Sarah Kelley

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.

Returning from the supermarket, Edith Russell surprised the two intruders as they were ransacking her Chattanooga home. Later that night, Frank Russell returned to find his wife's car in the driveway with the keys still in the ignition and bags of groceries in the backseat. Frantic, he ran inside, where he found his home in disarray and his 62-year-old wife dead in a pool of blood on the floor.

A month later, police finally nabbed a suspect in connection with the murder. The investigation led detectives to Schreane, and not surprisingly, the savvy criminal was well-versed in the ways of shifting blame, having previously snitched on a co-defendant in a burglary case to get a lighter sentence. It didn't take long for Schreane to rat out his novice accomplice, blaming him for the fatal turn of events inside the Russell house. During his interrogation, Schreane claimed that when the victim unexpectedly returned home, Harbison grabbed a marble vase and swung, bashing her in the skull.

Police arrested Harbison that day and charged him with murder.

Although Harbison had no prior criminal record, and even though he entered the Russells' empty house without a weapon, it didn't take long for prosecutors to announce plans to seek the death penalty. In pursuing a death sentence, the prosecution claimed the murder was premeditated, resolving the fact that he was unarmed by arguing premeditation could be "formed in an instant." The paradoxical argument prevailed with the all-white jury, which convicted the 23-year-old black man and sentenced him to die. (Seven years later, the Tennessee Supreme Court prohibited prosecutors from using the "in an instant" argument to prove premeditation, but the decision was not retroactive and therefore not grounds for appeal.)

Due to an unqualified defense lawyer at trial, it would be several years before details emerged about Harbison's horrific childhood, during which his mother beat him with belts and extension cords, his sister shot at him, his father attacked him with a power drill and his older brother set him on fire. Also unknown to the jury was the fact that an expert had previously determined Harbison was borderline mentally retarded and psychologically impaired as a result of a lifetime of abuse, making him an easy target for a streetwise criminal like David Schreane to manipulate. But perhaps the most shocking post-trial revelation was that police failed to turn over crucial documents naming a third suspect who never was charged in connection with the murder and instead was extradited to Florida on unrelated charges. Despite repeated requests for all files related to the investigation, this key evidence was withheld from Harbison's defense until 14 years after he was sentenced to die.

All of this evidence might very well have dissuaded the jury from imposing a death sentence, but in a criminal justice system reluctant to correct past mistakes, it's proven to be of no use in his appeals. In fact, on two occasions Harbison has been within weeks of execution, managing to cheat death both times due to controversy not about the facts of his case but surrounding the constitutionality of lethal injection, a question currently being weighed by the U.S. Supreme Court.

Meanwhile, Schreane -- whose rap sheet included armed robbery and multiple burglaries -- accepted a sweetheart deal from prosecutors, pleaded guilty to second-degree murder and served only six years behind bars. Not long after his release, the career criminal picked up where he'd left off, landing back in prison for an array of violent felonies.

"While the crime in this case is tragic, it's not the type of case people think of when a person has been sentenced to death," says Dana Hansen Chavis, a federal public defender representing Harbison in his 11th-hour appeals. "There was no premeditation. No one took a weapon there to kill her. It's a far cry from being one of the worst of the worst crimes."

In 1972, the U.S. Supreme Court struck down the death penalty, declaring the punishment "cruel and unusual in the same way that being struck by lightning is cruel and unusual."

The landmark decision stemmed from a Georgia case in which the defendant, Henry Furman, was sentenced to death for fatally shooting a woman during a botched burglary. The majority determined Furman was among a capriciously selected handful sentenced to death while more reprehensible defendants were spared. Sound familiar?

After the Supreme Court declared the death penalty unconstitutional because it was "wantonly and freakishly imposed," states scrambled to rewrite their capital punishment laws.

In 1977, Tennessee unveiled its updated statute, once again making execution a viable punishment for murder. The new law included checks and balances to ensure death sentences are meted out fairly, with one major change requiring prosecutors to prove a murder was committed in conjunction with at least one "aggravating factor." The new clause limited a prosecutor's discretion, reserving the ultimate sanction of execution for the most abhorrent murderers.

Over the years, that list of aggravating factors has broadened, however, giving prosecutors more and more latitude in deciding whether to seek death.

"To me, the prosecutor is the most powerful person in the state in the sense that there's no review of his decision to seek the death penalty," says Bill Reddick, director of the Tennessee Justice Project. For the past two decades, the longtime criminal defense lawyer has handled death penalty cases almost exclusively . And from his experience, Reddick says it's clear that although the law requires capital punishment to be reserved for the worst offenders, instead it's often handed out randomly in Tennessee. "There's a big difference in the way prosecutors exercise discretion in the decision to seek death … The type of justice being applied varies in different parts of the state."

For example, since Tennessee resuscitated the death penalty, Shelby County prosecutors have consistently and overwhelmingly led the state in capital cases. They've handed out 64 death sentences while prosecutors in Davidson County have sentenced only 13 defendants to death, a vast disparity that can't be explained by Nashville's lower murder rate. In recent history, 47 of the state's 95 counties have not even sentenced a murderer to death. Of course, there are myriad reasons for such disparities, particularly depending on who is talking. And while varying crime rates is an obvious and reasonable explanation, the fact that some prosecutors point to different cultures and standards as an excuse suggests the system is hopelessly arbitrary.

Reddick adds that death sentences are not adequately reviewed to ensure fairness, even though that's required by state law. "If you don't have a reliable way to compare cases," he says, "then you'll never know whether a death sentence is a fair and reliable result."

Following the Furman decision, creators of Tennessee's new death penalty statute charged the Tennessee Supreme Court with reviewing all death sentences to make sure they are proportionate to punishments imposed in similar murder cases.

But the review is simply not working, at least as it was intended.

"Even though a case might technically meet the test for the death penalty, it might not be appropriate. That's what proportionality review is all about," says David Raybin, a former prosecutor who in 1972 took on the task of rewriting the state's capital punishment laws. "It's an extra safeguard so you don't have an aberrant or freakish imposition of the death penalty. That's what it's designed to do. How it's being applied in practice is a different story."

Although Raybin supports the death penalty for the worst offenders, he's critical of how the ultimate punishment is being applied in Tennessee.

Under the new law, the intention was for the state Supreme Court to compare all murder cases eligible for the death penalty, including those in which the state opted instead for a prison term. But over the years the court has narrowed the pool of cases it considers only to those in which execution was sought.

"How could you ever make a true proportionality review if you don't have the whole spectrum of cases before you?" asks Raybin, suggesting it's necessary to consider all murder cases in which execution is a potential punishment to detect an anomaly.

If Tennessee is going to have capital punishment, Raybin says it needs to be fair, which is why this review is imperative. "When it comes to proportionality review, the question is not whether the defendant is guilty. In most cases the defendant probably is," he explains. "The real question is whether a defendant deserves the death penalty and whether it's imposed in a fair manner."

On the same day he was arrested in connection with Edith Russell's murder, Edward Harbison confessed to the crime. When Russell returned home and caught them in the midst of their heist, Harbison said he believed she was reaching for a gun in her purse, and without thinking, he snapped, smashing the vase over her head.

Eventually Harbison recanted, claiming officers coerced his confession by threatening to take away his girlfriend's children if he didn't say exactly what they wanted. It's an unlikely claim, perhaps, but his lawyer says whether he's guilty or not, a sentence of death does not fit the crime, particularly given her client's dreadful background.

Before his arrest in the Russell murder, the only legal trouble Harbison ever faced was for petty theft as a child. One of eight siblings, Harbison was taught by his parents to steal, shoplifting necessities like socks or lifting scrap metal from warehouses and selling it for much-needed cash. School records from when Harbison was 14 describe him as "borderline mentally retarded" and classify his home life as "horrible in all areas imaginable."

Living in a shack without running water or electricity, Harbison and his siblings frequently went without meals while their parents drank away any income they earned. The children picked weeds to make salad, and mixed water and flour to concoct a sorry substitute for milk. Not surprisingly, each of the Harbison children began drinking at an early age, in part to numb the pain of the abuse they suffered. Mental illness and abuse plagued the children, and while the boys in the family bore the brunt of the physical abuse, court documents say Harbison's sisters were the victims of years of incest at their father's hands. After twice giving birth by the age of 14, one of the girls murdered her month-old son and 16-month-old daughter while her brother Edward was in the next room. In an affidavit, Harbison's mother admits, "It never was ruled out that my husband may have been the father." Following the double homicide, the young girl was declared legally insane and placed in a mental institution, where she eventually hung herself. Harbison's other sister also was committed and has spent her life in and out of psychiatric hospitals, according to court documents. And while an anguished, ruinous childhood certainly does not excuse murder, this information might very well have convinced a jury to spare Harbison's life.

In addition, police files on the Russell murder that tilt the blame to the defendant's accomplice were not turned over to Harbison's defense until 1997. They should have been provided well in advance of his trial 14 years earlier. The police notes contained witness statements claiming they saw Harbison's co-defendant, David Schreane, across the street from the victim's home on the afternoon of the murder and that he wasn't with Harbison but another man. The documents also take a shot at Schreane's credibility. They note that he initially told police that he was with someone else that day, but he later changed his story and identified Harbison as his accomplice. A witness also had revealed that Schreane was angry with Harbison for "talking to his lady," suggesting he might have had a motive to frame Harbison.

Finally, the files contained crucial details about a potential third suspect who had a disagreement with the victim a week before the murder. Apparently, the mystery suspect's own wife told detectives that her husband "didn't kill her," but she admitted he was in the house at the time of the murder.

Those police files would have been gold to a defense attorney, but they didn't surface until it was too late. And so a jury sentenced Harbison to death while his accomplice served a short stint in prison. Meanwhile, the potential third culprit was never charged.

Even without taking any of this highly exculpatory evidence into account, however, several judges have determined Harbison never should have faced the death penalty in the first place.

In reviewing the case in 1986, Tennessee Supreme Court Justice Ray Brock concluded the death penalty was inappropriate because it was arbitrarily imposed on Harbison, who clearly was not one of the worst offenders. Since then, two other justices have found the death sentence inappropriate in Harbison's case, while two additional appellate judges have had enough doubt to abstain from opinions upholding the sentence.

"The sentencing disparity in this case, ranging from death to six years to not even being charged with the crime, is inexplicable," say Chavis, who has represented Harbison now for nearly a decade. "This is a case of unequal justice. It is a case where the punishment does not fit."

Since the death penalty was reinstated three decades ago, the Tennessee Supreme Court has reversed the death sentence of only one of 209 capital defendants because the punishment was disproportionate. In that case, 22-year-old Bobby Godsey, of Sullivan County, was sentenced to die in 1997 for the death of his girlfriend's 7-month-old son. The defendant admitted he threw the child toward the bed because he would not stop crying and that the victim instead landed on the tile floor. The infant stopped breathing and died at the hospital hours later. Medical experts determined there was no evidence of prior abuse, and other witnesses testified that Godsey was extremely remorseful, yet a jury imposed death.

Upon reviewing the sentence in 2001, the state Supreme Court unanimously agreed to reduce Godsey's sentence to life without parole.

But while most of the justices viewed this as proof that the system works, then-Tennessee Supreme Court Justice Adolpho Birch penned a separate opinion in which he lambasted the court's review process, as he had many times before: "The majority has today, for the first time, found the sentence of death to be disproportionate to the penalty imposed in similar cases … I concur in this result. If, however, there are those who would trumpet the majority opinion as proof positive that the proportionality protocol works as it should, I move quickly to temper their voices."

Before stepping down from the Supreme Court in 2006, Birch vehemently argued that the justices should compare all similar cases, not just those defendants whose prosecution is "more vigorously pursued" by the state. Because prosecutors are inconsistent in their pursuit of the death penalty, Birch argued arbitrariness was inevitable.

"My view of proportionality review was that it was flawed from the beginning," Birch tells the Nashville Scene, pointing to his past opinions for a more in-depth explanation of his position. Although no longer privy to exactly how proportionality reviews are conducted, the longtime judge adds with certainty, "Just because there is one case kicked out because of it, doesn't mean the system is fixed."

The court's majority disagreed, though, and dismisses the notion that it should consider cases in which the state, for whatever reason, does not seek execution. Doing so would require it to scrutinize a prosecutor's decision. "Such a course could potentially discourage the state from exercising its discretion to not seek the death penalty and from engaging in plea bargaining," the justices argue in their 2001 ruling in the Godsey case. "Indeed, such a course could result in the state seeking the ultimate penalty in every first-degree murder case. Proportionality review is not … a vehicle for reviewing the exercise of prosecutorial discretion."

But according to former Tennessee Supreme Court Justice Penny White, unless all first-degree murder cases are considered in the review, it's impossible to determine whether a particular death sentence is an aberration. Basically, you need as large a sample size as possible for something this significant. The fact that some district attorneys might choose to seek death in a case where another may not needs to be taken into account.

Now a professor at the University of Tennessee College of Law, White was ousted from the state Supreme Court after concurring with an opinion that a death row inmate should be resentenced due to a technical error in the case. It was the only death penalty case White had the chance to consider during her two-year stint on the court, and although she was not alone in her opinion, pro-death penalty conservatives targeted her, launching a nasty publicity campaign that resulted in her losing a retention election in 1996.

"I think it's pretty obvious if you look across Tennessee that there are some prosecutors who have this idea that they were elected to ask for a death sentence every single time there's a murder, and there are others that think they are supposed to utilize their discretion in determining whether to go for a death sentence," White says. "That alone skews the pool of cases."

Sometimes prosecutors seek death for an accused killer, yet the jury is persuaded to show mercy. In other cases where capital punishment is an option, district attorneys opt to spare a murderer from the beginning, and the reason is anyone's guess.

Just last spring, a Sevier County jury sentenced John Wayne Blair to life without parole for the 2005 murder of his 22-year-old neighbor, Kelly Sellers. Evidence presented at trial revealed the victim likely was conscious as she was sexually tortured for hours until she finally bled to death as a result of multiple lacerations. Her bloodied and battered corpse was found -- hands still bound with duct tape -- wrapped in a plastic tarp and buried under debris. Photos of the victim's remains were so gruesome that one of the jurors reportedly vomited and then fainted upon reviewing them at trial.

Although the jurors acknowledged that the state proved beyond a reasonable doubt that Blair was to blame for the murder, they said mitigating evidence regarding the defendant's low intelligence and horrific childhood outweighed the aggravating factors and therefore sentenced him to life without parole.

A Nashville couple recently was sentenced to life in prison after pleading guilty to the brutal murders of a young mother and her 3-year-old daughter in 2005. Danny Anderson and Christina Sanchez entered the home of Hilda Guitierrez, 21, on the false pretense of being able to help her obtain travel documentation. The pair's real plan was to kidnap the woman's newborn baby, which Sanchez intended to pass off as her own.

Once inside the apartment, the suspects repeatedly stabbed the mother, leaving her to bleed to death and then stabbed the woman's 3-year-old daughter, smothering her with a pillow to make sure she didn't survive the brutal attack. Given the improbability of a toddler identifying the suspects, the murder was especially cruel. When the dreadful act was finished, the killers fled with the infant. In exchange for their guilty pleas, Davidson County prosecutors did not seek the death penalty.

Repeated studies of Tennessee's capital punishment system have uncovered flaws ranging from overzealous prosecutions to an unreliable system for spotting erratic death sentences. But despite ample recommendations from these nonpartisan studies, the state has failed to make any meaningful improvements, choosing instead to leave a blatantly deficient system untouched.

In 2004, a committee of the state legislature asked the Office of Research -- a government office that objectively analyzes policy issues -- to study the state's administration of the death penalty. The study revealed that district attorneys have "considerable discretion" and that as a result: "Prosecutors are not consistent in their pursuit of the death penalty. Some prosecutors interviewed in this study indicated that they seek the death penalty only in extreme cases, or the 'worst of the worst.' Prosecutors in other jurisdictions, however, seek the death penalty as a standard practice on every first-degree murder case that meets at least one aggravating factor. Still, surveys and interviews indicate that others use the death penalty as a 'bargaining chip' to secure plea bargains for lesser sentences," a familiar tactic to anyone who has ever watched an episode of Law & Order.

The study concluded state lawmakers should consider establishing criteria for district attorneys in pursuing a death sentence. Such guidelines would "remove some of the arbitrariness of prosecutorial discretion," the report suggests, and might also strengthen capital cases, ensuring prosecutors review all the facts in a stringent and consistent manner, resulting in fewer appeals and overturned sentences.

For the first time since the death penalty was reinstated in Tennessee, it seemed improvements might be on the horizon. But lawmakers failed to act, interest in the issue fizzled out, and the study soon was forgotten.

As the legislature was analyzing how it metes out the ultimate penalty, the American Bar Association (which is neither for nor against capital punishment) was in the midst of its own three-year review of Tennessee's death penalty. In March 2007, a final report stated Tennessee meets only seven of 93 standards intended to ensure that the death penalty is fair. As a result, it recommended a host of improvements were recommended, including a more "meaningful" proportionality review by the state Supreme Court to guarantee capital punishment is "administered in a rational, nonarbitrary manner" and to "provide a check on prosecutorial discretion."

But again the state took no action, instead launching yet another review of capital punishment at the direction of the state legislature.

Tennessee's death penalty study committee convened last fall on Capitol Hill with a goal of making capital punishment in Tennessee uniform in its application and free from bias. Given the committee's mission, the topics of prosecutorial discretion and the judiciary's duty to review capital cases were at the top of the agenda.

At one of the very first committee meetings, some legislators were shocked by recurring remarks from prosecutors who cavalierly acknowledged that district attorneys have different standards when deciding whether to seek a death sentence. They even added that it's not only acceptable but common practice to assess the reactions of constituents when deciding what murders should be tried as capital cases.

When questioned about prosecutorial discretion during an Oct. 15 meeting, Jennifer Smith, associate deputy attorney general, said district attorneys decide whether to seek the death penalty not only based on their knowledge of the law but also on a "gut feeling." That isn't exactly reassuring. "What the DAs often do is sort of gauge a sense of the community outrage," she explained, adding that such discretion is acceptable and, in her opinion, does not lead to the arbitrary imposition of death sentences.

A few legislators voiced their concern that politics might play into a decision to seek the death penalty, given that district attorneys are elected officials. But Smith attempted to assuage any fears that prosecutors might be more inclined to seek executions for the sake of re-election, although her reasoning wasn't exactly a slam-dunk: "I guess anything involving human behavior involves politics," she admitted upon persistent questioning.

Such statements baffled Sen. Doug Jackson, who co-sponsored legislation launching the latest death penalty study. The Dickson Democrat supports capital punishment, but said he's troubled by the fact that district attorneys across the state do not follow consistent guidelines -- or in most cases, any guidelines at all -- when deciding to seek a death sentence. It's an approach he likened to "licking your finger and sticking it up in the air."

In all of Tennessee, it seems the only prosecutor's office that follows strict guidelines in pursuing capital cases is in Nashville. In 2001, Davidson County District Attorney General Torry Johnson issued written guidelines to ensure the decision to seek the death penalty is made properly and impartially, and that the prosecution is conducted fairly. The move prompted praise from defense attorneys and other legal experts who believe other district attorneys should follow the lead.

"This was sort of the procedure we had used informally for as long as I could remember. I just felt we ought to put it down in black and white," Johnson says. "It was just to make sure we were consistent within our own office when reviewing cases that had the potential for the death penalty."

Once an assistant district attorney in Nashville determines a case is eligible for the death penalty, the guidelines call for the prosecutor to consult with the victim's family and then discuss the matter in detail with the district attorney general. The prosecutor then notifies the defendant's lawyer, giving the defense an opportunity to provide any evidence that might dissuade the prosecution from seeking execution. The final decision is up to Johnson, who makes it clear in the guidelines that his office will only seek death in cases where the evidence of guilt is substantial. That means there will be no capital cases that rely on uncorroborated evidence from a single witness or from a cooperating co-defendant or accomplice.

There's no indication (at least on paper) that other Tennessee district attorneys go through such a reasoned thought process, and it seems they'd prefer to maintain the status quo. When asked about the prospect of establishing statewide guidelines, prosecutors overwhelmingly disapprove.

"What works for General Johnson wouldn't work in my district. His is a large office. He has supervisors, he has people, he's insulated," Al Schmutzer, former district attorney in Sevier County, said in a briefing before the latest death penalty study committee. In small rural offices, it's up to the district attorney to decide not only whether to seek death, he said, but also whether to try the case. "I've gone through about 15 of these cases at the very least that I've tried and prosecuted, and I went through a lot of reflection, a lot of prayer, a lot of facts. I know my fellow DAs do the same thing. It's not something you do willy-nilly."

In Shelby County, District Attorney General William Gibbons says his office -- the largest and busiest in the state -- does not rely on written guidelines in deciding what murders should be tried as capital cases. State law dictates the process, he says, and he would oppose any attempt to supplement the law with some other checklist.

It's also important to remember that no two cases are alike, Gibbons says, adding: "What seems to be a confusing point for some when talking about death penalty cases is the failure to understand the importance of making a case-by-case decision based upon all legitimate factors, rather than simply using an arbitrary, cookie-cutter approach."

But unlike some district attorneys who flat-out admit to considering the public's view when weighing a potential capital case, Gibbons says his office never uses such a tactic. "This office never decides on the death penalty option based on what reaction the crime has generated in the press or the public."

As for the fact that one-third of all death sentences imposed in Tennessee in the past 30 years have been handed down in his jurisdiction, Gibbons says the explanation is quite simple: higher crime.

"The reason Shelby County has more defendants on death row is because Shelby County has had a tremendous number of murders," he says. "You cannot compare the number of persons on death row from Davidson County to Shelby County without putting it in the context of the historical homicide rate. Without looking at it in that context, the comparison is meaningless."

In 2007, there were 132 murders in Memphis, the most populated metropolitan area in Tennessee, compared to 73 murders in Nashville, the second-largest city in the state, during that same year.

But not all prosecutors feel compelled to rely on crime statistics in justifying the inconsistency of death sentences across the state.

In testifying before the death penalty study committee last fall, Wally Kirby, head of the district attorneys general conference, said he does not see a problem with the sentencing disparities between counties, and he has a difficult time understanding any angst over the topic.

Although Kirby acknowledges a higher crime rate in Shelby County likely contributes to such an exceedingly high number of death sentences, he says prosecutors are in fact all different and that each has a duty to express the sentiment of the community that he or she is elected to represent.

Finally, he warned the legislators that any attempt to rein in prosecutorial discretion could backfire, possibly resulting in prosecutors seeking a death sentence in every case where it's permitted under the law. "So my caution would be to be careful what you wish for," Kirby arrogantly warned. "You might not like what you get."


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