Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, April 16, 1993 TAG: 9304160351
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
VA. MURDERER'S APPEALS LINGER OVER DEATH ROW
IN A CASE to be argued today, the Virginia Supreme Court could drastically reduce the time death row inmates have to prepare appeals.
Mickey Wayne Davidson's wavering death wish has twice taken him to within a few feet of Virginia's electric chair.
Both times - after first saying that he wanted to be executed for killing his wife and two stepdaughters with a crowbar - the Saltville man has changed his mind at nearly the last minute and restarted his appeals.
Davidson's indecision will be used against him today, when the state Supreme Court hears arguments on whether a Smyth County judge has jurisdiction to act on Davidson's latest request for a stay of execution.
The case could have far-reaching implications on how much time other death row inmates will have to prepare their appeals, according to Davidson's attorney, Tony Anderson of Roanoke.
"What the attorney general is trying to do is use the waffling to set down a policy of saying: `Look, you've got 30 or 60 days to file your case,' " Anderson said.
If the state prevails, he said, "they'll be killing them off left and right."
But in briefs filed with the Supreme Court, Assistant Attorney General Oliver L. Norrell argued that the case could set a dangerous precedent of a different kind.
A ruling in Davidson's favor "would only institutionalize deliberate delay and manipulation of the judicial process," Norrell wrote.
To grant Davidson yet another stay, he argued, would "have disastrous consequences in terms of maintaining any semblance of finality in death sentence cases."
After arguments are made, the Supreme Court will take as long as a month before ruling.
The decision could affect how long attorneys have to file a state habeas corpus claim for a death row prisoner after his direct appeals are exhausted.
Such claims do not argue a prisoner's guilt or innocence, but focus instead on procedural issues - such as a lawyer's performance. The step is especially important in Virginia, where state law prevents issues that may come up later from being presented if they are not cited in the original state habeas petition.
"It takes time to properly investigate and prepare a state habeas claim," said Barry Weinstein, director of the Virginia Post-Conviction Assistance Project, which is helping Anderson in Davidson's case.
"You can't be rushed, especially when you're talking about life and death."
That issue concerned the Virginia State Bar enough to file a brief on Anderson's behalf. The fear was that Anderson's predicament might discourage other attorneys from taking capital cases, according to William Rakes, a Roanoke lawyer and president of the Bar.
Before the high court granted Davidson a stay in February, just 7 1/2 hours before his scheduled execution, he had faced the prospect of receiving the swiftest death sentence since Virginia resumed executions in 1982.
While some death row inmates wait a decade or longer before going to the electric chair, Davidson's initial wish to not appeal set his date with death just 19 months after he was sentenced.
Davidson, 35, never has denied that he killed his wife and two stepdaughters - Doris Davidson, 36; Mamie Clatterbuck, 14; and Tammy Clatterbuck, 13 - on a summer day in 1990 as they were packing to leave him. He pleaded guilty to three counts of capital murder and was sentenced to death in 1991.
His wavering has been on another point: how quickly he wants to die for what he did.
"He just didn't feel like he could live with himself" at the time he asked that his appeal process be dropped, Anderson said.
But after vacillating, Davidson has stuck with his appeals since February, when he was moved to a cell in the Greensville Correctional Center just a few feet away from the electric chair as his execution date drew near.
He had earlier spent time in Greenville after dropping his appeals, only to be transferred away when he decided to file a habeas.
The issue to be argued today stems from a flurry of activity that started in December.
After Davidson's direct appeal - an automatic proceeding in all death cases - was turned down by the U.S. Supreme Court, Smyth County Judge Charles Smith scheduled execution for Feb. 3. Death row inmates usually can take the next step of filing a state claim raising constitutional issues, but Davidson had said he had no desire to do that.
By the time Davidson changed his mind once again and Anderson was appointed to represent him, the execution was 12 days away.
Faced with the difficult task of preparing a state habeas claim in so little time, Anderson asked Smith to grant a stay of execution.
If a stay was not granted, he later argued in the briefs, "appointed counsel would be forced either to file hasty, inadequate petitions . . . or to refuse appointment in death cases altogether."
But Smith ruled that he could not consider the request because 21 days had passed since his final order. Whether that decision was correct is now a question for the Supreme Court.
If the court were to rule in Davidson's favor, the state argues, "a death row inmate could refuse to take any steps to litigate his case until just minutes before his scheduled execution. And then, merely by filing a request for appointment of habeas counsel - and nothing more - he would have an absolute right to a stay of execution."
Anderson, in a reply brief, likened such dire predictions to the story of Chicken Little.
"As in the fable, the attorney general's fears are groundless, for a ruling in favor of [Davidson] would not result in a dour scene where death row prisoners are permitted to run amok through the judicial system," Anderson wrote.
Instead, he argued, he is only asking the Supreme Court to decide if Smith has the power to consider postponing the execution. Even if the Supreme Court rules for Davidson, Smith would not be compelled to grant a stay.
"It may just delay the inevitable," Anderson said. "But that delay is necessary to comply with the full constitutional guarantees that any of us would have if we were under a sentence of death."