January 10, 2010
Owens on death row while others are free
By John Seigenthaler
A news story published here Dec. 20 under my byline reported critically on the http://www.tennessean.com/article/20091220/NEWS03/912200335/The-uneven-hand-of-justice-in-TN-murders">striking differences in sentences that state judges and juries gave three Tennessee women convicted of killing their abusive husbands.
Further research makes it clear that the article failed to deal in adequate depth with the question of whether penalties handed down in such cases by Tennessee courts reflect what Judge Richard S. Arnold of the U.S. Court of Appeals called "the reality and perception of equal justice."
A review of the disparate levels of punishment the courts dispensed in these and six similar cases over the last quarter-century makes the point:
• Two of the nine cases resulted in the killers being granted full probation — one after a new trial and the other after 67 days in a mental health facility.
• One of the cases resulted in a life sentence being commuted to 18 months and probation.
• Another resulted in a prison term of 15 years and early parole.
• Four of the cases resulted in life sentences. Two of these women were freed on parole; the others are entitled to parole hearings.
• Only one woman was sentenced to death. Gaile Owens' court appeals were exhausted last month, and the Tennessee Supreme Court soon will set the date for her death.
In all nine cases, the murders were brutal. In four of them, wives arranged for hit men to kill their husbands. In all but one of the cases, defense lawyers, either during trial or on appeal, presented evidence that the wives had endured physical or emotional abuse from their spouses. In at least half the cases, defense lawyers sought to prove that the killers suffered from battered woman syndrome — a condition the courts have defined as "a female who is the victim of consistent, severe domestic violence."
David Raybin, a criminal defense lawyer and former prosecutor — who convicted the killer in one of the nine cases and successfully defended the killer in another — believes that the pattern of inconsistent sentencing may have resulted from the failure of some defense lawyers to effectively present battered woman syndrome testimony. Court records seem to document that.
"If the lawyer can demonstrate that the defendant was a battered woman, it helps the jurors understand why she acted as she did," Raybin said. "Evidence that a defendant has suffered from an abusive relationship can be a strong mitigating factor in the minds of jurors when they consider punishment."
Eight cases, various results
Here is a chronological review of the eight cases that resulted in sentences less severe than the death penalty:
• 1981: Dr. Rose Horne Leaphart, a practicing physician in Nashville, was convicted of paying $10,000 to Gary Carlton Jackson and Michael Miller Jackson to kill her husband, Bobby, a dental student at Meharry Medical College. Raybin prosecuted, and Mike Engle, a Metro public defender, represented Dr. Leaphart. A witness told jurors that Leaphart admitted that she was present when the two hit men beat her husband to death with a baseball bat. She accompanied the killers as they stuffed the victim's body in the trunk of his car. The body was discovered two months later in an Atlanta tow-in lot.
Leaphart's battered woman defense included testimony that she had suffered two years of marriage during which her husband had beaten her, broken her arm, blacked her eyes and forced her to submit to drug injections. There was psychological testimony that she fit the profile of a victim of battered woman syndrome.
An appeals court noted that the jury, because of the testimony supporting her battered wife claim, was "somewhat sympathetic" and gave her a "near-minimum" 15-year sentence. Dr. Leaphart has since been paroled and has regained her license to practice medicine.
• 1982: Barbara Tipton operated the Bi-Lo Diner in Grainger County with her husband, Ronald, to whom she had been married for 18 years. On July 5, Ronald Tipton's body was found in his wrecked car on a rural county road. He had died from a shotgun blast to the neck.
His wife was convicted of accessory to murder after Charles Brooks, a local man with whom she had a sexual relationship, confessed that she had enticed him to murder her spouse, promising to share $400,000 in life insurance.
Barbara Tipton testified that in the months before he was murdered, her husband had sexually abused her. Her lawyers, however, did not present a battered woman syndrome defense. She and Brooks were sentenced to life in prison. Released on parole, she has since died.
• 1982: Evelyn Mosher was at a rock concert in Chattanooga on the night her husband, Robert, was slain at their Signal Mountain home. An assailant used a sheet of plastic to suffocate him. Evelyn Mosher collected $200,000 in life insurance.
It was not until 1985 that police, suspecting her of trafficking in drugs, raided her home and found evidence linking her to Bobby Wilcoxson, whom she had employed as the hit man. Wilcoxson, convicted and sentenced to death for Robert's murder, died in prison after his death sentence was set aside. Evelyn Mosher, sentenced to life for first-degree murder, is currently eligible for parole.
• 1982: Kathryn England drugged her abusive husband, then shot and killed him while he slept. She fired the fatal rifle shot from an upstairs room through a hole she had created in their bedroom ceiling.
Her lawyers presented evidence that she had been physically and sexually abused by her husband. Still, she was convicted and sentenced to serve a life sentence. In prison, she contracted breast cancer. Because of her illness, Gov. Lamar Alexander commuted her sentence to the 18 months she had served. Freed in 1984, she remarried and later died.
• 1985: Frances Blaylock was separated from her husband, Roy Lee Blaylock, a McMinn County farmer, when he was shot to death by Chris Smith, a former high school classmate of one of the Blaylock's daughters. After firing the fatal shotgun blast, Smith, by agreement with Frances Blaylock, took $5,000 from the victim's wallet. The murder occurred after a stormy marriage of 25 years marked by drunken, violent attacks by the husband.
At trial, Blaylock's lawyers sought to put on evidence from a psychologist that she suffered from battered woman syndrome, but the trial judge limited testimony to the question of whether Frances Blaylock was sane. Both Blaylock and Smith were convicted of first-degree murder. She is now free on parole.
• 1987: Deborah Mae Furlough murdered her husband, Tim, as he drank beer beside a creek in Macon County. She shot him first with a rifle, then with a pistol. The killing followed an argument that interrupted a drive from Adolphus, Ky., to Nashville. A witness to the murder, Mary Sue Scott, a family friend, helped her bury the body in a nearby sandbar. Tim's corpse was discovered two days later by fishermen.
At trial, Furlough testified that she had endured a violent marriage during which her husband had put a knife to her throat, tried to smother her with a pillow and threatened her with a hammer, which he used to sexually abuse her. She killed her husband, she stated, after he repeatedly told her he was going to have sex with their infant daughter.
She was convicted of first-degree murder in 1988 and has since been freed on parole.
• 1990: Laurie Zimmerman and her husband, Mark, operated a marketing business from their Murfreesboro home. There, they argued bitterly one night over whether the husband would take their 2-year-old son from the house. The argument ended when Laurie fatally stabbed Mark with a butcher knife. His blood-alcohol level at death indicated that he was intoxicated.
Zimmerman was tried twice. The first case resulted in her conviction for second-degree murder with a 15-year prison term. During that trial, her two lawyers sharply disagreed over a defense strategy. One of them, Herb Rich, favored a battered woman syndrome defense and told jurors that Zimmerman and other witnesses would testify that she was an abused wife. David Vincent, Zimmerman's lead lawyer, disagreed and convinced her not to take the stand in her own defense.
Her jury heard nothing of the fact that on the day before the fatal argument Laurie Zimmerman had sought a court order protecting her from drunken spousal assaults. No psychological expert was called to support a battered woman defense. Her medical doctor was not called to document evidence of physical assaults.
After her conviction, Zimmerman hired David Raybin, who won for her a motion for a new trial. Zimmerman testified in the second case, and a psychologist asserted that she was a victim of battered woman syndrome. The jury agreed. She was found guilty of negligent homicide, and the judge granted her full probation. She moved out of state and remarried.
• 2006: Mary Winkler, the wife of an ordained minister, shot her husband, Matthew, in the back while he was still in bed. The pellets severed his spine. She fled the residence with their three young daughters and drove to Alabama, where she was apprehended by police.
Her lawyers defended her on the grounds that she was a battered wife, emotionally and sexually abused by Matthew and constantly harassed by him as a spendthrift. Following a voluntary manslaughter conviction, the judge granted her probation and freed her after she spent 67 days in a mental health facility. She has regained custody of her three children and lives in McMinnville.
Death sentence for Owens
Gaile Owens faces a death sentence even though many aspects of her case are identical to those of the eight other women.
She, too, hired a killer, Sidney Porterfield, who beat her husband to death with a tire iron in Memphis in 1985. Her lawyers initially planned to present a battered woman defense, then abandoned that course after the judge limited the statement of a professional psychologist to whether Owens was sane. That same psychologist, Dr. Lynne Zager, who was prepared to appear as a battered woman witness for Owens, testified 20 years later for Mary Winkler. Owens' jurors heard not a word about the physical, emotional and sexual abuse she had endured. She had agreed to plead guilty in return for a life sentence — but the district attorney would not accept that plea unless Porterfield, the hit man, entered the same plea. Porterfield is appealing his capital conviction on grounds that he is mentally impaired.
Owens' death would be Tennessee's sixth execution since 2000. She would be the first woman executed in Tennessee in 190 years.
As the state Supreme Court considers an early death date, Owens' lawyer, George Barrett, is preparing to petition Gov. Phil Bredesen to commute her sentence from death to life imprisonment. The petition will question whether Owens' sentence reflects equal justice under the law.