In December 1993, Kenneth Reams, an 18-year-old black man, sat on trial for capital murder in a shooting he didn’t commit.

Seven months earlier, he and a friend,
Alford Goodwin, looking for quick money, had waited for a target by an
ATM machine at Fifth and Chestnut streets in Pine Bluff. A similar
scheme had failed the previous week when an ATM user floored the gas
before Goodwin and Reams could get to him. This time the pair, with a
.32 pistol in tow, were determined to get what they wanted. And though
it was not in the plan to kill someone, that’s what happened when
Goodwin, who handled the weapon, demanded cash from the driver, Gary
Turner. Turner resisted. Goodwin shot.

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Kenneth Reams was not a guiltless
bystander. There was no question that he was complicit in the crime —
or that he was on a quick road to trouble. He had spent his teens
drifting from family member to family member in Missouri and Arkansas,
and Pine Bluff seemed to bring out the worst in him. He had obtained
the murder weapon in a robbery of a local dry-cleaner. He used it to
hold up a bus station just days before the ATM job.

But Reams was not a killer. Alford
Goodwin pulled the trigger, and Goodwin got life without parole in a
plea deal before Reams went to trial.

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Goodwin never admitted that he was the
shooter during Reams’ trial, allowing prosecutors to pose the
uncertainty of the gunman’s identity. Testifying for himself, Reams was
the only witness at trial who could say he didn’t shoot Gary Turner. In
fact, he was the only witness for the defense at all during the verdict
phase. When the verdict came back, it was guilty; when the sentence
came back, it was death. 

That Reams should die and Goodwin live
seems an injustice. But in the eyes of Arkansas law, an accomplice to a
felony resulting in murder is as culpable as the murderer himself.
Jefferson County prosecutors never had to show that Reams killed
Turner; they simply needed to prove that he was party to the crime, a
fact true by his own admission. Currently more than 30 states allow
murder charges to be brought against non-killers under this legal
doctrine, known as the felony-murder rule, and Reams’ death sentence is
just one of about 80 in such cases over the past three decades.

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Today, almost 15 years after his
sentence was handed down, Reams is still unsure whether the state will
kill him. The delay is not strange in itself: A long death-penalty
appeals process has been common practice since the 1960s, and eight of
the 40 men on Arkansas’s death row have been awaiting execution longer
than Reams. Yet his trial was so full of irregularities that his case
has been championed by the NAACP Legal Defense Fund, one of the
foremost civil-rights law firms in the nation — the one that convinced
the Supreme Court to declare the death penalty unconstitutional for a
brief period in the 1970s.

NAACP lawyers have questioned whether
Reams had representation at all. In capital cases, jurors must weigh
aggravating circumstances, such as previous violent offenses, against
mitigating circumstances that might show the criminal does not deserve
to die. NAACP lawyers say Maxie Kizer, Reams’ court-appointed attorney
in 1993, did little to find mitigating circumstances in Reams’ past. He
conducted just a few interviews with people who knew Reams, and he
relegated much of the work to his secretary, who had no experience with
such investigations. During Reams’ appeal to the Arkansas Supreme
Court, Kizer hired a Little Rock lawyer unfamiliar with the case to
ghostwrite his briefs; Kizer never appeared before the Supreme Court to
make oral arguments.

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The fact that Reams has been diagnosed as mentally retarded has been emphasized by his NAACP lawyers. (In Atkins v. Virginia,
a 2002 case, the U.S. Supreme Court ruled it unconstitutional to
execute the mentally retarded.) Reams received two medical opinions
suggesting that he was mentally retarded after his IQ was measured at
66. A person is generally considered mildly mentally retarded when he
has an IQ of under 70. Arkansas state law, however, restricts a
presumption of mental retardation to those with an IQ of 65 or below.

Race is also a factor. Jefferson County
was 43.1 percent black in 1990, but there was only one African American
on the jury that sentenced Reams to death. During jury selection at the
initial trial, Jefferson County prosecutors struck down three of four
prospective black jurors. Reams’ NAACP lawyers argue that they were
removed in contradiction to the U.S. Supreme Court’s 1986 ruling in Batson v. Kentucky, which states that a lawyer cannot challenge a juror solely based on her race.

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These are the most mundane problems
with Reams’ case, ones that arise time and again in death-penalty
litigation around the country. But more unusual irregularities have
emerged in the years since the original trial. After Reams’ direct
appeal to the Arkansas Supreme Court was rejected in 1995, he was
entitled to a second appeal called a Rule 37 hearing, which, among
other uses, allows a death row inmate in Arkansas to challenge his
sentence. Reams made his Rule 37 appeal in 1997 — and then the file
disappeared. The case lay idle until 2005, when a motion by the
Jefferson County prosecutor to drop the appeal restarted it. No one the
Times spoke with knew how the file had been lost. It had to be pieced back together from the records of the original attorneys.

The lapse was arguably to the benefit
of the defense — the eight years the case sat dormant were eight years
that didn’t see a death warrant for Kenneth Reams. But the delay also
prevented the introduction of evidence favorable to Reams. When there
was finally a hearing in the Rule 37 appeal last August — 10 years
after it was originally filed and after three judges had recused —
Reams’ lawyers were prepared to offer testimony from informant Jermaine
Brown. Pine Bluff police paid Brown $3,000 for information against
Reams; state prosecutors never revealed the arrangement during trial.
Brown, who was himself in legal trouble at the time and is currently in
a Memphis prison, also had a charge dropped around the time he informed
against Reams. NCAAP lawyers were to argue that the prosecution’s
failure to disclose the agreement was a blatant violation of principles
established by the U.S. Supreme Court in Brady v. Maryland in 1963.

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Before Brown’s testimony came to light,
however, the hearing came to an abrupt halt. The judge, Thomas Brown,
recalled that his wife was a friend of the victim’s widow and recused
himself after four days of hearings. Perhaps of greater import,
testimony from Gene McKissic, a former employee in the Pine Bluff
prosecutor’s office, said Jefferson County prosecutors routinely
targeted African Americans for removal from juries. Judge Brown, who
had worked in the prosecutor’s office before he rose to the bench, felt
he could not impartially hear the claim that Jefferson County
discriminated against potential black jurors.

Brown was the last Jefferson County
judge eligible to hear the case — a suggestion of how the insular
nature of small-town life affects death-penalty cases. Jobs switch
hands, and today’s defender is tomorrow’s prosecutor. Maxie Kizer,
Reams’ original attorney, is currently a part-time prosecutor in
Jefferson County. Ironically, he nearly found himself in a position to
rule on cases similar to Reams’ — he ran, but lost, a race for
Jefferson County circuit judge this year.

Reams’ appeal is finally scheduled to
be heard by a special judge, John Cole, in Pine Bluff this September.
The NAACP Legal Defense Fund is prepared to take the case all the way
to the U.S. Supreme Court if necessary. As the appeals continue, the
defense will ask if Kenneth Reams deserves be killed when he himself
did not kill. More broadly, it will question whether the state has any
business putting people to death at all.

 

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Buried in the boxes of briefs and
transcripts that make up Kenneth Reams’ case file is a pregnant moment.
While giving testimony about the night of the crime, Reams described
what Goodwin and he were doing before they walked to the ATM. “We had
been watching a movie, ‘Lethal Injection,’ I mean ‘Lethal Weapon,’ ” he
responded. The slip was a small betrayal of Reams’ fear of death — a
fear that was not unreasonable, considering that he fits the regional
and racial profile of a man likely to get the death penalty.

There have been 1,102 executions since
1976, the year the death penalty resumed in the United States after a
four-year hiatus. The murder rate is slightly higher in the South than
in the rest of the country — 6.8 per 100,000 in 2006, compared to 5.6
per 100,000 in the West, the next highest region — but 82 percent of
the 1,102 executions occurred there.

African Americans are widely thought to
be at a disadvantage when tried in capital cases, though the nature of
that disadvantage is not totally certain. Among inmates on death row in
2006, the last year for which statistics are available, about 42
percent were black, far disproportionate to the 12.4 percent of blacks
in the general population. But it is not clear that blacks are more
likely to get the death penalty solely because of their race. There is
evidence that the death penalty has been inequitably pursued in federal
cases; among 382 federal cases in which the U.S. Attorney General
authorized pursuit of the death penalty between 1988 and 2006, 51
percent were against African Americans. But the states are a far more
prominent arena for capital cases, and many scholars believe that, all
else being equal, there is no evidence that the defendant’s race by
itself increases the probability of execution. There’s a greater
consensus that a death sentence is most likely to be handed down when
the victim is white, as Gary Turner was: 79 percent of victims in
death-penalty cases since 1976 have been Caucasian, though only about
50 percent of murder victims are white. 

Though racial bias has always been an issue in death-penalty litigation, the Supreme Court’s 1972 ruling in Furman v. Georgia,
the case that briefly made the death penalty unconstitutional, didn’t
hinge on a finding of prejudice. It said instead that the death penalty
was cruel and unusual because there were no common standards to guide
its application. But those who saw bias in the capital punishment
system could still find gratification in the ruling — if the death
penalty could be overturned because it was irregularly applied, surely
evidence of racial discrimination, if it could be found, would yield a
similar result in future cases.

Despite its Furman opinion,
however, the Supreme Court has refused to strike down capital
punishment on the grounds that it violates the due process provision of
the 14th Amendment. In its 1976 Gregg v. Georgia decision, the
court reinstated the death penalty after finding that the states had
implemented rules standardizing death sentences. The greater blow to
anti-death-penalty advocates, however, was McCleskey v. Kemp, a
1987 case in which the plaintiff presented a study that found racial
bias in executions. In that decision, the Supreme Court ruled that
statistical evidence of racial discrimination by itself is not enough
to make the death penalty unconstitutional. Prejudice must be proven on
a case-by-case basis to dismiss a capital sentence.

McCleskey allows for racial
discrimination to continue in the exercise of the death penalty,” said
Christina Swarns, one of the NAACP Legal Defense Fund lawyers on Reams’
appeal team. “We can show you ’til the cows come home that more black
people are charged, more black people are sentenced, more black people
are executed, but the Supreme Court says that the constitution doesn’t
give you any remedy for that.”

One reason that the Court ruled as it did in McCleskey was
because it had been inundated with appeals of death sentences since the
1960s, when pro-bono firms such as the NAACP Legal Defense Fund began
to mount organized challenges to capital punishment on constitutional
grounds. Before that, state governors played a much bigger role in
deciding who died by exercising their powers of clemency more widely.
With the new legal strategies, however, judges were being asked to
apply logic to the sentence of death. What the Supreme Court appeared
to be saying with a ruling like McCleskey was that the death
penalty can’t be systematically rationalized through the judicial
branch. Rather, it’s for the legislative branch to decide whether it’s
the will of the people for executions to be outlawed.

The last Gallup poll to measure the
issue found 69 percent of the U.S. population was in favor of capital
punishment. What surveys don’t gauge is the reasoning behind that
support.

Some believe that support for the death
penalty has little to do with the merits of capital punishment at all —
that rather it’s a political litmus test supposed to prove the advocate
“tough on crime,” regardless of the fact that the vast majority of
criminals aren’t eligible to be executed.  And there’s some truth to
that opinion, particularly among politicians themselves — it’s rare for
a major candidate who is against the death penalty to win office, and
the matter invariably becomes a debate in campaigns.  Like imbroglios
over abortion and gay marriage, debate surrounding the death penalty
has become less about the issue itself and more about how someone’s
opinion aligns him on the political spectrum.

If one accepts that this line of
thinking has at least a hint of truth, it offers an eye-opening way to
look at the death-penalty debate. If the decision to kill someone — one
of the gravest decisions the state can make — is influenced primarily
by political expediency, then it’s questionable whether the death
penalty is logical at all. And that raises a new set of questions in
turn: Should killing really be a matter of public policy? Or is the
issue really one of morality? Is it something that can only be dealt
with on a philosophical level?

The decision for death can mean many
things to many people — retribution, deterrence, justice, consolation
for the victim. All of these can be supported with some sort of
reasonable argument. But, at root, execution also amounts to a
declaration by the state of the ultimate inability to redeem a human
being. To kill is to assert utter rottenness.

 

Questions of morality don’t lend
themselves to consensus, which is one reason why there will surely
never be an end to the argument over the death penalty. But some in
Arkansas are attempting to effect a reversal of policy — or at least of
attitudes — in a state that has never been overly squeamish about
executions. (According to the Death Penalty Information Center, an
anti–death-penalty research group in Washington, D.C., Arkansas has
killed 505 people in its history. Its 27 executions since 1976 rank it
10th in the nation.)

David Rickard, head of the Arkansas
Coalition to Abolish the Death Penalty (ACADP), is running a separate
effort to put a moratorium on executions in the state. (A member of
Little Rock’s Unitarian Universalist Church, Rickard serves in an
official capacity as Kenneth Reams’ spiritual adviser.) The moratorium
group also wants Gov. Mike Beebe to consent to a study of the way the
death penalty is administered. The campaign will be a long one —
Rickard intends to present 100,000 signatures in favor of a moratorium
to Beebe by January, and he hopes to present the results of the study
to the legislature during the 2011 session. The campaign, which has
district-level leaders in 15 counties, began canvassing in about 30
counties across the state during the May primaries.

Rickard said he would base the
death-penalty study commission on similar groups in New Jersey and
Maryland, which were created by legislatures and whose staffs include
appointees of the states’ governors. The committee would study issues
that include cost, impact on victims’ families, and racial and
geographical bias in the administration of capital punishment. Rickard
particularly emphasized the last matter. He pointed out that 25 of
Arkansas’s 40 death row inmates are black. (Just under 16 percent of
Arkansans are black.) He noted that about 40 of Arkansas’s 75 counties
brought less than five capital charges from 2002-2006; 13 of these
brought none. He also stressed that in 2006 there were 174 capital
charges brought across the state, but only five men have been added to
death row since that time. Is the gap because of prosecutorial zeal, or
are juries reluctant to hand down the death sentence?

Rickard said he hopes the commission
will be state-appointed and include the involvement of the governor.
But Beebe looks unlikely to go along. Though Beebe is in favor of any
research the group conducts on its own, he doesn’t want his office to
take part. “The governor would not be interested in having any direct
involvement with any study, because any such study should be truly
independent,” Beebe spokesman Matt DeCample said.

The governor is equally cool to the
prospect of a moratorium. “It’s a very sober responsibility for any
governor,” said DeCample of the executive authority to sign death
warrants. “It is not one that [Beebe] enjoys. At the same time, he
recognizes that it’s the law of the land, and as such it’s one of the
duties that he swore to uphold. If the people decide to change the law,
the people can change the law. That moratorium is not something he’s
considering right now.”

(DeCample’s statement regarding the
“law of the land” refers simply to the fact that the legislature has
legalized the death penalty in Arkansas. No statute says the governor
has to approve executions; it is fully within his power to grant
clemency.)  

Beebe has never had to sign a death
warrant. The last execution in the state was in 2005. From September
2007 to April of this year, there was a de facto national moratorium on
executions as the Supreme Court waited to rule in a Kentucky case on
whether that state’s lethal injection procedures were constitutional.
The court found they were, and executions have resumed. As of press
time, there have been three this year, in Georgia, Mississippi and
Virginia.

Though no Arkansas inmates have
execution dates currently scheduled, several could soon have their hour
assigned. Three men on death row — Terrick Nooner, Don Davis and Jack
Jones — were granted stays pending the ruling in the Kentucky case. The
state is making a slight adjustment to its lethal injection protocols
to conform to that decision, and the attorney general is expected soon
to request the stays for Davis and Jones be lifted. (Nooner is in the
midst of another appeal that should prevent his execution for at least
a year.) A fourth death-row inmate, Frank Williams, has issued a
technical challenge to the state’s execution methods in Pulaski County
circuit court. The state has moved to dismiss that appeal. 

Reams does not have to count himself
among the death-row inmates expecting execution, at least not for the
time being — if he were to lose his appeal in Jefferson County, he
could bring his case to the Arkansas Supreme Court, then the Eighth
Circuit Court of Appeals in St. Louis, then, finally, the Supreme Court
of the United States. And since the state will surely appeal any ruling
unfavorable to it, the legal skirmish can be expected to drag on even
if he wins in the fall.

 

Those who know Reams paint a picture of
a man who has changed immensely since his troubled youth. Not only
that, but they also see a proactive man, one willing to fight for his
own cause and to minister to others besides. (Reams’ attorneys advised
him against talking with the Times for this article because of pending appeals.)

Rickard met Reams about seven years
ago. He was the head of ACADP at the time, but he had never met and
talked with a death-row inmate. Rickard recounted, “[Kenneth] wrote to
me one time and says, ‘How in the world can you be involved in trying
to abolish the death penalty and you’ve never visited anybody on death
row?’ So I screwed up my courage and I wrote back to him and I said,
‘All right. I’ll come visit you.’” It was the first time he had ever
gotten such an invitation.

Rickard now sees Reams on a monthly
basis. His portrayal of him is an argument for rehabilitation over
retribution. “The thing I would say about him is that today he is a
whole different person from what he was when he went into
incarceration,” said Rickard. “He’s used his time to do a lot of
thinking, about himself, about the life he’s lived and what he would
like to do if he were able to get out. And I think that this man is no
longer a threat to you or me or himself.”

Reams’ family members also describe how
Reams has redeemed his life despite — or rather because of — his time
in prison. His aunt, Amelia Reams, with whom he lived for a time in
Missouri, says Kenneth believes that being sent to prison was a
blessing in disguise. “Ken had a bad childhood and he moved around too
much,” she said. “He always ran off. He tells me that ‘If I hadn’t come
to this prison, man, I’d have been dead.’ It slowed him down.”

Bernard Reams, Amelia’s son, agrees
that his cousin was headed down the wrong road in 1993. “Before he left
Missouri, I told him, man, please don’t go back to Pine Bluff, whatever
you do. Next thing you know, I pick up the paper and he’s on the front
page.” But Bernard, who now lives in Pine Bluff and visits Kenneth at
nearby Varner prison, says he’s seen a definite change since
those days of drifting and crime. “He’s a better person,” Bernard Reams
said. “Even though he’s in prison, he tries to help others. He’s made
friends with a lot of people. A lot of good people. White people, black
people, everybody.”

Reams set out to improve himself almost
immediately after he was sentenced to death. He started working toward
his GED upon entering prison, and he now writes letters and reads
constantly. “He’s perhaps one of the most well-read people I know on
death cases,” Rickard said. “He’s very, very up to date on what’s going
on.”

(Swarns, Reams’ lawyer, said those
types of activities weren’t precluded by the diagnoses of mental
retardation. “It doesn’t mean you’re brain damaged or brain dead,” she
said. “It just means you learn at a slower rate. He’s spent 15 years
doing nothing but trying to understand [his case].”) 

Rickard added that after a recent
visit, Reams asked him to send materials about starting a small
business. “He said, ‘I don’t figure I want to be in here the rest of my
life. I expect to be out.’ ” 

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