June 9

09 June 2003 EXTRA 33/03 Death penalty

USA (Virginia): Bobby Wayne Swisher


Bobby Swisher (m), white, aged 27, is scheduled to be executed in Virginia
on 1 July. He was sentenced to death in 1998 for the capital murder of
22-year-old Dawn McNees Snyder in February 1997.

On 5 February 1997, Dawn Snyder disappeared from the florist's shop where
she worked. Just over two weeks later, her body was found near a riverbank
two miles away. Bobby Swisher was arrested after one of his friends told
police that Swisher had admitted to abducting and raping Dawn Snyder
before cutting her throat and throwing her in the river to die.

Studies in the USA have shown that two highly aggravating factors in the
minds of capital jurors - factors making them more likely to vote for a
death sentence - are a defendant's perceived lack of remorse and their
perceived future dangerousness.

According to his appeal lawyers, Bobby Swisher was prescribed medication
for depression four months prior to his trial. However, the course of
medication was not started until two days before the proceedings began.
The drugs allegedly had a sedative effect on the defendant causing his
trial lawyers to decide not to put him on the witness stand. However, they
did not ask for a postponement of proceedings or for a hearing to
determine his competency to stand trial, that is, his ability to
understand the proceedings and assist in his defence. In post-conviction
affidavits, two of the trial jurors said that Bobby Swisher had looked
like a "zombie" and had "showed no remorse".

At the sentencing phase of the trial, the friend who had gone to the
police testified that after he had confessed to the crime, Bobby Swisher
had said that he could "do it again"; a highly damaging testimony in
relation to the defendant's possible future dangerousness. However, the
jury was left unaware of the inconsistency between this testimony and what
the friend had originally told the police, namely that he did not remember
hearing Swisher say he could "do it again". The claims that the state
knowingly elicited perjured testimony from this witness, or that Swisher's
inexperienced trial lawyers were ineffective for failing to draw the
jury's attention to the inconsistency in the testimony, have been rejected
by the appeal courts. The claim that the prosecutor unlawfully failed to
turn over to the defence lawyers evidence that the friend had sought and
received a reward in exchange for his testimony has also been dismissed.

In April 2003, Michael Lenz, another Virginia death row inmate, was
granted a new sentencing hearing by the Virginia Supreme Court on a claim
concerning a defective jury verdict form. The same form was reportedly
used in Swisher's trial. However, in Swisher's case the claim has been
procedurally defaulted as an appeal issue because it was not raised early
enough in the proceedings.

BACKGROUND INFORMATION

Amnesty International opposes the death penalty in all cases,
unconditionally. The death penalty is a symptom of a culture of violence,
not a solution to it. It has not been shown to have any special deterrent
effect. It carries the risk of irrevocable error. It denies the
possibility of rehabilitation and reconciliation. It extends the suffering
endured by the family of the murder victim to the family of another, that
of the condemned individual. Evidence continues to mount that death
sentences in the USA are handed down by a capital justice system
characterized by arbitrariness, discrimination and error. Authorities in
the USA, including Virginia, have violated international standards in
their pursuit of the ultimate punishment, including by imposing it on
defendants who were under 18 at the time of the crime, the mentally
impaired, those who were inadequately represented, those whose guilt was
in doubt, and foreign nationals denied their consular rights.

Virginia lies behind only Texas in the number of executions carried out
since the USA resumed judicial killing in 1977. Virginia accounts for 88
of the 856 executions carried out nationwide since then.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible,
in your own words:

- expressing sympathy for the family and friends of Dawn McNees Snyder,
explaining that you are not seeking to condone the manner of her death or
the suffering it will have caused;

- opposing the execution of Bobby Wayne Swisher;

- expressing concern at allegations of ineffective legal representation
and prosecutorial misconduct in this case;

- noting that the jury were unaware of inconsistencies in the testimony of
the state's key witness;

- noting evidence of Bobby Swisher's medically sedated state during trial,
and expressing concern that this could have contributed to jurors
perceiving a lack of remorse on his part;

- urging the Governor to commute Bobby Swisher's death sentence.

APPEALS TO:

Governor Mark R. Warner
State Capitol, 3rd Floor
Richmond, Virginia 23219
Telegram: Governor Warner, Richmond, Virginia
Fax: 1 804 371 6351
Email via website:
http://www.governor.state.va.us/Contact/email_form.html

Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.