Supreme Court Decides New Disability Argument Does Not Warrant Right To Reopen Post-Conviction Proceedings

Thursday, December 20, 2012

The Tennessee Supreme Court on Thursday upheld the lower courts’ decisions that David Keen, an inmate currently on death row, could not reopen his post-conviction proceeding to assert that he was intellectually disabled.

In 1990, Keen raped and murdered an eight-year-old girl in Shelby County. He pleaded guilty to both offenses, and in 1991, a jury sentenced him to death. Even though state law at the time prohibited executing intellectually disabled persons, Keen did not assert that he was intellectually disabled. The Tennessee Supreme Court affirmed Keen’s conviction in 1994 and affirmed his death sentence in 2000. Mr. Keen later filed an unsuccessful petition for post-conviction relief but again did not assert that he was intellectually disabled.

Nineteen years after his original death sentence, Keen asserted for the first time that he is intellectually disabled. He insisted that the courts should permit him to reopen his post-conviction proceeding to present new evidence that he was intellectually disabled. Both the Criminal Court for Shelby County and the Tennessee Court of Criminal appeals rejected this claim.

The Supreme Court, in an opinion authored by Justice William C. Koch, Jr., ruled that the statute permitting inmates to reopen their post-conviction proceedings did not apply to Keen’s claims. While the statute permits reopening a post-conviction proceeding when there is new scientific evidence that the inmate is “actually innocent of the offense,” the Court held that Keen was not now claiming that he had not raped and murdered his victim. The Court also ruled that Keen could not take advantage of the statute that permits reopening a post-conviction proceeding after the court announces a new constitutional right.

Dissenting from the majority opinion, Chief Justice Gary R. Wade disagreed with the Court’s interpretation of the statute permitting inmates to reopen post-conviction proceedings. Noting that inmates’ constitutional right of due process requires a meaningful opportunity to present post-conviction claims, Chief Justice Wade concluded that the statute should be interpreted to allow inmates to present claims of actual innocence based on newly discovered evidence demonstrating ineligibility for the death penalty.

To read the David Keen v. State of Tennessee opinion, authored by Justice William C. Koch, Jr., visit the opinions section of

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