Miss. to execute man not directly at fault in killing

Miss. to execute man not directly at fault in killing
Thirteen states, military bar execution of criminals in such murder
cases
JERRY MITCHELL • JMITCHELL@CLARIONLEDGER.COM • JULY 20, 2008

Mississippi prison officials plan to execute Dale Leo Bishop
Wednesday - unless a court halts them.

But this wouldn't be happening to the 34-year-old inmate if he had
been convicted in the neighboring states of Alabama or Louisiana.
That's because 13 of the 36 states with the death penalty - as well
as the U.S. military - bar the execution of a defendant who wasn't
directly responsible for a slaying.

If Bishop, who suffers from mental illness, receives a lethal
injection on Wednesday, he would be only the eighth person put to
death - and the first since 1996 - who did not directly kill the
victim (not including contract killings) in the more than 1,100
executions since the U.S. Supreme Court reinstated the death penalty
in 1976.

Under Mississippi law, an accessory before the fact can be convicted
of the same crime someone else commits. Testimony identified Jessie
Johnson as the one who repeatedly hit 22-year-old Marcus Gentry with
a carpenter's framing hammer. Johnson is now serving life without
parole in the 1998 killing in Saltillo. Although Bishop held and
kicked Gentry, not beat him, Bishop was sentenced to death.

Bishop's attorneys are seeking stays from the 5th U.S. Circuit Court
of Appeals and the U.S. Supreme Court. They're also seeking clemency
from Gov. Haley Barbour.

The execution shouldn't be halted, said Attorney General Jim Hood.
"Dale Leo Bishop was convicted of murder and sentenced to die in
accordance with the laws of the state of Mississippi. Our job is not
to retry this case in the media but to ensure that Mr. Bishop's
sentence is carried out in full ... and justice is served."

Glenn Swartzfager, director of the Office of Capital Post-Conviction
Counsel, created by the Legislature in 2000 to help indigent death-
row prisoners with appeals, accused his predecessor, Bob Ryan, of
sabotaging his client's case and suppressing evidence that could have
helped spare Bishop's life. He also said Ryan withheld evidence of
mental disabilities in the first appeal of Earl Wesley Berry, who was
executed May 21 after spending 20 years on death row.

Ryan couldn't be reached for comment, but in a previous sworn
statement, he described his office as understaffed and underfunded.
At one point in 2003, Ryan said he was the only person working on 21
death-row cases, which has prompted death-penalty opponents to call
for a review of all these cases.

Gentry's mother, Kathy, said she had no comment on Wednesday's
execution, but author John Grisham called on authorities to spare
Bishop.

"He should be given life without parole in a maximum-security unit,
and perhaps he could serve his time with the man who pulled the
trigger," Grisham said. "Sadly, these types of cases are not unusual.
And bad defense lawyering happens every day."

Johnson said in a recent sworn statement the killing wasn't planned
and that he and Bishop had been consuming alcohol and taking drugs
such as crystal meth and cocaine before picking up Gentry.

"There was never any plan to kill Mark. I liked Mark a lot," Johnson
said. "Mark and I were living together. Dale and Mark were friends.
We were all friends. I don't remember much about what happened. We
never meant something like that to happen."

Testimony indicated Johnson, Gentry, Bishop and Ricky Myhand were
riding around drinking beer on the evening of Dec. 10, 1998, and an
argument began after Johnson accused Gentry of getting Johnson's
brother in trouble with the law.

According to testimony, the two exchanged words, and then Johnson hit
Gentry over the head with a hammer. When Gentry jumped from the car
and fled, Bishop ran after him and took him back to the car, where he
was hit and kicked numerous times.

Myhand reported the killing to police and led investigators to the
body. He was not charged.

According to testimony, Johnson was the only one who hit Gentry with
the hammer. In a Dec. 13, 1998, statement, Bishop acknowledged
holding Gentry while Johnson struck him.

At trial, forensic pathologist Dr. Steven Hayne testified there were
23 injuries to the head, neck and hand produced by a blunt object,
such as a hammer.

After being convicted of capital murder, Bishop was entitled to a
hearing in which he could present evidence of drug use, details about
his past and his mental illness as mitigating factors. Instead, he
waived his right to a hearing in front of the jury and presented no
evidence.

When he took the witness stand, he told the judge he wanted to die.

Circuit Judge Frank Russell replied he was going to grant his wish.
The state Supreme Court has concluded a defendant can waive the right
to a jury trial in the sentencing hearing.

One of Bishop's attorneys, Jim Craig of Jackson, said it's obvious
his client was severely depressed and not competent to waive that right.

"It's like a patient being told after surgery he's going to be a
paraplegic and the patient says he wants to die," Craig said. "Do we
call in Dr. Kevorkian at that point? We don't."

After Bishop arrived in prison, he was diagnosed with bipolar
disorder, previously known as manic depression.

Bishop's lack of treatment for the disorder before he said he wanted
to die makes his sentence "suicide by judge," said Warren Yoder,
executive director of the Public Policy Center of Mississippi. "We've
executed one man who was probably mentally retarded, and it looks
like we're going to execute a man who is mentally ill and had no
medication and should never have been allowed to give up his rights."

In 2003, investigators for the Office of Capital Post-Conviction
Counsel discovered Bishop was mentally ill, but then-director Ryan
decided not to investigate, Swartzfager said.

Instead, Swartzfager said Ryan, the previous director, filed
"frivolous claims," alleging Bishop suffered from mental retardation
when he didn't.

Craig said Bishop "has suffered from serious mental illness since he
was 4 years old. When he was in middle school, Dale's mother could
not get him the psychiatric hospitalization recommended by school
counselors and doctors because she could not afford the high cost of
that care."

Because Bishop's attorneys initially did not present his mental
illness as a reason not to execute him, the courts so far have barred
Bishop from raising it now.

The education system, juvenile mental health system and the legal
system have all failed Bishop so far, Craig said.

"If the death penalty is going to be anything more than just a
lottery, it's not fair for some prisoners to lose appeals just
because their state-paid lawyer discarded valuable, relevant evidence."

To comment on this story, call Jerry Mitchell at (601) 961-7064.

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