Running Out of Time 

The governor refuses to extend the moratorium on the death penalty, despite evidence suggesting the system is flawed. Meanwhile, the execution of Philip Workman approaches.

Nashville defense lawyer Michael Passino says he’s troubled by the state’s resolve to meet a seemingly arbitrary deadline, and to execute Philip Workman so soon after the moratorium ends.

A 90-day ban on the death penalty in Tennessee expires one week before Philip Ray Workman is set to die by lethal injection, the first scheduled execution since the governor established a commission to overhaul the state’s capital punishment protocols. And although critics, including the American Bar Association, are skeptical any substantial changes can be made in a mere 90 days, the governor appears steadfast in moving ahead as scheduled.

Gov. Phil Bredesen stands by his May 2 deadline ending the ban, as well as Workman’s scheduled execution a week later: “The governor has received the report issued by the ABA, and while he has great respect for the organization, he has no plans to extend the moratorium,” Lydia Lenker, the governor’s spokeswoman, writes in an e-mail to the Scene.

After spending three years examining Tennessee’s death penalty, a team of legal experts organized by the ABA asked Bredesen Monday to extend the moratorium to allow for a more thorough review. The team, made up of prominent defense lawyers, prosecutors, a law professor and even a federal judge, concludes the state’s capital punishment system is riddled with flaws, including insufficient procedures for reviewing innocence claims, racial disparities, inadequate standards for defense counsel and excessive caseloads.

In pushing the governor to continue the moratorium, the group made clear the ABA has no stance on the death penalty and is interested solely in improving the state’s capital justice system. A state House subcommittee followed suit on Tuesday by unanimously proposing bipartisan legislation that would create a new commission to further study the death penalty system in Tennessee. Despite these concerns, the governor still plans instead to defer to a commission that spent three months—as opposed to three years—reviewing the state’s procedures for administering lethal injections and electrocutions.

Nashville defense lawyer Michael Passino says he’s troubled by the state’s resolve to meet a seemingly arbitrary deadline, and to execute Workman so soon after the moratorium ends. “It looks like it could be more of a rush to get things done without reference to how thoughtful the study was and how ably and comprehensive the remedies, if any, have been implemented,” adds Passino, who has represented defendants facing the death penalty for 17 years.

With what appears to be a firm deadline in place, Workman’s lawyers can do little to prepare for a potential court appeal, given that the commission’s work thus far has been withheld from the public.

“We are going to be in a position where we’re going to have to very, very quickly review these new protocols and make a determination whether there are any potential legal challenges,” says Kelley Henry, an assistant federal public defender representing Workman. Despite numerous attempts to obtain information about the process, Henry has been stonewalled repeatedly and has no idea what changes the commission might be considering.

With the exception of one poorly publicized and sparsely attended hearing, the commission’s work has been shrouded in secrecy. Consequently, this newspaper recently filed a petition seeking access to public records associated with the development of new execution protocols in Tennessee. A hearing on the matter is scheduled for Wednesday before Davidson County Chancellor Claudia Bonnyman.

When Bredesen imposed the death penalty moratorium in February, the executions of four other prisoners scheduled to die during that 90-day period were postponed. Going ahead with Workman’s execution, which just happens to fall one week after the ban expires, is both arbitrary and unfair, according to Henry, who suggests the dates of the moratorium might even have been chosen with her client in mind.

“They obviously were aware of his execution date at the time this moratorium was set,” Henry says. “The governor elected to end his moratorium a week before Workman’s execution date. It really feels like he was singled out.”

But Tennessee Attorney General Robert Cooper argues in court papers filed last month that there’s nothing unjust about refusing to delay the execution of Workman, whom he points out has had six execution dates since 2000. Cooper goes on to say: “The expectation … is that a revised death penalty protocol that is both constitutional and appropriate will have been established by May 2, 2007. In other words, by May 9, 2007, when Workman’s death sentence is scheduled to be executed, it is expected that his sentence will be carried out pursuant to a constitutional and appropriate protocol.”

The Tennessee Supreme Court has since sided with the state on the matter and, without further explanation, denied Workman’s request to delay his execution.

“He has been on deathwatch three times, and now he is staring down his fourth trip down there,” says Henry, suggesting such treatment is cruel and unusual punishment.

If plans to execute Workman proceed as scheduled, he will for the fourth time wind up on “deathwatch,” the term given to the 72-hour period leading up to an inmate’s execution. While on deathwatch the prisoner is closely monitored by a team of guards standing outside an 8-by-10 concrete cell adjacent to the death chamber. A tiny window overlooking the prison’s exercise yard provides a limited and perhaps final glimpse of the outside world. Only a few items, such as legal documents and a Bible, are made available to the inmate.

On one occasion, Workman was receiving last communion when his execution was called off just 43 minutes before he was set to die by lethal injection. This time, Henry anticipates it might once again go down to the wire: “We probably won’t know if we have a stay until the last minute.”

Given the governor’s refusal to extend the moratorium or postpone Workman’s lethal injection, Henry is seeking a stay of execution in federal court. Workman’s legal team currently is awaiting the outcome of several appeals.

Workman was convicted of first-degree murder and sentenced to death for his role in the 1981 robbery of a Wendy’s restaurant during which Memphis Police Officer Ronald Oliver was shot and killed. Oliver and two other officers responded to a silent alarm tripped by an employee and found Workman exiting the restaurant with a bag of cash. A shootout ensued and Oliver was fatally wounded.

Although Workman—a junkie at the time who frequently stole for drug money—never denied the robbery, he maintains he did not shoot the officer. Years after his conviction and death sentence, an alleged witness who claimed to have seen Workman fire the fatal shot recanted his testimony and admitted he lied. Additional evidence has surfaced suggesting a fellow officer accidentally shot Oliver. (Astonishingly, Workman’s defense failed to pursue any ballistics testing prior to trial.) Then there’s the exculpatory evidence that Workman’s lawyers claim the prosecution intentionally withheld from the defense at trial.

At the time of Workman’s conviction, state law would not have permitted a death sentence if he did not fire the fatal bullet.

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