This morning the state of Tennessee killed Philip Workman for the shooting death of police lieutenant Ronald Oliver. It did so despite serious questions about whether or not it was Mr. Workman’s gun that fired the fatal shot, or was a round of friendly fire by another police officer. This factual dispute would have affected both whether Mr. Workman was guilty of a capital murder (which, at the time, required that the shot be fired by the defendant or his associate) and, even if so, whether he should receive a death sentence. This factual dispute was never resolved by a jury.
This is particularly ironic given the recent attention that the Sixth Amendment right to a jury trial has been given in the U.S. Supreme Court in Blakely v. Washington and United States v. Booker. This right was found to be so important that the entire federal sentencing scheme was declared unconstitutional because of its failure to honor that right. But not for Philip Workman.
In 1998 a three-judge panel of the Sixth Circuit Court of Appeals affirmed the denial of Mr. Workman’s habeas petition because, in part, it found that fragmentation of the bullet could have explained why the exit wound was not larger (and, therefore, why it could still have come from Mr. Workman’s gun). Workman v. Bell, 160 F.3d 276 (1998). The opinion, written by Judge Siler, quotes a medical paper not part of the record as support for this argument as well as a note in the autopsy about a gunshot wound to a rib. What the opinion doesn’t cite is factual support from the record of the fragmentation of the bullet. The opinion notes, "Dr. Bell did not recover any bullet segment, to be sure, but no x-ray was taken and the small piece of metal could simply have been overlooked." 160 F.3d at 284. (emphasis added). Based on this supposition of what happened, the Court of Appeals affirmed the death sentence. After the issuance of this opinion, however, the x-rays of Lieutenant Oliver – for which the defense team had been asking for years - all of a sudden turned up. They show no fragmentation of the bullet remaining in the body.
Returning to the Court of Appeals, Mr. Workman’s lawyers pointed out to the en banc Court that the proof now showed that the supposition on which the Court had earlier based its denial of relief was not supported by the record. Seven of the then-sitting Judges agreed with Mr. Workman. Unfortunately seven others did not. With the death penalty, unlike baseball, a tie does not go to the runner (or the person who would be called "out"). A tie means you lose and your death sentence stands. The dissenting opinion was written by Judge Siler. Rather than conceding that his original supposition was wrong, Judge Siler spends several pages attacking the defense expert and his conclusion that the bullet that killed Lieutenant Oliver had not come from Philip Workman’s gun. (The other part of the opinion refers to this as "talk[ing] out of the other side of our mouths" (slip op. at 13).)
In all of this discussion of what the facts might or might not have been, one fact becomes clear: the jury never got to decide for itself and for or against Philip Workman. It didn’t get to decide because the local Medical Examiner’s Office never turned over this evidence either before or during the trial of the case. It didn’t get to decide because the District Attorney’s Office apparently never pushed for production of the evidence. It didn’t get to decide because the police officers involved all swore that none of them had ever fired their weapons (which other evidence later established was also not true). And it didn’t get to decide for itself because some appellate judges decided to make factual decisions despite a lack of evidence in the record. (The "majority" of the en banc Court noted, "We emphasize that we are not a trial court, and we have not been given the opportunity to actually review and weigh the evidence which our hypothetical reasonable jury would have reviewed." (Slip op. at 13)
In any other case in the system we hold up to the world as being the most just, such a result might be lamentable. When a man is killed because of such failures, however, such a tragedy must force us to ask whether the rights which our Constitution purports to guarantee to all men have any meaning or are just nice ideas which we can take out and parade around on the Fourth of July, but which we can ignore when hard decisions have to be made. Death penalty cases are, by definition, the worst of the worst. But if our rights do not apply in even (or especially) those cases, then they are not rights worth having, and no one can call the results just.
[Disclaimer: the author works in the office that represented Philip Workman]