Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, May 24, 1995                   TAG: 9505240081
SECTION: VIRGINIA                    PAGE: C-4   EDITION: METRO 
SOURCE: Associated Press RICHMOND
DATELINE:                                 LENGTH: Medium

INMATE: STATE CAUSED EXECUTION DELAY

Turner, 49, is scheduled to die by lethal injection Thursday for shooting Franklin jewelry store owner Jack Smith in the head during a robbery in 1978.

``It is virtually impossible to resolve the serious constitutional issue set forth in Mr. Turner's appeal unless a stay of execution is granted,'' defense attorney Walter J. Walvick told the 4th U.S. Circuit Court of Appeals in Richmond.

Because of the 15 years Turner spent on death row and in maximum-security prisons, his execution would not deter crime, Walvick also argued. Of 56 inmates on Virginia's death row, Turner has been there the longest.

``When the goals of deterrence and retribution are no longer satisfied by a prisoner's execution, it violates the Eighth Amendment to carry out his death sentence,'' Walvick wrote. The Eighth Amendment forbids cruel and unusual punishment.

In addition to the time Turner has spent on death row, and the fact that he has been scheduled four times for execution, his appeal raised what were described as dangerous, unsanitary and dehumanizing aspects of his life in prison.

In a brief responding to Turner's appeal, Assistant Attorney General Robert H. Anderson III wrote that U.S. District Judge James C. Cacheris ``correctly recognized that even if the conditions of this confinement had at some point been unconstitutional, the remedy was not a reduction of Turner's sentence.'' Anderson also noted that Turner never has filed a complaint about prison conditions.

Cacheris denied Turner's appeal Monday.

Last month, the U.S. Supreme Court delayed the execution of a Texas killer whose lawyer argued that 17 years as a condemned man violated the Eighth Amendment. Justice Stephen Breyer in a memorandum called the issue ``important and undecided,'' opening the way for lower courts to interpret the meaning of cruel and unusual punishment in such cases.

Anderson said Turner's case differed in an important way from the Texas case. In that case, the prisoner's two automatic direct appeals took more than 12 years to complete.

``In the case at bar, the district court properly emphasized the lack of any equivalent governmental or judicial abusive delay,'' he wrote. ``Turner's two direct appeals, combined, took little more than a year to complete.''