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 The following is an outline of the Philip Workman case. Tennessee has not executed anyone since an African American man was put in the electric chair in 1960 for allegedly raping a White woman. Philip is at the end of the appeals process. He is likely to be the first or second man executed in Tennessee in 40 years. It is important to note that this evidence has never been presented in a court hearing. For ten years federal and state courts have denied every attempt by the defense to merely hold an evidentiary hearing, to judge proof of perjury, official misconduct and innocence. The government has successfully blocked every attempt by the defense to present its case. Philip Workman went into a Wendy’s Restaurant in Memphis, Tennessee, on August 5, 1981, with the intention of robbing it to supply his drug habit. He waited until closing, approximately 10:00 P.M., then pulled his pistol and herded the employees into a back room. Unknown to Philip, one of the employees tripped a silent alarm in the room. Philip told the employees to stay in the back and prepared to leave. Seeing a police cruiser pull up, he walked outside and began to converse with the officer, Lt. Ronald Oliver. Oliver thought Philip was an employee and the alarm was a false call. When Lt. Oliver turned to look at Officer Stoddard’s cruiser, which had just arrived, Philip started running across the parking lot. According to Philip, he tripped on a curb into the adjoining parking lot of Holiday Auto Parts. Knowing he was caught, Philip yelled "I give up!" "and tried to pull his gun out of his pants to give to the officers who were running up behind him. Philip reports that as he tried to surrender and give the officers his weapon, he was bludgeoned on the top of his head with an object (Philip had a cut on his head when captured which required 7 stitches) and Philip’s pistol went off. It was aimed straight up into the sky. Suddenly Philip was surrounded by gunfire and he shot once towards a flash of light. He began running and as he ran he cocked the 45 caliber semi-automatic, which ejected a live round. Philip tripped when he ran around a parked truck. Again his pistol fired up into the air. The police investigation of the crime scene exactly supports Philip's account. Two spent cartridges and a live round were found in the vicinity of the struggle and shooting. Another spent cartridge was found across the auto store parking lot, where all the witnesses saw Philip stumble and fire straight up into the air. There was a bullet hole in the truck, but police claim they could not find the projectile. Significantly, the hole was close to where Philip was running, and had it been a few feet to the right it would have struck him. It appears, then, to be an aimed shot. Philip hid behind houses as the Memphis police blanketed the area searching for him. They used dogs, helicopters, cruisers, and officers on foot. Finally, a civilian spotted Philip hiding beneath a truck, and he called police to his yard. The officers discovered Philip in the bushes, covered with blood from his head wound, and ordered the dogs to attack him. The police beat him as well. Philip was taken to a hospital where he was treated for cuts on his face, the cut on his head, numerous bruises and, significantly, a shotgun wound to his buttocks. At the scene of the shootout, Lt. Oliver lay dying from a bullet that passed completely through his torso. Officer Stoddard received a wound to the fleshy part of his upper arm. The police testimony offered att trial differed substantially from Philip’s. Officer Stoddard claimed that Lt. Oliver grabbed Philip and he, Stoddard, joined in the struggle. Stoddard claimed he was "belly-to-belly" with Philip. Officer Stoddard said that Philip shot him in the arm from point blank range, he heard several more shots, then saw Oliver fall to the ground wounded. Officer Stoddard claimed that Lt. Oliver shot wildly, emptying his 6 shot revolver. He also claimed that the only shots fired came from Philip’s pistol and Lt. Oliver’s. Stoddard stated that he did not actually see Philip shoot Lt. Oliver. Officer Parker was the next policeman to arrive. He originally claimed that he heard two shots, ran around the Wendy's and saw Philip shoot Stoddard. He said that Oliver had already been shot. But at trial, his testimony changed to closely match that of Stoddard. Parker also said he never fired a shot. Both officers claim that Philip and Oliver were the only people shooting, and Oliver did not shoot until he had been shot. The police reports drafted immediately after the incident state that there was an exchange of gunfire between police and Workman, and the "officers" were firing. A policeman who arrived at the scene immediately after Oliver and Stoddard were shot reported that he saw Parker carrying a shotgun as he ran across the parking lot chasing Workman. A civilian witness saw Parker shoot a shotgun at Philip. Immediately after his capture, Philip was taken to a hospital and records state that he was treated for a shotgun wound to his buttocks, and that shotgun pellets were removed from him. A death penalty trial is actually composed of two trials—one to determine the innocence or guilt of a defendant, and if he’s found guilty, another trial to determine the appropriate sentence. Often the preparation of mitigation is the most important aspect of trial counsel’s duty to his client. But one should not neglect to carefully examine the issues of guilt and innocence. Shelby County Public Defenders represented Philip. They did not conduct a meaningful investigation. They accepted the police account of the incident. They didn’t conduct any forensic analysis and they didn’t ask the court for expert assistance (other than having Philip undergo a routine psychological evaluation). *They did not investigate the wound that killed Lt. Oliver. *They did not investigate key witness Harold Davis. *They did not procure the assistance of experts on pathology or ballistics. His lawyers told Philip Workman that public opinion was inflamed against him and that his guilt was a foregone conclusion. He was told that he had a tiny chance of receiving a life sentence if they didn’t actively defend against his guilt. They told him that they would concentrate their defense upon the sentencing trial. Their defense was that he was a drug addict. Philip’s lawyers did not seek expert assistance in addiction. They never investigated his childhood or his family circumstances. This type of mitigation evidence in sentencing can make the difference between life and death for one who is convicted of capital murder. The prosecution opened the trial telling the jury how Philip had herded the Wendy’s employees into the back and robbed the store. As he tried to escape, they said, he cold-bloodedly shot down Lt. Oliver and Officer Stoddard, and he shot at Parker. The opening statement by Philip’s lawyers was brief and bland. It did not contest the prosecution’s proof. Officers Stoddard and Parker told the jury closely matching versions of the shooting, but both admitted they didn’t actually see Philip shoot Lt. Oliver. Parker’s testimony did not match his original police report. Originally, his account was quite different than Stoddard’s. Parker's first statement was that he heard two shots as he ran around the side of the restaurant, and he then saw Philip shoot Stoddard from ten or fifteen feet away, and saw Stoddard spin around from the shot. Parker said that Lt. Oliver had already been hit and was on the ground. Between the two policemen’s testimony, an African American man, Harold T. Davis, said that he drove into the parking lot of Wendy’s and pulled into a space. As he sat in the car, Lt. Oliver pulled into the lot. Davis said that he got out of his car and from ten feet away watched Lt. Oliver approach Philip. Davis crouched down as Stoddard ran up and the officers began struggling with Philip. Davis described the cold, deliberate murder of Lt. Oliver by Philip. He left the witness box to show how Philip shot the veteran policeman. The jury easily convicted Philip of first degree felony-murder. Then the sentencing began. The prosecution told the jury that they would prove not one, not two aggravating factors—they would prove five. The defense stated that they would offer proof. After the prosecution completed their proof, it was time for the strong defense Philip’s lawyers had promised. One of his attorneys stood and said, "The defense rests." They presented no proof whatsoever at sentencing. The prosecutor said, "I’m stunned!" The jury found five aggravating factors, and no mitigating circumstances. Philip Workman was sentenced to die in the electric chair. 6th Circuit United States Court of Appeals, 5/10/99, in the Order denying rehearing: "Although this court expresses no view as to whether Workman is actually innocent, if that is the situation, "the traditional remedy for claims of innocence based on new evidence, discovered to late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins, 506 U.S. 390, 417 (1993). Under Tennessee law, the governor may grant clemency, see Tenn. Code Ann. § 40-27-101, so Workman may present evidence to the governor that the fatal shot must have come from someone else's gun. (Emphasis added) Even lawyers become confused when discussing the law of felony-murder. They assume that any death that occurs during the commission of a felony will subject the felon to a murder charge. But it has been a long-standing rule of the common law, and recognized by the appeals courts of Tennessee since 1956, that felony-murder requires more than a death that occurs during a crime. If the death is the result of a direct act by the perpetrator of the felony, or an accomplice, it is a felony-murder. But if the death is caused by someone who isn’t perpetrating the felony, it is not. [The felony-murder rule] provides the murder be in the ‘perpetration’ or ‘attempted perpetration of [a felony]. In this instance, the death resulted from the effort to thwart rather than to perpetrate the felony. [F]elony-murder is limited to acts committed by the accused or his accomplices which actually produce death…. [E]xtension of the felony-murder rule beyond its common law limitation to acts by the felon and his accomplices, to include the lethal actions of those not acting in pursuance of the felonious scheme, is an appropriate action for the legislature—not the courts. State v. Severs, Tennessee Court of Criminal Appeals 1988, based upon State v. Farmer, Tennessee Supreme Court, 1956. Philip, today, is not the same man who walked into the Wendy’s restaurant in Memphis on August 5th, 1981, and robbed it at gunpoint. In 1981, Philip was a drug addict. He consumed drugs in a futile attempt to escape the pain and torment buried in his heart. His life had been anything but ideal. Philip’s father was a serviceman. He left to be stationed in Germany--effectively abandoning the family--when Philip was a child. Philip’s mother also abandoned them, sending the children to live with their grandparent’s. When Philip’s father returned, he was married to a woman he met overseas. The children moved in with them and grew up with the alcoholic father who beat them regularly. Philip was a prisoner of his childhood. Philip began to run away from home at an early age to escape the beatings. His father’s solution was to have Philip committed to reform schools, finally sending him to the Gatesville, Texas reform school (Gatesville was declared unconstitutional years after Philip left). The beatings continued at the reformatory, meted out by guards and students alike. Philip was offered release from Gatesville, but when he was told he would have to return to his father, the boy chose to stay several more months at the Texas institution. Philip left when he was told he could live with his brother, Terry. Philip did well there, but soon his brother asked him to leave and Philip had to return to his father. In order to escape again, Philip joined the armed services. Philip’s drug use began to escalate. If Philip’s trial attorneys had investigated his upbringing, his family and childhood, they would have discovered classic mitigation proof. They would have learned information that might have convinced his jury that life would be an appropriate sentence, instead of death. If they had taken a critical look at the proof of guilt, they would have found serious evidence to counter the government’s claims. Dr. Bell performed the autopsy for the government, and he testified at trial. He told the jury that Lt. Oliver was killed by a through-and-through shot. In other words, the bullet, which killed the officer, passed completely through his body. Dr. Bell’s autopsy report showed that the exit wound was smaller than the entrance wound. Every expert who has examined the evidence, for both the government and defense, has characterized Lt. Oliver’s wound as a "through-and-through" shot. The police recovered Philip’s weapon after the robbery. They found that it was loaded with .45 caliber, "Silvertip," hollow-point ammunition. These low-velocity bullets have a thin metal skirt that falls off behind the bullet when it hits a target. The soft metal immediately expands, which transfers the kinetic energy into the object it strikes. It is extremely rare for this type of bullet to pass through a body; it is designed to stop within, protecting anyone behind the target. FBI experts took Philip's pistol and fired the same ammunition as Philip had into a water tank before his trial. They were used for ballistics comparisons. The bullets expanded to twice their original diameter. A water tank is used for ballistics tests because it will not deform the projectile. But even the water tank caused the low-velocity hollow-points to mushroom. The bullet that killed Lt. Oliver passed through the heart, both lungs, the stomach and the diaphragm before exiting. There was a single path. Recently, a judge opined that the exit wound may have been caused by a bullet fragment. Had the bullet fragmented, it would have created additional missile paths. No fragment of bullet would have had the energy to pass through the body and organs, creating the damage that the autopsy revealed, and exit. Dr. Bell examined the chest cavity, the organs, and performed a laparotomy. His autopsy showed that there were no fragments of bullet anywhere, including in the blood taken from the chest cavity. No expert has ever claimed that the bullet fragmented. Dr. Bell diagrammed the entrance and exit wounds. The entrance was twice as wide as the exit. Dr. Kris Sperry, the Chief Medical Examiner for the state of Georgia, examined the autopsy findings and other evidence. He reported that in 90% of the 30 to 40 wounds he has examined that were caused by bullets similar to those in Philip’s gun, the bullet did not exit the body. In the rare occasions when a bullet passed through a body, the exit wound was always significantly larger than the entrance wound. Dr. Cyril Wecht is a world renowned expert in forensic pathology. He consulted with the government on the Robert Kennedy assassination, the Manson murders and the Symbionese Liberation Army shootout in the 1960’s. He was the lead forensic expert for the House of Representative's Subcommittee on Assassinations which re-examined the murders of President John F. Kennedy and Reverend Martin Luther King. Dr. Wecht wrote: [I]t is my professional opinion, based upon a reasonable degree of medical certainty, that the gunshot wound to [Lt.] Ronald D. Oliver is not consistent with the type of ammunition used by Mr. Philip R. Workman…. I do not believe that it was Mr. Workman’s gun that fired the shot that fatally wounded [Lt.] Oliver. Dr. Wecht recently stated in an interview that the wound to Lt. Oliver is entirely consistent with the high velocity ammunition used by the Memphis police at the time of the shooting. Davis testified that the confrontation occurred in front of the doors of the Wendy's. He said that Oliver grabbed Philip there, and Stoddard joined in the struggle. Davis testified that he got out of his car and from ten feet away watched Lt. Oliver approach Philip. He claimed he crouched down as Stoddard ran up and the officers began struggling with Philip. Davis described the cold, deliberate murder of Lt. Oliver by Philip. He left the witness box to show how Philip shot the veteran policeman. Davis' testimony did not match the crime scene. In fact, the only thing it matched was Ofiicer Stoddard's account of the incident. The actual shooting occurred 60 feet away in another parking lot. This fact is not contested--it is where Lt. Oliver and Officer Stoddard were located when the other officers arrived in time to see Philip running away. It is where the shell casings, jacket and money bag were located. Every other eye-witness, including Stoddard, correctly identified the struggle as having happened in the Holiday Auto Parts parking lot, adjacent to the Wendy's parking lot. Incredibly, Philip's lawyers sat and passively listened to Davis' testimony, and never questioned this major error in his story. Officer Parker drove into the Wendy’s lot immediately after Officers Oliver and Stoddard. At trial, he told the jury what he did and what he was thinking as he searched for the robber. I was mainly looking for—they had just read out on roll call that day that there was a man—a black male robbing only Wendy’s and McDonald’s and who hid in the bathroom at closing time and took an employee hostage when they came in to clean the bathroom. I was looking for a black male possibly inside the store, is what we were suspecting, because he had pulled six or seven holdups, one at the McDonald’s about a half a block up the street about three weeks before. Officer Parker did not see Harold Davis, who claimed to be ten feet away, watching the confrontation between Philip and the officers. He did not see Davis’ car, either. Davis does not appear on the witness lists taken at the crime scene. His car does not appear on the crime scene diagram or the list of objects within the crime scene. He didn’t attend the line-up held that night at the police station. The first time Davis appeared, and the first official accounts of him, did not occur until the next day, when he allegedly called police from a motel to report that he had been in the area of the shooting. |
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