Gov. Phil Bredesen continues to preserve the death penalty in Tennessee, but only in theory. Last week, Bredesen granted another three-month executive reprieve to convicted cop killer Philip Workman over the written protests of Shelby County District Attorney Bill Gibbons. While Bredesen portrays himself as a conservative Southern Democrat firmly in favor of capital punishment, his decision is another sign that he is far more circumspect about the process than he’s ever confessed publicly.
“The governor is taking a lot more caution on capital punishment than Gov. Don Sundquist,” says Don Dawson, the state’s post-conviction defender. “He reflects deeply on these decisions and appears to be concerned with the process and how it occurs.”
In September, the governor granted Workman a new lease on life after news broke that a federal grand jury had begun an investigation of O.C. Smith, the Shelby County medical examiner who was a key prosecution witness in Workman’s 2001 clemency hearing. Workman had been scheduled to die Sept. 24. Bredesen’s three-month reprieve was set to expire this week until the governor extended it to allow the grand jury to complete its investigation of a 2002 attack on Smith.
The grand jury is primarily interested in whether Smith staged the mysterious assault, in which he was found in a parking lot bound with barbed wire with a bomb strapped to his chest. Smith also allegedly received three letters, characterizing him as the “soulless pawn of the devil” and accusing him of seeking to murder Workman. In a case that has featured a recanting eyewitness, a hidden X-ray and a last-hour stay of execution, the bizarre drama surrounding Smith hardly seems out of place.
Still, for the prosecution, Smith’s credibility is no incidental matter. He has firmly refuted the defense claims that Workman couldn’t have fired the fatal shot. But if he’s crazy enough to have choreographed a bizarre assault, then how he could be taken seriously on any other matter?
In 1982, Workman was convicted of shooting Memphis police Lt. Ron Oliver dead during a bungled robbery of a Memphis Wendy’s a year earlier. Workman was hoping to use the money to feed his drug addiction. Under questioning during trial, he admitted his culpability in Oliver’s death. “I had my hands around the gun, and I guess I pointed it at the officers,” he said.
Hardly the perfect poster child for the state’s outgunned anti-death penalty movement, Workman was scheduled to be one of the first inmates executed in Tennessee in more than 40 years. Robert Glenn Coe, a convicted and seemingly unrepentant child killer, went down first, executed at Riverbend in April 2000. There was little public outcry. But the case against Workman turned out to be far more complicated. His lawyers turned up forensic evidence that they say proved their client didn’t fire the deadly bullet. Rather, the defense claims that, in a case of friendly fire, it was one of the other Memphis police officers at the crime scene who shot and killed Oliver. Sympathetic letters to the editor, television exposés and newspaper columns added to a pro-Workman chorus that was impossible to silence.
At Workman’s 2001 clemency hearing, Cyril Wecht, a renowned forensic pathologist, testified that Oliver’s wound probably wasn’t caused by Workman’s gun. In his long career, Wecht has performed about 14,000 autopsies and supervised or signed off on another 30,000. He also served as one of nine pathologists on a House Select Committee investigating the assassinations of President Kennedy and Martin Luther King. So when he says Workman probably didn’t do it, well, that reasonably raises doubt. The prosecution elected to have O.C. Smith refute Wecht’s expert testimony: “The bullet was fired from Workman’s gun to the exclusion of all other guns in the world.” Smith cited laboratory examinations that involvedno jokea pig’s foot. The clemency board later voted 6-0 to recommend that then-Gov. Don Sundquist reject Workman’s bid for clemency.
In court papers, the defense assailed both the integrity and methodology of Smith’s findings. They viewed Smith as a loon and talked about him with contempt. He was the man who not only refuted their expert’s testimony, but had comparatively anemic credentials to be commenting on such a complicated case. But meanwhile the public grew weary of the gritty crime drama. Newspapers and television stations moved on to other stories. And yet another round of the defense’s legal appeals fell short. On Sept. 24, the state was again readying to put Workman to deaththe fourth time he has been put on such notice in as many years.
But as the federal grand jury began its investigation of Smith, Bredesen didn’t want to go ahead with Workman’s execution with so many questions unanswered about a key witness. Those questions continue to linger, which is why Bredesen extended another reprieve.
In a New Year’s Eve letter to Bredesen, Shelby County District Attorney Bill Gibbons implored the governor not to grant Workman another extension. “I hope you will not extend the temporary reprieve and allow the prompt setting of a new execution date,” he wrote. Gibbons notes that in the more than 22 court rulings against Workman, Smith’s opinion wasn’t a factor. But it is a factor in the court of public opinion. If Workman is executed and an investigation confirms that Smith staged his own attack in a misguided bid for sympathy, the press will again remind people this was the guy who said that Workman pulled the fatal shotthe same guy the prosecution used to refute the testimony of a nationally renown forensic pathologist who delivers opinions to the U.S. Congress. Bredesen realized all of that and gave Workman another three months. In contrast, his predecessor, Don Sundquist, was ready to let Workman die on a number of occasions even while he was aware of how the essential facts of the case were in doubt.
Bredesen’s careful handling of the Workman case is hardly an anomaly. His office intently studied Abu-Ali Abdur’Rahman’s clemency petition, especially his chief legal counsel Bob Cooper. Some people close to the defense were optimistic that the governor would have commuted Abdur’Rahman’s sentence to life in prison had the 6th U.S. Circuit Court of Appeals not issued another stay of execution.
In 1987, a Davidson County jury convicted Abdur’Rahman of stabbing a local drug dealer to death, even though there was no hard evidence that he committed the crimeno murder weapon, no blood on the defendant’s clothes and not a single eyewitness other than a shady accomplice who might have killed the victim himself. Abdur’Rahman’s defense lawyers have been stymied in the courts, mainly due to procedural reasons, but the case might have found new life in the 6th Circuit.
Earlier, Cooper had been described as very curious in the defense’s claims of prosecutorial misconduct. No one really knows just how sympathetic he was, but his high level of interest was a departure from the way the Sundquist administration handled the case.
State Rep. Rob Briley has consistently filed legislation calling for a moratorium on the death penalty. Each one languished in subcommittee because there is simply little public and political support for derailing capital punishment. And Bredesen isn’t reluctant to remind people that he remains a supporter of the death penalty. No one doubts that he would have let convicted serial killer Paul Reid die last spring had the courts not again intervened.
“The two cases on the top of his list are the most complicated and probably the most troubling to people,” Briley says of the Workman and Abdur’Rahman files.
But Bredesen’s next death penalty case is by far the most problematic to date. On March 11, the state is set to execute Olen Hutchison for a murder that was committed while he was in another county. In 1988, Hugh Huddleston drowned after falling off a pontoon boat in Norris Lake, in East Tennessee. Initially, the death was ruled an accident. Later, police arrested seven men for conspiring to kill Huddleston to collect a life insurance payment. Hutchison wasn’t on the boat, but he wound up on death row for executing an insurance scam in order to expand his “drug business.” The defense claims that not only is there no evidence that Hutchison was selling drugs, but there’s no “direct and reliable” evidence that suggests he had anything to do with Huddleston’s death. The prosecution built its case against Hutchison in large part from the testimony of his supposed collaborators.
Paul Phillips, the district attorney whose office prosecuted Hutchison, agrees that a good part of his case involves the cooperation of Hutchison’s alleged collaborators. But he says the prosecution also presented evidence that shows that Hutchison kept detailed records on the victim’s life insurance policy that named him as a beneficiary. He also went to great lengths to collect from the policy after the victim’s death.
But even if the prosecution’s theory is true, the disparity in the sentences the court issued to the other defendants is astounding. Wilbur Hatmaker, the man who struck and pushed Huddleston from the boat, is eligible for parole in 2019. Another man who was on the boat with the victim, Johnny Rollyson, served six years and is now free. Ricky Miller lured Huddleston on the boat, and he’s now free.
One of the few prosecutors who will acknowledge the moral complexities of his case, Phillips gamely admits that the widely different sentencing of each defendant is bizarre. “The explanation is that Hutchison never accepted responsibility for the crime,” says Phillips. “He never admitted guilt and the jury chose to give him the death penalty.”
In the ultimate catch-22, Hutchison has repeatedly explained that he can’t confess to something that he didn’t do.
Meanwhile, Hutchison’s attorney, Dana Hansen, will be sending Bredesen a clemency petition within a month or so. “In Hutchison’s case, where there is such a disparity in sentencing and the punishment is unequal and unjust, I would hope and I think that he would give as much consideration to Mr. Hutchison’s case as he did for Workman’s case,” Hansen says.
Then there’s the case of Paul Gregory House, who was convicted of raping and murdering Carolyn Muncey in 1985 in Union County. The only problem is that recent DNA evidence proves that House didn’t rape her. Her husband, actually, confessed to it, according to a pair of witnesses. But House remains on death row, with the prosecution saying that he didn’t have to rape her to kill her. Never mind that prosecutors have reconfigured their story about how the murder occurred. House’s case is at the 6th Circuit and Bredesen may never have to touch it. Most observers expect the court to grant House some kind of relief. Still, the very fact that House wound up on death row has to be of some concern to the governor.
“The courts have already said that he was convicted on a false set of facts,” says House’s attorney, Stephen Kissinger. “But we won’t submit a clemency petition because we don’t feel like we have to. We’re expecting the courts to exercise justice.”
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