Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, May 25, 1995 TAG: 9505250056
SECTION: VIRGINIA PAGE: VIRGINIA EDITION: METRO
SOURCE: Associated Press
DATELINE: RICHMOND LENGTH: Medium
Turner, 49, is scheduled to die by lethal injection tonight at Greensville Correctional Center in Jarratt unless he is granted a stay by the U.S. Supreme Court or clemency from Gov. George Allen.
Turner's attorney had argued in a petition to the 4th U.S. Circuit Court of Appeals that Turner's 15-year stay on death row or maximum-security prisons amounted to cruel and unusual punishment.
But a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously disagreed Wednesday. In a strongly worded concurring opinion, Judge J. Michael Luttig scolded Turner for abusing the judicial process and chided the courts for indulging Turner's tireless appeals for so long.
``It is a mockery of our system of justice, and an affront to law-abiding citizens who are already rightly disillusioned with that system,'' Luttig wrote. The judge said Turner used the system to secure ``almost-indefinite postponement'' of his sentence, then tried to use the delays to establish the cruel and unusual punishment violations.
``We have indeed entered the theater of the absurd, where politics disguised as `intellectualism' occupies center stage, no argument is acknowledged to be frivolous, and common sense and judgment play no role,'' he wrote.
Luttig's stern opinion came less than a year after his father, John Luttig, was shot in the head and killed during a carjacking attempt in the driveway of his home in Tyler, Texas.
Turner was convicted and sentenced to death for shooting Franklin jewelry store owner Jack Smith in the head during a 1978 robbery. He has admitted shooting Smith.
Turner's attorney, Walter J. Walvick of Washington, said he filed a petition Wednesday with the Supreme Court to block the execution.
But Turner said he has little hope.
``I'm planning to be dead tomorrow at 9 o'clock,'' he said in an interview Wednesday with the Richmond Times-Dispatch from his cell. ``I know what these courts are about.''
Ken Stroupe, a spokesman for Allen, said his office had received no clemency request from Turner.
Walvick wrote in his petition to the federal appeals court that Turner had been forced into a series of last-minute appeals by the procrastination of state prosecutors and judges.
The appeal contended that 15 years on death row - the longest stay of any of the state's 56 condemned prisoners - and the dehumanizing aspects of prison life violated Turner's Eighth Amendment rights. The amendment bans cruel and unusual punishment.
Walvick said the appeals court should have more thoroughly considered parallels between his client's case and a recent Texas case in which a stay was granted to 17-year death row inmate Clarence Lackey.
The attorney also denounced Luttig's opinion.
``It is very unfortunate that a member of the panel views Mr. Turner's petition so harshly,'' he said, especially given the clear language used by Justices John Paul Stevens and Stephen Breyer in granting Lackey's stay.
This case, said Walvick, ``raises the very claim the two justices believed important and unsettled and which the entire Supreme Court believed worthy of a stay of execution in the [other] case.''
The Supreme Court delayed Lackey's execution last month after his lawyers argued that 17 years as a condemned man violated the Constitution.
Stevens called the issue ``important and undecided'' in a memorandum, and Breyer agreed. That opened the way for lower courts to interpret ``cruel and unusual punishment'' in such cases.
Lackey remains on death row in Texas.
by CNB