Governors support counsel for clemency

Published 11:10 am Wednesday, December 10, 2008

Ohio Gov. Ted Strickland is a Democrat who supports the death penalty. Former Gov. Richard Celeste is a Democrat who opposed it.

Both have asked the U.S. Supreme Court to rule in favor of a death row inmate from Tennessee seeking a federally funded lawyer to help with his clemency request.

They’re joined by former governors from Illinois, Indiana, Pennsylvania and elsewhere, a group including several death penalty supporters. They argue a governor’s opinion on capital punishment shouldn’t get in the way of wanting inmates to have the best possible legal representation.

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What emerges from a court filing by the governors and individual interviews is the burden that these chief executives feel — regardless of their position on the death penalty — in making sure they get the ultimate decision right.

“Governors get tons of these things — they have to be well-stated and well-documented,” said Garry Carruthers, a former Republican governor of New Mexico and death penalty proponent who signed onto the case.

The issue before the court is relatively narrow: Does an existing federal law that authorizes funding for death row inmates’ lawyers also cover state clemency hearings?

The court in January will hear arguments from attorneys representing Jerome Harbison, a Tennessee death row inmate at the end of his state and federal appeals.

Harbison, 53, was sentenced to die for using a marble vase to bludgeon Edith Russell, 62, to death at her Chattanooga home after she surprised him burglarizing her house on Jan. 15, 1983.

The Tennessee public defender’s office said it didn’t have the resources to represent Harbison in a clemency request. So he asked for a federally appointed lawyer.

Federal and district appeals court judges said the law doesn’t authorize such funding.

Strickland, a former prison psychologist elected in 2006, has allowed four executions to proceed. He commuted the sentence of a fifth condemned inmate, John Spirko, because of doubt about his guilt and concerns over evidence.

“We do not make our society safer or more just if we tolerate the possibility of an innocent person being unjustly or inappropriately convicted as the result of having inadequate or ineffective counsel,” he said.

Strickland said he’d also be open to arguments about an offender’s age or mental condition. But he’s wary of creating a system of death penalty winners and losers that could appear arbitrary.

“I do not believe the death penalty should be applied to one person or not to another because a governor or anyone else would have some reason to be sympathetic toward that person,” he said.

Governors say the quality of the information they receive at the clemency stage is crucial.

“When it gets to the governors’ desk, there is no tomorrow,” said former Indiana Gov. Joe Kernan, a Democrat who granted clemency for two death row inmates.

“I found that in making that decision I wanted to have as much information and hear as many arguments for and against as I could,” he said.

Other former governors backing Harbison: James Hunt and James Martin, North Carolina; Gary Johnson, New Mexico; John Fife Symington, Arizona; James Thompson, Illinois; and Dick Thornburgh, Pennsylvania.