but incorrectly named him. Ms Reeves described the immensity of their family’s loss noting, “tragedy stays with you forever”. Ms. Reeves opposes clemency.

Barbara Chatman is the mother of Linda Chatman. She related that Quentin and Quanita know who shot them. She wants closure for the family and is opposed to clemency.

Daneiaka Howard is Marchae Chatman’s older sister. She recalled Marchae as a loveable, happy girl. She was in the ninth grade when her baby sister was murdered. Her father later “shut down” and was never the same again. Ms. Howard submitted a written statement asking that Kevin Keith be executed for the crime he committed against her family.

Carol Roberts Cole is the paternal aunt of Marchae Chatman. She read a statement from Marchae’s father, Von Roberts. Kevin Keith displayed no mercy toward his victims and he should be treated without mercy.

Herb Chatman is Linda Chatmans’ brother and the uncle of Quentin and Quanita. He denied that Rodney Melton could have been the killer due to his relationship with the Chatman family which continues to this day. Mr. Chatman noted that the shootings killed three generations of their family.

Quentin Reeves testified concerning his recollection of the shooting. He remembers Kevin coming in the house and being asked, “Whats wrong, Kevin?”. Quentin mentioned that he had no reason to lie about the shooting. Quentin responded to a question from the Parole Board asserting that he has no doubt that Kevin Keith is the man that shot them. Quentin submitted a written statement to the Parole Board and Governor Strickland.

Quanita Reeves did not testify but her statement was read into the record. She indicated that she was certain Kevin Keith was the shooter as she saw his face “as plain as day”. He wore no mask and drank several glasses of water. Quanita described the incident as the scariest night of her life and described her fears that the shooter would return and finish the job. Quanita requests that clemency be denied.

Damon Chatman is the brother of Marichell Chatman. Mr. Chatman became tearful describing the loss of sister, aunt, and niece. Kevin Keith killed his family members and so he requests closure for his family. “We need this to be over”.

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Kevin Keith, A295-769

Death Penalty Clemency Report

PAROLE BOARD’S POSITION AND CONCLUSION:

The Ohio Parole Board conducted an exhaustive review of documentary submissions and carefully considered the information presented at the clemency hearing. In an assertion of actual innocence, we believe that considerable deference should be afforded the findings of the jury and trial court as well as subsequent appellate and post-conviction reviews. Both the jury and trial court were best able to assess the credibility and reliability of both defense and prosecution witnesses as well as the evidence presented. Reviewing courts at both the state and federal level were unable to grant any measure of relief after considering most of the claims presented in this application.

What has been presented by Keith as “new” evidence, is not really new at all. Information concerning the “alternative suspect” was presented to and considered by investigators and ultimately the jury. In addition, it appears that Keith had as much if not more motive to seek revenge against Rudel Chatman, as did Rodney Melton. It seems unlikely that additional alibi witnesses or expert testimony would have altered the outcome of a trial relying to a great extent on eyewitness identification. The science of measuring the extent to which an event is “encoded” into memory is imprecise and subject to the same confirmation bias attributed to the investigation and prosecution of Kevin Keith by his supporters and counsel. Despite an arguably suggestive photo lineup, there is nothing in the record to confirm that Richard Warren’s recollection and testimony was the result of suggestive influences or coaching. In the absence of same, Warren’s recollection of the name “Kevin” after surgery and of several conversations occurring the night of the shooting during which the shooter’s name was mentioned suggests substantial reliability. Not mentioning the shooter’s name to the first people he encountered could easily result from attention to more pressing concerns, such as bleeding to death.

Additionally, although there may be no biological evidence linking Keith to the crime, there is physical evidence linking him to the crime. It would defy logic to conclude that the vehicle Keith’s girlfriend drove to the county jail with a partially matching license plate, and a matching shell casing from the scene located in the area where Keith picked up his other girlfriend on the night of the offense are mere coincidence. We agree with the reviewing court that any of the “evidence” Keith seeks to be considered at a new trial is not clear and convincing evidence of his innocence. In fact, compelling evidence was presented at trial and in response to Keith’s request for a full pardon that leads a reasonable person to conclude that Keith committed these crimes. Accordingly, we are unable to find any substantial basis to recommend that Kevin Keith receive a full pardon for the crime. No mitigation is found in the crime itself and insufficient additional mitigation is found in Keith’s background or current demeanor to warrant commutation of sentence.

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