THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Friday, September 9, 1994 TAG: 9409090589
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY AND LYNN WALTZ, STAFF WRITERS
LENGTH: Long : 135 lines
For the third time this year and the second time in two weeks, Richmond federal Judge James R. Spencer has overturned the death sentence of a convicted Hampton Roads murderer.
On Wednesday, Spencer ruled in U.S. District Court that Joseph Roger O'Dell III was unfairly sentenced to die in 1986 for the rape and murder of Helen C. Schartner, 44, of Virginia Beach.
Spencer earlier had overturned the death sentences of Herman Charles Barnes of Hampton and Coleman Wayne Gray of Suffolk, ruling that in both cases prosecutors acted improperly.
The three rulings were all made on appeal. Barnes, Gray and O'Dell will receive new sentencing hearings if prosecution appeals are unsuccessful, and their death sentences could be reimposed.
Prosecutors in two of the cities where the death sentences were imposed said Thursday they are troubled by what they see as a pattern in Spencer's rulings.
``The federal judge in Richmond has gone on a binge lately. I don't know why,'' said Robert Humphreys, commonwealth's attorney in Virginia Beach. ``He's apparently found something wrong with (the O'Dell) case.''
In Suffolk, Commonwealth's Attorney C. Phillips Ferguson, who prosecuted Gray, added: ``I think there's a serious question as to whether Judge Spencer intends to enforce Virginia's death penalty. He's certainly developing a track record of overturning death penalty cases.
``Thirty-four judges and six courts all upheld the death penalty in my case. Judge Spencer decides they're all wrong and he's right. We'll see what the 4th (U.S.) Circuit (Court of Appeals) says. We'll take it to the Supreme Court if necessary.''
Two attorneys who have handled many Virginia capital cases on appeal say criticism of Spencer is unwarranted.
``We're not talking about some soft-on-crime judge,'' said Richmond attorney Gerald Zerkin, pointing out that Spencer is a former prosecutor who has also upheld death sentences on appeal. ``He's demonstrated throughout his career a real commitment to law and order.
``He follows the law as faithfully as any judge I know. He doesn't shave corners in any direction.''
Rather than representing ``the mindset of the judge,'' Zerkin said, the three cases ``reflect a change in the quality of representation in the post-conviction phase.''
He cited the Virginia Capital Representation Resource Center, which provides specialized legal representation for death-row inmates. Barry Weinstein, who heads the resource center in Richmond, echoed Zerkin's sentiments.
``Obviously, the (legal) landscape hasn't changed. We're not talking about new judges,'' he said, referring to Spencer's eight years on the federal bench.
Weinstein said the judge was dealing with ``complex legal issues that merit federal intervention.''
Prosecutors and defense attorneys alike, however, agreed that is unusual for one judge to overturn three death sentences in eight months. They also agreed that death sentences in Virginia have had trouble withstanding the scrutiny of appeals courts recently.
In two other cases this year, convictions in capital cases were overturned by U.S. District Judge James Turk in Roanoke. And two other capital cases were sent back to the Virginia Supreme Court for reconsideration, and possible resentencing, following a June U.S. Supreme Court ruling.
In that ruling, the nation's high court asserted that a defendant's rights are violated in a capital case if the jury, during arguments concerning future dangerousness, is not told exactly what a life sentence means - that is, whether the defendant would be eligible for parole.
That was the issue on which Spencer based his ruling in the O'Dell case. He said the jury should have been told that if O'Dell had received a life sentence, he would not have been eligible for parole. The jury was never given that information.
Pat Schwarzschild, local counsel for O'Dell, said that because O'Dell's 1986 conviction was his third violent felony conviction, he would not have been eligible for parole.
But Beach prosecutor Humphreys argued that, based on his understanding of the case, at least one of those felonies occurred outside Virginia, and therefore O'Dell could have been considered for parole.
The state's top prosecutor has yet another take on the O'Dell ruling. Don Harrison, a spokesman for state Attorney General James Gilmore, said the June high court ruling should not be applied retroactively, and thus would have no bearing on O'Dell's 1986 sentencing. ILLUSTRATION: A look at the Cases
Graphic
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Gray
Barnes
Coleman Wayne Gray
On Dec. 5, 1985, a Suffolk Circuit Court jury convicted Coleman
Wayne Gray of murdering Richard M. McClelland of Franklin, manager
of a Portsmouth Murphy's Mart. Gray was sentenced to death.
Gray and an accomplice, Melvin G. Tucker, abducted McClelland
before midnight May 2, 1985, forced him to open his store, and stole
about $12,000 in cash and merchandise. They drove McClelland to
Tidewater Community College in northern Suffolk, where he was found
dead the next morning with six .32-caliber bullet holes in his
head.
In August, U.S. District Court Judge James R. Spencer ordered
that Gray should receive a new sentencing hearing within 180 days.
In a 20-page opinion, Spencer criticized Suffolk Commonwealth's
Attorney C. Phillips Ferguson, saying he ``ambushed'' defense
attorneys with evidence that Gray committed two other murders with
which he was never charged. That evidence was presented to the
jury.
Herman Charles Barnes
Herman Charles Barnes was convicted of gunning down 73-year-old
Hampton grocer Clyde Dewey Jenkins in a June 1985 robbery attempt in
which store clerk Mohammad Afifi also was killed. Barnes was
sentenced to die in September 1986 for Jenkins' murder.
On Jan. 20, 1994, Judge Spencer ordered that Barnes receive a new
sentencing hearing, ruling that prosecutors failed to turn over to
defense lawyers evidence that could have saved Barnes' life.
Prosecutors knew a gun was found under Jenkins' body, but they
didn't tell Barnes' lawyers. Armed with that knowledge, and
information that Jenkins routinely carried a handgun when opening
the store, the defense could have presented a scenario of Barnes
being confronted by a man with a gun.
When the issue reached Spencer's court, prosecutors argued the
evidence was not exculpatory - it wouldn't clear Barnes - because
there was no reason to believe Barnes had seen the gun. But Spencer
said Barnes didn't need to have seen the gun.
``I don't know how anybody could possibly say this is not
exculpatory,'' Spencer said during the March 1993 hearing. ``It is
clear that (Hampton Commonwealth's Attorney Christopher) Hutton knew
where the gun was found.''
KEYWORDS: CAPITAL PUNISHMENT DEATH PENALTY MURDER RULING APPEAL by CNB