THE STATE OF MISSISSIPPI ADMITS THAT DALE LEO BISHOP DID NOT KILL, BUT BISHOP IS STILL SET FOR EXECUTION JULY 23, 2008 – HIS CURRENT LAWYERS CALL PROCEEDINGS A “SHAM,” AS HIS PRIOR LAWYERS NEVER PRESENTED BISHOP’S SEVERE MENTAL ILLNESS AND ABUSIVE CHILDHOOD
Dale Leo Bishop was convicted of capital murder and sentenced to death in 2000 for the homicide of Marcus Gentry. However, all parties – including the State of Mississippi – agree that Bishop’s co-defendant, Jessie Johnson, was the man who actually killed Mr. Gentry. There is no direct evidence that either Bishop or Johnson planned or intended for Marcus Gentry to be killed. Johnson was convicted of capital murder but was sentenced to life without parole.
On June 20 of this year, Bishop’s lawyers (Jim Craig of Phelps Dunbar and Glenn Swartzfager and Stacy Ferraro of the Mississippi Office of Capital Post-Conviction Counsel or “MOCPCC”) filed papers in the Mississippi Supreme Court for a new appeal. The legal team has presented sworn evidence that:
(1) Bishop’s trial lawyers failed to defend him properly, missing the major fact that Bishop has lifelong psychiatric problems which should have been presented to a sentencing jury. Further, as they did not know about Bishop’s mental illness, they should not have allowed him to decide to waive his right to a jury and be sentenced by a judge instead;
(2) That Dale Bishop had no intent that Mr. Gentry be killed, and therefore cannot be executed under Supreme Court precedent; and
(3) That Mississippi’s Protocol for lethal injection presents an unconstitutional risk of serious harm, including the infliction of excruciating pain and suffering.
What are these new papers about? It starts with the trial – Bishop was tried before Johnson. After the guilty verdict was returned, Bishop waived his right to a jury sentencing and presented no mitigation evidence. The question immediately arises for any experienced capital defense attorney – why did Bishop pull the plug on his defense? Why did his trial counsel let him do so? Why, after the trial, did Bishop then resume fighting his case, allowing his direct appeal, post-conviction, and federal habeas counsel to make efforts to prevent his execution? It simply doesn’t add up.
“Post-conviction relief” is the name of the process that is used after conviction and appeal to determine if a defendant’s trial lawyer failed to provide the assistance of counsel guaranteed by the Constitution. The State of Mississippi has established and funded the Mississippi Office of Capital Post-Conviction Counsel to handle these cases. MOCPCC was assigned to take Dale Bishop’s case.
But MOCPCC, led at that time by former Director Robert Ryan, did not file anything that explained why Dale Bishop was part of this killing, or why he would waive his jury sentencing rights at trial. Instead, they filed papers alleging that Bishop was mentally retarded. But the exhibits attached to MOCPCC’s papers showed that Bishop’s IQ was 90 – far over the line for mental retardation. The Mississippi Supreme Court denied Bishop’s post-conviction appeal, pointing out that there was no evidence showing he should be re-tried.
Reprieve volunteers assisting on the case gathered documents and witness statements which proved that Bishop suffered from a chronic mental illness (bipolar depressive disorder, formerly known as “manic depression”) and had undergone horrific trauma when he was young, which clearly affected his capacity to make rational decisions at trial. Bishop’s family noticed problems with his behavior and thinking when he was four years old. His elementary school records from Texas have many references to these problems and to evaluations that showed that Dale Bishop needed serious help. When he was in middle school, his school counselor recommended a psychiatric consultation. The psychiatric hospital Dale’s mother took him to advised immediate inpatient hospitalization, but Mrs. Bishop could not afford the high price of this care. He was only diagnosed and treated for his mental illness when he got to death row.
Also, Dale Bishop’s father was an abusive alcoholic who beat his wife and children – including Dale Bishop – on a weekly basis. The family was incredibly poor. When Dale was an infant, the family had no running water, no indoor bathroom, and no money.
This is evidence that almost surely would have required a new trial, where Dale Bishop could present his case for a life sentence, giving a jury the background about his youth and illness, and letting them weigh up these facts alongside the fact that Dale Bishop was not the killer of Marcus Gentry.
But for reasons that make no sense to experienced death penalty lawyers, Ryan, the prior Director of MOCPCC, did not use any of this evidence. Instead, he “fired” the volunteer investigators who found the evidence and never followed up on their leads. Instead of bringing out the true facts of Bishop’s mental illness and abused childhood, he filed the papers claiming that Bishop was mentally retarded while attaching documentary evidence which proved he was not.
It is very rare for the courts to look back into the prior post-conviction proceedings. And Bishop’s case was, sadly, no exception. In a terse opinion, the Mississippi Supreme Court denied Bishop’s latest appeal on July 9, 2008. Bishop’s lawyers are preparing a further appeal to the U.S. Supreme Court.
They have also asked a U.S. District Judge to grant an injunction barring the July 23 execution, on grounds of the numerous issues surrounding Mississippi’s Lethal Injection Protocol. Among other problems, that Protocol:
(1) uses less anesthetic than all but four states, thus raising the risk that Bishop will be conscious when the paralytic drugs suffocate him to death;
(2) does not require any qualifications or training of the persons taking part in the execution;
(3) assigns a non-medical corrections official to determine from mere visual inspection whether the prisoner has reached anesthetic depth and can be given the paralytic drug; and
(4) has no contingency plan in case IV access cannot be obtained.
Dale Bishop never had a real chance in life. 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.
We are shocked and sickened by what has happened in this case, and we hope others who look at the facts will feel the same. Dale Bishop’s lawyers are preparing a Petition for Executive Clemency, to present to Governor Haley Barbour if the courts deny the new appeal. We ask all those who are concerned about the justice system to write to the Governor (using your own words or the letter at the end of this message) to ask that he seriously consider, in this case, commuting Dale Bishop’s sentence to life imprisonment without the possibility of parole. Or, at least, we ask the Governor to grant a temporary reprieve and ask the Parole Board to study the case and make a recommendation for or against a commutation to life imprisonment without parole.
Haley Barbour
Governor of Mississippi
P.O. Box 139
Jackson, MS 39205
Fax: + 1 601-359-3741
E-mail: governor@governor.state.ms.us
Dear Governor,
May I draw your attention to the case of Dale Leo Bishop who is scheduled for execution on 23 July 2008.
First, Mr. Bishop had no intent that the victim, Marcus Gentry, be killed. All parties – including the State of Mississippi – agree that Mr. Bishop’s co-defendant, Jessie Johnson, who was sentenced to life without parole, was the man who actually killed Mr. Gentry. As there was no intent Mr. Bishop cannot be executed under the Supreme Court Precedent.
I am also deeply troubled by the fact that Mr. Bishop’s trial and post-conviction lawyers failed to defend him properly;
• Mr. Bishop’s trial lawyers missed the major fact that he suffers from serious mental illness, thus allowing him to waive his right to a sentencing jury in spite of the adverse affect that his illness has on his capacity to make rational decisions.
• Despite being presented with witness statements and documents proving that he has suffered from psychiatric problems since the age of four, Mr. Bishop’s post-conviction attorneys, a hopelessly underfunded and overwhelmed state agency, withheld this evidence as well as evidence that he had undergone horrific trauma when he was young. Mr. Bishop’s school records contain many references to these problems, as well as to evaluations that showed he needed serious help. His mother took him to a psychiatric hospital when he was a child but could not afford the cost of in-patient treatment. It was not until he was sent to death row that the Mississippi Department of Corrections medical staff diagnosed him as suffering from lifelong bipolar depressive disorder.
Finally, I am extremely concerned that Mississippi’s Lethal injection Protocol uses less anesthetic than all but four states, raising the risk that Mr. Bishop will be conscious when the paralytic drugs suffocate him to death; does not require any qualifications or training of the persons taking part in the executions; assigns a non-medical correctional official to determine when the prisoner can be given the paralytic drug and has no contingency plan in case IV access cannot be obtained.
It is deeply troubling to me that Mississippi might proceed with this execution given the strong claims in this case. I respectfully urge you to demonstrate your strong commitment to fairness and justice and commute the death sentence of Dale Lee Bishop. Or at least grant a temporary reprieve and ask the Parole Board to study the case and make a recommendation for or against a commutation to life imprisonment without parole.
Thank you for your kind consideration.
Yours sincerely,
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