The only consistent aspect of Keith Henness’ case is the ineffectiveness of his counsel. From trial through post conviction proceedings, Henness never had a meaningful, effective working relationship with his lawyers.
With effective counsel, we would not be facing death today and his sentence most likely would have been something less than death. Data show that 194 of 196 defendants convicted of aggravated murder from 1990-1995 in Franklin County received a sentence less than death. Had Henness’ counsel be marginally adequate, resolution of the case would have been a plea agreement. Because the attorney-client relationship was so toxic, Henness never developed the trust needed to make an informed decision pertaining to the plea. The lack of trust is what led to a breakdown in communication between Henness and his lawyers, and ultimately a death sentence.
Lingering Doubt & Forensic Issues
To this day, there is lingering doubt as to what role the two co-defendants, who testified in exchange of lenient plea deals, played in the murder of Richard Myers. Both co-defendants had histories of violent behavior, were known to be violent, and had motive for wanting Henness to take the fall for the murder.
The State destroyed evidence discovered at the crime scene that, at the very least, would have provided highly relevant information about the events surrounding Richard Myers’s death. Blood evidence was recovered at the crime scene but never subjected to DNA analysis. Initially, the police wanted to analyze this evidence because it could show how many people were at the crime scene and whether someone other than Richard Myers had been injured. Despite the potential importance of this evidence, the lead detective instructed the crime lab not to conduct analysis necessary to determine its full significance. After Keith’s trial, but while state appellate and post-conviction proceedings were still pending, the same evidence was destroyed at the direction of the lead detective. Actions by state investigators have prevented reliable results that could have addressed lingering doubts.
When there is any doubt or an incomplete fact pattern, commutation is warranted. Death cases require absolute certainty and in this case there is anything but certainly. Keith Henness is uniquely deserving of clemency.
Given the data, his sentence is disproportionate and unfair compared to Franklin county aggravated murder cases.
Since the reinstatement of the death penalty in Ohio in 1981:
- 18 men have been sentenced to death for aggravated murders committed in Franklin County.
- Nine of those sentenced to death in Franklin County were convicted of multiple aggravated murders.
- The remaining nine, including Henness, were convicted of a single aggravated murder.
- Four of these nine, or 44 percent, convicted of a single aggravated murder have already received lesser sentences.
- That leaves five men, including Henness, who were convicted of a single aggravated murder whose death sentences were not overturned or commuted to this point.
- Henness was sentenced to death in 1994. Between 1990-1995, 98 percent of defendants convicted of aggravated murder in Franklin county received a sentence less than death.
- Henness’ death sentence places him in a category that compares to only one other death sentenced defendant from 1990-1995. That defendant killed four people, while Henness’ death sentence is for the murder of one person. Henness’ case is not deserving of the death penalty.
The only reasonable interpretation of this data is that Keith Henness’s death sentence and pending execution is unfair and not proportional to similarly situated defendants. Commutation is warranted.
The Task Force Reforms Matter
In 2007, Ohio was assessed as falling short in 93% of the American Bar Association (ABA) standards for a fair and accurate state death penalty system.
In 2011 Ohio Supreme Court Chief Justice Maureen O’Connor created the Joint Task Force to Review the Administration of Ohio’s Death Penalty in response to the overwhelming deficits that were outlined in the 2007 ABA report.
There were 56 Recommendations. Had these, along with many others, been implemented during Keith’s case, we may not be dealing with such a heavy execution schedule:
- Any in-custody interrogation shall be electronically recorded, or if not, statements are presumed involuntary. (Rec #1)
- Enact legislation to require, prospectively, meaningful proportionality review to include cases where death was sought in the charges but not imposed; data also to be collected on all death-eligible homicides. (Rec #5)
- Adopt the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (and train counsel and judges on these). (Rec #11)
- Enact legislation that Death can only be imposed if the state presented DNA, video, video-taped confession, or other compelling evidence that links the defendant to the murder. (Rec #17)
- Remove the following felony-murder specifications: aggravated murder in the course of kidnapping, rape, aggravated arson, aggravated robbery, and aggravated burglary as data shows death is rarely imposed and such will reduce the race (and geographic) disparity of the death penalty. (Rec #33)
- Implementation of educational guidance for Presiding Judges as to when and how to intervene (procedure to follow) in situations of potential ineffective lawyering. (Rec #50)
Also of concern in the Henness case: Recommendations 2, 3, 4, 6, 7, 12, 13, 14, 15, 21, 22, 23, 24, 25, 27, 28, 34, 36, 37, 38, 39, 40, 44, 46, 47, 48, 49, 52, 53, 54, 55, 56
Murder Victim’s Families Are Not Well-Served by Ohio’s Death Penalty
February 13, 2019, is just one month short of 27 years since the murder of Richard Myers, and 25 years since Warren K. Henness was sent to Ohio’s death row. The vast majority of capital defendants in Ohio do not receive a death sentence. Those who do receive a death sentence wait decades for an execution which may never come.
Where there is a death sentence, murder victim families are left waiting for an execution which may never come before they can begin their healing process. The alternative sentence for capital murder in Ohio is life in prison without the possibility of parole or 25 years in prison with the possibility of parole. When the sentence is other than death, healing can begin immediately after sentencing is complete.
As of January 9, 2019, 25 Ohio prisoners are scheduled for execution between 2019 and 2023. Of these, at the time of their scheduled executions, five will have been on death row from 16 to 20 years. 12 will have been on death row between 21 and 30 years, and 8 will have been on death row more than 30 years.
Turn that around. 25 families have had their healing process put on hold, waiting for a date which may never actually come. Five of the last six scheduled Ohio executions did not occur as scheduled. In the case of Alva Campbell, his victim’s family was in the execution witness room when the execution process was halted.
Ohio can and must do better for ALL murder victim families. We must start by ending the death penalty and using the funds that would be save to enhance services and support for all families of homicide victims.