Academic journal article The University of Memphis Law Review

A Broken Record: Nationally Recognized Defects Corrupt Two Tennesssee Death Penalty Cases

Academic journal article The University of Memphis Law Review

A Broken Record: Nationally Recognized Defects Corrupt Two Tennesssee Death Penalty Cases

Article excerpt


In the concurring opinion that defines the United States Supreme Court's 1972 Furman v. Georgia1 decision, Justice Stewart focused, not on the death penalty in the abstract, but on legal systems that created death sentences. In words now familiar, he wrote that the death sentences under review were

cruel and unusual in the same way that being struck by lightning is cruel and unusual. For of all the people convicted of rapes and murders ..., many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.2

He concluded that

the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.3

Responding to Furman, state legislatures drafted new death penalty statutes. In Gregg v. Georgia,4 the Court held constitutional, on their face, death penalty statutes that provide for a sentencing hearing after a first-degree murder conviction.5

Since Furman, thirty-eight states and the federal government have enacted death penalty statutes which, on their face, are constitu

tional under Gregg.6 The twenty-eight years of practice under these statutes has provided a wealth of experience. Unfortunately, that experience shows that death sentences remain a wanton and freakish occurrence, falling randomly not only on those guilty of first-degree murder, but, in horrifying numbers, on the innocent as well.

Under the statutes enacted in Furman's wake, over ninety innocent men have been sentenced to death.7 Thirteen men have been released from Illinois's death row alone.8 One, Anthony Porter, came within two days of being executed.9 He was exonerated, not by

anyone associated with the criminal justice system, but by college journalism students.10 The Chicago Tribune followed Mr. Porter's release with a five-part series cataloging Illinois death sentences resulting from state misconduct, incompetent defense lawyering, and unreliable jailhouse "snitch" testimony.11 In light of this, Governor George Ryan recognized that the Illinois death penalty system was broken. On January 31, 2000, he declared a moratorium.12

On June 12,2000, James S. Liebman, Jeffrey Fagan, and Valerie West released a study entitled A Broken System: Error Rates In Capital Cases, 1973-1995.(13) The authors reviewed all 4578 death penalty cases that became "final" during that period.14 They found that reviewing courts found prejudicial error in sixty-eight percent of those cases.15 Consistent with the Chicago Tribune investigation, the Liebman study found that evidence that had been withheld from defense counsel and incompetent defense lawyering were major flaws in the death penalty systems found in the United States.16

As Tennesseans, we are tempted to dismiss the Illinois experi

ence and the Liebman study. Tennessee is not, after all, Illinois, and the Liebman study suggests that the system works by catching faulty death sentences. In the face of these warning signs, however, we would be negligent if we did not investigate whether the Tennessee death penalty system suffers from the problems that plague Illinois and other states.

For the past eleven years, the author has served as state and federal post-conviction counsel for persons on Tennessee's death row. During this time, two clients died from cancer during their postconviction proceedings. This article recounts the processes that condemned them. It demonstrates that their trials were corrupted by defects found nationally: state misconduct, withheld evidence, incompetent lawyering, and unreliable jailhouse "snitch" testimony.


On May 24, 1981, a local teenage girl disappeared from a night club where she was celebrating her high school graduation.17 The following day, police discovered her body at the end of a dead-end road. …

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