Carlos Ordway

Carlos Ordway was the last defendant sentenced to death in Kentucky and that was more than two years ago. Once again, however, the Kentucky Supreme Court has ruled unanimously that a death penalty trial trial was seriously flawed. The justices reversed his conviction. Ordway will get another trial. From the outset Ordway has claimed self-defense, but the trial court refused to hear what could be crucial evidence. Hopefully a new trial will yield a just outcome. This decision practically makes the case for repeal of an expensive process that serves no real purpose in creating a safe society where justice reigns.

This first, and expensive, trial was marred by

• Abuse of discretion by the trial judge,
• Improper testimony by the police,
• Erroneous and harmful statements by the Fayette County prosecutor, and
• A juror whose sister is helping the prosecutor.

The following is not a complete account of the court’s findings, but should give readers a sense of how flawed this trial was. All this is from the decision that was handed down by the Kentucky Supreme Court. Notice in number 3 below that the Justices sound almost angry about the trial judge’s decision that leads to wasting tax dollars because her decision is resulting in yet another trial.

1. The judge allowed a police detective to offer testimony that was “incompetent.” “Detective Wilson’s testimony…should have been excluded as improper opinion testimony and irrelevant….[T]he admission of such evidence was reversible error.” They further state: “Upon retrial, Detective Wilson may not testify regarding his opinion or his experience in the realm of how guilty or innocent suspects act.”

2. Ordway claims self-defense and wanted to offer evidence regarding statements made immediately before the shooting began by those he killed, but the judge said NO. This court decision states that “[w]e presume, upon retrial, if properly brought to the court’s attention, the admission of any threatening statements said to have been made by the victims…will be considered by the trial court….”

3. Several objections were raised about jury selection. Prior to addressing them the Supreme Court Justices admonish the trial judge who allowed a juror to be selected who was clearly not eligible to serve: “As former trial judges, every member of this Court knows that there is no shortage of citizens in the Commonwealth of Kentucky willing to serve capably and honorably in the most difficult and demanding of trials. What those citizens do not want is to have their time and money spent re-trying a difficult case because, in a prior proceeding, a trial judge was too diffident to excuse jurors who were credibly challenged.”

The juror the judge allowed to determine guilt and punishment was the sister of the Victim’s Advocate working with Ray Larson’s office on this case. The court stated: “This close association by a prospective juror’s sister with an important participant in the very case being tried compels that the juror be stricken for cause.”

4. In two instances in the closing arguments the prosecutor made remarks that were inappropriate. The court states that “[n]evertheless, the prosecutor incorrectly stated that defense attorneys are not bound by the Rules of Professional Conduct, thereby suggesting to the jury that they are governed by a lower ethical standard, and should not repeat that error upon retrial.” And on about another remark the Court writes that “[t]his argument impermissibly urged the jury to consider public opinion, and it correspondingly applied pressure on the jury to satisfy the community expectation. Therefore, upon retrial, the Commonwealth shall refrain from closing arguments of that nature.”

Small wonder, then, that Kentuckians are less and less inclined to support the use of the death penalty. Click here to read the Ordway KY Supreme Court Opinion.

Photo: courtesy Kentucky Department of Corrections