ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, November 25, 1996 TAG: 9611250179
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: LAURA LAFAY STAFF WRITER
Virginia will lead the nation in executions this year if it follows through with plans to put five more men to death next month.
With the death by injection of Ronald Bennett on Thursday, the state performed its fourth execution of 1996. Barring the unlikely intervention of the U.S. Supreme Court or the governor, the pace will quicken until nine men are dead by Christmas.
There is every indication that will happen.
Each of the five prisoners scheduled to die has exhausted his state and federal appeals.
Their cases are not unusual. In the 20 years since Virginia brought back the death penalty, records show, such appeals almost always have failed.
Recently, two cases have shed light on the way the death penalty plays out in Virginia. In both, evidence that lawyers contended proved the men's innocence was never considered by the courts. It fell to Gov. George Allen to examine the evidence and weigh its merits.
On Nov. 7, Allen stopped the execution of Joseph Patrick Payne at the last minute because of testimony that the state's key witness had lied in Payne's trial. It is the only time Allen has intervened in a death penalty case.
On Nov. 19, a lawyer for Ronald Bennett made public a videotape of the key witness against Bennett recanting her trial testimony and saying someone else was the killer.
She later said she lied on the videotape. Allen, who concluded she told the truth about lying on the videotape, let the execution go forward.
Like all states with capital punishment, Virginia has a lengthy and intricate appeals process.
Every death sentence is automatically appealed to the Virginia Supreme Court. After that, in a process known as ``state habeas corpus,'' condemned prisoners can have their cases reviewed for error by the state courts.
Once state habeas is completed, death cases are reviewed by the federal courts in a process known as ``federal habeas corpus.''
Habeas corpus proceedings do not consider guilt or innocence. Their purpose is to ensure that the accused was convicted and sentenced in keeping with the rights guaranteed by the U.S. Constitution.
The right to a lawyer, for example. Or the right to a fair trial untainted by such factors as race, politics or public fervor.
If, during habeas review, the courts find that constitutional errors compromised the fairness of a trial or sentencing, a new trial or sentencing can be ordered.
Since 1977, the Virginia Supreme Court found constitutional errors in only 10 of the 109 death cases it has reviewed on direct appeal, statistics kept by the Virginia Capital Representation Resource Center show.
The court has never ordered a new trial or sentencing in a state habeas appeal of a death case.
Virginia's lower federal district courts order new trials and sentencings in death cases about 20 percent of the time. In all but two of those cases, however, the new trials and sentencings never occurred.
That is because the federal appeals court for Virginia - formally known as the 4th U.S. Circuit Court of Appeals - routinely overrules such decisions.
Research by James Liebman of Columbia University Law School shows that federal courts reverse 40 percent of death sentences nationwide because of constitutional problems.
In Virginia, the number is 7 percent.
``It's clear that the 4th Circuit has the lowest reversal rate in capital cases in the country,'' Liebman said. ``It has, for a long time, held that distinction.''
But such a consistently low rate is not a reflection of the fairness of trials in the states that comprise the 4th Circuit, said Gerald Zerkin, a Richmond lawyer who has represented several death row clients.
``The notion that we have a perfect system in which no lawyer fails to do his job, no prosecutor breaks the rules, no hidden violations of defendants' constitutional rights occur and no jurors engage in misconduct is simply beyond all reason,'' Zerkin said.
The office of Virginia Attorney General Jim Gilmore doesn't see it that way.
``I can't comment on the decisions of federal judges,'' said Gilmore's spokesman, Mark Miner. ``But if you're asking me if the system works, the answer is yes. The system's job is to keep these violent criminals off the street, and that's what it's doing. The job of government is to protect its citizens.''
Other circuits have much higher reversal rates. The 11th Circuit Court of Appeals, with jurisdiction over Florida, Alabama and Georgia, reverses 55 percent of the capital cases it reviews, Liebman found.
Although there is a perception that courts often set aside convictions and death sentences on technicalities, they actually can do so only if they find that the outcome would have been different had constitutional safeguards been observed, said Stephen Bright, a Georgia lawyer who represents capital defendants on appeal.
``What that means is that the courts will set aside convictions in cases where they find that evidence of innocence has been withheld,'' Bright said. ``Another example might be a person who was prevented from putting on some important evidence that the jury had a right to hear.''
In all but one of the cases of the five men scheduled to die in Virginia before Christmas, a lower federal court judge found constitutional violations and ordered a new trial or sentencing. The 4th Circuit overruled in all of them.
Lawyers for Gregory Warren Beaver argue that Beaver was denied a fair trial because one of his court-appointed lawyers was a part-time prosecutor in a neighboring county.
Beaver, 31, pleaded guilty and was sentenced to death for shooting Virginia State Trooper Leo Whitt in Prince George County on April 12, 1985. His lawyer, Thomas O. Rainey III, represented Beaver while running for the office of full-time prosecutor.
Court documents show Rainey advised Beaver to plead guilty in exchange for an agreement that the prosecution would make no argument during his sentencing.
``Despite its uselessness to [Beaver] ... the plea agreement was of tremendous benefit to Rainey as it allowed him to avoid the unpleasant, embarrassing and career-threatening task of having to vigorously attack the state's case in the defense of an accused cop killer,'' Beaver's new attorney, Christopher McMurray, wrote in a recent petition to the U.S. Supreme Court.
Lower courts have said there was no conflict.
Beaver is set to die Dec. 5.
Larry Stout, scheduled to die five days after Beaver, also pleaded guilty on the advice of a court-appointed attorney. That lawyer, William Bobbitt, offered no evidence and called only Stout as a witness at Stout's sentencing. Stout was sentenced to death for killing the owner of a Staunton dry-cleaning business in 1987.
New lawyers for Stout appealed, saying Bobbitt was ineffective. U.S. District Judge James Turk agreed and granted him a new sentencing. But the 4th Circuit reversed Turk, calling Bobbitt's decision to put on no witnesses ``a conscious, strategic decision.''
The 4th Circuit also threw out a district court order for a new trial for Ronald Lee Hoke, set to die Dec. 16. Hoke, convicted of raping and killing a Petersburg woman, claimed that the prosecution withheld key evidence at his trial.
That evidence - crucial to the element of rape that made Hoke's offense punishable by death - consisted of police interviews with three men who, like Hoke, said they met the victim in a bar and went home with her for sex.
U.S. District Judge Robert Merhige ruled that the prosecution illegally withheld the interviews from Hoke's court-appointed lawyers.
But the 4th Circuit disagreed, saying the evidence ``was reasonably available'' to Hoke's lawyers. Had they undertaken a ``reasonable and diligent'' investigation, wrote Judge Michael Luttig, the lawyers would have found the same three men.
The law license of one of Hoke's lawyers, John Henry Maclin, was recently suspended for four years by the Virginia State Bar Disciplinary Board. Maclin, who also represented Gregory Beaver along with the part-time prosecutor Rainey, had neglected his clients in two undisclosed cases, the board found.
The U.S. Supreme Court, which accepts very few cases for review, has twice reversed the death sentence of Lem Davis Tuggle, set to die Dec. 12 for the rape and murder of a Smyth County woman.
But each time, Tuggle's case was kicked back to and reaffirmed by the court that had affirmed it in the first place.
Tuggle argues that a state psychiatrist interviewed him ``by subterfuge'' and the trial judge erred when he refused to let Tuggle's lawyers hire their own psychiatrist.The U.S. Supreme Court vacated his sentence in 1985 because of the psychiatric issue.
In 1994, U.S. District Judge Turk found that Tuggle's rights had been violated in seven ways during his trial. A year later, the 4th Circuit overruled him. The U.S. Supreme Court took the case for a second time in 1995, reversed it, and sent it back to the 4th Circuit. Again, the 4th Circuit ruled against Tuggle.
``OK, so he's an unpopular guy,'' says Tuggle's Richmond-based lawyer, Timothy Kaine. ``But still. The law was just egregiously violated in ways that wouldn't be tolerated in a traffic case. But that's the way things are in these cases in this state.''
Joseph O'Dell, the last inmate scheduled for execution before the end of the year, was sentenced to die for the 1985 rape and murder of a woman in Virginia Beach.
O'Dell was given a new sentencing by U.S District Judge James Spencer, who ruled that when the prosecutor argued that O'Dell was a future danger to society, O'Dell should have been allowed to tell the jury he would be ineligible for parole if sentenced to life.
Spencer's decision is consistent with a 1994 U.S. Supreme Court ruling in the case of Simmons vs. South Carolina. But in a decision announced in September, the 4th Circuit ruled that, because O'Dell's sentencing took place before the Supreme Court decided the Simmons case, it did not apply to him.
Because lower federal courts in other circuits have ruled that Simmons is retroactive, the U.S. Supreme Court may decide to grant a stay in O'Dell's case to resolve the issue.
Paul Khoury, a Washington contracts lawyer, spent nine years navigating the Virginia capital habeas landscape on behalf of his client, Joseph Patrick Payne. Until Gov. Allen examined Payne's case and granted him clemency three hours before his scheduled execution, Khoury says, no one would consider evidence of Payne's innocence.
``The state courts and the federal courts twisted themselves into a pretzel to avoid looking at any of that evidence,'' Khoury said.
``If you were to tell that evidence to any man on the street, he would tell you Joe shouldn't be executed. But we told a lot of men on the bench, and they all essentially said, `That's not my problem.'''
Virginia law allows the governor to grant clemency to any condemned prisoner. When Allen spared his life, Payne joined a group of three men whose death sentences have been commuted by a Virginia governor - Joseph Giarratano, Herbert Bassette and Earl Washington. In those cases, former Gov. Douglas Wilder doubted their guilt. All three had exhausted their appeals in the courts.
Executive clemency is the state's last-ditch fail-safe. But, said Khoury, the system was designed to work differently.
``This shouldn't have to fall to the governor,'' he said.
``In making these decisions, governors are constrained by all sorts of considerations, political and otherwise. That's why we have the courts.''
Lem Tuggle
Convicted of a rape-murder. At issue is psychiatric evidence and a judge's decision not to let him hire his own psychiatrist.
LENGTH: Long : 207 lines ILLUSTRATION: PHOTO: 1. Larry Stout\Convicted of murder. At issue is hisby CNBlegal representation at sentencing. 2. Ronald Lee Hoke\Convicted of
a rape-murder. At issue is evidence allegedly withheld by the
prosecution. 3. AP. Gregory Warren Beaver was sentenced to death for
the murder of a state trooper. At issue is the quality of his legal
representation. KEYWORDS: 2DA