Coinciding with Virginia’s execution date for convicted rapist and murderer, Bobby Swisher (he claimed to be too drunk and high to recall his actions), Virginians for Alternatives to the Death Penalty (VADP) held a regional strategy meeting with members of the National Coalition to Abolish the Death Penalty (NCADP).

At noon, about 15 activists broke from the meeting and held a short session of street theatre on the sidewalk between Virginia’s State Capital, General Assembly Buildings and Governor Mark Warner’s house in Downtown Richmond. As is customary in Virginia’s legal system, Swisher was typically railroaded to death row, without competent counsel and without the jury being made aware that ‘life without parole’ was an option in the sentencing phase.

The theatre piece, largely conceived by VADP Director, Jack Payden-Travers, was titled “Washing of Hands: A Replay of A 2100 Year Old Drama.” The activists wore costumes and carried props to represent the roles played by Virginia’s government in ‘washing their hands’ of responsibility toward a condemned man’s right to a fair trial and sentencing.

Governor Warner, the only Virginian with the power to stop Bobby Swisher’s execution, himself had acknowledged what he called legal ‘ambiguities’ in Swisher’s sentencing. However, he elected to leave the ultimate decision to the VA Supreme Court where few if any convicts are ever granted second sentencing hearings.

Although Virginia ranks as No. 1 in executions (per capita among states with over one million population), the state hasn’t been putting many convicts to death in the past couple years. The previous administrations of Governors Gilmore (Killmore?) and Allen frantically shuffled so many convicts too their deaths at the Greensville Correctional Center that few are left on death row with expiring appeals.

The current Governor, Mark Warner, who’s wife is publicly against the death penalty, has sought to avoid the contentious issue in order to keep his critics quiet. But criticism has been mounting concerning the Bobby Swisher case. The Washington Post published a scathing editorial chastising Gov. Warner’s dodgey behavior. Also, Sister Helen Prejean, author of Dead Man Walking, sent Warner a public letter urging him to commute the sentence to life in prison without parole.

Prejean was quoted in the Richmond Times-Dispatch as saying, "We need you as governor to perform an act of conscience" and follow the lead of Illinois Gov. George Ryan, who just two days before leaving office in January commuted the sentences of the state's 156 death-row inmates."

Prejean noted in her letter, also dated last Friday, that Swisher, 27, "has no procedural means to petition the Virginia Supreme Court as you have advised him to do." “Governor Warner, use the power of your office to choose life," Prejean wrote. "I am praying mightily for you."

With Bobby Swisher set for execution at 9pm tonight, there is little hope for fairness and justice in this case. The behavior of the Governor, the VA State Supreme Court and Executor General (whups, Attorney General, Atty Killgore, have all added up to a 'par for the course' treatment of Swisher by one of America’s most bloodthirsty and prejudiced state capital punishment systems.

If you, or anyone you know, would like to work for change in Virginia’s injustice system, please get in touch with VADP (ww.vadp.org). At the time of every execution, there is a vigil to protest and stand as witness to state sanctioned murder outside the prison in Greensville. VADP would like your help to keep that tradition alive. Please see below for more info on this case.

Jason Guard
(present at 41 of VA’s past execution vigils in Greensville)

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VA Supreme Court Refuses to Hear Swisher Appeal

On July 17 the VA Supreme Court refused to hear the appeal filed on behalf of Bobby Wayne Swisher by his lawyers Stephen D. Rosenfield and Anthony F. King. He is set to be executed by the Commonwealth of Virginia on the July 22, 2003.

Gov. Mark Warner is once again the only official with the power to intervene to ensure just and consistent application of Virginia’s capital punishment statute.

On July 1, 2003 within four hours of the originally scheduled execution Governor Warner granted a 21-Day reprieve “in light of the recent apparent ambiguity of the law.” Today’s ruling did not address that ambiguity. The appeal was denied on procedural grounds. Attorneys for Swisher had predicted this outcome when they wrote to the Governor following his stay of July 1 seeking clarification of how to ensure a meaningful review in this case. It is indeed ironic that the Governor would issue a 21-Day reprieve in light of Virginia’s infamous 21-Day Rule. Speaking on behalf of the Governor, spokeswoman Ellen Qualls noted that the General Assembly’s extension of 21 to 90 days was “insufficient. It is hard to put a clock on justice.” We would say the same to Governor Warner in regard to his 21-Day reprieve. Governor Warner needs to be challenged on the illogic of this limited stay.

In 1997, Bobby Wayne Swisher was convicted of the capital murder of Dawn McNees Snyder in the commission of an abduction or in the commission of or subsequent to rape or forcible sodomy and sentenced to death on the basis of both future dangerousness and vileness. The crime occurred in Stuarts Draft and the trial occurred in neighboring Staunton.

The Supreme Court of Virginia summarily rejected the majority of Swisher’s claims and affirmed his conviction and sentence of death. At the state habeas stage, Swisher claimed that his trial counsel were ineffective under the Sixth Amendment, but he was denied discovery and an evidentiary hearing by the state’s highest court. At his federal habeas stage, Swisher raised many of the same claims and again was denied an evidentiary hearing. Swisher lost in the Fourth Circuit Court of Appeals and his petition for certiorari to the United States Supreme Court was also denied.On July 18 his attorneys filed a petition for clemency to the Governor which is still pending.

Of particular note are several issues. Four months prior to trial Swisher was prescribed medication by the jail doctor for his depression, but the medication was not started until two days before his trial began. Swisher’s lawyers asked the jail if their client was on medication because of his mental condition and were told that he was not. Swisher was so sedated that his lawyers chose not to put him on the witness stand at his sentencing hearing. Two jurors later said in affidavits that Swisher looked like a “zombie” and that “he showed no remorse.” Swisher’s lawyers did not ask for a continuance or competentcy to stand trial evaluation.

His same trial lawyers were ill-prepared for trial. They failed to keep out inaccurate and inadmissable evidence and when it came time for closing argument at the sentencing phase, the lawyers had not decided who would give the closing argument. The lawyer who was a few years out of law school and handling his first jury trial gave a 7 minute closing argument almost half of which was reciting the court’s jury instructions.

The key witness against Swisher and the one most relied on by the prosecutor in his closing argument at sentencing gave contrary evidence from what he had told the police and testified under oath that he had no interest in the reward money offered in the case fully knowing that he would be receiving reward money. This information was not disclosed by the prosecutor to defense counsel as was required by law.
Since Swisher was sentenced to death, two cases have ruled that same form to be ineffective Powell v. Commonwealth (2001) and Lenz v. Warden (2003) the latter case involving the same judge, defense, and prosecutor as Swisher’s case, but whose judgment has since been withdrawn for review later this year by request of the Attorney General.

The power of clemency is granted without condition to the Governor as the Commonwealth’s highest elected official in the interests of ensuring justice. In light of the Lenz case which is due for a rehearing by the VA Supreme Court in September of 2003, seven State Senators and thirteen Delegates wrote to Warner on June 23, 2003 to “encourage you to grant Bobby Swisher’s request for conditional pardon because we believe that the death penalty imposed was the result of a defective verdict form for which there lies no judicial remedy.”

If justice cannot be found in the courts, it must be found in the Governor’s office.

Please contact Gov. Warner urging him to prevent an unjust execution by granting conditional clemency to Bobby Wayne Swisher so that he can be subjected to a new sentencing hearing. At the very least Gov. Warner must issue Swisher an additional reprieve from execution until the Lenz case has been reheard and decided by the Virginia Supreme Court.
Email Governor Warner requesting conditional clemency for Swisher immediately!

Email State Delegates and Senators to contact Gov. Warner encouraging him to grant Swisher conditional clemency.
Click here to send a pre-prepared letter to the Governor via the NCADP execution alert page.