Racist Facebook comments become key issue in Northern Kentucky death penalty case

There are questions in a Northern Kentucky death penalty case as to whether John Gentry, a Black man accused of gunning down his white ex-girlfriend in front of their two sons, can get a fair trial in predominantly white Boone County.

His lawyers say racist responses to a Facebook post by the Boone County Sheriff’s Office, including calls for Gentry to be lynched, demonstrate racial bias within the community. They say the trial should take place in another county.

Concerns over prejudice are typically dealt with at the beginning of a trial when prospective jurors answer questions to determine their impartiality, a process called voir dire.

However, Gentry’s lawyers argue the usual process will not be enough given the evidence of overt racial prejudice within the community, coupled with unique jury selection procedures in death penalty cases that will likely impanel a less diverse jury.

In response to those worries, Circuit Judge Richard Brueggemann has allowed for a survey of the county's population to gauge public opinion about issues related to the case ahead of trial.

Why does Gentry want to be tried elsewhere?

Of the nearly 900 comments to a sheriff’s office Facebook post announcing Gentry’s arrest, there were numerous responses saying police should have summarily executed him.

"Tall tree short rope," one comment reads, according to court documents.

“He deserved a knee on his neck,” another commenter wrote, seemingly referencing the May 2020 killing of George Floyd, a Black man, by white Minneapolis police officer Derek Chauvin, who is serving prison time for violating Floyd’s civil rights and second-degree murder.

“Death is forever,” Josh Miller, one of Gentry’s public defenders, wrote in court filings. “The constitution demands the courts remove every obstacle to a fair trial for Mr. Gentry.”

While prosecutors agree those who made offensive comments online shouldn’t sit on the jury, they said there’s no evidence those people live in Boone County nor that their comments have influenced potential jurors.

The comments also included varied subject matter, “some of which are offensive and some of which are more reasonably classified as people expressing feelings right after a serious crime in their community,” prosecutors wrote in court filings.

Prosecutors also pointed to comments expressing frustration with law enforcement and the criminal justice system.

While the sheriff’s office post has since been removed from social media, Gentry’s lawyers said it was visible to the roughly 37,000 accounts following the sheriff’s office and the followers of those who commented.

Because the sheriff’s office account posts almost exclusively about local events and there’s seemingly no effort to reach users outside the county, Gentry’s lawyers say it’s safe to assume most of its followers are Boone County residents.

As further evidence of widespread racial bias, Gentry’s lawyers cited news reports of a racial epithet being left in the snow outside a Boone County resident’s home in 2022 and the existence in the county of an organization designated a hate group by the Southern Poverty Law Center.

Gentry fired at ex-girlfriend 'until it was quiet,' investigators say

On Oct. 2, 2020, Gentry tailed his ex-girlfriend, 32-year-old Tiffany Kidwell, to her sister’s house in Walton and confronted Kidwell about seeing his children, investigators say.

Kidwell had an active domestic violence protection order against Gentry and tried to call 911 when Gentry allegedly shot her with a handgun. When deputies reached the home a short time later, Kidwell was found dead inside her vehicle parked in the driveway.

Gentry later told detectives that he shot Kidwell “until it was quiet,” believing he’d emptied the gun’s magazine, according to a criminal citation. Prosecutors said an autopsy showed she suffered a total of 10 gunshot wounds.

Also shot was Gentry’s then-3-year-old son, who was sitting in the backseat of his mother’s vehicle. The child was struck in the abdomen and flown to Cincinnati Children’s Hospital Medical Center, where he underwent surgery.

The couple’s then-6-year-old son was also present for his mother's killing but was unharmed.

Gentry told detectives that he drove away but swiftly abandoned his vehicle when he saw police lights and fled into the woods on foot, the citation says. He then allegedly approached a stopped SUV and ordered the two occupants out of the vehicle.

During that confrontation, Gentry told detectives, he aimed his gun at the driver-side window and it “went off,” shattering the glass and striking a man sitting inside, the citation says.

Investigators said Gentry was operating the stolen SUV when it was spotted driving recklessly, forcing an officer to veer off the road to avoid a crash, before he was stopped at Grand National Boulevard and Richwood Road.

Gentry, 37, is facing charges including murder, assault, violation of a domestic violence order, stalking, fleeing or evading police, wanton endangerment and robbery.

Prosecutors signaled their intent in January 2022 to pursue the death penalty against Gentry, citing the alleged killing of Kidwell while she had a domestic violence order in place as “aggravating circumstances.”

Even if Gentry isn’t sent to death row, he’s facing a possible sentence of life without parole or 25 years to life in prison should he be convicted.

Video, 911 tapes at issue in Gentry case

Also at issue is whether prosecutors should be allowed to play Ring doorbell camera video and 911 audio for the jury.

The recordings include a 23-second audio clip of Kidwell screaming before being killed and footage of the couple’s older son running inside to look for help as his mother is shot to death, according to court documents.

Gentry’s lawyers said the recordings are overly prejudicial and only serve to elicit a visceral reaction from the jury, adding that jurors will hear witness testimony about how the shooting unfolded and Kidwell’s cause of death.

Prosecutors contend that the video, 911 call audio and other recordings are crucial to establishing a timeline of events that evening.

“The defendant is not entitled to erase the ugly parts of the picture and substitute words in their place,” wrote Assistant Boone County Commonwealth’s Attorney Jason Hiltz.

Ex-prosecutor: Gentry’s claim of bias based on social media posts is unique

Mike Allen, a defense attorney and former elected Hamilton County prosecutor, said Gentry’s allegations of widespread bias evidenced by social media posts, as well as the use of a countywide survey, are unusual.

“I’ve never seen it before,” Allen said. “It is an interesting argument.”

While Allen said Gentry's argument that racial prejudice will in all likelihood taint any trial held in Boone County is valid, he said requests to move a trial don’t happen often and it's even rarer for a judge to grant such an ask.

Voir dire is believed, at least by many judges and prosecutors, to be the best method of flushing out racial prejudice, he said, noting defense lawyers are given wide latitude in asking questions about such bias.

“It really all comes down to this, if that juror can raise his or her right hand and swear under oath that no matter what they have read or heard in the media or anywhere else, that they can render a fair and impartial verdict, that is what is considered a good juror,” Allen said.

An evidentiary hearing is scheduled for March 28 regarding the issues at hand in Gentry’s request to have the case tried in a different county.

After expressing some reservations about its fairness and scope, Brueggemann gave prosecutors and Gentry's lawyers the green light to survey the county's population.

The judge initially only allowed for a survey of a “prospective panel of jurors." The court’s objections were over defense lawyers being able to present “case-specific issues” to residents, some of whom may be chosen for a jury panel, without prosecutors being able to participate, Brueggemann wrote in court filings.

However, Brueggemann later reversed his ruling after prosecutors likewise signaled their desire for a broader county survey.

What's the current status of the death penalty in Kentucky?

Regardless of whether Gentry is convicted and sentenced to death, it appears unlikely he will be executed, at least not any time soon, given that Marco Chapman’s 2008 death by lethal injection was the last in Kentucky.

Executions in the state have been on hold since 2010, when a Franklin County Circuit Court judge ruled death penalty regulations lacked safeguards to prevent the executions of people suffering from mental illness and intellectual disability, according to Louisville Public Media.

Kentucky Department of Corrections records show 26 inmates are currently sitting on death row, with the most recent of those sentences handed down in 2014.

From the creation of the state’s modern death penalty system in 1975 up to 2020, 82 people have been sentenced to death in Kentucky, according to a 2022 study of the state’s death penalty statistics. Half of those death sentences were overturned and only three inmates were put to death. The others either died in prison from various causes or remained on death row.

Of the 64 homicide offenders in Boone County between 1976 and 2019, three were sentenced to death, making the county's death sentence rate roughly six times higher than the state's as a whole.

The study also found that the death penalty in Kentucky is largely reserved for cases involving white female victims, with death sentences 20 times more likely for Black defendants accused of killing such victims compared to when both the accused and victim were Black.

Gentry’s lawyers have pointed to this study and other findings as further indication that a trial in Boone County will be tainted by bias.

“The documented racial prejudice towards Mr. Gentry," Miller wrote, "cannot be divorced from the long history of racial prejudice that arises in death penalty cases where the defendant is Black and the victim is a white female."

This article originally appeared on Cincinnati Enquirer: NKY death penalty case: Lawyers say racist Facebook comments show bias