Ordinarily, a unanimous decision of the California Supreme Court affirming the imposition of the death penalty is almost as automatic as the appeal itself. So too here. So there's nothing unusual or worthy of comment on that front.
But read this opinion anyway. Because it is one of those relatively rare cases in which I have strong doubts about whether the defendant in fact committed the offense for which he's been sentenced to death. There is exceptionally little evidence against Kennedy here -- much, much less than in most death penalty cases. And there are two eyewitnesses to the crime. One of them -- the one that is basically the key to the prosecution's whole case -- initially (and repeatedly) told the police that she saw the murderer "eye to eye" for "30 to 60 seconds," got a fantastic (and memorable) look at him, and that he had no facial hair. And the eyewitness was pretty confident about the no facial hair thing, and even drew a sketch of the perpetrator (with no facial hair) herself.
But Kennedy has a massive goatee and mustache that covers the lower half of his face. Indeed, the difference in this regard between Kennedy and the person described by the prosecution's key eyewitness was so severe that once she saw a picture of Kennedy in the newspaper and learned that he had been arrested for the crime, the eyewitness went to the police and said that they had the wrong man. Later, of course, she changed her mind; in particular, after viewing a picture of a shirtless Kennedy with a huge swastika tattoo. But she never explained how she could possibly have been so confident that the perpetrator was clean-shaven and yet was now confident that Kennedy is the guy. And the second eyewitness, by the way, also testified -- like the first eyewitness 00 that the perpetrator was clean-shaven. And also testified at trial that the perpetrator was not Kennedy. And this eyewitness, unlike the prosecution's witness, never changed his story or description.
There's some other troubling stuff described in the opinion as well. And, again, there's very, very little to link Kennedy to the crime other than the eyewitness identification and the testimony of a pretty darn uncredible witness who was caught using the victim's credit cards (and who initially told police that a third person -- not Kennedy -- had committed the murder). There's just not the type of evidence here that you're used to seeing in these types of cases.
Is it possible that Kennedy did it? Sure. It's possible. Is it likely beyond a reasonable doubt? Boy, that's a toughie. Are we so confident that Kennedy did it that we're willing to make an irrevocable decision to kill him? I'm not. Not with this evidence. There's just too much of a risk that we'd be killing an innocent man.
Like I said, this is not a reaction that I often have. But I have it here. I'm just not sure that we're not doing a horrible, horrible thing here.
