What 2,000 cases show about Tennessee's death penalty

A Tennessee lawyer has studied more than 2,000 1st-degree murder cases in the state looking for clues into how the death penalty is administered. He's still working on the project, which he hopes will prove the death penalty is unconstitutional.

It took investigators 2 days to find all the bodies: 3 women in their early 20s, including 1 in her 3rd trimester of pregnancy, a man and a 16-month-old boy.

The boy was stomped to death, a medical examiner said. All were the victims of a robbery and killing spree in the name of drugs.

In a separate case, a 79-year-old man was strangled with an extension cord and stuffed into a closet.

Yet another robbery left one man bound in duct tape and stabbed to death and a woman with multiple wounds and a butcher knife in her back. She lived.

Which convicted murderer deserves to die?

Lawyers routinely challenge the death penalty as arbitrary. A new analysis in Tennessee, believed to be one of the most comprehensive of its kind, attempts to put new numbers and data behind that old argument.

The lawyers who did the analysis examined more than 2,000 1st-degree murder cases, the only crime punishable by a death sentence, since 1977. That is the year capital punishment was reinstated in Tennessee. They say the numbers show the death penalty is imposed infrequently and unfairly and thus the system as a whole is unconstitutional.

"This is the 1st time this kind of information has been laid before the court," said Brad MacLean, one lawyer involved in the study and who for 20 years has represented a man on death row. "If we're going to remain true to the principles set forth by the Supreme Court, there is no logical way, no rational way we can sustain this system. It really operates like a lottery. It's a crapshoot. It's like being struck by lightning whether you get executed or not."

The key findings of the analysis are outlined in a motion filed by MacLean. He is asking Nashville Criminal Court Judge Monte Watkins to deem the death penalty unconstitutional as part of an appeal on behalf of Abu-Ali Abdur'Rahman. Abdur'Rahman, who formerly used the name James L. Jones, has been on death row nearly 30 years.

Those who support the death penalty say they've heard this argument before. They say it is just another attempt to delay, which harms grieving victim's families even further.

No matter what the judge rules, it will almost certainly be appealed, putting another legal challenge to the controversial punishment system in the pipeline even as the Tennessee Supreme Court takes up a capital punishment issue Thursday.

The state's top court will consider whether the state's single-drug lethal injection protocol is constitutional. Some say the case may clear the way for the court to reset execution dates that have been halted for years because of legal challenges. The new court arguments also come as support for the death penalty has hit a 40-year low, according to a recently released Pew poll.

Imposed arbitrarily?

Meanwhile, the argument that the death penalty is imposed arbitrarily is under consideration by the Nashville judge. Opponents of capital punishment hope analyzing nearly 40 years of data will help them win.

Brentwood lawyer Ed Miller has spent 2 years gathering the information documented in MacLean's motion. He hopes his work will lead to the death penalty being declared unconstitutional.

Miller examined what are called Rule 12 reports, which are forms that judges fill out in first-degree murder cases. The multiple-page reports document information ranging from case outcomes to the demographics of defendants and victims. After finding holes in those reports and first-degree cases for which they had not been completed, Miller began scouring appeals court rulings online and documents in paper files.

He's still finding cases to add to his list.

His analysis so far, as summarized in a motion filed on Abdur'Rahman's behalf, found:

--Of 2,095 1st-degree murder cases in Tennessee identified since 1977, only 193 resulted in death sentences. Of those 193, 104 - or 54 % - have been reversed. 45 of those were reversed because of ineffective lawyers. Only 0.3 % of those defendants convicted were executed.

--Only 48 of 95 counties in the state have imposed a death sentence. Shelby County accounts for 37 % of all death penalty cases. There has been no death sentence handed down in Davidson County for 15 years.

--Defendants who kill 2 or more victims are actually 7 times more likely to receive a sentence of life in prison or life without parole, even though multiple victims are a factor juries can consider in handing out a death sentence.

--In the past 10 years, as death sentences have dropped significantly nationwide, there have been 14 capital punishment cases in Tennessee. Of those, 10 were African-American defendants.

--In 2004, the Tennessee Comptroller of the Treasury studied 10 years of 1st-degree murder cases in a similar analysis.

--In 2014, the University of Tennessee published an analysis of 1,000 1st degree murder cases, focused on the role of race.

Nationwide, 20 states have overturned or abolished the death penalty. Governors in 4 states have put moratoriums on the practice. 26 states still have it on the books, though in many states executions are delayed by legal challenges or movements toward abolition in legislatures, according to the Death Penalty Information Center.

"The arbitrary administration of the death penalty was one of the key reasons why the U.S. Supreme Court declared all existing death penalty statutes unconstitutional in 1972," said Robert Dunham, executive director of the Death Penalty Information Center. "Since that time, there have been a number of challenges that have alluded to the arbitrariness of capital punishment, but the federal courts have not overturned entire death penalty statutes on those grounds."

Yet the Connecticut Supreme Court last year cited arbitrary administration as part of its ruling in declaring capital punishment laws there unconstitutional, Dunham said.

Victim impact

Those who support the death penalty criticized the recent filing and point to its impact on families of murder victims.

"It's a political game and it's maddening and it's very hard on their emotions. It's so unfair," said Verna Wyatt, executive director of Tennessee Voices for Victims. "It's almost to the point of ridiculous. They're arguing whether lethal injection is cruel and unusual, when the acts of the people sitting on death row are inhuman. They were the judge and the jury and the executioner."

Wyatt is an advocate for the punishment in the worst-of-the-worst cases. She named attacks across the country as examples of cases that warrant capital punishment: The bombing at the Boston Marathon and the recent string of explosions in New Jersey and New York City.

"There are some crimes that cry out for that ultimate sanction," Wyatt said. "I think we'll always have that penalty because there will always be crimes that cross over the bounds of human decency."

There is arbitrariness in all sentences, she said in response to the study's findings, saying that, for example, repeat drug offenders spent more time in prison than people who have killed others. She noted that the wishes of victims' families can also influence what punishment a defendant receives.

Robert E. Lee Gordon Jr., of South Fulton on the Kentucky border, has been following 1 case for 11 years. His brother was killed in a triple-homicide at a Tennessee Department of Transportation facility in Jackson in 2005. David Lynn Jordan, 52, was sentenced to death in the case a year later.

"I got a packet probably 8 or 9 months ago, another appeal," Gordon said. "I read it. It's a lot of bad details in there about my brother asking the man not to shoot him. He still shot him. Any man that would do that, to a man you didn't know, he shouldn't be able to live."

David Gordon's car was sideswiped by Jordan, who was on the way to a state office building where he fatally shot his wife, Donna Renee Jordan, and another state employee in her office, Jerry Hopper. When he left the building, Gordon, who had followed him, was riddled with bullets. At Jordan's trial, Robert Gordon asked a jury to sentence Jordan to death.

"I ain't got nothing against y'all," he recalled telling the killer's family members. "But your son, your brother took the life of my brother, and I think he ought to die."

Gordon thought the appeals would take five years and then the state would execute Jordan. He promised his dying mother he would see that through. Tennessee's current death row inmates, there are 64 of them, have spent an average of 20 years there. The last execution in Tennessee was 7 years ago.

"I'm 59 years old," Robert Gordon said. "I don't know if I can live another 10 years."

Tennessee cases

So which killers in Tennessee get death sentences?

Zakkawanda Moss and Henry Burrell were found guilty in 6 murders, including 1 of an unborn child, in a 2013 Lincoln County killing spree. Each is serving 6 consecutive life sentences.

Prosecutors asked for the death penalty for Norman Lee Follis Jr., who strangled his uncle with an extension cord in Anderson County in 2011. But a jury in May deliberated for 7 hours before deciding Follis deserved life without parole.

And Abdur'Rahman, who in Davidson County in 1986 killed a man and wounded a woman with a butcher knife, has been on death row nearly 30 years.

The arguments

The Tennessee Supreme Court is slated to hear arguments about the state's death penalty protocol on Thursday.

Here's a brief summary of each side's position, based on court filings in the case.

The inmates...

Say the state's single-drug lethal injection protocol is unconstitutional because it creates risk of pain and lingering death. The inmates say compounded pentobarbital, the chemical used, can easily be contaminated and thus its effectiveness can be altered, risking that its injection will be painful or ineffective. They say the Department of Correction execution team is untrained. And they accuse the physicians who prescribe the chemical of violating the Controlled Substances Act, which says listed drugs can only be given for a "legitimate medical purpose."

The state...

Argues the protocol is constitutional. The Tennessee Attorney General cites legal experts who agree that a 5-gram injection of the chemical pentobarbital will "likely cause death with minimal pain and with quick loss of consciousness." They say though the drugs can take a while to stop a person's heart, that does not mean the procedure is also cruel and unusual punishment. They say the inmates must provide an alternative method that poses less risk of pain.

New filings

Several motions have been filed in recent months on behalf of death row inmates that present a new, and perhaps unexpected, course of attack on the death penalty: Citing the case known as Obergefell, the U.S. Supreme Court ruling legalizing same-sex marriage nationwide.

The motions argue the justices in that case ruled that courts cannot infringe on rights, including the right to life. The inmates say that to impose a death sentence infringes on that right. Many of those motions have been denied by judges, though a few are still pending.

That argument is unique, according to Robert Dunham, executive director of the Death Penalty Information Center, which studies and tracks the death penalty nationwide.

"That's a recent U.S. Supreme Court decision so this would be one of the first cases in which that argument has been advanced," he said. "It's not surprising that they would cite the U.S. Supreme Court equal protection case that dealt with marriage equality to raise a claim about unequal treatment under the law in capital cases."

Source: The Tennessean, October 2, 2016

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