Former OIP Fellow Continues to Fight for the Innocent
When attorney John Kennedy’s indigent client was acquitted of murder last year, his greatly relieved defendant turned to him and asked if it felt good to represent an innocent person. The answer was a little hard for Kennedy to articulate.
Keeping the innocent free is the highest goal for the former OIP fellow. “But I always have a fear of an innocent man going to prison if I fail,” says Kennedy, JD ’10. “It would be my fault.”
That’s a heavy weight to carry on one’s shoulders for an entire career, but Kennedy is exactly where he wants to be — in the Hamilton County Public Defender’s Office. He joined the office in 2011 soon after graduating. It was his dream job, one he began longing for as an Ohio Innocence Project fellow.
The New Richmond, Ohio, native decided to become a lawyer after his first year as a political-science major at Miami University in Ohio. As he began checking out law schools, he was leaning toward Oregon’s Lewis and Clark Law School when he attended a prospective-student open house at UC College of Law. He was snagged immediately. “I was attracted to UC at that open house,” he says. “There was so much warmth and happiness in the students that I decided this is where I wanted to go. At Lewis and Clark, there was no enthusiasm. Everyone seemed down.”
Furthermore, the Ohio Innocence Project also tugged at his heart. A promotional video shown that weekend contained a short segment about Clarence Elkins, OIP’s first exoneration. “I remember sitting there and thinking how amazing that was.” The atmosphere, the students and the OIP video were enough for Kennedy to ditch any thoughts about Oregon. His OIP fellowship a couple of years later sold him on the branch of law he wanted for his career — criminal defense, especially for indigent defendants.
The fellowship, he says, was “very good — reading through transcripts and hearing from inmates, seeing the glaring discrepancies in cases.” It was also very frustrating, he admits. “I would read transcripts and say to myself, ‘Don’t you think that should be questioned? As a defense attorney, you don’t think you should fight over that? Aren’t you going to zealously represent your client?’ ”
Time constraints were another frustration, a common one among OIP fellows. “Everything took so long,” he says. “It was so difficult to get certain things done. A couple of my big cases hit dead end after dead end.
“Ed Emerick was one of those cases. We visited him in prison in Toledo. We went to police stations. We searched evidence rooms. There were spots of blood he wanted tested, but we just couldn’t find them.
“I believe he was innocent of the crimes for which he was convicted, but there were no options left. That’s the kind the frustration that I sometimes felt in the process.”
Lengthy timeframes demoralize defendants, he adds. “Ed was very frustrated the first time we saw him. He felt like previous fellows weren’t hearing him.” Kennedy and his partner won Emerick over with their empathy, but in the end, they had no more success than their predecessors.
Fortunately, Kennedy had greater success as an OIP fellow while working on the Wally Zimmer case; Zimmer got released early. But that didn’t happen until years after Kennedy had graduated and others continued working on the case. The end result met everyone’s hope, but the interim required great patience. Frustrations have followed him into his public defender work. “I enjoy being here,” he says, “but it has its trying days, too.”
One of the annoying parts of the job is knowing that some people call pubic defenders, “public pretenders.” “It's frustrating that the public believes public defenders are bad attorneys - that they do not effectively represent their clients,” he says. He believes his profession has grown more hard-working and passionate in Hamilton County over the last few years.
“In my first six months, I hadn’t seen anyone do a jury trial. Now, as an office, we had 16 jury trials by September of this year. Many people are winning them. In the past four days, we’ve had three wins.
“We’re expected to fight for our clients. Things are happening now that are unprecedented. In many other areas, indigent public defense is lacking, but we are changing that.” An example of the Hamilton County Public Defenders’ commitment to their clients is the fact that Kennedy got a client acquitted for murder in May. Joshua Maxton, 26, had been indicted for shooting and killing an 18-year-old girl who was riding in the front passenger seat of a car in North Avondale.
Kennedy retells the story:
“Joshua was walking down the street, when a car with three people in it stopped and turned around, and the driver called out to Joshua. After talking with someone in the car, Joshua walked away, and a shot was fired. It hit the back passenger window, killing the passenger in the front seat — killing an innocent teenage girl who was with the wrong people.
“The passenger in the back seat and the driver didn’t see who did it, so they assumed last person they saw — Joshua —was the one who shot.
“Later, the driver rode by the scene in a police car, and he pointed out Joshua. The police then picked him up. They tested his clothes and his hands for gun-shot residue. Everything came back negative. DNA was also taken from items at the scene, and there was no match to Joshua.
“Within two days, three people had called the police to say that someone else had committed the murder. Two of them had witnessed the shooting and gave the police the shooter’s name. A third person at the scene described what the shooter was wearing, where he went afterward and identified the shooter by his size, skin tone and what he was wearing. None of the characteristics matched Joshua’s. A fourth person came forward about four months later and also gave the police the shooter’s name.
“Yet the police didn’t follow up on any of the calls.”
At the grand jury hearing, Maxton was indicted on eight charges — murder, aggravated murder, two counts of attempted murder, three counts of felonious assault and a weapons-while-under-disability charge. He was placed in the Hamilton County Justice Center with bond set at $1 million.
At the trial, Kennedy presented evidence from recorded interviews and lab results obtained from bottles found at the scene. The jury decided that Maxton was not guilty. Getting an acquittal on a murder charge was a relief for Kennedy. He hopes it helps to boost public confidence in their office and in other public defenders around the country. One aspect of his job that appeals to him is the variety of the work. “It’s different every day,” he says, “new cases, new issues, new people to deal with. It’s ever changing.” But in the end, it’s his attitude that makes all the difference: “It’s something I am very passionate about. You can really make a difference in people’s lives.”
Written by Deb Rieselman