John Whitehead's Commentary
The Plight of Bobby Swisher and the Rule of Law in America
"Ask not for whom the bell tolls; it tolls for thee."
--John Donne
Bobby Wayne Swisher's life is hanging in the balance, and with it rests the integrity of our legal system and the rule of law in America.
Convicted of the 1997 murder of Dawn McNees Snyder, 27-year-old Swisher was sentenced to death on the basis of his future dangerousness and vileness. However, in the process of being tried, convicted and sentenced, Swisher claims a number of his due process rights were overlooked, ignored or grossly violated by the Commonwealth of Virginia. And now, unless Virginia Governor Mark R. Warner agrees to grant him clemency for re-sentencing, Swisher will be executed by lethal injection on July 22, 2003.
Swisher's attorneys requested clemency for re-sentencing in light of the Virginia Supreme Court's ruling in Powell v. Commonwealth that a verdict form used by jurors--the very same form that was used in Swisher's case--was unconstitutional. The form did not clearly specify that the jury could impose a life sentence, even if it found the crime vile enough or the defendant dangerous enough to warrant the death penalty. Thus, recognizing that Swisher had not been fairly sentenced, a mere four hours before his first scheduled execution on July 1 Warner granted him a three-week stay to take his concerns to the Virginia Supreme Court.
Swisher's concerns that his constitutional due process rights had been violated were numerous. Swisher pointed to his trial lawyers' incompetence in adequately providing for his defense. Knowing that Swisher had been highly medicated two days prior to trial, his attorneys opted to keep him off the witness stand rather than postpone the trial or request a hearing to determine his competency to stand trial. And Swisher's charges that the friend who had turned him in had committed perjury and received a monetary reward for his efforts were met with silence.
A 2002 Virginia General Assembly study on the death penalty found that judicial review--which allows courts to re-evaluate a trial court's ruling--may be just a "hollow process, virtually assuring that some persons who are convicted of capital murder will be executed despite having received constitutionally flawed trials" in Virginia. For example, at the state and federal courts in Virginia, the recognized rate of error in death penalty cases is between 2 and 4 percent. Thus, even though judicial review is essential to fairness in the criminal justice system, many defendants do not ever have the merits of their claims reviewed. According to the study:
One of the cornerstones of America's justice system is the process of judicial review... The purpose of the appellate review is not to retry cases or consider new evidence, but to ensure that each defendant received a fair trial. Although this review is important to all criminal defendants, it is vital to those who are convicted of capital murder and receive a death sentence.
Yet Bobby Swisher has been denied adequate judicial review. His only opportunity to avoid execution rests with Governor Warner who, as part of the state's executive branch of government, is entitled to grant clemency. As the U.S. Supreme Court stated in Herrera v. Collins, executive clemency provides a "fail safe" in our criminal justice system to make sure that no one falls between the cracks of the judicial system. Gov. Warner needs to use this "fail safe" mechanism to ensure that Bobby Swisher receives a fair sentencing under a valid and fair verdict form.
There are those who believe that capital punishment ensures that convicted murderers like Swisher get the justice they deserve. But this case is about a lot more than justice for a killer; it's about whether we selectively apply the Constitution to only those who deserve to have their rights protected. This case is about ensuring that all Virginians are free from arbitrary and unfair judicial practices.
The federal and state courts have washed their hands of this matter by ruling that Swisher's attorneys should have objected to the defective verdict form during the sentencing phase of his trial. Ironically, they have said little about Swisher's claim that his attorneys provided him with ineffective counsel. It remains to be seen whether the Virginia Supreme Court will weigh in on the matter. Thus, it's up to Gov. Warner to do the right thing for Bobby Wayne Swisher and show the people of Virginia that he really is looking out for their interests.
In the meantime, Bobby Wayne Swisher sits on death row awaiting his almost assured death on July 22. We, the people, are waiting for the death knoll, too. When and if it sounds, it will be the sound of another constitutional right being quietly put to death.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
Note: Bobby Wayne Swisher was executed by injection in Virginia's death chamber on Tuesday July 22, 2003 and pronounced dead at 9:05 p.m.
--John Donne
Bobby Wayne Swisher's life is hanging in the balance, and with it rests the integrity of our legal system and the rule of law in America.
Convicted of the 1997 murder of Dawn McNees Snyder, 27-year-old Swisher was sentenced to death on the basis of his future dangerousness and vileness. However, in the process of being tried, convicted and sentenced, Swisher claims a number of his due process rights were overlooked, ignored or grossly violated by the Commonwealth of Virginia. And now, unless Virginia Governor Mark R. Warner agrees to grant him clemency for re-sentencing, Swisher will be executed by lethal injection on July 22, 2003.
Swisher's attorneys requested clemency for re-sentencing in light of the Virginia Supreme Court's ruling in Powell v. Commonwealth that a verdict form used by jurors--the very same form that was used in Swisher's case--was unconstitutional. The form did not clearly specify that the jury could impose a life sentence, even if it found the crime vile enough or the defendant dangerous enough to warrant the death penalty. Thus, recognizing that Swisher had not been fairly sentenced, a mere four hours before his first scheduled execution on July 1 Warner granted him a three-week stay to take his concerns to the Virginia Supreme Court.
Swisher's concerns that his constitutional due process rights had been violated were numerous. Swisher pointed to his trial lawyers' incompetence in adequately providing for his defense. Knowing that Swisher had been highly medicated two days prior to trial, his attorneys opted to keep him off the witness stand rather than postpone the trial or request a hearing to determine his competency to stand trial. And Swisher's charges that the friend who had turned him in had committed perjury and received a monetary reward for his efforts were met with silence.
A 2002 Virginia General Assembly study on the death penalty found that judicial review--which allows courts to re-evaluate a trial court's ruling--may be just a "hollow process, virtually assuring that some persons who are convicted of capital murder will be executed despite having received constitutionally flawed trials" in Virginia. For example, at the state and federal courts in Virginia, the recognized rate of error in death penalty cases is between 2 and 4 percent. Thus, even though judicial review is essential to fairness in the criminal justice system, many defendants do not ever have the merits of their claims reviewed. According to the study:
One of the cornerstones of America's justice system is the process of judicial review... The purpose of the appellate review is not to retry cases or consider new evidence, but to ensure that each defendant received a fair trial. Although this review is important to all criminal defendants, it is vital to those who are convicted of capital murder and receive a death sentence.
Yet Bobby Swisher has been denied adequate judicial review. His only opportunity to avoid execution rests with Governor Warner who, as part of the state's executive branch of government, is entitled to grant clemency. As the U.S. Supreme Court stated in Herrera v. Collins, executive clemency provides a "fail safe" in our criminal justice system to make sure that no one falls between the cracks of the judicial system. Gov. Warner needs to use this "fail safe" mechanism to ensure that Bobby Swisher receives a fair sentencing under a valid and fair verdict form.
There are those who believe that capital punishment ensures that convicted murderers like Swisher get the justice they deserve. But this case is about a lot more than justice for a killer; it's about whether we selectively apply the Constitution to only those who deserve to have their rights protected. This case is about ensuring that all Virginians are free from arbitrary and unfair judicial practices.
The federal and state courts have washed their hands of this matter by ruling that Swisher's attorneys should have objected to the defective verdict form during the sentencing phase of his trial. Ironically, they have said little about Swisher's claim that his attorneys provided him with ineffective counsel. It remains to be seen whether the Virginia Supreme Court will weigh in on the matter. Thus, it's up to Gov. Warner to do the right thing for Bobby Wayne Swisher and show the people of Virginia that he really is looking out for their interests.
In the meantime, Bobby Wayne Swisher sits on death row awaiting his almost assured death on July 22. We, the people, are waiting for the death knoll, too. When and if it sounds, it will be the sound of another constitutional right being quietly put to death.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
Note: Bobby Wayne Swisher was executed by injection in Virginia's death chamber on Tuesday July 22, 2003 and pronounced dead at 9:05 p.m.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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