Ballistics = innocent

Last Wednesday, at around 1:30 a.m..after a flurry of last-minute appeals by his attorneys.prison authorities carried out the execution of Philip Workman by lethal injection. Workman, 53, was convicted of shooting and killing a Memphis, Tennessee police officer during an attempted robbery of a Wendy.s restaurant in 1981.

He was the third inmate to be executed by lethal injection in Tennessee since 1976, when the state reinstated the death penalty.

In lieu of a last meal, Workman requested that a vegetarian pizza be given to any homeless person near the Riverbend Maximum Security Institution where he was incarcerated. The prison authorities refused, stating that they did not give to charities.

After a local newspaper, the Tennessean, wrote about the condemned man.s request being denied, a spontaneous movement erupted citywide. Homeless shelters across Nashville were inundated with donated pizzas all Wednesday.

The pizzas were greatly appreciated. .I was like, wow, Jesus!. commented Marvin Champion, an employee of Nashville.s Rescue Mission, which provides overnight shelter, food and assistance to more than 800 homeless people a night. .This really shows the people here that someone out there thought of them..

Area resident Donna Spangler heard about Workman.s request and immediately called her friends. They all pitched in for the $1,200 bill to buy 150 pizzas, which they sent to the Rescue Mission. .Philip Workman was trying to do a good deed and no one would help him,. said the 55-year-old, who recruited a co-worker to help her make the massive delivery Wednesday evening. .I just felt like I had to do something positive..

The president of the People for the Ethical Treatment of Animals ordered 15 veggie pizzas and had them sent to the Rescue Mission Wednesday morning. .Workman.s act was selfless, and kindness to all living beings is a virtue,. said PETA President Ingrid Newkirk.

Not far away, 17 pizzas arrived at Nashville.s Oasis Center, a shelter that helps about 260 teenagers in crisis. By 9 p.m., more pizzas had arrived, executive director Hal Cato reported. .We talked to the kids and they understand what this is tied to and they know that this man [Workman] wanted to do something to point out the problems of homelessness..

Cliff Tredway, the director of public relations for the Rescue Mission, said that it was more than pizzas that helped that shelter. .It.s the story of a guy whose execution translated into a generous act,. he said. .It.s people donating to other people they don.t know. It.s about a group of people who society often writes off getting a pizza party today..

Workman had been homeless himself when he attempted to rob the fast food restaurant while high on speed and marijuana. After getting $1,200 from the cash register, unaware that an employee had tripped a silent alarm, Workman attempted a getaway, but police were already on the scene.

A confusing shootout ensued in which one officer, Lt. Ronald Oliver, was killed and another officer wounded. Workman was beaten with a flashlight and ended up with 12-gauge shotgun pellets in his buttocks. His case was filled with controversy about whether he actually fired the shot that killed Lt. Oliver, 43, or whether the officer was killed by .friendly fire. from other policemen who responded to the robbery call.

A Shelby County jury convicted Workman of first-degree murder. But Workman.s defense lawyers formed a weak and ineffectual team. They led their client to believe his conviction was a forgone conclusion, and that his biggest concern was whether he would be found guilty of murder in the first degree.

The defense team accepted almost without question the police version of the story, conducted no forensic or ballistic analysis and did not investigate Harold Davis, the prosecution.s sole eyewitness, who, as it turns out, did not witness the gun fight at all but lied in hopes of receiving favorable treatment from the police. Ballistics experts on both sides have argued in the ensuing appeals over whether the bullet that struck the officer was fired from Workman.s gun.

Workman.s final and unsuccessful round of appeals through Tuesday focused on whether the lethal mix of drugs Tennessee uses in executions causes .pain and suffering. and.hidden from the view of witnesses because of the paralysis it induces.constitutes cruel and unusual punishment banned under constitutional law.

The chemicals are sodium thiopental, a rapid-onset barbiturate used in anesthesia, which reduces oxygen flow to the brain; pancuronium bromide, a muscle paralytic used to suppress breathing; and potassium chloride, which causes cardiac arrest.

In a recent CNN interview, Workman spoke in chilling terms of a new report he had just read on lethal injections, not from the point of view of an expert, but rather from the standpoint of a man condemned to die by that means. .It almost wants to make me choose the electric chair,. he said.

.This is a medical review of a lot of cases of people who have already been euthanized. They.re saying in this report that a lot of them have suffered, but wasn.t able to speak. Because what happens is that second concoction of poison.or whatever it is they shoot into you.paralyzes you. You can.t move!

.So if you.re feeling pain or whatever it is you.re feeling ... you can.t move to tell them.to say anything. You.re frozen. They.ve determined by this medical review that a lot of people suffered but they wasn.t able to say anything..

Workman was referring to a recent report released by an online medical Journal, PLoS, which studied cases from North Carolina and California and concluded:

.We were able to analyze only a limited number of executions. However, our findings suggest that current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation. If thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware inmates could die through pancuronium-induced asphyxiation. Thus the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable..

A call by the UN Human Rights Commission for an international moratorium on the practice of capital punishment in April 2001 went unheeded by Washington despite growing popular opposition to the practice stemming, at least in part, from revelations concerning the state killing of people who had been wrongly convicted.

Recent polls have indicated that 64 percent of the US population believes in executing those convicted in capital murder cases. While still a clear majority, the figure represents a significant decrease from a high in 1994 of 80 percent in favor. When the option of a life sentence without parole is added, support for the death penalty is far lower.

No doubt, the spontaneous response to Philip Workman.s last request reflected in part this growing unease with the barbaric practice of capital punishment in America, as well as the impact that his selfless act.and its stark contrast to the cruelty of the state towards both the homeless and those on death row.had on the consciousness of many people.

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Born in 1953 at Fort Campbell, Ky., Philip Workman grew up with his parents on various Army bases. Later he joined the Army. Shortly after his 1973 discharge, Workman was sentenced to 5 years in prison in Georgia for burglary and drug possession. He served 25 months

In 1981, at 28 years old, Workman was living with his wife and 8-year-old daughter in Columbus, Georgia and was heavily addicted to cocaine.

That summer, he hitchhiked to Memphis where, on August 5, 1981, he robbed a Wendyâ..s restaurant with a .45 caliber semi-automatic pistol.

During the robbery, an employee of the restaurant triggered a silent alarm after Workman granted her request to stand up to relieve a cramp in her leg.[1] Three Memphis police officers, Ronald Oliver, Aubrey Stoddard, and Steven Parker, responded to the alarm. Upon their arrival, Workman attempted to flee across a nearby car park, but tripped on a curb and was cornered by the officers. Workman claims he then attempted to surrender but, as he was pulling his gun from his pants to give it to the officers, he was struck on the head with a flashlight. As a result of the blow, Workman claims that he involuntarily discharged the gun twice, once in the air, and then at a person who had fired at him.

Workman escaped the immediate melee, but a civilian found him hiding under a truck. He was covered with blood from his head wound, and had a shotgun wound to his buttocks. At the scene of the shootout, Lt. Ronald Oliver lay dying from a bullet that passed completely through his body.

Workman was charged with the murder of Lt. Oliver. At the 1982 trial, Officers Stoddard and Parker testified that they had not fired their weapons, but that they had not seen Workman shoot Lt. Oliver. The prosecution presented testimony from an alleged eyewitness, Harold Davis, who stated that he had parked his car in the restaurant car park and was three meters away when he saw Workman shoot Oliver. The defense lawyers accepted the police version, conducted no forensic or ballistics analysis and did not investigate Davis. [3] At the sentencing phase of the trial, they presented no mitigating evidence, for example of the physical abuse Workman had suffered as a child, and his drug addiction as an adult.

Workman was found guilty of murder during the commission of a felony by the jury (under the "felony murder" rule). The jury recommended a sentence of death, finding five statutory aggravating circumstances:

a) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder (Tenn. Code Ann. § 39-2-203(i)(3));

b) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrestor prosecution of the defendant or another (Tenn. Code Ann. § 39-2-203(i)(6));

c) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery (Tenn. Code Ann. § 39-2-203(i)(7));

d) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement (Tenn. Code Ann. § 39-2- 203(i)(8)); and

e) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties (Tenn. Code Ann. § 39-2-203(i)(9)).

Testimony of Harold Davis

At the 1982 trial, the case of the prosecution rested heavily on the testimony of Harold Davis, who claimed that he had been just 3 meters away from the crime scene and saw Philip Workman shoot Lt. Oliver. In November 1999, Harold Davis retracted his testimony, claiming that he called in the false lead to collect money to support his drug habit. [3] He later passed a lie detector test confirming that he did not witness the actual shooting. Davis claims that he was threatened that harm would come to his family members should he change his testimony.[2] Several other eyewitnesses have testified that they did not see Davis at the scene and the police report on the crime scene never noted Davis' presence.[4] Steve Craig, an eye witness to the shooting who did not testify at the trial due to illness, signed a statement in 1995 that he had a clear view of the car park and that he had not seen Davis.

Subsequent appellate proceedings, however, failed to establish the falsity of Harold Davis' original testimony. According to the Tennessee Court of Criminal Appeals, Davis' testimony at a 2002 hearing can be "best summarized" by the following exchange:

Prosecutor: Youâ..re not saying you lied, right?

Davis: Right.

Prosecutor: Ok. In the trial, youâ..re not saying-

Davis: Right.

Prosecutor: -You lied about that?

Davis: Right. Iâ..m not saying that.

Prosecutor: You just donâ..t know.

Davis: I just donâ..t remember. I just donâ..t know . . . .[5]

The U.S. Court of Appeals, reviewing previous appellate decisions to decide a request for a stay of execution on May 4, 2007, found that, "The Tennessee courts . . . concluded that [the evidence] did not show that Davis lied at the trial. The state trial court found that the testimony did not amount to a recantation and did not show that Davis had lied during the trial."[5]

Ballistics evidence

Ballistics experts have questioned whether the bullet which killed Lt. Oliver could have come from Workman's gun. Many years after the trial, Dr. Cyril Wecht, a past president of the American Board of Legal Medicine and former lead consultant on the U.S. House of Representatives Subcommittee on Assassins, has testified that, "[I]t is my professional opinion, based upon a reasonable degree of medical certainty, that the gunshot wound to [Lt.] Ronald D. Oliver is not consistent with the type of ammunition used by Mr. Philip R. Workman. I do not believe that it was Mr. Workman's gun that fired the shot that fatally wounded [Lt.] Oliver." As Dr. Wecht was giving evidence many years subsequent to the death of Lt. Oliver, he did not examine the body in person. Rather, his professional opinion was given on the basis of studying photographs of the deceased.

Dr. Wecht based his opinion on the fact that Workman was using a .45 caliber gun and hollow point ammunition and that such bullets fired from such a gun more than 90% of the time do not pass through the body but remain within the shooting victim. Dr. Wecht's professional opinion was that when hollow point ammunition fired from a .45 caliber gun does pass through the body of the victim, the exit wound is almost always larger than the entry wound. According to medical examiner Dr. James Bell, the exit wound on Lt. Oliver's body was smaller than the entry wound. Such a wound is consistent with the .38 caliber weapons being fired by the police.[4]

At the 1981 trial, Officers Stoddard and Parker repeatedly testified that only Workman and Oliver fired guns and that therefore no one else but Workman could have shot Oliver. However, Steve Craig claims that he had seen Officer Parker fire his gun at Workman, but was told by police that "there was no need to talk about this ... unless it was with someone from the department." In January 2005, a retired Memphis police officer who went to jail for manufacturing phony drivers' certificates swore in an affidavit that the Memphis police covered up details of Oliver's shooting. [6] Neither Officer Stoddard's nor Officer Parker's revolvers were examined in the course of the criminal investigation.

Doubts of jurors, prosecutors, judges, and the victim's family

Five of the jurors which convicted Workman in 1982 have since signed affidavits renouncing either the sentence or the verdict or both.[6] Wardie Parks, a member of the 1982 jury, has stated that, "If the new evidence I reviewed had been presented at Workman's trial...I would have had a reasonable doubt whether Workman was guilty of first-degree felony murder, and I would have voted to acquit him of that charge."[7] Parks has said that he did not hear any ballistics evidence during the original trial and believed the testimony of eyewitness Harold Davis.

In 2000, two justices on the Tennessee Supreme Court, Justice Birch and Justice Drowata, expressed their concern, although were powerless to consider new evidence which might overturn the original verdict. Justice Birch called on the Governor of Tennessee, Phil Bredesen, to commute Workman's sentence. Justice Drowata remarked, "The circumstances of this case are by no means as egregious as most of the death penalty cases I have reviewed [and] are less egregious than many of the life sentences I have reviewed . . . The date set for execution . . . affords the Governor sufficient time to carefully consider any executive clemency application that may be filed".

In 2000, Lt. Oliver's daughter and the former District Attorney who prosecuted Workman called on the Governor to grant him clemency.

Appellate proceedings

On March 30, 2001, just 37 minutes before Workman was scheduled to be executed, the Tennessee Supreme Court overturned a decision by Judge John P. Colton, Jr. of the Shelby County Criminal Court to deny a writ of error coram nobis. The Supreme Court order stated that "if (Workman) did not fire that shot, he is not guilty of the crime for which he is scheduled to be put to death. ... No court in this state has actually held a hearing to fully evaluate the strength of these claims."[7]

The subsequent appellate proceeding was presided over by Judge Colton, who had also presided over the 1982 trial in which Workman was originally convicted and sentenced to death. Following a series of acts deemed prejudicial to the defense, Workman's attorneys asked Judge Colton to remove himself from the case, but this was denied and the hearing proceeded with Judge Colton presiding.[7] Observers contend that the subsequent trial was conducted in a manner biased against Workman, citing in particular the failure of Judge Colton to protect Mr. Davis and Dr. Wecht from abusive questioning by the [District Attorney].[7] Judge Colton also disallowed Wardie Parks, a member of the 1982 jury who has since renounced his verdict, to speak as a witness of new evidence.

On January 7, 2002, Judge Colton ruled against Workman, stating that the "new evidence presented by lawyers for death row inmate Philip Workman is insufficient to warrant a new trial."[7] Judge Colton found that Harold Davisâ.. statements â..[did] not amount to a recantation of his original trial testimony,â. â..were neither clear nor persuasive,â. and that â..[t]he only definitive statement made by Harold Davis was that he did not clearly remember the events surrounding the death of Lieutenant Ronald Oliver.â.[8]

With regard to the new ballistics information, Judge Colton found that â..the jury essentially heard, through the testimony of [F.B.I.] Agent [Gerald] Wilkes, the same information provided by Dr. Wecht.â. Judge Colton noted that, while Dr. Wecht opined that the .45 caliber bullet fired from Workmanâ..s gun and recovered from the scene was not the bullet that killed Lieutenant Oliver and that it was unlikely that a .45 caliber aluminum-jacketed bullet would create an entrance wound considerably larger than the exit wound, he also admitted that â..he could not conclusively exclude the possibility that a .45 caliber bullet caused the fatal wound,â. and â..that it was possible for a .45 caliber, hollow-point bullet to create a smaller exit than entrance wound.â. Judge Colton found â..no testimony, including that of Dr. Wecht, which affirmatively rules out the possibility that one of the other three to five bullets shot by Workman caused the fatal injuries,â. and that â..the jury would have still heard the defendantâ..s admission that he fired his weapon and that he indeed pointed the weapon at the victim.â.[8]

At the hearing, the â..friendly fireâ. theory of how Lt. Oliver died was rejected by Memphis Medical Examiner O.C. Smith. A year later, Smith was found near his office with bound in barbed wire with a live bomb strapped to his neck. In 2005, Smith was indicted on charges that he staged an incident. At the trial, a psychologist testified that Smith may be suffering from a disorder that compels him to make up elaborate lies for attention.[6] Observers subsequently questioned the veracity of testimony provided by Smith at Workman's hearing.

Final days

On Friday, May 4, the U.S. Court of Appeals for the Sixth Circuit refused, by a two-to-one decision, to grant a stay of execution for Workman. The stay had be requested on the grounds that "the Attorney General for the State of Tennessee . . . perpetrated a fraud upon the district court during Workmanâ..s habeas corpus proceedings". The majority opinion found that "On this record, Workman has not met his burden of showing a likelihood of success in demonstrating that the district court abused its discretion. Nearly twenty-five years after Workmanâ..s capital sentence and five stays of execution later, both the state and the public have an interest in finality which, if not deserving of respect yet, may never receive respect."[5]

On Friday, May 4, a U.S. District Court Judge issued a Temporary Restraining Order precluding the State of Tennessee from executing Workman until a preliminary injunction hearing assesses the constitutionality of Tennessee's revised procedure for administering lethal injections. However, this restraining order was vacated by a two-to-one decision of the U.S. Court for Appeals for the Sixth Circuit on Monday, May 7 and Workman was moved to death watch.[4] The decision to vacate the restraining order was stridently criticized, on both procedural and substantive grounds, by the dissenting Judge Cole. Judge Cole wrote, "The majorityâ..s opinion rests on a profound jurisdictional defect: There is no appealable order before this Court. The district court issued a temporary restraining order, not a preliminary injunction . . . The district courtâ..s TRO cannot be magically transformed into a preliminary injunction, which is an appealable order, even though the State and a majority of this Court may wish it."[9]

Last meal request: Vegetarian pizza for the homeless

For his last meal, Workman asked that a large vegetarian pizza be given to a homeless person. The prison officials denied his request, and Workman refused to eat anything.

On May 9th, homeless shelters across Tennessee received massive amounts of vegetarian pizzas from people all over the country honoring Workman's last meal request. "Philip Workman was trying to do a good deed and no one would help him," said one woman who, together with friends, donated $1200 worth of pizzas to Nashville's Rescue Mission. People for the Ethical Treatment of Animals (PETA) President Ingrid Newkirk, who donated 15 veggie pizzas, commented that "Workman's act was selfless, and kindness to all living beings is a virtue." Marvin Champion, an employee of Nashville's Rescue Mission, remarked "I used to be homeless, so I know how rough it gets. I seen some bad times -- not having enough food, the cupboards are bare. But we got pizza to feed enough people for awhile.

Execution

At 10:00 p.m. central time, the Supreme Court refused to hear any appeals. At 12:15 a.m. on May 9, 2007, the Tennessee state Supreme Court refused to hear his final appeal, which requested more time for the defense attorneys to review the injection procedures. When asked by Warden Ricky Bell what his last words would be, he stated "I've prayed to the Lord Jesus Christ not to lay charge of my death to any man." After 2 minutes had passed the start of the injections, he said "I commend my spirit into your hands, Lord Jesus Christ." His head then drifted to the left as he fell unconscious.

Philip Workman was pronounced dead at 1:38 AM (CDT) after a 17 minute procedure. [1] Prison officials made the announcement that Workman had been executed at 1:50 a.m. on May 9, 2007.

Post-mortem controversy

Although prior to his execution, Philip Workman was successful in obtaining a court order against autopsy, his demand that his body not be subjected to examination was still scheduled to be legally challenged in the days following his death. At issue was the legality of drawing blood and other bodily fluids from Workman's body. The position of state medical examiner Bruce Levy was that "If the state is going to be executing people, as the medical examiner, it is my responsibility to ensure that the executions are carried out according to state law." [14] At a hearing on the Monday following the execution, Philip's brother Terry testified that "Philip was Seventh-day Adventist [who] strongly believed in non-desecration of the body after death." At the hearing, the court order barring autopsy was extended in order to give District Judge Todd Campbell time to issue an "opinion". [15]