Next Pa. Execution Unlikely To Be Soon Last Week's Death By Lethal Injection Does Not Herald More Immediately. Appeals Can Take Years. Gov. Ridge Hopes To Hasten The Process, Though.

Posted: May 07, 1995

Now that Pennsylvania has resumed executions after 33 years, does this mean many more to come?

The answer, experts say, is yes - but probably not in the next few years.

The 185 men and four women on death row all have at least one avenue of appeal remaining, if they choose to exercise it, said Robert Dunham, director of the Pennsylvania Post-Conviction Defender Association. This includes Rodney Griffin, a Delaware County man whose execution is scheduled for May 30, and two inmates on whom Gov. Ridge signed death warrants Friday.

The defender organization or other attorneys will file for stays of execution for these inmates to pursue their remaining appeals, Dunham said, and stays will be granted, if past court practice is followed. Each appeal takes about two years.

Dunham and other legal experts said this means that any death-row inmates executed in the next year or two probably will be what are termed ''volunteers" - inmates who, like Keith Zettlemoyer, 39, who was executed at 10:25 p.m. Tuesday, say they do not want to pursue further appeals.

By 1997, though, Pennsylvania's execution rate undoubtedly will speed up as more death-row inmates' appeals are exhausted, the experts say.

With Zettlemoyer's execution - the 275th in the nation since the U.S. Supreme Court allowed states to resume executions in 1976 - Pennsylvania became the 25th state to have an execution under post-1976 death-penalty laws.

"Judging by the experience of other states, there's not usually a flood of executions following the first," said Richard Dieter, director of the Death Penalty Information Center in Washington. "There's a gradual increase as the cases make their way through the courts, but it's not like a dam breaking."

Illinois had its first execution in 1990, a second in 1994, and two so far this year, Dieter said. Its death-row population of 163 is the fifth-largest in the nation - right behind Pennsylvania's.

California, with a death-row population of 398, had its first execution in 1992, a second in 1993, and none since, Dieter said, although, as in Pennsylvania, "there is an inevitability" of more coming as appeals for inmates who have been on death row a long time are exhausted.

"It's not a death warrant or the number of warrants that produce executions but the point at which the courts are no longer willing to grant stays (of execution)," Dieter said. "This doesn't happen until the appeals process is over."

Under current law, every death-row inmate - whether he or she wants it - has an initial automatic appeal to state Supreme Court. Should the court turn down this appeal, the inmate becomes eligible for a death warrant.

At that point, two additional appeals remain - one in state court and one in federal court - and stays of execution generally are granted if the inmate wants one and an attorney applies. Sometimes, although less often in recent years, the federal courts allow a second appeal.

Currently, 105 Pennsylvania death-row inmates have lost the first appeal, leaving 84 with initial appeals pending, state officials said.

Zettlemoyer, whose case was the first upheld by the Pennsylvania Supreme Court under the 1979 death-penalty statute, had two death warrants signed on him before the warrant that resulted in his execution. (A death warrant sets a particular week for the execution. If a stay of execution is granted and remains in place for that week, the warrant expires.)

Because his case was the oldest, Zettlemoyer had gone furthest in the appeals process and was the only death-row inmate in the state who had been through and lost the three customary appeals, Dunham said.

He said the defender project had new information and legal issues that might have persuaded the federal court to take another look at Zettlemoyer's case. But that was uncertain, and Zettlemoyer may not have gotten a stay of execution even if he had wanted one or if the courts had decided to allow an appeal to go on without his permission.

The cases of a handful of other inmates who also have been on death row a long time and have had two death warrants are in court at the third - federal - appeal stage, Dunham said. The remainder have one or both of the later appeals to go.

Dieter said the average length of time nationally between sentencing and execution is eight years. Zettlemoyer was on Pennsylvania's death row 14 years, and 25 other inmates have been there at least a decade.

This unusually long time became a political issue last year, and changes were made to speed the execution process. This year, the state legislature passed a law requiring the governor to sign death warrants within 90 days of an inmate's loss of the first state-court appeal.

During the gubernatorial campaign, many legislators and Gov. Ridge chastised former Gov. Casey for signing only 21 death warrants in his two terms in office, allowing some cases eligible for warrants to sit on his desk for years. During that time, many inmates waited until a warrant was signed against them to file their later appeals, meaning that some spent five or more years on death row with no appeals in court and no attorneys representing them.

The two inmates on whom Gov. Ridge signed death warrants Friday - James Jones, 52, and Jesse Bond, 28, both of Philadelphia - had their convictions for first-degree murder and their death sentences upheld by the state Supreme Court in January. (About 20 initial appeals in capital cases are decided each year by the state's high court.)

Jones and Bond have two appeals remaining and undoubtedly will be granted stays of execution, if they want them. The effect of signing warrants on new cases within 90 days is to push them into the later appeals process more quickly.

"It was outrageous that these convicted murderers could sit there 14 years," said Rep. Michael McGeehan (D., Philadelphia), who pushed the 90-day bill. "It was against the will of the legislature, the will of juries, and, I think, the will of the public."

As another way to speed up the process, Ridge promised during the gubernatorial campaign to sign a substantial number of warrants on older cases, beginning with the oldest, to move them into the final appeal.

Whether these practices will result in more executions quickly remains

uncertain.

"If you sign 20 warrants a year rather than two, you will have 18 additional cases that will move forward in some fashion," Dieter said, "but the courts will take a long time considering them, unless more judges and clerks are appointed to handle them."

In the late 1980s, then-Florida Gov. Bob Martinez signed almost as many death warrants in four years (139) as did the previous governor in eight (151), "but this didn't result in more executions," Dieter said.

"There were about two executions a year during both administrations," Dieter said. "What happened was all these warrants caused a bottleneck in the appeals courts, which slowed everything down."

John Cosirilos, co-chair of the death-penalty committee of California Attorneys for Criminal Justice, said California courts also are weighed down with capital-case appeals, which take up half the time of the state's high court.

Dieter said such states as Louisiana and Georgia, which had lots of executions for a few years in the 1980s, now have only one a year, if that. There are many factors involved, he said, including a "disillusion with the death penalty" because of its high cost and lack of obvious effect on the murder rate.

"Also, I think there's a sort of desire to have those first executions," he said. "It's kind of embarrassing to a state to have the death penalty and not use it. After a period of time in which executions are carried out, there may be less pressure on the governor, courts and prosecutors since the system is perceived to be working."

Only Texas is executing large numbers of inmates on a regular basis, 93 since the death penalty was restored, Dieter said. Florida is next with 33. Texas has a death-row population of 392, slightly less than the 398 in California, which has had two executions.

George Kendall, assistant counsel for the NAACP Legal Defense Fund, who has worked on Texas cases, and Cosirilos, of California, cited several reasons for the difference:

Support for the death penalty is high in Texas. California has much better funding for defense attorneys at trial and through the appeals. Texas does not even pay attorneys to represent death-row inmates beyond the first appeal. Also, Texas state courts "do not look at these cases with the care you find in almost every other state," Kendall said. Cosirilos said the federal circuit court in California is "more reluctant to engage in executions" than is its Texas counterpart.

In Pennsylvania, Dunham and the other four lawyers in the defender project have been working overtime to get stays and experienced appeal attorneys for the inmates on whom Gov. Ridge has signed death warrants.

"The problem we face now is not who will be executed next and how soon but how are we going to provide adequate representation for the large number of people who are going to be facing death warrants and who still have substantial appeals left."

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