THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Thursday, May 18, 1995 TAG: 9505180700
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY LAURA LAFAY, STAFF WRITER\
DATELINE: NORFOLK LENGTH: Long : 180 lines
Two months ago, when the U.S. Supreme Court announced that it would not hear Willie Lloyd Turner's final bid for mercy, the condemned Virginia inmate prepared, for the fourth time in 15 years, to face the executioner.
After so long on death row and three thwarted trips to the death house, ``Mr. Turner was unwilling to undergo the further agony of last-minute appeals that could only buy time,'' his lawyer wrote in court papers.
One week later, everything changed.
In declining to hear the case of another condemned inmate, Texas prisoner Clarence Allen Lackey, two Supreme Court justices made some provocative comments. Lackey's argument - that executing him after 17 years on death row would violate the Eighth Amendment's ban on cruel and unusual punishment - presented a question of ``importance and novelty . . . sufficient to warrant review by this court,'' wrote Justice John Paul Stevens. But first, the issue should be addressed by the lower courts. Justice Steven G. Breyer concurred.
The Supreme Court on April 27 stayed Lackey's execution until a U.S. District Court in Midland, Texas, can consider the issue. A hearing is scheduled for June 19. Meanwhile, Turner's attorney has echoed Lackey's claim, filing petitions in state and federal court. To execute him without giving him the chance to prove that he, too, has been the victim of cruel and unusual punishment, his lawyer wrote, ``would be nothing more than an act of mindless vengeance.''
Turner is scheduled to be executed one week from today. On Monday, the Virginia Supreme Court rejected his petition. U.S. District Judge James C. Cacheris is considering it. Experts say there is a good chance that Cacheris will grant a stay of execution and order a hearing in the case.
``I would think that a District Court, looking at Turner's case, would see it advisable to grant a stay because it appears that this issue is being treated very seriously by the Supreme Court,'' said Stephen Bright, director of the Southern Center for Human Rights.
``It would be hard for a court to come to a conclusion that Turner is less deserving of a hearing than Lackey is.''
For Turner, the Lackey case has been like divine intervention.
``It was two justices of the U.S. Supreme Court almost beckoning to Willie,'' said his Washington, D.C., attorney, Walter Walvick. ``Saying, `Here, Willie. Here is one more chance to live. And we think that this is an important issue.' ''
Lackey, Turner's Texas counterpart, has been on death row in Texas since he was convicted, at the age of 23, of the abduction, rape and murder of a Lubbock woman. In 1982, the Texas Court of Criminal Appeals threw out his conviction and ordered a new trial. Lackey, like Turner, was tried a second time a year later. And like Turner, he was resentenced to death.
Under Texas law, every death penalty case is automatically reviewed by the Texas Court of Criminal Appeals. In Lackey's case, it took the court eight years - from 1983 until 1991 - to affirm his second conviction. It had taken 4 1/2 years to throw out his first.
In all, says his lawyer, Brent Newton, 14 of Lackey's 17 years on death row are directly attributable to delays by the state of Texas.
``This a very important issue,'' says Newton. ``It's incredibly novel, and it's a function of having capital punishment for 20 years under the new system approved by the (U.S. Supreme) Court in the 1970s.
``This is psychological torture we're talking about. Waiting to die for two decades.''
Newton based his argument in the Lackey case on a 1993 decision by the British Privy Council, a court that reviews the capital cases of countries formerly or currently under British rule. In a Jamaican case involving two men who had been on death row since 1979, the council vacated their death sentences and ruled that any case in which execution takes place more than five years after sentencing constitutes ``inhuman or degrading punishment.''
According to the U.S. Bureau of Justice Statistics, the average length of stay for inmates on death row in the United States on Dec. 31, 1993 was about six years. Several have been waiting to die for at least 20 years.
In making the Jamaica decision, the Privy Council invoked the Virginia case of Jens Soering, a West German national who was extradited from Great Britain for trial in Virginia in 1990 only after Virginia prosecutors agreed not to seek the death penalty.
At issue in the Soering case was not the death penalty itself, but the ``the death row phenomenon in Virginia where prisoners were held for a period of six to eight years before execution.'' That phenomenon, barristers maintained, violates international standards of human rights.
More than anything else, the ``death row phenomenon'' illustrates the dilemma of the modern-day death penalty. According to the Supreme Court, capital punishment serves two purposes: retribution and deterrence. But the court has also ruled that every death sentence must live up to a complex set of constitutional standards. Litigating those standards can take years. Does the time it takes to ensure a constitutional death sentence defeat the purpose of the sentence itself?
``Some very conservative judges who either do, or have in the past, supported the death penalty in theory are now questioning whether, as a practical matter, it can be administered fairly and swiftly at the same time,'' says Don Lee of the Virginia Capital Resource Center.
``In other words, the concern for fairness and constitutionally sound sentences competes with the public clamor for quicker executions.''
Retired Supreme Court Justices Lewis F. Powell Jr. and Harry Blackmun are among those who have publicly questioned the effectiveness of the American death penalty in recent years. Last month, federal appeals judge Alex Kozinski - a Reagan appointee who has long supported the death penalty - joined their ranks.
``We have constructed a machine that is extremely expensive, chokes our legal institutions, (and) visits repeated trauma on victims' families,'' said Kozinski.
In Virginia, experts say, the problem is exacerbated by state courts with a tradition of upholding death sentences no matter what. Since 1982, Virginia courts have granted appeals in only two capital cases. One of those cases had been reversed by the U.S. Supreme Court. In the other, the state attorney general's office admitted error and did not object to a new trial.
Because Virginia state courts so seldom find error in death penalty cases, and because an inmate cannot seek relief from the federal courts until he has first litigated his case through the state courts, Virginia's capital cases drag on, says Richmond attorney Jerry Zerkin.
``A major part of the problem is that if you don't correct errors early in the process, then of course they're only going to get corrected later in the process,'' Zerkin says.
``We have the highest rate of affirmance of death sentences of any state in the country. We have a no-reversal policy in the state courts on direct appeal and a no-relief policy in (the Court of Appeals). So error is never corrected until you get to federal court.''
Turner's is a case in point, says Zerkin. Convicted and sentenced to death in 1980 for the murder of a Franklin jewelry store owner, he litigated his case through the state and federal courts for six years before the U.S. Supreme Court ordered a new sentencing because of possible racial bias on the original jury.
Turner was sentenced to death again in 1987. He has since argued that his lawyer, who failed to present any mitigating evidence at the second sentencing, was ineffective, and that the jury was not given sufficient guidance.
``If he had gotten a fair trial in the first place, he would have been dead in 1985,'' says Zerkin. ``Turner's 15 years on death row is the result of the Virginia court's lack of responsiveness to constitutional issues.''
The Virginia attorney general's office doesn't see it that way. In its view, Turner has caused his own lengthy sojourn on death row by filing endless appeals that have no merit. Assistant attorney general Robert Anderson III likens Turner to a man who has killed his parents and then ``pleads for mercy because he is now an orphan.''
Southampton Commonwealth's Attorney Richard Grizzard, who prosecuted Turner, calls his Turner's claim of cruel and unusual punishment ``ridiculous.''
``Every delay in his case has been brought on by his filing of appeals for 15 years,'' says Grizzard. ``Not one time has the commonwealth asked for a delay.
``This is just typical of a group of people who have as their campaign the abolition of the death penalty, and imposing their will on a majority of the United States. And they do it through the courts since they can't get it through the legislature. It's a group that quotes platitudes like, `If we rush up the appeals process, justice will be made a scapegoat,' and such mess as all that.''
Zerkin dismisses this view.
``Of course you could make the argument that if you don't agree to go directly to the courthouse tree after trial, then it's all your fault,'' he says. ``But I don't think you should have to give up your appeals in order to get prompt disposition of your case.''
At the death house in the Greensville Correctional Center, Turner remains in the limbo he has described as ``psychological torture.''
``If they're not going to take me off the row, I'd just as soon they do it on the 25th,'' he said in an interview last week. ``Because when you get geared up for this stuff, it's a hard job to wind back down. I can't even find the words to explain what it does to you, being ready and then it doesn't happen. And you don't really want it to happen, but if it's going to happen, then let's get it over with.'' ILLUSTRATION: [Color Photo]
MARKING OFF 15 CALENDARS
BILL TIERNAN/Staff
Willie Lloyd Turner had declared that three stays of execution were
enough and was resigned to his fate until two U.S. Supreme Court
justices made an interesting point.
KEYWORDS: DEATH ROW APPEAL CAPITAL PUNISHMENT by CNB