Opinion
No. M1987-00072-SC-DPE-DD.
Filed: July 14, 2006.
Christopher M. Minton, Office of the Federal Public Defender, Middle District of Tennessee, Nashville, Tennessee.
MOTION TO RESET EXECUTION DATE
Donnie E. Johnson respectfully requests that this Court reset his execution date, currently set for October 25, 2006, to a date that will allow a clemency process to occur after the November 7, 2006, Gubernatorial Election.
As each Justice on this Court is aware, a majority of Tennesseans support the death penalty, decisions made in death penalty cases are intensely political, and any decision getting in the way of an execution can cost a person his job. The fate of former Tennessee Supreme Court Justice Penny White demonstrates this reality.
On June 3, 1996, less than two months before retention elections for this Court's membership, this Court issued its opinion in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). In it, Justice White and two other members of this Court agreed that Richard Odom's death sentence should be vacated and his case sent back to the trial court for re-sentencing. The repercussions were swift and fatal. Through efforts of the Tennessee Conservative Union and others purporting to represent the vast majority of Tennesseans who support the death penalty, Judge White was ousted. There is little doubt of the reason why. See 8/2/96 Commercial Appeal ("WHITE FIRST CASUALTY OF YES-NO OPTION ON JUDGES/SOFT-ON-CRIME CHARGE COSTS SEAT: Tennessee voters threw Justice Penny White off the state Supreme Court Thursday after an unprecedented campaign by conservative activists and victims advocates who labeled her soft on crime.") (attached as Exhibit 1); 8/4/96 Commercial Appeal ("ORGANIZATION TAKING CREDIT FOR OUSTING PENNY WHITE: Tennessee Conservative Union President John Davies gives his organization credit for the ouster of state Supreme Court Justice Penny White . . . The TCU's effort against White began in June after the Supreme Court reversed the death sentence of Richard Odom. . . .") (attached as Exhibit 2).
The White experience taught Tennessee elected officials a lesson: if you make a decision in a death penalty case that runs contrary to the broad State-wide support for the death penalty, you risk losing your job. See 9/22/96 Commercial Appeal ("JUDGES MAY FEAR LOSING THEIR JOBS: Job security will (be) on the minds of state Supreme Court candidates when they stand before the Tennessee Judicial Selection Commission. That's because voters removed Penny White from her seat on the state Supreme Court. . . .") (attached as Exhibit 3); 10/9/96 Commercial Appeal ("DEATH PENALTY GAINING MORE FRIENDS AMONG TENN. LEGISLATIVE CANDIDATES: They don't want to end up like Penny White.") (attached as Exhibit 4).
Donnie Johnson's current execution date is October 25, 2006. Experience teaches that Governor Bredesen will not make any decision on whether to commute Mr. Johnson's death sentence until shortly before that date. The voters will decide whether to elect Governor Bredesen to a second term as Tennessee's Governor on November 7, 2006, less than two weeks after Mr. Johnson's scheduled execution. We can all agree that Governor Bredesen doesn't "want to end up like Penny White." Thus, any late October decision Governor Bredesen would make on whether to commute Mr. Johnson's death sentence would be, or at the very least appear to be, one of political expediency. That's not the way it's supposed to be.
Chief Justice Rehnquist, writing for the United States Supreme Court, recognizes that
(T)he heart of executive clemency (is) a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 280-81 (1998). It's unreasonable to believe that Governor Bredesen can make an honest decision on whether to bestow grace on Mr. Johnson when reality tells him that if he does so he may lose his job.See Palacios, V., Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, 49 Vand. L. Rev. 311, 349-51 (1996) ("[T]he political consequences of granting commutations are simply too great. . . . [S]erious political consequences can follow when a governor grants clemency against the popular will. . . . For governors, the choice is a pragmatic one. When a `tough on crime' policy prevails in a state, commutations are reduced."). And even if Governor Bredesen was able to remove political considerations from his commutation decision, any decision he would make to deny Mr. Johnson's commutation request could reasonably be viewed with a jaundiced eye because of the close proximity to the election.
Donnie Johnson acknowledges that it may well be impossible to remove all political concerns from what is supposed to be an act of grace. This Court, however, has the power to remove some of those concerns from this case, along with the appearance that Governor Bredesen's decision as to whether Mr. Johnson should live or die is a matter of political expediency rather than what it should be: a reasoned reflection of grace.
WHEREFORE, Donnie Johnson respectfully requests that this Court reset his execution date for a date after the November 7, 2006, Tennessee Gubernatorial election.
EXHIBIT 1
8/2/96 Com. Appeal (Mem. TN) Al 1996 WLNR 3580581Memphis Commercial Appeal (TN) Copyright (c) 1996 The Commercial Appeal, Memphis, TN August 2, 1996 Section: News WHITE FIRST CASUALTY OF YES-NO OPTION ON JUDGES SOFT-ON-CRIME CHARGE COSTS SEAT Paula Wade The Commercial Appeal Nashville Bureau
NASHVILLE Tennessee voters threw justice Penny White off the state Supreme Court Thursday after an unprecedented campaign by conservative activists and victims advocates who labeled her soft on crime.
The stunning defeat, which surprised even the leaders of the dump-White movement, means Gov. Don Sundquist will name his first justice to the court. He has promised to choose only a justice who supports the death penalty.
With 2,404 of 2,413 precincts reporting (99%), the vote on White was:
Retain 236,903 (45%)
Do Not Retain 292,405 (55%)
White, who was named to the court in 1994 by then-Gov. Ned McWherter, was the target of a wildfire campaign that used a handful of her rulings to cast her as an enemy of the death penalty and a coddler of criminals.
White and her supporters rejected those labels, pointing out that she had upheld convictions in 85 percent of her cases as an appellate judge. Thursday night, it became clear how deeply the soft-on-crime charge resonated with voters.
"To the voters of Tennessee, let me say that I deeply respect your decision. . . . While I would have welcomed the opportunity to continue to serve, my parents often taught me that when any door is closed, another one opens," White said in a written statement from the Washington County Courthouse in Jonesborough.
In the lounge of the Vanderbilt Plaza Hotel in Nashville, anti-White forces were jubilant as they watched the numbers roll in. They repeated their pledge that the anti-White effort was only a warmup for a larger battle to unseat other Supreme Court and appeals judges in 1998.
"We had no money, no organization; and the prime movers could all fit into a booth at Shoney's," said Rebecca Easley, a victims advocate who helped lead the effort against White. "I think when it's all totaled, we'll probably all get up and dance a little jig."
GOP chairman Jim Burnett said White's defeat signals that Tennesseans "are fed up with judges who put the rights of criminals above the rights of victims, and this shows they're not going to take it any more."
"We didn't really expect it honestly — we figured she would squeak through," said John Davies, head of the Tennessee Conservative Union, from his home near Chattanooga. "In two years, we're at least going to go after Justices (Adolpho) Birch and (Riley) Anderson, and we may go after the other two (Lyle Reid and Frank Drowota)."
Later, Davies corrected himself, indicating his group would "go after whoever the two were who agreed with Penny White in the Odom case," in which a Memphis killer was ordered to be resentenced. Davies said he meant Birch and Reid.
White is the first Supreme Court justice to be booted from the court in the yes-no retention vote required under Tennessee's new scheme for selecting appellate court judges, called the Tennessee Plan.
On Thursday, voters chose to retain three appellate judges who also were on the ballot statewide — Court of Criminal Appeals Judge Jerry Smith of Nashville, Court of Criminal Appeals Judge William Barker and Court of Appeals Judge Holly Kirby Lillard of Memphis.
With 2,404 of 2,413 precincts reporting (99%), the vote on Smith was:
Retain 285,174 (66%)
Do Not Retain 143,811 (34%)
With 2,404 of 2,413 precincts reporting (99%), the vote on Barker was:
Retain 287,420 (65%)
Do Not Retain 153,832 (35%)
With 2,404 of 2,413 precincts reporting (99%), the vote on Lillard was:
Retain 281,453 (65%)
Do Not Retain 154,759 (35%)
Throughout the campaign, White's backers expressed fears that if White were removed, it would force judges to take public opinion into account, instead of sticking to the facts and the law.
White came under fire after she concurred in a Supreme Court opinion overturning the death sentence of Richard Odom, who raped and killed 77-year-old Mina Ethel Johnson in a Memphis hospital parking garage.
The court held Odom had to be resentenced because of errors made during the sentencing and because two of the "aggravating circumstances,' to merit the death sentence were not proven. In one of them, the court found the evidence did not prove the killing was "heinous, atrocious and cruel in that it involved torture or serious physical abuse beyond that required to produce death."
The Odom case is the only direct appeal of a death penalty that White has heard in her 19 months on the Supreme Court.
photo
AP
Tennessee Supreme Court Justice Penny White goes over some paperwork as she speaks with Harlan Mathews on the phone Thursday in Johnson City. She is the first Supreme Court justice to be removed from the court in the yes-no retention vote required under the state's new scheme for selecting appellate court judges.
---- INDEX REFERENCES ----
NEWS SUBJECT: (Crime (1CR87); Judicial (1JU36); Legal (1LE33); Social Issues (1S005); Criminal Law (1CR79))
REGION: (USA (1US73); Americas (1AM92); Tennessee (1TE37); North America (1NO39))
Language: EN
OTHER INDEXING: (COURT; COURT OF APPEALS; COURT OF CRIMINAL; GOP; ODOM; RICHARD ODOM; SUNDQUIST; SUPREME COURT; TENNESSEE CONSERVATIVE UNION; TENNESSEE SUPREME COURT JUSTICE; VANDERBILT PLAZA HOTEL; WHITE) (Barker; Birch; Davies; Frank Drowota; Holly Kirby Lillard; Jerry Smith; Jim Burnett; John Davies; Justice Penny White; Lillard; Lyle Reid; Mina Ethel Johnson; Ned McWherter; Rebecca Easley; Reid; Smith; Tennessee; White; William Barker) (COURT; TN; JUDGE; ELECTION; RESULT; DEATH PENALTY)
EDITION: Final
Word Count: 942 8/2/96 COMAPL Al
EXHIBIT 2
8/4/96 Com. Appeal (Mem. TN) C6 1996 WLNR 3562607Memphis Commercial Appeal (TN) Copyright (c) 1996 The Commercial Appeal, Memphis, TN August 4, 1996 Section: Business ORGANIZATION TAKING CREDIT FOR OUSTING PENNY WHITE Michelle Williams The Associated Press
CHATTANOOGA, Tenn. Is the Tennessee Conservative Union a powerful political group capable of stirring voters to oust a Supreme Court justice or just two guys with a fax machine pushing their views?
It depends on who is asked.
"I've never thought the Tennessee Conservative Union has nearly the political muscle that the organization sometimes gets credit for," said political analyst M. Lee Smith of Nashville. "The media keeps calling them and quoting them. Maybe we're the ones at fault."
Indeed, TCU president John Davies gives his organization credit for the ouster of state Supreme Court Justice Penny White in the state primary election last week.
"Justice White would still be a justice today if not for the Tennessee Conservative Union," Davies said, adding that the campaign gained steam once joined by victim's rights groups, police officers and attorneys.
"It sends a message to judges that people want the death penalty enforced and they want it enforced now," he said.
The TCU's effort against White began in June after the Supreme Court reversed the death sentence of Richard Odom, who was convicted of raping and murdering an elderly Memphis woman.
White and two other justices ruled Odom's treatment of the elderly woman didn't fit the state's legal definition of "torture or serious physical abuse beyond that necessary to produce death."
The group mailed 12,000 letters urging people to vote against White "since she has never voted for the death penalty" and ran radio commercials in East Tennessee, a region considered vital by the TCU since White is from Johnson City.
The campaign worked. White, the only justice facing a retention vote this year, was defeated 293,664 to 238,225. Her replacement will he appointed by month's end and all five justices will be up for a revote in 1998.
But some question the TCU's influence in the outcome.
Rev. Joe Ingle, who has ministered to death row inmates for 20 years, said the TCU's campaign was "a disgraceful exercise in petty politics."
He said detractors "pulled out the stops and essentially distorted her record and smeared her."
He, Smith and others also doubted the Chattanooga-based group was as large as touted and questioned its funding.
Davies said in a 1991 deposition for the Tennessee Registry of Election Finance that the TCU "technically does not have any members," but about 5,000 supporters.
There are three board members: Davies, chairman Lloyd Daugherty, who has a syndicated radio fishing show based in Knoxville, and Lowell Lynch, a public school teacher in Tazwell.
Davies, 37, the son of a prominent Chattanooga lawyer, is president of Free the Fathers, an organization working for the release of Roman Catholic priests held prisoner in China.
A former member of the state Republican Executive Committee, he was elected in March as a Bob Dole delegate to this month's Republican National Convention.
Davies said the TCU now has about 12,000 members, but there are no dues or regular meetings.
Last year, supporters contributed $75,000 to help the group fight for conservative causes, he said.
When asked for a list of members who would talk about their involvement with the group, Davies said he would have to ask their permission to submit their names.
---- INDEX REFERENCES ----
NEWS SUBJECT: (Judicial (1JU36); Legal (1LE33))
REGION: (USA (1US73); Americas (1AM92); Tennessee (1TE37); North America (1NO39))
Language: EN
OTHER INEAINU: (BOB DOLE; REPUBLICAN EXECUTIVE COMMITEE; REPUBLICAN NATIONAL CONVENTION; ROMAN CATHOLIC; SUPREME COURT; TCU; TENNESSEE CONSERVATIVE UNION; TENNESSEE REGISTRY OF ELECTION FINANCE) (Davies; Joe Ingle; John Davies; Justice White; Lloyd Daugherty; Lowell Lynch; M. Lee Smith; Odom; Penny White; Richard
Odom; Smith; White) (JUDGE; ELECTION; RESULT; TN; ORGANIZATION)
EDITION: Final
Word Count: 659 8/4/96 COMAPL C6
EXHIBIT 3
9/22/96 Com. Appeal (Mem. TN) A14 1996 WLNR 3548224Memphis Commercial Appeal (TN) Copyright (c) 1996 The Commercial Appeal, Memphis, TN September 22, 1996 Section: News JUDGES MAY FEAR LOSING THEIR JOBS Phil West The Associated Press
NASHVILLE Job security will join ethics and case law on the minds of state Court candidates when they stand before the Tennessee Judicial Selection Commission.
That's because voters removed Penny White from her seat on the state Supreme Court, say the commission chairman, a law professor and a political scientist.
Wednesday is the deadline for candidates seeking to succeed White, rejected by Tennessee voters in August by a vote of 293,664 to 238,225.
Practicing attorneys have been speculating that all Tennessee courts are delaying decisions on important cases until after the elections, said University of Memphis law professor Barbara Kritchevsky.
"The initial fear of something like this is it's going to make the judges not do their jobs and interpret the law and just render decisions that are watered down and popular,'' she said.
White was targeted by Republicans, conservatives and victims' advocates for her part in overturning the death penalty for a man convicted of raping and murdering a 78-year-old woman.
White, the second woman to serve on Tennessee's Supreme Court, was appointed by former governor Ned McWherter in 1994.
Gov. Don Sundquist will pick White's successor from a list of three nominated by the state Judicial Selection Commission.
White's rejection "might have the effect that judges will have to pay even closer attention to public opinion, especially as they get closer to an election," said Mark Byrnes, a political science professor at Middle Tennessee State University.
"That's the question: will it affect the decisions they make? We don't want judges to ignore public opinion, but then we don't want them to be swayed by it."
Memphis lawyer George Lewis, who heads the selection commission, said he doesn't know if the White rejection is scaring away good judicial candidates.
"Some candidates express some concern about job security of the appellate court now. . . . There's a lot of talk among lawyers in the state about what it means to the future. It's on the people's minds, both on incumbent judges and for people applying," Lewis said.
But he said there's been no lack of applicants.
---- INDEX REFERENCES ----
NEWS SUBJECT: (Judicial (1JU36); Legal (1LE33))
REGION: (USA (1US73); Americas (1AM92); Tennessee (1TE37); North America (1NO39))
Language: EN
OTHER INDEXING: (JUDICIAL SELECTION COMMISSION; MEMPHIS; MIDDLE TENNESSEE STATE UNIVERSITY; SUNDQUIST; SUPREME COURT; TENNESSEE; TENNESSEE JUDICIAL SELECTION COMMISSION; UNIVERSITY OF MEMPHIS) (Barbara Kritchevsky; FEAR LOSING; George Lewis; Gov; JUDGES MAY; Lewis; Mark Byrnes; Ned McWherter; Penny White; Practicing; White) (COURT; JUDGE; CAMPAIGN; TN)
EDITION: Final
Word Count: 434 9/22/96 COMAPL A14
EXHIBIT 4
10/9/96 Com. Appeal (Mem. TN) A13 1996 WLNR 3575007Memphis Commercial Appeal (TN) Copyright (c) 1996 The Commercial Appeal, Memphis, TN October 9, 1996 Section: News DEATH PENALTY GAINING MORE FRIENDS AMONG TENN. LEGISLATIVE CANDIDATES The Associated Press
NASHVILLE They don't want to end up like Penny White.
Candidates for the state Legislature are making it loud and clear this year that they support the death penalty.
White became the first Supreme Court Justice to be voted off the bench after a campaign led by the Tennessee Conservative Union, Republicans and victims' advocates portrayed her as being soft concerning the death penalty.
The last time Tennessee executed a man was 1960. Nearly 100 convicted murderers sit on death row now.
"I'm a firm believer in capital punishment," said Republican state Rep. Bill McAfee of Chattanooga, who's up for re-election Nov. 5. "Anything the Legislature can do that we haven't already done, I'm in favor of."
His opponent, Democrat Frank Groves, said he not only favors the death penalty, he put a man on death row while a prosecutor for the state.
But he doesn't see much happening on the state level.
Rep. Don Bird (R-Cleveland), lists his sponsorship of a bill limiting the appeals process as one of his first-term accomplishments.
C. Wayne Shearer, a Republican candidate for state House District 31, said, "We need to get things going with the death penalty in this state." He's going after the seat held by Rep. Arnold Stulce (D-Soddy Daisy).
John Davies, president of the Conservative Union, said the Penny White vote has something to do with it, "but also people have gotten to the point that they want something done about violent crime."
"The public doesn't have any sympathy for legislators, lawyers or judges who dillydally with the death penalty. They want it enforced and they want it now."
Polls consistently show that Tennessee voters favor the death penalty four to one, said Will Cheek, chairman of the state Democratic Party.
"For that reason, I'd imagine that support for the death penalty is going to be universal among candidates, except maybe for longtime officials who don't have to," Cheek said.
---- INDEX REFERENCES ----
NEWS SUBJECT: (Judicial (1JU36); Legal (1LE33))
REGION: (USA (1US73); Americas (1AM92); Tennessee (1TE37); North America (1NO39))
Language: EN
OTHER INDEXING: (CONSERVATIVE UNION; TENNESSEE; TENNESSEE CONSERVATIVE UNION) (Arnold Stulce; C. Wayne Shearer; Cheek; DEATH PENALTY GAINING; Democrat Frank Groves; Democratic Party; John Davies; White) (LEGISLATURE; CAMPAIGN; TN; DEATH PENALTY)
EDITION: Final
Word Count: 390 10/9/96 COMAPL A13