The three appeals put together to stop the execution of Bobby Jackson will be heard in two courts on Wednesday.
The first appeal will be in Federal District Court in Wilmington. Judge Sue Lewis Robinson will hear an appeal that Pentobarbital is not as good as Sodium thiopental for an execution. That was the previous drug used to anesthetize prisoners in the execution. Sodium thiopental is in short supply as the American manufacturer, Hospira, stopped making it earlier this year.
That case happens in the morning. In the afternoon, the second and third appeals will be heard before the Delaware Supreme Court in Dover. In those cases, the Atlantic Center for Capital Representation plan an appeal based on actions taken in Judge Vincent Bifferato’s court room during the time of the trial 20 years ago.
Marc Bookman, Executive Director, says there is evidence available now that was withheld during the Jackson trial. He charges Jackson’s first attorney Joe Hurley with telling Judge Bifferato that “Jackson was guilty and ought to die”. Bookman calls Hurley “unprofessional and unbecoming of the Delaware bar.”
Hurley fired back in a two page letter to Bookman saying that his comments were done in a sidebar and not done when the jury was present. He says he may agree that he can be sarcastic, but he did the right thing by going with his conscious when deciding that he should withdraw from the case.
He said he watched Jackson’s demeanor during a hearing. He said his feeling evolved to a point where he only had three choices. He wrote Bookman that he could:
1. “Shut my mouth and push my feelings (about my client) aside.”
2. “Lie to my client and tell him that I did believe in his cause and continue to represent him.”
3. “Lie to the judge in order to be excused from the case and not tell him the true reason.”
Bookman said the State Supreme Court appeal will be based on the fact that Judge Bifferato took Hurley’s comments and sealed them. Bookman says they were unsealed after 14 years meaning that Jackson’s new attorney never saw them. His charge is that Hurley tainted the case.
That’s where Hurley vehemently disagrees. He says, “I did my part as I saw it.” He says it was wrong for the judge not to pass along Hurley’s feelings about the case. However, he says it would make more sense that the Hurley comments “slipped his mind” rather than be a part of a conspiracy. He adds that “no one has asked me about what I did 20 years ago.”
Bookman has called this case “the perfect storm for injustice.” Hurley describes it as “the way things were done 20 years ago.” Hurley says today a judge would ask a defendant for their opinion in a situation where an attorney wanted to withdraw from a case.
Bookman hopes the Wednesday hearings will stop the Friday morning execution. Hurley believes there is a 50-50 chance that a stay will be granted. He says “most judges will bend over backwards when dealing with death penalty cases.” However, he adds no one has asked him to testify at any of the appeals hearings.
Bookman says his group is working with the Capital Habeas Unit of the Federal Community Defender office in Philadelphia. He says they haven’t ruled out an appeal to Governor Jack Markell for a stay of execution so the case can be sorted out. A spokesperson for the Governor said, “No request for a reprieve has been made. It would be inappropriate to speculate right now on any possible outcome of a potential request.”
Plans for an execution continue
Meanwhile, plans for the early Friday morning execution continue at the James T. Vaughn Correctional facility in Smyrna. The execution will take place between 12:01 and 12:03 am on Friday. The early morning time frame was established in 1994 by then-Governor Tom Carper who signed a law ordering the executions take place at that hour so it does not interfere with normal operations at the prison.
The death penalty in Delaware has been used 14 times since 1992. In 1958, then Governor Governor J. Caleb Boggs signed a law to abolish the death penalty. It was reinstated in 1961 by Governor Elbert N. Carvel.
Jackson was convicted of the 1992 ax-murder of Elizabeth Girardi in a case of robbery gone bad. He is the first person scheduled to die by lethal injection in Delaware since 2005. Jackson’s co-defendant in the case was Anthony Lachette. Lachette testified for the prosecution. Bookman says as part of the case in Dover he will present evidence that four people heard Lachette claim credit for the murders.