TENNESSE:-execution is stayed 

The Tennessee Supreme Court delivered Philip Workman a dramatic and unexpected stay of execution early this morning, less than an hour before he was scheduled to die by lethal injection.

"The court is of the opinion that due process requires that Workman be granted a hearing to evaluate his claims that new evidence, which was unavailable at trial and which has never been evaluated in a hearing in this state's courts, shows that he is actually innocent of capital murder," the high court said in an order at 12:37 a.m. today.

As the appointed execution time of 1 a.m. today approached, Workman appeared to have but one appeal left - a Tennessee Supreme Court that had been skeptical of earlier appeals.

"This court is Workman's last chance," the defense pleaded to the state Supreme Court at 11:18 p.m. "The public interest lies in having a court, somewhere, hear evidence that Workman is innocent and should not be executed. This court should exercise its inherent power to prevent a miscarriage of justice."

And about a half hour before he was to be executed, the court granted Workman's wish for an evidentiary hearing on claims he did not fire the bullet that killed Memphis police Lt. Ronald Oliver during a fast-food robbery in 1981.

The Tennessee Supreme Court voted 3-2 to send the case back to Shelby County for a hearing.

"We're obviously delighted with the Supreme Court," defense attorney Ted Carey said. "This has been an extraordinary day and an extraordinary case and a great end. Workman's going to get his day in court."

The condemned man's older brother, Terry Workman, was already inside the prison, ready to watch his sibling die. "Thank God," Terry Workman said, "and I hope something comes out of this that's positive."

Workman had exhausted his federal appeals at 10:20 p.m., when the U.S. Supreme Court voted 6-3 against staying his execution.

In dissent, Justice John Paul Stevens said Workman "has raised serious questions concerning his eligibility for the death penalty." Stevens said he was "persuaded that (Workman's) claims were sufficiently serious to require a full evidentiary hearing before a fact finder."

The defense plea to the nation's high court had argued that Workman had been convicted "based on perjured testimony" and that his clemency hearing had been "a show trial."

Workman, who claims that he did not fire the bullet that killed Oliver in 1981, has drawn national attention and even support from some capital punishment proponents.

The condemned man had raised 2 late claims - that the only eyewitness to the crime now admits he perjured himself at trial under police pressure, and that a recently discovered X-ray indicates bullets from Workman's gun did not kill Oliver.

"These circumstances are not only exceptional, they are virtually unprecedented," Workman's lawyer, Christopher Minton, wrote recently in an appeal to the U.S. Supreme Court.

But until early this morning, Workman's lawyers could not persuade any court, state or federal, to grant a hearing to explore these late claims, both of which were developed after the normal state appellate process had expired, and both of which were vigorously contested by the state.

Attorney General Paul Summers has said the state has established "beyond any shadow of a doubt that Workman was responsible for the death of Lt. Oliver."

The dead police officer's wife, Sandra Oliver Noblin, called "lame and cowardly" Workman's assertion that her husband died as a result of "friendly fire" from another officer. "I have often wondered how much thought Philip Workman and his attorneys have given to the privilege of life that was taken from Ronnie that night almost 20 years ago," she said in a recent statement. "Or is Ronnie, after all this time, just considered another statistic?"

Oliver's widow initially said she would not attend the execution, but yesterday afternoon state correction officials said she had changed her mind.

Workman, a born-again Christian, had said he was not afraid to die because he believed he would soon join God in heaven. "Unless God's Word is just a lie, if I die, it's just the beginning, not the end. I'm just going to be taking a nap," he said in an interview last week.

Still, he added: "I know for an absolute I don't deserve to be executed, but it's been very disappointing to get the court doors slammed in your face at every turn because the facts fall on deaf ears."

This morning's execution was to be Tennessee's 2nd in 41 years. The state executed no one between 1960 and 2000, largely because of successful legal and political challenges to the death penalty.

In his final years, Workman drew several unlikely supporters, including five of the original trial jurors, his victim's daughter and an influential former Shelby County prosecutor. Late last year, former Shelby County District Attorney General John Pierotti, a death penalty proponent who did not participate in Workman's prosecution but worked in the office at the time of the trial, lent his reputation to the defense and ultimately represented Workman at a clemency hearing in January.

In 1999, a federal appeals court, in denying Workman a hearing on the late claims, also said its hands were tied. "This court expresses no view as to whether Mr. Workman is actually innocent. The traditional remedy based on claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency."

A full federal appeals court deadlocked 7-7 last fall on the same issue. The 7 judges who would have granted a hearing wrote that "it is obvious that if the jury harbored doubts" about whose bullet killed Oliver, it would have been "considerably" harder to sentence Workman to death.

On Tuesday, Sundquist, a Republican who has campaigned in support of the death penalty, followed the unanimous recommendation of the state Board of Probation and Parole and denied clemency.

Also this week, the full 6th U.S. Circuit Court of Appeals denied Workman's request to appoint a special master to investigate allegations of fraud, perjury and conflict of interest during the clemency proceedings. The state had called those claims "reckless" and "slanderous." Anti-death penalty protesters held vigils downtown and at the prison.

The state lodge of the Fraternal Order of Police considered staging a similar protest on behalf of the slain officer, but this week decided it was unnecessary, state FOP President Carl Jenkins said.

Jenkins called Oliver a "guardian of justice," who "received no rights, no appeals that night but received the death penalty for this preventable murder by this one individual. The state should not turn its back on those tasked with protecting and serving our communities."

Workman, born in 1953 at Fort Campbell, Ky., grew up with his parents at various Army bases. After some rough early teen years, he lived with Terry, his much older brother, and his family in southern Kentucky. Later he joined the Army.

Shortly after his 1973 discharge, Workman was sentenced to 5 years in prison in Georgia for burglary and drug possession. He served 25 months.

At age 28, by then a father, husband and cocaine addict, Workman left his young family in Columbus, Ga., and hitchhiked to Memphis. It was the summer of 1981. Oliver and Workman crossed paths on Aug. 5.

Shortly before 10 p.m. that night, Workman, needing money to buy drugs, sat down in a Wendy's restaurant and waited for the place to close. A few blocks away, Oliver rode in a patrol car, alone.

At closing, Workman pulled a .45-caliber pistol and robbed the place of about $1,000. Before Workman could flee, an employee tripped the silent alarm, summoning police. Two officers, Oliver and Aubrey Stoddard, confronted the robber in the parking lot.

What happened next is at the heart of the legal dispute.

Oliver and Workman fired their weapons. A bullet hit Stoddard's right arm and spun him. Another bullet hit Oliver and pierced his lung and heart. As he fell, the officer fired another shot. Workman fled into a residential neighborhood, but he, too, was injured, and the wound on his head required 7 stitches.

Workman said the blow to his head, presumably from an officer, caused his gun to fire. He said he cannot remember everything that happened, but that he believes he fired into the air.

        March 30, 2001          (source: Tennessean)

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TENNESSEE:-impending execution   March 30

The U.S. Supreme Court voted 6-3 tonight against staying the execution of Philip Workman.

In dissent, Justice John Paul Stevens said Workman "has raised serious questions concerning his eligibility for the death penalty. When this court reviewed (Workman's) applications for relief in February, I was persuaded that those claims were sufficiently serious to require a full evidentiary hearing..."

Stevens was joined in dissent by justices David Souter and Stephen Breyer.

The Tennessee Supreme Court, meanwhile, was still considering an appeal from a Memphis court late this evening. At 10 p.m., however, the court denied Workman's request for oral argument in the case.

He had no other appeals pending.

Earlier, the U.S. Supreme Court had rejected Workman's requests to halt his execution based on a contention that the clemency process amounted to a fraud upon the federal court system.

At about 10:35 p.m., the nation's high court declined to stop the execution in order to consider Workman's civil rights case against state Attorney General Paul Summers and other state officials for allegedly rigging the clemency process.

"The federal courts closed their doors to Workman's claims, demonstrating that his conviction is based on perjured testimony," defense attorneys had written in their urgent appeal to the U.S. Supreme Court.

"The frightening result is the impending execution of one who is actually innocent but who can get no relief because the state successfully hid evidence of innocence."

Workman won 2 minor victories Thursday orders allowing his preacher to remain with him until the end and barring the state medical examiner from performing an autopsy after the execution.

Workman is scheduled to die at 1 a.m. by lethal injection at Riverbend Maximum Security Institution in Nashville. The sentence is punishment for the 1981 slaying of Memphis police Lt. Ronald Oliver.

Workman's lawyers were trying to convince judges to halt the execution to hold a hearing on evidence discovered after trial. That evidence includes an X-ray that bolsters defense claims that bullets from Workman's gun could not have killed Oliver. It also includes a videotaped statement by Harold Davis, the sole eyewitness to testify at trial. Davis now says he perjured himself under police pressure, and never saw Workman the night of the shooting.

The defense contends that the Supreme Court has said a potentially innocent man cannot be executed without a hearing in a court or a clemency proceeding on evidence that might show innocence.

"That's the single legal issue that's being presented in every court we're in," defense attorney Ted Carey said in an interview at 4:20 p.m. "It's our position that nothing to close to a real hearing, or a fair hearing, was made available."

Other developments today:

At 4:02 p.m., the Tennessee Supreme Court rejected Workman's request for a stay until his case before the Inter-American Commission on Human Rights is resolved. The purpose of that case is to determine whether his conviction and sentence violate Workman's human rights. The commission, affiliated with the Organization of American States, took his case on Jan. 22.

At 4 p.m., a federal judge barred the state from performing an autopsy on Workman if he is executed. U.S. District Judge Todd Campbell, noting Workman's religious objections to an autopsy, said the government had not shown a compelling reason to perform one.

At about 3:30 p.m., a state judge in Memphis denied Workman's efforts to re-open his original state case. His lawyer argued that his conviction was unfair because the trial jury never heard the "new: evidence about the X-ray and Davis' testimony. An appeal of that case was before the state supreme court.

At about 3:15 p.m., a federal judge in Memphis denied an effort to re-open Workman's original federal habeas case - the regular federal review of a state capital trial designed to ensure the defendant's rights are not violated.

At 2:10 p.m., a Davidson County chancellor ordered the prison to allow Workman's spiritual advisor, the Rev. Joe Ingle, access to the condemned man until he is rolled by gurney into the execution chamber. Ingle sued yesterday after he said the warden told him he would have to leave Workman 3 hours before the execution.

Chancellor Ellen Hobbs Lyle said the law "accords the condemned person a right to be attended not just by a minister on the prison staff who has no relationship with the condemned person but with a minister of gospel who has been preparing the condemned person for death."

Workman was "choosing to be hopeful," Ingle said this morning. The death row inmate also was "praying for the salvation of his enemies," hoping God had mercy "on those who are trying to do him in," Ingle said.

- Anti-death-penalty activists held a prayer service at 8 p.m. for Workman at the Christ Episcopal Church on Broadway in downtown Nashville, across from the U.S. Courthouse. The protestors were expected to gather at the prison afterward.

- The president of the state Fraternal Order of Police said law enforcement officers would not hold a vigil of their own for Oliver, as originally planned.

For his last meal, Workman, a vegetarian, ordered a meatless pizza to be delivered to a Nashville homeless shelter. Prison officials said the request would not be granted and that Workman would receive the same meal as other prisoners. That meal was set for around 5 p.m.

Some of the witnesses scheduled to watch the lethal injection - including Oliver's widow, Sandra, and Workman's brother, Terry - are expected to arrive at the prison late this evening.

Some clutched Bibles, rosaries or candles.

5 hours before Philip Workman's scheduled execution, several hundred people attended a vigil in his support at Christ Church Cathedral in downtown Nashville.

Some audience members cried quietly during the ecumenical services conducted by the church's rector, the Very Rev. Kenneth Swanson, Rabbi Kenneth Kanter of Congregation Micah and others.

Also among the audience were Bonnie DeShields and Billie Jean Mayberry, sisters of Robert Glen Coe, who last year became the 1st person to be executed in Tennessee since 1960.

Both said they planned to return to Riverbend prison for the 1st time since their brother's execution in April 2000.

"It's a horrible thing that the state of Tennessee would take another life," said DeShields in tears. Mayberry was overcome with emotion and could not speak.

Karla Gothard and Maryanne Green, lawyers who have defended clients on death row, came from Chattanooga for the service.

"From a moral point of view, I think this is the very antithesis of what Jesus teaches us," said Gothard, a lawyer. "I've been thinking a lot about Philip today."

Supporters planned to drive from the service to continue their vigil outside Riverbend Maximum Security Institution.

The vigil culminated months of protests against Workman's execution by international humanitarian organizations such as Amnesty International and religious groups such as Tennesseans for a Moratorium on Executions, a coalition formed last fall of more than 50 religious and other organizations.

As Gov. Don Sundquist considered clemency - which he ultimately denied - his office received more than 28,000 cards, letters and e-mails on Workman, most of them urging clemency.

No one has ever denied that Philip Workman robbed a Wendy's restaurant in Memphis in 1981 or that he fired a gun there during a confrontation with police moments later.

At his trial in 1982, Workman and his public defender didn't contest the prosecution's theory that Workman fired the shot that killed Memphis police Lt. Ronald Oliver. Workman testified he was in a daze after he was hit on the head by police, and his lawyers tried, and failed, to persuade the jury to spare his life because his addiction to cocaine impaired his judgment.

However, Chris Minton, the lawyer who began representing Workman in 1990, found what he thought were holes in the prosecution's case a witness whom no one remembered seeing outside the restaurant and questions about whether the fatal shot matched bullets in Workman's gun.

Minton and other lawyers from Tennessee's post-conviction defender's office for years have sought a full court hearing on those 2 issues, but a series of judges have turned them down. And evidence that Workman's lawyers have discovered in the past 18 months has come too late to meet the stringent standards for late-stage appeals in capital cases. They have never received a full evidentiary hearing on their contention that Oliver was killed by "friendly fire" from another police officer.

 

The witness

Workman's attorneys had long questioned whether Harold Davis, who gave a detailed description of the shooting at Workman's trial, was even present on the night of Aug. 5, 1981. Davis, the only witness who said he saw Workman fire the fatal shot, called police the next afternoon, but he was not mentioned in the initial police reports, nor did crime scene photographs show his car.

The two police officers who responded to the robbery with Oliver testified that Workman fired shots at them, striking one of them in the arm, within seconds of when Oliver was killed by a shot to the chest. They said they did not see Workman fire the fatal shot.

Minton challenged the reliability of Davis' testimony when he asked U.S. District Judge Julia Gibbons to grant Workman a new trial in 1996, but Davis could not be found, and Gibbons ruled police were probably too busy the night of the shooting to record his presence.

Workman's lawyers found Davis, a drug abuser, in Arizona in September 1999. He told several conflicting stories about what he saw in 1981, but none matched the dramatic testimony he gave at Workman's trial about seeing the fatal shot from a few feet away.

Davis, who had been in and out of jail in Phoenix, wept as he told the lawyers in a videotaped statement in November 1999 that Memphis police and Shelby County prosecutors coached and coerced him to lie at the trial. Davis, who is black, said "a big white guy" came to his hotel room during Workman's trial and threatened to harm him and his family "if I changed my testimony in any kind of way."

Davis told Workman's lawyers in November 1999 that he saw police pull into the Wendy's parking lot as he drove by but that he did not see the shooting. He did not name, on the videotape, any of the officials whom he accused of coaching or coercing him to testify falsely, and Workman's lawyers subsequently lost contact with him.

Don Strother, one of the prosecutors who tried Workman in 1982, told The Tennessean in 1999 that Davis was a relatively minor part of the prosecution's case.

"We could have made the case without him," said Strother, who now works as legal adviser to the Shelby County Sheriff's Department.

 

The bullet

Workman's lawyers have also questioned whether the shot that passed through Oliver's torso came from their client's gun.

They had two prominent pathologists, Dr. Kris Sperry of Atlanta and Dr. Cyril Wecht of Pittsburgh, review the evidence in the case, and both said the .45-caliber, hollow-point bullets Workman had in his semi-automatic pistol would probably cause a much larger exit wound than the one shown on Oliver's autopsy report. Sperry said that such bullets, which are designed to mushroom on impact, usually don't exit a body.

Lawyers and ballistics experts have disagreed over whether a hollow-point bullet found on the ground near Oliver's body was the one that killed him.

The 2 other officers on the scene that night, Steve Parker and Aubrey Stoddard, have for 20 years denied firing a shot.

A federal appeals court panel affirmed Workman's conviction and death sentence in 1998 but noted that "if a .45-caliber, hollow-point bullet had gone all the way through Lt. Oliver's chest and emerged in one piece, we have no doubt that the exit wound would have been larger than the entry wound."

The three-judge panel speculated that the bullet fragmented inside Oliver's body although no bullet fragments were mentioned in his autopsy report.

Workman's attorneys had their hopes raised when they learned in March 2000 - as they were preparing for a clemency hearing for their client - that the Shelby County medical examiner's office had an X-ray that showed that the fatal bullet passed through Oliver's body without fragmenting.

Dr. O.C. Smith said he came across the X-ray while preparing for the clemency hearing. Contrary to Sperry and Wecht, Smith testified that the fatal shot could have come from Workman's gun.

Workman's lawyers quickly asked the federal appeals court to reopen Workman's case, based on what they called Smith's "suppression" of the Oliver X-ray. The lawyers said the X-ray had been "withheld" despite their repeated requests for all evidence.

Smith, who had only recently taken charge of the medical examiner's office, said he did not know the X-ray existed until he did a thorough re-examination of the evidence in Workman's case and referred to the X-ray in his report on the case. (The pathologist who performed the autopsy died in the late 1980s.)

The 6th Circuit U.S. Court of Appeals stayed Workman's execution in April 2000 to consider arguments that ballistics evidence and Davis' recantation merited a full hearing with cross-examination of witnesses in a lower federal court. The Court of Appeals split 7-7 in September on the need for a hearing, and the U.S. Supreme Court declined last month to intervene.

There was another round of debate over the ballistics evidence at Workman's second clemency hearing Jan. 25, this time before the state Probation and Parole Board. (The hearing in April 2000 was before an aide to Gov. Don Sundquist, who has the final say over all clemency requests.)

 

A timeline of the Workman case

 

Aug. 5, 1981: Philip Workman robs a Wendy's restaurant. Memphis police Lt. Ronald Oliver is shot to death in the parking lot.

 

March 1982: Workman is convicted of 1st-degree murder and sentenced to death.

 

Nov. 20, 1999: Witness Harold Davis says he lied at trial when he testified that he saw Workman shoot Oliver.

 

Feb. 28, 2000: Workman's lawyers learn of X-ray of Oliver's chest they believe proves client did not shoot Oliver.

 

April 4, 2000: Federal appeals court stops execution to review newly discovered evidence.

 

Sept. 5, 2000: Federal appeals court deadlocks 7-7 on Workman's request for a new hearing. Lower court denial stands.

 

Jan. 25, 2001: In a 6-0 vote, Tennessee parole board recommends that Workman's request for clemency be denied.

 

Jan. 26, 2001: Federal appeals court grants a stay until the U.S. Supreme Court rules on a petition.

 

Feb. 26, 2001: The U.S. Supreme Court declines to hear Workman's appeal.

 

March 24, 2001: A federal appeals panel denies request to appoint a special master to investigate clemency fraud allegations.

 

March 27, 2001: Governor denies clemency.

 

March 30, 2001: Execution scheduled.

(source for all: The Tennessean)

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