The rush to the death chamber

Like Timothy McVeigh, more condemned prisoners are in a hurry to die. Does the trend undermine justice?

Three days into jury selection, the legal strategy Barry Derryberry had spent months working on suddenly exploded in his face. His defendant, a man charged with killing his wife and two children, decided he wanted to forgo a trial, plead guilty, and ask the judge for a death sentence.

It was Mr. Derryberry's first experience with a client who was, in effect, volunteering to die. He was stunned. Though the defense team knew that Ronald Fluke wanted to be put to death, until then he had cooperated with their plans to mount a vigorous defense during sentencing to keep him from the execution chamber.

"It flew in the face of everything he had done," recalls Derryberry, an assistant public defender. "Our client was ... suicidal and ready to go to heaven and meet his Maker. Nothing could be done."

Oklahoma did execute Fluke, by lethal injection, on March 27, making him one of the most recent US convicts on death row to "volunteer" to die.

Inmates who ask to be executed, either by requesting a death sentence at trial or by dropping all appeals after their convictions, are a growing phenomenon in American jurisprudence. They each have their reasons for wanting to speed their own deaths - ranging from mental illness to the isolation of death row to, in the case of Timothy McVeigh, scheduled to die next Wednesday, a bizarre sense of martyrdom.

The trend is accelerating so rapidly that some legal analysts and human rights groups believe the criminal-justice system itself is being compromised. They say the courts are at risk of being used, in Derryberry's words, as "a suicide mill."

"Remember, the appeals are for society, not the prisoners," says Abraham Bonowitz, a death-penalty opponent in Florida, where two of the last three people executed were

so-called volunteers. "Appeals are for us to make sure we followed our own law. When appeals are waived, society is denied the full and fair review of a process filled with mistakes."

Others, not surprisingly, argue there is room in the capital-punishment system for the condemned to give up their appeals and be executed, rather than languishing for years on death row with no hope of freedom. They see it in terms of a prisoner's right to choose, as do many of the inmates themselves.

No one, though, agonizes over these points more than the lawyers who defend death-row volunteers. Their clients' rush to the death house gives them a stark choice: Scramble in a last-ditch effort to save a hostile, uncooperative defendant, or abandon their ethical moorings and allow their clients to die.

Derryberry, for one, is a death-penalty foe, but the Fluke case gave him occasion for much moral wrestling. The lawyer's instinct to save a man's life - and to do everything in his power to ensure a client is not executed unlawfully - collided with his respect for Fluke's wish to be executed.

"I can understand the pragmatic choice one has under a death warrant," he says. "What kind of life is that to lead?"

Since the US Supreme Court ruled in 1976 that capital punishment is constitutional, volunteers have accounted for more than 1 in 10 executions. But of the 90 who have willingly died, 60 have been executed in the past six years - a striking upturn, according to a recent report by the human-rights group Amnesty International.

In phone interviews, in their letters, and in court testimony, inmates on death row give a jumble of reasons for wanting to speed their executions. Some, not always coherent, said they wanted to die even before they were imprisoned - and that they committed murder as a way of committing suicide. Others cite the perceived painlessness of execution by lethal injection.

More than a few, though, point to the oppression that hangs over death-row cellblocks, saying they can stand it no longer.

"When you walk into this camp, you can feel the death," says Anthony Boyd, a prisoner on death row in Alabama. He is not trying to hasten his demise, but he knew four inmates who did. "It's like walking into a graveyard.... Guys watch as family members abandon them.... You're treated like animals."

Most death-penalty states isolate condemned prisoners in high-security cellblocks, away from the general prison population. They spend most of the day in a cell about 6 feet by 8 feet.

In Arizona, a federal appeals court has ordered a hearing to determine whether more than a dozen years in isolation influenced convict Robert Comer to volunteer to end his appeals. His lawyer claims that conditions on death row "torture to death" many inmates, leading them to give up their legal rights.

To David Paul Hammer, a federal inmate awaiting execution in Terre Haute, Ind., it's the bleakness of prison life that led him to halt all legal appeals. Though he has since changed his mind and resumed challenges to his sentence, an earlier phone conversation with Mr. Hammer revealed something of his rationale for wanting to seek a "final escape."

"I merely exist" on death row, he said. "There is a big difference in living and existing. In order to live, your life has to have meaning, a purpose."

THE FOLLOWING CASES help explain some of the ways inmates come to their decisions to seek death - and illustrate the ethical conundrums they create for the people working in the criminal-justice system.

'Death wish' of Daniel Colwell

Lawyers and psychiatrists say it's not infrequent for individuals to commit murder as a means of suicide, as in the case of Daniel Colwell in Georgia. He wants to die in the electric chair.

Mr. Colwell admits he shot and killed two people at random in a Wal-Mart parking lot in Americus, Ga. He told a jury he never had the courage to kill himself, but hoped the state would now fulfill his death wish by executing him.

At his 1998 trial, Colwell, who has been diagnosed with schizophrenia and other mental problems, was found competent to direct his own defense. He pleaded guilty to the murders. He boasted about the slayings to the jury. He threatened jurors and their families if they did not recommend a death sentence. The jury obliged.

Even Daniel Bibler, one of the prosecutors in Colwell's case, says the admitted killer had no motive other than his desire to end his own life.

"We took him as a calm, communicative person who intelligently planned out something, carried it out with full knowledge of what he was doing, and understood the consequences," Mr. Bibler says. "We never disputed that he had been diagnosed with mental disorders. But clearly he was not delusional, and clearly he was in touch with reality."

Colwell, however, still must get past another hurdle to carry out his plan: his own lawyer. Michael Mears believes his client is mentally ill, and he has appealed to Georgia's Supreme Court, asking the justices to prohibit the state from executing people diagnosed with serious mental disorders.

Colwell has fought back, trying to replace Mr. Mears with another lawyer. The court has not permitted Colwell to do so.

"It's been a nightmare, fighting the judge and fighting Daniel," says Mears, who believes Colwell should not have been allowed to represent himself during trial. He feels no equivocation about intervening to spare Colwell. "We are being forced to be instruments of Daniel's suicide."

Sebastian Bridges' protest

The execution of Sebastian Bridges on April 21 was the nation's latest voluntary case - and it proved to be unsettling to many involved.

Bridges had acted as his own lawyer at his trial, claiming he was innocent of murdering his estranged wife's lover. The Nevada jury found him guilty.

In disgust, Bridges told jurors to kill him. They handed down a death sentence. Later, in a form of protest, he dropped all appeals. To halt his execution, all he had to do was to say he wanted to continue his appeals.

But he didn't. And so, on April 21, Michael Pescetta, a federal assistant public defender, found himself in the death chamber, standing alongside Bridges, who was already strapped to a gurney and awaiting execution.

Twice Mr. Pescetta asked the condemned man if he wanted to appeal. Twice Bridges refused, but shouted that he was innocent, that he wanted to live, and that the state was killing him "like a dog."

"I've seen other executions, and they are distressing enough. But ... this was significantly stranger for everyone involved," says Pescetta. "You expect that everyone wants help not to be executed. It's disorienting."

Some death-penalty analysts argue that defense lawyers are uncomfortable with volunteer executions primarily because they shoulder a mistaken sense of responsibility.

"The conventional wisdom is that clients never freely and voluntarily choose to be executed - ... and that the lawyers have a paternal or maternal role to protect their client from himself if necessary," says Michael Mello, a Vermont Law School professor and death-penalty expert. "That's dead wrong. It's a simple lack of human empathy [by the lawyer] - arrogance and elitism."

Thomas Grasso has his way

Johnie O'Neal knows first hand what happens when a defense lawyer refuses to stand in the way of a client who wants to be executed.

Mr. O'Neal became a pariah in the legal-defense community after he decided not to try to block the execution of Thomas Grass. He says he received death threats and hate mail for his action.

"My belief that people shouldn't be executed had to be put aside," says O'Neal, then the chief public defender in Oklahoma's Tulsa County. "Actually, I am proud of the fact that I was willing to do it and could do it."

Grasso was already serving a life sentence in New York when he confessed to an unsolved 1990 murder of an elderly woman in Oklahoma. When he was transferred to the state to stand trial for that crime, he told O'Neal he wanted to plead guilty and be sentenced to death.

Grasso did plead guilty, and O'Neal offered no mitigating evidence that might have saved him from a death sentence. Subsequently, the defense lawyer asked the Oklahoma Court of Criminal Appeals to allow Grasso to waive mandatory appeals - a move that enraged fellow defense lawyers.

"It bothered me, and still does," says Robert Ravitz, the public defender for Oklahoma County. "Why do you need a lawyer to advocate somebody for a death sentence? You don't have a constitutional right in the United States to get a death sentence - yet."

Defense lawyers who disagreed with O'Neal, in fact, filed a legal challenge themselves in an effort to block the execution. In the end, though, Grasso had his way. He was executed in 1995.

(c) Copyright 2001. The Christian Science Monitor

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