Death Row Lotto

In Tennessee, not just any cold-blooded murderer is supposed to face the death penalty -- only "the worst of the worst." Like Brett Patterson, who raped and choked a woman to death with a silk scarf, then strangled her husband with a cord during a home invasion. Or Courtney Matthews, who shot four Taco Bell employees execution-style during a robbery, even though they cooperated with his demands. Then there's David Scarbrough and Thomas Gagne, who broke into an elderly couple's home, shooting them both several times before robbing them. And William Bogus, who strangled his estranged wife, then stole the tips she had earned as a waitress at Shoney's so he could fund a crack cocaine binge.

All ruthless killers -- arguably among the very worst -- yet none of them face execution.

The death penalty is supposed to be reserved for the state's most unconscionable murderers, but such deplorable offenders often are spared, while perpetrators of far less cruel and callous crimes await the ultimate punishment on death row. Like Abu-Ali Abdur'Rahman, who faces death for murdering a local drug dealer, despite virtually no hard evidence proving he was the actual killer. Or Olen Hutchison, sentenced to die for a murder that was committed while he was in another county.

In Tennessee, capital justice is a grim game of chance, where the outcome often hinges on the whims of a particular prosecutor and where judges rarely find a death sentence excessive. While it's easy to make moral arguments against the death penalty -- if not practical ones, since innocent people occasionally find their way to death row -- perhaps the worst criticism about capital punishment in Tennessee is that it's arbitrary and irrational. In fact, one of the state's highest prosecutors cavalierly admits that the decision to pursue the death penalty is based on a "gut feeling."

The blatant, unexplainable disparities in sentencing are exactly why the U.S. Supreme Court temporarily suspended capital punishment during the 1970s. But today the death penalty is just as randomly applied in Tennessee as ever before, despite statutory changes intended to make the system fair.

Judge Gilbert Merritt of the 6th U.S. Circuit Court of Appeals once noted that prosecution policies vary radically in each jurisdiction, adding that a murderer who receives a death sentence in Shelby County likely would not even be subject to a capital trial in Davidson County or most places in East Tennessee.

"The administration of the death penalty nationwide remains broken and arbitrary, and that seems particularly true in Tennessee," Merritt said in 2005. "We must stop the randomized selection of defendants by the state for execution."

Meanwhile, Tennessee's district attorneys overwhelmingly object to limiting their discretion in the capital justice arena, but even they admit that doling out death sentences is a crapshoot, not a science. They just don't seem to think that's a problem.

"If you put 20 DA's in a room and give them a set of facts, you might have [those] that say, 'This is a death penalty case and we ought to ask for it,' and you might have then others that say, 'No, I don't think we ought to ask for the death penalty,' " Wally Kirby, executive director of the Tennessee District Attorneys General Conference, nonchalantly told a legislative committee studying the state's death penalty in October 2007. "They're all different, and they all for the most part have to express the sentiment of the community that they're elected to represent, and that's different all across the state."

It was supposed to be a simple burglary: easy in, easy out, no need for a weapon. And at least at first, everything went according to plan.

The house was empty when Edward Jerome Harbison and his partner in crime used a screwdriver to break inside on the afternoon of Jan. 15, 1983. The duo hastily rounded up valuables -- an RCA television, antique jewelry, a silver-plated pen set, a Polaroid camera -- and brazenly walked back and forth to their getaway car hauling the loot in broad daylight. Hardly a criminal mastermind, Harbison was not prepared for what happened next, nor was his accomplice, David Schreane, despite a wealth of criminal experience.