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Phillip Workman's Final Appeals Split Sixth (Twice):

In 1981, Phillip Workman robbed a Wendy's restaurant in Memphis, Tennessee. While attempting to escape from police, he shot and killed Lieutenant Ronald Oliver. In 1982, a jury sentenced Workman to death. His case has been in court ever since, and generated two divided decisions from the U.S. Court of Appeals for the Sixth Circuit in just the past week.

On Friday, in Workman v. Bell, a divided panel rejected Workman's motion for a stay of execution. Writing for himself and Judge Sutton, Judge Siler explained:

Philip Ray Workman seeks a stay of execution in connection with his appeal from the denial of a motion under Fed. R. Civ. P. 60(b), a motion contending that the Attorney General for the State of Tennessee perpetrated a fraud upon the district court during Workman's habeas corpus proceedings. Because Workman has been given considerable process during the 25 years since a state court jury found that he murdered Lieutenant Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant Oliver and that he shot and injured Officer Aubrey Stoddard during the incident, . . . because the claims of fraud on the court are exceedingly attenuated and vague, and because the Tennessee Court of Criminal Appeals has rejected the premises of two of the claims, Workman has little to no likelihood of success in showing that the district court abused its discretion in rejecting his Rule 60(b) motion. We therefore deny his motion for a stay.
The panel concluded Workman could not show the "significant possibility of success on the merits" necessary for a stay and suggested, that after two decades of litigation, enough was enough.
Nearly twenty-five years after Workman'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.
Judge Cole dissented, arguing that "the ultimate merit of Workman's claims has nothing to do with whether a stay of execution is warranted." Rather, Cole argued, "Workman's entitlement to a stay instead turns on whether he has shown a likelihood of success in arguing that he is entitled to an evidentiary hearing to prove his fraud claims." Cole also maintained that another Sixth Circuit panel granted a stay of execution on similar grounds.

Workman had better luck in federal district court on Friday than in the Sixth Circuit, as he obtained a temporary restraining order to delay his execution, arguing that execution by lethal injection would constitute cruel and unusual punishment. Yet this delay would be short-lived. On Monday, the same Sixth Circuit panel vacated the TRO along the same divided lines in Workman v. Bredesen.

Judge Sutton, writing for the court, summarized the court's holding thusly:

This dispute arises from a 25-year-old capital sentence, and the district court's order, if upheld, would be Workman's sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State's method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court's and this court's limitations on dilatory challenges to an execution procedure.

Workman's prospects for success on the merits also are dim. The Supreme Court has never invalidated a State's chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court's temporary restraining order.

Judge Cole dissented on both substantive and procedural grounds, arguing (among other things) that the court lacked jurisdiction to vacate the TRO.
For the first time in a death-penalty case, to my knowledge, this Court vacates a temporary restraining order—an order that the Court is incompetent to review because it is not appealable—and in so doing clears the way for Philip Workman's execution on May 9, 2007.

Just as troubling, despite the extensive and detailed allegations Workman raises tending to show that Tennessee's new lethal-injection protocol will subject him to pain and suffering in violation of the Eighth Amendment; despite that Workman supports his allegations with testimony from physicians familiar with lethal-injection protocols, medical studies, and evidence from recent botched executions; despite the statements from federal courts across the United States expressing deep skepticism with similar lethal-injection protocols adopted by other states; and despite the deference that an appellate court owes to the judgment of a district court, the majority concludes that Workman's concerns are insufficiently compelling to warrant a brief five-day preservation of the status quo to determine whether his claims have merit.

In the end, I simply cannot conclude that in the face of Workman's disturbing allegations, the State's legitimate interest in "finality" and giving effect to its criminal judgments will be irretrievably impaired by the TRO here. Indeed, the State's interest in executing Workman "will, at worst, simply be delayed but not denied" if this Court affirms the district court's issuance of the TRO. . . . And if Workman is ultimately successful in proving the constitutional infirmity of Tennessee's new lethal-injection protocol, "then [the TRO] will have prevented a harm the legality of which will be open to serious question under federal law." Accordingly, I respectfully dissent.

These are likely the last of Workman's appeals. Workman's execution is scheduled for 1:00am — less than three hours from now. While he obtained a reprieve in 2001 a mere 37 minutes from when he was scheduled to die, this time it appears Workman is out of appeals. The U.S. Supreme Court rejected a stay request earlier this evening.

CORRECTION: I mistakenly attributed the second dissent to Judge Siler, when it obviously was Judge Cole. I regret the error and it is corrected above.

Ron Howard (mail):
All right, let's say you're writing one of those TV shows about forensic
investigations. For the sake of conversation, we'll call it "CSI:
Memphis".

The draft that you hand in has a shooting victim's entrance wound larger
than his exit wound. The producer is going to hand it back to you and
say "That's not very realistic." If you insist that it is, he'll then
hand the script off to the technical consultants on the show, who will
hand it back to you and say "It doesn't work that way. Please learn
something about gunshot wounds before attempting to write again."

But here in Tennessee, where the stakes are far greater than poorly
written TV, we're expected to believe that.

Okay, now you're writing a police procedural drama. We'll call it "Law &
Order: Stupid Drug Addicts".

Over the course of investigating a policeman's killing, an eyewitness
comes forward, stating that he saw the defendant shoot the victim. The
"witness" didn't turn up in the original canvass of the scene, nor did
any vehicle he could have been in show up on crime scene photos. His
sister says that not only was he not there, but he routinely made up
false information and fed it to police so he could use reward money to
feed his drug habit. Yet your script portrays him as a reliable witness.

Again, the script will be shoved back into your face and criticized as
having little resemblance to reality.

You're writing an episode of "Boston Legal". The firm is defending a
murder suspect. The policemen insist that the murder of another
policeman couldn't have been a friendly fire shooting because they never
fired their guns. A witness on the scene says that he saw a policeman
firing at the suspect with a shotgun. And the defendant's medical
records indicate that he had shotgun pellets removed from his backside.

But the policemen that insisted they never fired their guns are
considered unimpeachable witnesses, and the jury returns a guilty
verdict based on their testimony.

Airing such a story would induce a collective groan as every viewer in
America vows at once never to watch the show again.

But these are the things we're expected to believe in the Philip Workman
case.

The closest thing to a form of entertainment that would try to push a
story as absurd as this one would be if Rowan Atkinson filmed "Mr. Bean
Goes to Trial". Even that would be more likely to have a happy ending
than the Workman case.

He has less than 4 hours remaining unless the governor can muster the
political will to prevent his senseless death. This is not the state
administering a reasonable punishment--- It is a state-sanctioned hit on
someone who, though he is far from a model citizen, did nothing to
deserve to be killed.

And it's happening in your name, Tennessee.
5.8.2007 11:58pm
Brooks Lyman (mail):
Without getting into the merits and facts - insofar as they may be known - of the case, let me ask a question:

Why does it take 25 years to carry out (or commute) a death sentence? This seems to be an almost typical lag between sentencing and the carrying out of the sentence. Surely we could carry through the various appeals in capital cases with somewhat more expedition than 25 years!

It seems to me, that our courts ought to have a fast-track procedure for such appeals, and that it should in most cases be possible to come to some finality in a year or two, absolute maximum. Workman has sat in jail for 25 years; for all practical purposes that's life imprisonment, not a death sentence. I assume that the 25 years was mostly spent in legal maneuvering and waiting to get on the docket. Out of fairness to everyone, and in order to preserve the deterrent aspect of capital punishment, it needs to be inflicted swiftly after expedited appeals.
5.9.2007 12:14am
rlb:
In other words, it's not contested that he robbed a store and took a couple shots at a police officer, just that maybe, just maybe, his bullet wasn't the one that killed the officer?

And I'm supposed to feel sorry for the guy on the eve of his execution, because his crime was felony murder and not regular murder?

Cry me a river.
5.9.2007 12:19am
blackdoggerel (mail):
Ron — maybe you're new to the VC, but here we try to write original comments of our own creation. We don't just copy and paste posts from other sites.
5.9.2007 1:08am
Brian G (mail) (www):
Wow, Ron Howard. All that diatribe and not ONE mention of the fact in the article that the man admitted at his trial that he killed a cop. Let me quote what you missed here:


Because Workman has been given considerable process during the 25 years since a state court jury found that he murdered Lieutenant Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant Oliver and that he shot and injured Officer Aubrey Stoddard during the incident,


Look, if you are agianst the death penalty, then just say so. That is a valid position and I would argue the better one. However, don't come on here and start acting like the guy was wrongly convicted. However, while I am 90% against the death penalty, I can't buy the "he did nothing to deserve to be killed"line you are running. He killed a police officer. That is part of the 10% of where I support the death penalty.
5.9.2007 1:09am
Kovarsky (mail):
rlb,

you are not supposed to feel sorry for the guy. you are supposed to appreciate the fact that AG misconduct might have made a difference in the way the sentence was litigated.

the fact that you simply don't care whether he intentially pulled the trigger and killed the officer or not fits neatly into the "says more about the speaker than the subject" category.
5.9.2007 1:10am
Kovarsky (mail):
Brooks,

I assume that the 25 years was mostly spent in legal maneuvering and waiting to get on the docket.

You might be surprised to know that, despite inflammatory attempts to paint the defense bar as a group of manipulative attorneys filing fivolous 11th hour petitions, most of that 25 years was probably spent ON the docket, not WAITING TO GET ON IT. In other words, the data shows that the overwhelming amount of time to consummate a sentence (is that a nice way to say it?) is consumed while courts decide them, not while the habeas bar mischieviously waits to file petitions and motions at the last minute.
5.9.2007 1:15am
rlb:
Kovarsky, his intent isn't at issue-- as the post above yours says, Workman shot TWO cops that night. Even if you believe he didn't fire the lethal shot, he still intentionally shot the other cop. He clearly had the intent to commit murder.

The only question is whether he was able to act on his murderous intent; whether he fired the bullet that killed the officer. If he could have proven that he didn't, he probably wouldn't be executed tonight. I understand that, but he couldn't prove it; and I'm not going to give him the benefit of the doubt, because in my mind he's just as culpable either way.
5.9.2007 1:27am
Kovarsky (mail):
rlb,

you wouldn't give him the benefit of the doubt as to innocence, or you wouldn't give him the benefit of the doubt as to whether he meets the statutory requirements to receive an evidentiary hearing, which seems to be what the case is about?
5.9.2007 1:53am
Steve:
I don't get it. In the hate crime threads we have such a wonderful consensus that you should only be punished for what you do, not what you thought while you were doing it. Somehow we lost that marvelous consensus.
5.9.2007 2:00am
rlb:
I'd give the various courts that have denied him this latest evidentiary hearing the benefit of the doubt, yes. But that doesn't have anything to do with my personal dislike for the guy.

And, Steve, this isn't CrimLaw 101. I'm not going to explain the theoretical justification for mens rea or the felony murder rule, beyond just saying that death resulting from attempted murder is probably its most intuitive application of the latter.
5.9.2007 2:30am
Pub Editor:
It looks like Phillip Workman might not die tonight. As Prof. Adler reported, the U.S. Supreme Court declined to grant a stay, but Workman's lawyers have filed an appeal with the Tennessee Supreme Court to stay the execution. We've no word on what the TSC is doing, if anything. The Nashville Tennessean is reporting:


Just hours before his death sentence is to be carried out, condemned killer Philip Workman has asked the state's highest court to delay his execution.

In a last ditch filing, Workman's lawyers argue that the inmate's execution date, coming just over a week after the state issued new death penalty protocols, denies the convicted cop killer sufficient time to challenge the process.

"There is a growing body of medical, scientific, and other evidence which clearly shows that lethal injection using (the proscribed combination of drugs) without monitoring of anesthetic depth risks torture," his lawyers wrote.

Workman's lawyers have worked furiously to delay his 1 a.m. execution at Riverbend Maximum Security Insitution in Nashville.

Earlier in the day, the U.S. Supreme Court refused to grant Workman a stay of execution. His lawyers turned to the nation's highest court after requests for a delay were rejected by the 6th U.S. Circuit Court of Appeals.

U.S. District Judge Todd Campbell had issued a temporary restraining order until he could hear testimony on the new lethal injection protocol the state planned to use in Workman's execution. But the circuit court overturned that ruling Monday saying the method is used successfully in other states...


As of this posting (1:35 AM), neither the Tennessean nor any other site I've seen is reporting that Workman is dead.
5.9.2007 2:37am
larry_reader (mail):
I'm against the death penalty and I just LOVE it when people who are going to be poisoned by the government use and/or misuse the courts and make a mockery of the entire process.
5.9.2007 2:39am
rlb:
Nashville is in the central time zone. He's got 20 minutes.
5.9.2007 2:40am
David M. Nieporent (www):
Reading the dual opinions, it seems to me that Judge Siler was right on the TRO issue, and wrong on every other point in his two dissents. The eighth amendment is not an execution manual. It forbids cruel and unusual punishments, not "punishments which, if procedurally botched, might briefly cause pain to the condemned."

Siler's argument about lack of irreparable harm to the state, ISTM, proves too much; a death row inmate can always be executed later, so by Siler's logic the balance of harms will always favor the condemned, no matter how late in the game he files or how many times he serially files motions. Of course, you still need to establish likelihood of success on the merits, but based upon the balance of harms factor, he seems to want to lower the standard to the mere possibility of success on the merits.
5.9.2007 2:48am
Steve:
I'm not going to explain the theoretical justification for mens rea or the felony murder rule, beyond just saying that death resulting from attempted murder is probably its most intuitive application of the latter.

That's awesome, if it's the theory he was prosecuted under, which doesn't seem to be the case.

I'm always bemused by the comments on a law blog that essentially say "he seems like a bad guy, I don't particular care if he gets due process." It's fine for my mom to feel that way, but I expect the courts to care about due process irrespective of whether the defendant seems like a bad guy. Appellate review of a TRO? What the hell?
5.9.2007 2:49am
Pub Editor:
rlb,

Thank you. I'm in Knoxville; the time zone difference slipped my mind.
5.9.2007 2:52am
Blue (mail):
Surely 25 years of due process are sufficient?
5.9.2007 2:54am
rlb:
The particular comment I was referring to was this one (posted by Ron Howard but apparently plagiarized from an a third party's editorial):

He has less than 4 hours remaining unless the governor can muster the
political will to prevent his senseless death. This is not the state
administering a reasonable punishment--- It is a state-sanctioned hit on
someone who, though he is far from a model citizen, did nothing to
deserve to be killed.


I said that he did something that warrants the death penalty regardless of whether the allegations presented above are true, because of the felony murder rule. I suppose you could take it as a due process comment, but it wasn't intended as one, because I don't believe for a minute the theory that the officer was killed by friendly fire.
5.9.2007 3:07am
Pub Editor:
The Tennessee Supreme Court has denied Workman's last appeal:

Tennessee's highest court has denied a last-ditch appeal to derail the execution of Philip Workman, making it a virtual certainty he will be put to death within the hour.

Two hours before his death sentence was to be carried out, Workman, 53, asked the state's highest court to delay his execution.

In a last ditch filing, Workman's lawyers argued that the inmate's execution date, coming just over a week after the state issued new death penalty protocols, denied the convicted cop killer sufficient time to challenge the process.

"There is a growing body of medical, scientific, and other evidence which clearly shows that lethal injection using (the proscribed combination of drugs) without monitoring of anesthetic depth risks torture," his lawyers wrote.

But in an unsigned ruling issued just after 12:30 a.m., the state Supreme Court found that "Workman's challenge to the revised protocol has no likelihood of success on the merits."

"At some point, the State has a right to impose a sentence not just because the State's interests in finality are compelling, but also because there is a "powerful and legitimate interest in punishing the guilty...," the ruling states. "After twenty-five years and countless court proceedings, that time has come."

...
5.9.2007 3:09am
brenda g russell (mail) (www):
tennessean reports at 1 50 that he has been exacuted
5.9.2007 3:59am
Pub Editor:
Workman is dead, according to the Tennessean.
5.9.2007 4:00am
Reg (mail):
The dissent is wrong when it says a TRO can't magically be transformed into a preliminary injunction. As soon as there is notice and opportunity for hearing, it is a preliminary injunction. "By its terms Rule 65(b) only governs restraining orders issued without notice or a hearing." FPP 2951.

From the facts, it sounds like a hearing was held, at which the state said, we need to see the Complaint to respond, and the Complaint was filed. The DC then issued the stay. If the state had notice, and had already attended a hearing, I wonder why they could not have had a second hearing on the Complaint. The court's stay was an injunction not a TRO.
5.9.2007 9:23am
AppSocRes (mail):
Based on the Tennessean report it sounds like this guy was gaming the system up to and beyond the point he died. Good riddance and to be frank I hope G-d doesn't have mercy on his soul.
5.9.2007 9:27am
Freedonian (mail) (www):
I'm assuming that Brian G is the same "Brian" that came over to my site last night spewing the same factually inaccurate information he spewed here (For the record, I am the author of the post Ron Howard quoted at the beginning of this discussion, and I don't object to his using it; Thank you for the credit, Blackdoggerel).

The fact is that Workman never admitted to firing the fatal shot at Lt. Oliver. In fact, the forensic evidence says that he didn't. Anyone that has seen gunshot wounds can attest to the fact that an exit wound is always larger than an entrance wound. The late Lt. Oliver had a wound on his chest twice the size of the one on his back.

Further more, he was using .45 hollowpoint bullets. Two of the most prominent forensics experts in this country testified that not only was the wound inconsistent with a .45 hollowpoint, but that the wound was entirely consistent with the .38 rounds used in police service revolvers.

Both Officers Stoddard and Parker claim never to have fired their weapons. No one ever bothered to check their weapons to see if that was true. Of two eyewitnesses, the only one who was verifiably at the scene, Steve Craig (The police cannot establish the presence of Harold Davis at the crime scene, even though the prosecution based its case solely on his "eyewitness" testimony) said that he saw Parker returning fire, but was told not to discuss it with anyone outside the department.

Now, Workman DID rob the Wendy's restaurant, and he did admit to firing a shot, although by all accounts, it was unintentional. That bullet wound up coming to a rest in Officer Aubrey Stoddard's arm, lending credence to the notion that the .45 hollowpoint was inconsistent with Lt. oliver's wounds--- It never exited.

The felony murder statute in Tennessee does not extend far enough to make one policeman accidentally killing the other felony murder. If it did, there would have been no need to pretend it was Workman that fired the shot. They could have laid this thing to rest years ago.

The law does not stretch far enough to meet the facts of the case. So the facts of the case were stretched far enough to meet the law and produce the desired result.

What happened that day was a tragedy all the way around. Over a quarter century later, we can never really know whether Parker fired a bad shot or if Oliver inadvertently stepped in front of the bullet.

But felony murder is not designed to cover that. If it was, the facts of the case would have been presented honestly, instead of the State of Tennessee trying to convince us that the MPD was so sloppy that it not only didn't bother to check if Parker's gun had been fired, and that they never even bothered to x-ray the body of a murder victim.

And neither one of those things should ring true to you at all.
5.9.2007 7:14pm
Jeremy T:
This is a John Grishman novel waiting to happen.
5.10.2007 3:55pm
Brian G (mail) (www):
He accidentally fired a shot. OK. The cop just wound up dead. And I guess the trial transcript was inaccurate too. He actually said he offered the cop a Frostee, but somehow it got translated by the court reporter as admitting to shooting the cop.

Give it up, man. If you are against the death penalty, then just say so. Don't give me the innocent man routine on this guy.
5.11.2007 4:12pm