The New York Times

Wednesday, March 29, 2000

Question Over Fatal Shot Stirs a Death Row Debate

By KEVIN SACK

NASHVILLE, March 28 -- There is no dispute that a drug-addicted drifter named Philip Ray Workman robbed a Wendy's restaurant in Memphis on the night of Aug. 5, 1981. There also is no question that Mr. Workman, armed with a .45-caliber pistol, exchanged fire with Memphis police officers as he fled and that Lt. Ronald Oliver was killed.

But 18 years after Mr. Workman's conviction for felony murder, there is now an intriguing dispute over whether the bullet that killed Lieutenant Oliver was fired by Mr. Workman or by one of two other police officers on the scene.

The resolution to that question may determine whether Mr. Workman will become the first man to be executed by the State of Tennessee in 40 years. He is scheduled to die on April 6 unless the United States Court of Appeals for the Sixth Circuit grants him a new evidentiary hearing or Gov. Don Sundquist grants him clemency.

Because the execution would be the first since Tennessee reinstated the death penalty in 1977, Mr. Workman's conviction has received far more public scrutiny than capital cases in surrounding states where executions have become commonplace. Among the 38 states that have the death penalty, only four -- New Hampshire, South Dakota, Connecticut and New Mexico -- have gone longer without an execution.

The Workman case is set against a national backdrop of growing attention to wrongful capital convictions. In Illinois, so many death penalty convictions have been exposed as faulty that Gov. George Ryan has suspended executions until the process can be reviewed.

As Mr. Workman's execution date approaches, his lawyers are working frantically to convince both the federal judges and Governor Sundquist, a Republican, that there are problems with his conviction.

The only eyewitness to testify at Mr. Workman's trial recanted last year and prominent ballistic experts have said they doubt that the bullet could have come from Mr. Workman's gun.

The state's attorney general, Paul G. Summers, a Democrat, is working just as intensely to keep the execution on track. He said none of the defense arguments had shaken his conviction that Mr. Workman was guilty. And he resents the defense's suggestion that Tennessee politicians are sacrificing due diligence in their rush to join the country's other state executioners.

In an interview here today at Riverbend state prison, the 46-year-old Mr. Workman said he believed that the political imperative to execute had overwhelmed any sense of fairness. He gave himself a 1 percent chance of winning legal relief, but said his conversion to Christianity a decade ago had made him "as ready as I'm going to get" to face death.

"People are frustrated and that's understandable," said Mr. Workman. "They're frustrated with crime and the frustration of 40 years since there's been an execution. People say, 'Well if it's on the books it needs to be utilized.' But unfortunately finality seems to be more important than what the facts may actually bear out."

Mr. Workman, who is represented by a state-financed office for indigent capital defense, has accumulated an interesting coalition of advocates. His lawyers convinced 5 of the 12 jurors in his trial to sign statements saying they would not have convicted Mr. Workman of first-degree murder had they heard the new evidence.

One of the five state Supreme Court justices who declined in January to block the execution issued a partial dissent calling for Governor Sundquist, a Republican, to commute the sentence because of "extenuating circumstances." And the dead policeman's daughter, Paula Dodillet, who was 11 when her father was killed, is pleading for the state to show mercy.

On Monday, Ms. Dodillet sat with Mr. Workman's daughter, Chrystal Michelle Workman-Burnham, at a news conference. "Taking her father will not bring mine back," Ms. Dodillet said.

Prosecutors contend that the defense is grandstanding and that its claims are flimsy. Last fall, Mr. Summers suggested that it did not even matter whether Mr. Workman fired the fatal shot. He still could have been convicted of the capital offense of felony murder -- a murder that takes place in the commission of another felony -- because he clearly committed the armed robbery that led to Lieutenant Oliver's death, the attorney general said.

But in an interview, Mr. Summers acknowledged that the Tennessee courts had not resolved that question. "We're not addressing that argument because that's not what happened," he said, referring to the possibility of friendly fire.

Throughout his prosecution, Mr. Workman simply assumed that he had fired the fatal shot. It passed through the officer's torso, but investigators could never definitively identify the death slug.

Mr. Workman says he was trying to surrender when he was hit on the head and involuntarily fired two shots. "I pulled the trigger," he testified at his trial. "I had my hand around the gun, and I guess it was pointed at the officers."

His defense was focused on convincing the jury that his judgment was so clouded by cocaine that he was not responsible.

The other two officers on the scene, Aubrey K. Stoddard and Stephen C. Parker, maintained at the trial and again in interviews today that they never fired their weapons.

Both former officers said they were offended by the defense's implication that they colluded to cover up a death by friendly fire.

"I've spent my whole life prosecuting criminals, including public officials for perjury and abusing their power," said Mr. Parker, who is now an assistant United States attorney in Memphis. "Now they're accusing me of being a murderer and a perjurer, even though they know the evidence points the other way."

The new evidence that could be most troubling for the state is a videotaped perjury confession by Harold Davis, a drifter and the only bystander to testify that he saw Mr. Workman shoot Lieutenant Oliver. Found by defense lawyer Jefferson T. Dorsey in a Phoenix motel last fall, Mr. Davis now says he heard shots from a distance but never saw the shooting. When he volunteered his help to police on the day after the shooting, they coached him, he now says.

"They basically told me what happened, how it happened, when it happened," Mr. Davis says on the videotape. "I said, 'Well, I didn't see all that.' They said, 'Well, this is what you're going to say.' "

Curry Todd, a former Memphis police officer who is now a state representative, denied in an interview exerting any such influence when he took Mr. Davis's statement.

Mr. Summers dismissed Mr. Davis, who has changed his story regularly over the years, as "a throwaway witness" and argued that Mr. Workman would have been convicted without the Davis testimony.

The new theory in the Workman case was first developed when one of his appellate lawyers noticed that Lieutenant Oliver's autopsy had concluded that the exit wound was smaller than the entrance wound. That was curious, the lawyer thought, given that Mr. Workman was firing hollow-point bullets, which typically mushroom upon impact.

Subsequently, the defense solicited reports from two respected forensic pathologists, who concluded that the lieutenant's wounds were inconsistent with Mr. Workman's ammunition. The state has countered with its own expert, who wrote that hollow-point bullets do not always expand.

In a previous rejection of Mr. Workman's appeal, the Sixth Circuit judges suggested that the death slug may have fragmented, which would explain the smaller exit wound. But an X-ray of the corpse, produced by the Shelby County medical examiner only this month after years of requests by the defense team, showed no fragmentation. The defense has accused prosecutors of deliberately hiding the X-ray. The state blames the mistake on a clerical filing error.