Workman's Last Chance
Will new evidence stop his execution?
By Jeff Woods
MARCH 20, 2000: On Aug. 9, 1937, a convicted child rapist named Jimmie Lee Parrish went to his death in Tennessee's electric chair still professing his innocence. "I wasn't treated right," the condemned man complained. "It was done by somebody else, and they laid it on me."
This exchange is recorded at the Department of Correction in a red-leather book titled "Electrocution Record No. 1, State of Tennessee." On the book's yellowing pages are the names of all 125 men who have been electrocuted in Tennessee.
The account of Parrish's execution is exceptional. Most of the entries list only the condemned prisoner's age, sex, race, "station in life" (whether he was married), and, finally, his ending--"Electrocuted."
Eighteen times, the state executed two men on the same day. Six times, three men were electrocuted in one day. And on March 1, 1920, the state executed four men for murders. All died in virtual anonymity before Tennessee's executions stopped in 1960.
It's the same fate that Philip Ray Workman, who is scheduled to die on April 6, is trying to avoid. But as he has asserted his innocence in the 1981 murder of Memphis Police Lt. Ronald Oliver--claiming he was convicted because of prosecutorial misconduct and perjured testimony--and even as seemingly crucial autopsy evidence came to light only last week, the response from the state's justice system has been about as sympathetic as the warden's reply to Jimmie Lee Parrish.
Workman is raising serious questions about his guilt and the adequacy of his original defense. Yet with the notable exception of state Supreme Court Justice Adolpho A. Birch, who wrote in a dissenting opinion in January that clemency should be granted, no one in any official capacity has spoken out for Workman. In beating back Workman's appeals, state attorneys have dismissed his contentions almost out of hand, rarely bothering even to dispute them. Instead, they have successfully argued that it's too late in the judicial process to debate his guilt or innocence.
Why the indifference? One reason is that the public is clamoring for an end to Tennessee's de facto 40-year moratorium on executions. No one in public office wishes to appear soft on crime, and there isn't enough public support on Workman's side to spur action.
Despite regular columns by The Tennessean's Tim Chavez imploring readers to write Gov. Don Sundquist on behalf of Workman, the governor's office has gotten only 2,000 communications--about as many as one might expect asking for a four-lane highway somewhere.
When it was revealed last week that prosecutors have failed for the past five years to obey a subpoena for an X-ray of Oliver's corpse and may have deliberately withheld this evidence from the defense, the public silence was deafening. The only protests came from a handful of religious leaders during a depressing little media event held at the Catholic Center on 21st Avenue South. A grand total of three media representatives attended.
"If we have learned nothing else in the last few days here in Tennessee, it is that the machinery of death is at work," Bernice Powell Jackson of the United Church of Christ told these reporters. "We ask that the machine be stopped in the name of God."
Workman, meanwhile, fights for his life in relative obscurity. He isn't a black revolutionary. He's a middle-aged white man and a born-again Christian, not exactly a demographic likely to stir the liberal conscience.
Then there's the fact that even if Workman is innocent of murder, he still deserves to spend a very long time in prison. In 1981, Workman was a junkie and a bumbling, gun-toting, two-bit thief who decided to rob a Wendy's restaurant for drug money. A worker tripped a silent alarm, and three policemen were waiting as Workman walked out with a semi-automatic Colt pistol shoved into his pants.
Workman was trying to look casual, carrying a heavy bag containing a thousand dollars in cash and coins. Trying to stop him, police wrestled with him, but Workman pulled his pistol and emptied it, shooting at them. He shot one of the officers in the arm, something he admits to having done. But he claims that he didn't shoot Oliver, and two well-known pathologists say the bullets in Workman's gun could not have made the fatal wound.
The implications of Workman's defense are very troubling, because if Workman didn't shoot Oliver, one of the two other policemen at the Wendy's did it by mistake. And since both of them deny that they ever fired their guns at all, that would mean one of them is lying. That would also mean the authorities framed Workman with the murder.
"It's been hard for the courts to swallow," Chris Minton, one of Workman's state-paid attorneys, concedes.
That's an understatement. No court has ever agreed with Workman on any of his claims, even as his lawyers have gathered strong evidence in his favor. Not only do the two pathologists side with Workman, but a key witness--the only one to say he saw Workman intentionally point his gun at Oliver and shoot him--has recanted his testimony and claimed police pressured him to lie at Workman's trial.
Last summer, lawyers for Workman found eight of the original 12 jurors in his trial and showed them the reports from the pathologists. Seven of the eight agreed that the reports raise doubt about whether Workman shot Oliver. Five signed sworn statements that, had the reports been presented at his trial, they would not have convicted Workman of first-degree murder.
Four of the jurors asked the governor to commute Workman's death sentence. Even Oliver's daughter, Paula Dodillet, who was 11 when her father was killed, has asked Sundquist to spare Workman's life.
But state Attorney General Paul Summers is so unimpressed with Workman's claims of innocence that he once suggested in an interview with The Tennessean that it didn't really matter whether Workman fired the fatal shot. Because Workman was committing a robbery during the killing, he would still be guilty of a capital offense under the state's felony-murder statute, Summers said.
Summer's comment is problematic. First, for the felony-murder statute to apply to Workman under current court interpretations of the law, the bullet that killed Oliver must have come from Workman's gun or the gun of an accomplice. Workman, of course, didn't have an accomplice. And second, even if a court should someday accept Summers' interpretation of the felony-murder statute, shouldn't a jury get the chance to decide whether to apply the law in this case?
Frustrated, Workman's attorneys have become increasingly strident in pleading for his life. "No Tennessean can condone killing a man based on false evidence," Donald Dawson, the chief of the state's Office of Post-Conviction Defender, wrote the state Supreme Court last December.
At his trial, Workman's original lawyers offered a drugs-made-him-do-it defense, claiming that their client was so cocaine-addled that he couldn't be held responsible for killing Oliver. They informed Workman that the jury was going to find him guilty, but promised to muster a strong case to save his life at his sentencing hearing. Instead, these attorneys presented no evidence at that hearing.
Hollow-point bullets are designed to mushroom on impact to inflict maximum damage. But Oliver's autopsy showed that the wound where the bullet exited his back was smaller than the entrance wound in his chest.
The new defense team hired the two pathologists--famed Pittsburgh coroner Cyril Wecht and Georgia's chief medical examiner Kris Sperry. "I do not believe that it was Mr. Workman's gun that fired the shot that fatally wounded Officer Oliver," Wecht concluded. And Sperry reported Oliver's wounds "are inconsistent with every wound I have seen created by a .45 silver-tip hollow-point bullet."
In considering this argument last year, the 6th U.S. Circuit Court of Appeals wrote, "If a .45-caliber hollow-point bullet had gone all the way through Lt. Oliver's chest and emerged in one piece, we have no doubt that the exit wound would have been larger than the entry wound." But the bullet that killed Oliver was never found, and the court speculated that it must have fragmented inside Oliver's body. A sliver from the bullet could have made the smaller exit wound, the judges said, and they rejected Workman's appeal.
With time running out for Workman last October, his lawyers tried to knock a new hole in the prosecution's case. They tracked down a drifter named Harold Davis, the key government witness who testified that he had just parked his car outside the Wendy's when the shooting started and that he saw Workman shoot Oliver.
No other witnesses saw the shooting. Of the two other policemen at the Wendy's, one was wounded and had fallen to the ground when Oliver was shot. The other says he was on another side of the restaurant and running to help his fellow officers when Oliver went down.
During closing arguments, the prosecutor relied on Davis' testimony when he told the jury that Workman "coolly and deliberately pulled this trigger and sent the bullet down this barrel and into the body" of Oliver.
Workman's attorneys had been hunting for Davis for years. They had long doubted his testimony, in large part because Davis' car isn't visible in pictures taken of the crime scene, and it doesn't show up in police diagrams. Acting on a tip, the lawyers finally found Davis at a Phoenix motel. Not only did he tell them that he wasn't at the Wendy's at all, but he also stated that he lied during the trial under pressure from police.
During a videotaped interview with defense lawyers, Davis broke down into tears over the prospect of Workman's execution. "I don't want to see him die for something he didn't do," he cried.
For reasons he didn't explain, Davis said he went to police the day after the shooting. "They basically told me what happened," he said. "They said, 'This is what you are going to say.' "
(Prosecutors discount the veracity of Davis' recantation, which is an interesting position for them to take since they apparently believed he was honest enough to testify as a star witness at the trial. And they say that regardless of whether Davis was at the Wendy's, there's enough other evidence to justify Workman's conviction.)
Workman's lawyers took Davis' recantation to the state Supreme Court and asked the justices to recommend clemency for Workman. His appeals were exhausted, and clemency from the governor appeared to be Workman's last chance.
But in a 4-1 ruling, the justices decided they were barred by procedural rules from even considering Workman's new evidence, and instead, they set his execution for April 6.
But last week, in documents asking the state parole board to recommend against clemency for Workman, prosecutors casually mentioned that an X-ray had been taken. When Workman's lawyers read this, they looked at each other. "What X-ray?" they asked almost in unison.
The X-ray is important because Workman's lawyers say it debunks the fragmentation theory offered by the 6th U.S. Circuit Court of Appeals. The judges noted in their opinion that the pathologist who performed Oliver's autopsy didn't find bullet fragments in the body. "But no X-ray was taken," the court added, "and the small piece of metal could simply have been overlooked."
Last week, Workman's lawyers were quick to tell the court that an X-ray does exist, and that it shows no apparent signs of bullet fragments.
"The X-ray establishes, beyond any doubt, that Philip Workman did not fire the bullet that killed Lieutenant Oliver," the lawyers wrote.
In asking the court to reopen Workman's case, they cited the precedent of John Demjanjuk. A federal court found him to be the notorious Nazi war criminal "Ivan the Terrible" and ordered his deportation to Israel, where he was sentenced to death. But the court vacated its judgment after learning that the government deprived Demjanjuk of documents indicating his innocence.
Will the U.S. Court of Appeals' judges consider Workman's appeal again? Under the stringent rules for reopening cases, it doesn't seem to matter whether the X-ray proves Workman's innocence, as his lawyers claim. What matters instead is whether prosecutors deliberately withheld the X-ray or, if not, whether their failure to produce it amounted to reckless conduct.
Without any real proof, Workman's attorneys contend prosecutors intentionally suppressed the X-ray.
"Suppressing evidence that a man is innocent of capital murder while preparing a report for use against him meets any definition of 'egregious' that one consults," they wrote in their motion to the court. "The court cannot condone fraud--particularly when the fraud aims at executing a man who is innocent of capital murder."
State attorneys dismiss the defense accusations as "mere hyperbole." They told the court that the failure to produce the X-ray appears to have been attributable to nothing more sinister than sloppy file-keeping and laziness--"nothing more than the particular manner in which X-rays and other such records were stored and maintained...and the consequent lack of a search" for the X-ray. They say the X-ray doesn't prove anything, anyway.
They contend, as they have throughout Workman's appeals, that the opinions of Workman's ballistics experts aren't irrefutable and that bullets in his gun could indeed have made Oliver's wounds. At Workman's trial, in fact, an FBI firearms expert testified that Workman's bullets could have made the wounds. The current Shelby County medical examiner agrees.
Others who believe in Workman's guilt simply point to his own testimony during his trial. Workman testified that after running from the three policemen at the Wendy's, he fell down on the parking lot. He said that while trying to surrender his gun, he was hit or grabbed and then "I guess I pulled the trigger" and "the gun fired."
He said that when he heard gunfire coming from his right, he turned to it, and "I guess I shot again." Under questioning, he admitted, "I pulled the trigger, yes sir. I had my hand around the gun, and I guess it was pointed at the officers."
Prosecutors contend that Workman fired his gun at least five times, and Shelby County District Attorney William Gibbons calls it a "patent absurdity" to suggest that Workman shot so many times in the direction of the three policemen but somehow missed Oliver.
It does seem unlikely. Workman was shooting from only a few feet away. But should the state execute a man because it's hard to believe that he could have been such a terrible shot?
In his appeals for the past nine years, Workman has raised reasonable doubts about his guilt. If he's executed, his case will prove that with capital punishment, some people are bound to die because they had bad lawyers in the beginning.
At his trial, Workman's lawyers never cast doubt on the origins of the fatal bullet. They didn't try to show that Harold Davis wasn't present at the Wendy's restaurant. Had Workman's lawyers mounted a vigorous defense, as is now being pressed on his behalf, it's a fair bet that he would not be about to die.
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