"George,

On July 1, 2003, Governor Mark Warner granted a last-minute reprieve to convicted murderer Bobby Wayne Swisher. The terms of the reprieve were puzzling. Other than delaying this execution, it will almost certainly have no effect. What is most baffling is that the Governor must have known it would have no effect, and yet he chose to do this anyway. Why?

Swisher's case has attracted considerable attention, because the verdict form given to the jury during his sentencing hearing has been declared by the Virginia Supreme Court (in other cases) to be confusing, inaccurate as to the law, and fatally flawed. This ruling didn't do Swisher any good, however, because, as the Supreme Court explained in rejecting his earlier appeals, his attorneys failed to raise this issue at the right time. As far as the courts are concerned, Swisher's case is over, even though the process used to sentence him to death may well have been unfair or even illegal. That is pretty harsh, but that is how the Supreme Court read the rules.

Swisher had only one place left to go. Since the courts were blocked from intervening in his case, he asked Governor Warner to grant him a conditional clemency so that he could be given a new, fair sentencing hearing.

The deans of two of Virginia's prestigious law schools signed a letter urging Warner to step in. So did 20 members of the Virginia General Assembly, including leaders of both parties. Even the Daily Progress called for clemency on grounds of simple fairness.

Warner issued his reprieve hours before Swisher was scheduled to be executed. He did not try to set up a new sentencing hearing. Instead, he ordered Swisher's execution postponed for 3 weeks, stating that this would allow Swisher time to take his claims back to the Virginia Supreme Court. Warner stated that, whether the Court took the case and granted Swisher a further postponement or not, he did not intend to take any further action. If the Court does not intervene, Swisher will be executed on Tuesday, July 22.

This makes no sense. There is no precedent and no reason to expect that the Virginia Supreme Court will change its view of Swisher's procedural problem. While his attorneys, acting on the Governor's instructions, have filed a petition asking the Court to intervene, there is little hope that the Court will do so. As the Governor surely knows.

The Governor has not explained or defended this baffling decision. Instead he has left us to speculate, and there seem to be only two possibilities: either it is a just a mistake or it is a cynical political ploy. Either way, Warner's decision does not show leadership, and it does not show courage. It is not even good politics. It is just puzzling.

Warner wants to offer leadership to a Democratic Party which desperately needs it. Well and good. Bobby Swisher's execution is scheduled to take place next Tuesday, July 22. There is still time for the Governor to act and to show us that he's the right person for the job.

Ed Wayland (electronic mail, July 14, 2003)