Bishop apologizes in final hours

By Kathleen Baydala - Jackson Clarion Ledger

July 23, 2008

Before he was executed by the state, death row inmate Dale Leo Bishop apologized to the family of his victim. "He said it was a senseless act," state corrections Commissioner Chris Epps said.

Bishop was pronounced dead by lethal injection at 6:14 p.m. He was convicted in 2000 of participating in the murder of Marcus Gentry. Gentry was beaten to death in December 1998 with a claw hammer, and his body was found along a logging road near Saltillo. Bishop's last words were: "God bless America. It has been great living here. That's all."

Many of Gentry's family members came to Parchman today. His mother Kathy Gentry and uncle Gerald Gentry witnessed the execution. They did not speak to the media, but a victim's advocate read a written statement from them. "We had to relive all the memories and emotions from that December," part of the statement said. "The pain and loss that this man helped put on us will never be forgotten. We lost Mark not by chance but by the choice of two ungodly men."

The other man convicted of Gentry's murder, Jessie Johnson, is serving a life sentence.

Bishop showed regret for the murder he participated in — and for asking for a death sentence — today, officials said. "He wants to live, as least that's what he indicated to us," Epps said this afternoon. "He said when he asked to be sentenced to death he was at a low point in his life. He was getting separated and his wife was taking their three kids."

A request for clemency from Gov. Haley Barbour and last-ditch appeals to the U.S. Supreme Court were all denied today. Daryl Neely, policy adviser for Gov. Haley Barbour, said Bishop was writing in his cell this afternoon when he and Epps visited. "One of the things he wrote was, 'A man who takes no action has no regret,'" Neely said. "I asked him what that meant, and he admitted there are some things in his life he regrets." Helping kill 22-year-old Gentry was one of them.

"He said it was a fight that went too far, that Marcus Gentry was his friend," Neely said. Testimony from that night indicated Johnson, Gentry, Bishop and Ricky Myhand were riding around and drinking beer on the evening of the killing and an argument began after Johnson accused Gentry of getting Johnson's brother in trouble with the law.

According to testimony, the two exchanged words and then Johnson hit Gentry over the head with a hammer. When Gentry jumped from the car and fled, Bishop ran after him and took him back to the car, where he was hit and kicked numerous times. Myhand reported the killing to police and led investigators to the body. He was not charged.

Johnson was the only one who hit Gentry with the hammer, according to testimony. In a Dec. 13, 1998, statement, Bishop acknowledged holding Gentry while Johnson struck him. Johnson, who was tried separately, is serving life in prison. At trial, forensic pathologist Steven Hayne testified there were 23 injuries to the head, neck and hand produced by a blunt object, such as a hammer.

Bishop’s mother, Brenda Bishop had this week asked people to pray for her son. She and other family members were with him today. About 15 anti-death penalty protesters gathered near the Parchman visitor center this evening. Many of them are college students from across the country and England who are part of an activist group. "I'm very much against the death penalty because I think it is unjust, cruel and fundamentally wrong," said 21-year-old Rizwana Mahood, a law student from London's Bournemouth University. "There are so many flaws in the system to have a perfect punishment."

Regular anti-death penalty protester Father Greg Plata from St. Francis in Greenwood was also among the group. He also protested Wesley Earl Berry's execution in May. "This decision of the governor's not granting pardon from the death penalty just continues to make Mississippi look bad," Plata said.

Bishop requests clemency; Federal court rejects bid to delay execution

By Jimmie E. Gates - Jackson Clarion Ledger

July 22, 2008

Dale Leo Bishop's efforts to avoid execution Wednesday continued today with more appeals and a request for clemency from Gov. Haley Barbour’s office following a federal appeals court ruling Monday that dealt a blow to the inmate’s chances. In a 2-1 decision, the 5th U.S. Circuit Court of Appeals denied Bishop's emergency appeal for a stay that challenged Mississippi's method of lethal injection. But Bishop's attorney, Jim Craig, said he will appeal that ruling to the U.S. Supreme Court, and two other federal appeals are still pending. "I think we have strong arguments in all three appeals," Craig said.

Regarding the request for clemency, Barbour spokesman Pete Smith says the governor will make a decision after reviewing the application. Last week, Barbour commuted the sentence of convicted killer Michael David Graham after 19 years in prison. The 54-year-old Graham has been a trusty at the governor's mansion for the last eight years.

Bishop, 34, was convicted and sentenced to death in February 2000 for the kidnapping and slaying of 22-year-old Marcus Gentry of Fulton. Gentry was beaten with a claw hammer on a dirt logging road outside Saltillo on Dec. 10, 1998. Co-defendant Jessie Johnson, who struck the fatal blows, is serving life without parole.

Bishop told a judge at his sentencing hearing he wanted to be sentenced to death instead of having a jury decide whether he would get life without parole or the death penalty.

Bishop and three other death row inmates, Alan Dale Walker, Paul Everett Woodard and Gerald James Holland, had challenged the constitutionality of the state's lethal injection method saying it "unnecessarily risks infliction of pain and suffering." U.S. District Judge W. Allen Pepper dismissed the inmates' lawsuit last week saying the statute of limitations had expired. In the 5th Circuit decision, Judges Edith Clement and Emilio Garza ruled Bishop had not demonstrated irreparable harm through the mere possibility that some unforeseen complication would result in lingering death causing him to suffer unnecessary pain. "Therefore, he cannot rely on this possibility as the grounds for substantial risk of harm," Clement wrote.

But Judge Carolyn King, in a dissenting opinion, said Bishop is one of those rare cases where an appeal should be granted. Unlike in some cases, Bishop didn't file the lawsuit as an 11th-hour attempt to stave off an impending execution. She said Bishop filed suit nine months ago, shortly after the U.S. Supreme Court granted a stay to give itself time to consider a challenge to Kentucky's method of lethal injections. The high court ultimately ruled Kentucky's method of lethal injection constitutional.

King criticized the state for failing to timely answer Bishop and the other plaintiffs' case. Bishop already has another petition before the U.S. Supreme Court focusing on what his attorneys say was the failure of the former director of the Mississippi Office of Post Conviction Counsel to present evidence of Bishop's alleged psychosis from age 4. It also seeks a stay based on Bishop being an accomplice rather than the actual killer, and that he didn't have any prior intent that a killing occur.

Seven of 1,100-plus executions in the United States since 1976 have been similar to Bishop's case in that the person executed was not the actual killer, Craig said.

Although the 5th Circuit ruled Monday against Bishop, he has another appeal before the court seeking to reopen his case based on the allegation that the then-director of the Office of Post Conviction Counsel, Bob Ryan, sabotaged his case. Glenn Swartzfager, the new director of the office, has accused Ryan of suppressing evidence that could have helped spare Bishop's life. The Clarion-Ledger has been unable to reach Ryan.

In a previous sworn statement, Ryan described his office as understaffed and underfunded. At one point in 2003, Ryan said he was the only person working on 21 death-row cases, which has prompted death-penalty opponents to call for a review of them all. Charles Bishop, 72, a distant relative of Dale Leo Bishop, said he doesn't think the younger Bishop should be put to death. "He is someone who was easily persuaded," the elder Bishop said. But Gentry's mother, Kathy Gentry of Fulton, said Dale Bishop asked for the death penalty and he should receive it.

If Bishop is executed, he will be the second inmate put to death in Mississippi in two months. Earl Wesley Berry, 49, was executed May 21.

Mississippi Department of Corrections - Media Kit

July 23, 2008 Execution of Dale Leo Bishop
7:00 p.m. News Briefing

Parchman, Miss. - The Mississippi Department of Corrections (MDOC) today conducted the mandated execution of state inmate Dale Leo Bishop. Inmate Bishop was pronounced dead at 6:14 p.m. at the state penitentiary at Parchman.

MDOC Commissioner Christopher Epps said during a press conference following the execution that the evening marked the close of the Dale Leo Bishop case. Bishop was convicted by a Lee County jury for the December 10, 1998 kidnapping and murder of 22 year-old Marcus James Gentry.

“It is our agency’s role to see that the order of the court is carried out with dignity and decorum. That has been done and justice was championed today,” said MDOC Commissioner Chris Epps. “In this final chapter tonight, it is our sincere hope that the family of Marcus James Gentry may now begin the process of healing. Our prayers go out to you as you continue life’s journey,” said Epps.

Epps concluded his comments by commending Deputy Commissioner of Institutions Emmitt Sparkman, MSP Superintendent Kelly and the entire Mississippi State Penitentiary security staff for their professionalism during the process.

July 23, 2008 Scheduled Execution of Dale Leo Bishop
4:45 p.m. News Briefing

Parchman, Miss. - The Mississippi Department of Corrections (MDOC) today briefed members of the news media of death row Inmate Dale Leo Bishop’s activities from 2:00 p.m. to approximately 4:45 p.m., including telephone calls and visits.

Inmate Bishop’s Collect Telephone Calls
Tuesday, July 22, 2008
No phone calls.

Today, Wednesday, July 23, 2008
No phone calls.

Update to Inmate Bishop’s Visits
Visitors left Unit 17 at 3:00 p.m.
• Timothy Bishop (Brother)
• Roy Bishop (Father)
• Brenda Bishop (Mother)
• Tonya Cunningham (Ex-wife)
• David Wolf (Nephew)
• Stacy Ferraro (Attorney)
• James W. Craig (Attorney)
He is currently visiting with MSP Staff Chaplain James L. Whisnant.

Update to Execution Witnesses (Change of law enforcement witness from Lee County S/O)
Execution Witnesses
Spiritual Advisor for the condemned MSP Staff Chaplain James L. Whisnant
Member(s) of the condemned’s family Inmate Bishop requested that his nephew and ex-wife witness:
David Wolf (Nephew) and Tonya Cunningham (Ex-wife)
Attorneys for the condemned Stacy Ferraro and James W. Craig
Member(s) of the victims’ family Kathy Gentry (Mother of Marcus James Gentry) and Gerald Gentry (Uncle of Marcus James Gentry)
Sheriff or Designee Chief Deputy Sheriff John Hall
Governor’s Witness C. Daryl Neely, Policy Advisor
8 Members of the Media Joey Barnes, WCBI-TV
Randy Bell, Clear Channel Radio
William Browning, The Greenwood Commonwealth
Robert Byers, WTVA-TV
Jimmie Gates, Clarion-Ledger
Stephen Koranda, Mississippi Public Broadcasting
Holbrook Mohr, Associated Press
Scott Phillips, Mississippi News Network

Activities of Inmate Bishop:
Inmate Bishop ate his last meal at 4:45 p.m. Ate 3 pieces of pizza, one 20 oz. root beer, 8 oz. cherry ice cream. He has chosen not to take a shower and has not requested a sedative. Inmate Bishop remains under observation. Officers have observed Inmate Bishop as still being talkative.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89

PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
Bobby G. Wilcher White Male Murder 10-18-06

MISSISSIPPI STATE PENITENTIARY
• The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County.
• In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parchman Plantation.
• The Superintendent of the Mississippi State Penitentiary is Lawrence Kelly.
• There are approximately 1,239 employees at MSP.

Current Death Row Facts: 65 Inmates on Death Row, 3 Female, 62 Male, 32 White, 32 Black, 1 Asian,
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 22
Oldest On Death Row: Gerald Holland, MDOC #46631, age 70
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March 2, 1977: Thirty-One Years)

Mississippi executes condemned inmate Bishop

AP - 7/23/2008

PARCHMAN - Dale Leo Bishop has been executed at the Mississippi State Penitentiary for his role in the claw hammer killing of Marcus James Gentry of Fulton. Corrections spokeswoman Tara Booth says Bishop died by lethal injection at 6:14 p.m. Wednesday with members of Gentry's family in attendance.

Bishop had hoped the U.S. Supreme Court or Mississippi's governor might spare him but both denied his requests as the hours of his execution approached. Bishop's attorneys said his life should have been spared because he did not swing the hammer that killed Gentry in 1998.

Bishop acknowledged participating in the attack, but another man, Jessie Johnson, admitted striking the lethal blows. Johnson was tried separately and sentenced to life without parole. Corrections Commissioner Chris Epps said he discussed Johnson's role in the crime with Bishop. "He indicated to us he thinks Johnson should be where he is on death row," Epps said.

At the end of his 2000 trial, Bishop waived his right to a jury sentencing and asked the presiding judge to give him the death penalty. He has since changed his mind, which he attributes to medication for a bipolar disorder that was diagnosed in prison. Several last-minute efforts to keep him alive failed, however. Gov. Haley Barbour denied a clemency request Wednesday afternoon. That left Bishop's life in the hands of the U.S. Supreme Court, which denied three pending appeals filed by the inmate's attorneys.

Barbour's policy adviser Daryl Neely said Bishop expressed regret about the crime, saying "it was supposed to be a fight that went too far." Epps said Bishop spent some of the day "doing a lot of political talk" and discussing the intelligence levels of other death row inmates. Bishop's parents, ex-wife, oldest brother and nephew visited him during the afternoon. A younger brother is also incarcerated in Mississippi and is serving time following a manslaughter conviction.

Bishop ate a last meal of pineapple supreme pizza, cherries and cream ice cream and four root beers. Epps said in his final hours Bishop was "very talkative, very active."

Sixteen protesters rallied outside the Mississippi Delta prison, calling for the execution to be halted. The Rev. Greg Plata, of Greenwood, said it's unfair that Bishop is being put to death when Johnson is not. "They both should be given a life sentence," Plata said.

About 10:30 p.m. on the evening of December 10, 1998, Dale Leo Bishop, Mark Gentry, Jessie Johnson, Cory Johnson and Charlie Rakestraw went to Ricky Myhand and Rachel Dobbs's apartment in Saltillo. Jessie, Bishop's co-defendant, and Cory were brothers.

After drinking a couple of beers, Jessie decided to go to a store for more beer and asked Myhand to go along. Gentry, who had driven his vehicle to Myhand's apartment, drove Jessie, Bishop and Myhand to the store. Upon reaching their destination, they discovered that the store was closed, so Gentry turned around and headed back toward Myhand's apartment.

On the way back, Jessie, who was seated in the front passenger seat, asked Gentry why he "narced" or "ratted on" his little brother. Gentry denied doing so. Jessie said, "Yeah, you did," then reached down to the floorboard, grabbed a hammer and hit Gentry between the eyes.

The car coasted to a stop and Gentry begged Jessie not to hit him again. Bishop, who was seated behind Gentry, grabbed Gentry in a headlock and hit him. While he was being held, Jessie struck Gentry in the head again with the hammer. Bishop and Jessie next made Gentry move over into the front passenger's seat, and Jessie began driving. He turned off the road and went down a little field road. When Jessie stopped the vehicle, Gentry jumped out of the car and ran. Jessie told Bishop to catch him.

In his statement given to the police, Bishop said Jessie was upset at Gentry for ratting on his brothers. As a result of the "ratting," Bishop believed that Jessie's little brothers were charged with some serious crimes. "Mark Gentry had instigated his brothers' getting about 9 or 10 counts of grand larceny and burglary."

In his statement given to the police, Bishop, whose life-long vocation was being a carpenter, admitted the hammer belonged to him and went into some detail describing its characteristics. He stated that carpenter's hammers normally used in Mississippi weighed 20 to 22 ounces. He stated, "The hammer owned by Bishop and used to hit Gentry is a 28 ounce Vaughn California framing straight claw." He indicated that his hammer was not available for purchase in Mississippi.

When asked by the police about how he came about bringing a hammer with him when he went riding with Gentry, he admitted using a false pretense: BISHOP: Well, when the trip originally began, the excuse was that I was going to go work on my truck and I use the hammer to work on my truck. POLICE: Is that true? BISHOP: That's just how we got the usage of the car to begin with. There is some discrepancy in the chain of events. In his statement, Bishop indicated that Jessie initially "decked Gentry with his hands."

Then Bishop grabbed Gentry and Jessie hit him "probably just twice" with the hammer. After about five minutes Bishop came back with Gentry and forced him to get on his knees in front of the car. Bishop and Jessie began kicking Gentry. Jessie struck Gentry numerous times with the hammer. At one point Myhand was asked to hold Gentry while Bishop retrieved beers for himself and Jessie. In response, Myhand begged Jessie to stop.

When they finished, Bishop had to dislodge the hammer from Gentry's throat, and then he and Jessie drug Gentry into the bushes. While returning to Myhand's apartment, Jessie and Bishop discussed finding a shovel with which to bury Gentry.

At Myhand's apartment, Jessie and Bishop washed off and changed into some clean clothes given to them by Myhand. When Bishop, Jessie, Cory and Rakestraw finally left the apartment, Myhand and Dobbs called the police. Myhand took the officers to the site of the murder, and Gentry's body was recovered. Gentry's car was there, and a shovel was found nearby. Bishop and Jessie apparently fled the scene when the police car pulled up. They hid out in the woods until they were apprehended on December 13, 1998.

Steven Hayne, M.D., a forensic pathologist who conducted the autopsy on Mark Gentry's body, testified that there were 23 injuries to the head, neck and hand which were produced either by a blunt object with enough force to break or tear the skin, or with a sharp object such as the edge of a claw hammer.

These injuries did not include bruises or scrapes which could have been produced from being kicked. Injuries to the hands, forearms and fingers were consistent with defensive posturing by Gentry. According to Dr. Hayne, "Mr. Gentry died from cranial cerebral trauma, secondary to blunt force trauma to the head, and he also died from lacerations, tears of the voice box, with aspiration of blood."

National Coalition to Abolish the Death Penalty / Amnesty International

17 July 2008
USA (Mississippi) Dale Leo Bishop (m), white, aged 34

Dale Bishop is scheduled to be executed in Mississippi at 6pm local time on 23 July. He was sentenced to death in February 2000 for the murder of Marcus Gentry in December 1998. The person who actually killed Marcus Gentry received a life sentence.

According to the trial record, on 10 December 1998, Marcus Gentry, Dale Bishop, Jessie Johnson and Ricky Myhand were in a car in Saltillo, Lee County, Mississippi. Johnson asked Gentry, who was driving, why he had informed on Johnson’s brother to the police about some burglaries. Johnson, who was in the front passenger seat, then picked up a hammer and hit Gentry in the head with it. Bishop, in the rear passenger seat, grabbed Gentry and Johnson hit him in the head again.

After Gentry jumped out of the car, Johnson told Bishop to catch him. Bishop did so, and Johnson proceeded to repeatedly strike Gentry with the hammer. Bishop and Johnson dragged Gentry’s body into some bushes, and they themselves hid in the woods until their arrest three days later.

Dale Bishop was brought to trial first. His defence lawyers did not seek a change of venue away from Lee County, despite potentially prejudicial pre-trial publicity. Ricky Myhand, who was present at the crime, was a key witness for the state. The jury convicted Bishop of capital murder. He waived his right to sentencing by jury and instructed his lawyer not to present any mitigating evidence.

He asked only to say something to Marcus Gentry’s family: “I just wanted to say…I’m sorry for what happened to Mark. Mark was my friend. You know, I – I thought Mark needed his ass kicked. I did. I didn’t know Jessie was gonna go all out like that. Mark was a good man… Mark’s in heaven right now… I ain’t going to heaven; I won’t allow it. For what I did, I deserve to die. I ain’t gonna ask this Court to spare my life”. He then addressed the judge: “These people here, some of them would like to kill me. They can’t. They don’t have that authority… But you do. You’ve got that authority. I mean, look at them. They would like to see, you know – their son was killed, you know. I played a part in that… So I’m asking you to do what they can’t do, kill me for what I done. I deserve it. I know it, I want you to sentence me to death.” The judge responded, “Mr Bishop, I’m gonna grant your wish”.

At Jessie Johnson’s trial eight months later, the defence motion for a change of venue was granted and Johnson was brought to trial in another county. He was also convicted of capital murder, but was sentenced by the jury to life imprisonment without the possibility of parole.

In affirming Bishop’s death sentence in 2002, the Mississippi Supreme Court rejected the claim that Bishop should not have been eligible for the death penalty on the grounds that he had not planned or deliberated the murder. The Court pointed to the 1982 Supreme Court ruling, Enmund v. Florida, which found that the death penalty was an excessive punishment for a defendant who aids and abets in a crime where murder is committed, but who himself did not kill, attempt to kill, or intend to kill the victim. The state Supreme Court found that Bishop’s involvement in the crime was sufficient to justify execution even if the actual killer did not receive the death sentence.

Dale Bishop’s current appeal lawyers have raised evidence that was not presented at trial or in the initial appeals, including that Bishop suffered from serious mental illness (bipolar disorder), that there is a history of mental illness in his family, and that his childhood was abusive and marked by severe deprivation.

They have presented evidence that he grew up in poverty, was beaten by his alcoholic father, and that signs of mental illness began from the age of four, with school and other records making numerous references to his mental health problems. They say that his mother took him to a psychiatric hospital, but that the family was unable to afford the cost of the treatment that was recommended.

According to the lawyers, he was not diagnosed with bipolar disorder until he was on death row. Bipolar disorder, or manic depressive illness, is a serious brain disorder that causes extreme shifts in mood, energy, and functioning. It is characterized by episodes of mania and depression that can last from days to months. Bipolar disorder is a chronic and generally lifelong condition, requiring lifelong treatment.

BACKGROUND INFORMATION

Dale Bishop’s appeal lawyers are seeking to stop the execution through, among other issues, a challenge to Mississippi’s lethal injection procedures. In the April 2008 US Supreme Court ruling that upheld Kentucky’s lethal injection protocol – a judgment that has not stopped litigation on this issue – senior Justice John Paul Stevens wrote that his experience on the Court has led him to the conclusion that “the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State is patently excessive and cruel and unusual punishment”.

The death penalty promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of the murder victim’s family, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it. It is a symptom of a culture of violence, not a solution to it. It is an affront to human dignity. It should be abolished.

There have been 1,111 executions in the USA since judicial killing resumed there in 1977, nine of them in Mississippi. There have been 12 executions in the USA so far in 2008, one of them in Mississippi.

Mississippi executes condemned inmate Bishop

By Holbrook Mohr - Biloxi Sun-Herald

Associated Press - Wed, Jul. 23, 2008

PARCHMAN, Miss. -- Dale Leo Bishop was executed Wednesday for his role in the claw hammer murder of a friend, but not before apologizing to the victim's family and urging death penalty opponents to vote for Barack Obama. Bishop wore a goatee and a red prison jumpsuit with flip flops to his execution by lethal injection. He was pronounced dead at 6:14 p.m.

His attorneys had argued his life should have been spared because he did not swing the hammer that killed 22-year-old Marcus James Gentry in 1998. Both Mississippi's governor and the U.S. Supreme Court denied appeals to avert the execution. "To Mark's family, I would like to express my sincerest apologies. It was a senseless act. It was a needless act. The world is worse off without him," Bishop said in a final statement while strapped to the execution gurney. "To my family, I love you. It's going to be all good."

He finished by referring to Obama, the Democratic presidential hopeful. "For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice," Bishop said. "God bless America; it's been great living here. That's all."

At 34, Bishop was the youngest person executed in Mississippi since the late 1980s, when the state's method of execution was the gas chamber. His was also the swiftest death sentence carried out in years, which authorities attribute to his request in 2000 to die - and changes in state and federal laws dealing with appeals.

The victim's relatives said after the execution that opponents of the death penalty might feel differently if faced with the murder of a loved one. "We lost Mark, not by chance, but by two ungodly men," the family said in a prepared statement. "Whether or not people believe in the death penalty, until you stand in our shoes and feel our pain ... do not judge. A small piece of justice has been served here today."

Bishop had acknowledged participating in the attack, but another man, Jessie Johnson, admitted striking the lethal blows. Johnson was tried separately and sentenced to life without parole. The attack began in Gentry's car after a night of drinking and drug use and continued on an isolated dirt road near Saltillo in north Mississippi, court records show. When Gentry tried to run, Bishop chased him down, holding Gentry while Johnson bludgeoned the 22-year-old victim, prosecutors had said. They said Gentry was hit 23 times before the hammer lodged in his throat. The man was left for dead in bushes along the road.

Bishop had hoped the U.S. Supreme Court or Mississippi's governor might spare him, but both denied his requests in the hours before his execution. Corrections Commissioner Chris Epps said he discussed Johnson's role in the crime with Bishop before the execution. "He indicated to us he thinks Johnson should be where he is on death row," Epps said.

At the end of his 2000 trial, Bishop waived his right to a jury sentencing and asked the presiding judge to give him the death penalty. Bishop said he later changed his mind about wanting to die after being prescribed medication for a bipolar disorder diagnosed in prison.

Bishop was the youngest person executed in the state since 27-year-old Connie Ray Evans was put to death in 1987. Bishop is the second man executed in Mississippi this year. Last-minute efforts to keep him alive failed. Gov. Haley Barbour denied a clemency request Wednesday afternoon. Then the U.S. Supreme Court denied three pending appeals by Bishop's attorneys.

Barbour's policy adviser Daryl Neely said Bishop expressed regret about the crime, saying "it was supposed to be a fight that went too far." Epps said Bishop spent his last hours "doing a lot of political talk" and discussing other death row inmates. Bishop's parents, ex-wife, oldest brother and nephew visited him. A younger brother is incarcerated in Mississippi on a manslaughter conviction.

Bishop ate a last meal of pineapple supreme pizza, cherries and cream ice cream and root beer.

Sixteen protesters rallied outside the Mississippi Delta prison, calling for the execution to be halted. The Rev. Greg Plata, of Greenwood, said it's unfair that Bishop is being put to death when Johnson is not. "They both should be given a life sentence," Plata said.

Bishop v. State, 812 So.2d 934 (Miss. 2002) (Direct Appeal)

Defendant was convicted following a jury trial in the Circuit Court, Lee County, Frank A. Russell, J., of capital murder, with kidnapping as the underlying felony. Following waiver by defendant and state of jury trial as to sentencing, the Circuit Court sentenced defendant to death. Defendant appealed. The Supreme Court, Waller, J., held that: (1) failure of trial court to hold omnibus hearing three days prior to trial as required by rule was not reversible error; (2) defendant was not entitled to funds to hire a psychological expert; (3) circuit court judge did not abuse his discretion in denying defendant's motion for recusal; (4) defendant was not convicted upon a factual basis which modified an essential element of offense; (5) erroneous aiding and abetting instruction was harmless; (6) defendant waived his right to a jury during sentencing phase; (7) evidence was sufficient to support finding that defendant contemplated lethal force would be used; and (8) death sentence was not disproportionate penalty. Affirmed. Graves, J., dissented.

WALLER, J., For The Court.

¶ 1. Marcus James Gentry was brutally murdered on a dirt road in Lee County, Mississippi, not far from the town of Saltillo on the night of December 10, 1998. Dale Leo Bishop and Jessie Dewayne Johnson were indicted by a Lee County Grand Jury for capital murder. The two defendants were tried separately. A jury found Bishop guilty of capital murder, with the underlying felony being kidnaping. Bishop and the State waived a jury trial as to sentencing. At sentencing, the circuit judge, finding beyond a reasonable doubt that Bishop contemplated that lethal force would be used and that the especially heinous, atrocious or cruel aggravating circumstance was proven, sentenced Bishop to death. We affirm the judgment of the Lee County Circuit Court.

FACTS

FN1. Bishop did not testify at trial. He did give a detailed statement to the police on December 13, 1998, which statement was admitted into evidence.

¶ 2. About 10:30 p.m. on the evening of December 10, 1998, Gentry, Bishop, Jessie Johnson, Cory Johnson, and Charlie Rakestraw went to Ricky Myhand and Rachel Dobbs's apartment in Saltillo. Jessie, Bishop's co-defendant, and Cory were brothers. After drinking a couple of beers, Jessie decided to go to a store for more beer and asked Myhand to go along. Gentry, who had driven his vehicle to Myhand's apartment, drove Jessie, Bishop and Myhand to the store. Upon reaching their destination, they discovered that the store was closed, so Gentry turned around and headed back toward Myhand's apartment.

¶ 3. On the way back, Jessie, who was seated in the front passenger seat, asked Gentry why he “narced” or “ratted on” his little brother.FN2 Gentry denied doing so. Jessie said, “Yeah, you did,” then reached down to the floorboard, grabbed a hammer and hit Gentry between the eyes.FN3 The car coasted to a stop and Gentry begged Jessie not to hit him again. Bishop, who was seated behind Gentry, grabbed Gentry in a headlock and hit him. While he was being held, Jessie struck Gentry in the head again with the hammer. FN4 Bishop and Jessie next made Gentry move over into the front passenger's seat, and Jessie began driving. He turned off the road and went down a little field road. When Jessie stopped the vehicle, Gentry jumped out of the car and ran. Jessie told Bishop to catch him.

FN2. In his statement given to the police, Bishop said Jessie was upset at Gentry for ratting on his brothers. As a result of the “ratting,” Bishop believed that Jessie's little brothers were charged with some serious crimes. “Mark [Gentry] had instigated his brothers' getting about 9 or 10 counts of grand larceny and burglary.”

FN3. In his statement given to the police, Bishop, whose life-long vocation was being a carpenter, admitted the hammer belonged to him and went into some detail describing its characteristics. He stated that carpenter's hammers normally used in Mississippi weighed 20 to 22 ounces. He stated, “[The hammer owned by Bishop and used to hit Gentry] is a 28 ounce Vaughn [? ? ? not sure if Vaughn is correct] [sic] California framing straight claw.” He indicated that his hammer was not available for purchase in Mississippi. When asked by the police about how he came about bringing a hammer with him when he went riding with Gentry, he admitted using a false pretense:BY BISHOP: Well, when the trip originally began, the excuse was that I was going to go work on my truck and I use the hammer to work on my truck.BY THE POLICE: Is that true?BY BISHOP: That's just how we got the usage of the car to begin with.

FN4. There is some discrepancy in the chain of events. In his statement, Bishop indicated that Jessie initially “decked Gentry with his hands.” Then Bishop grabbed Gentry and Jessie hit him “probably just twice” with the hammer.

¶ 4. After about five minutes Bishop came back with Gentry and forced him to get on his knees in front of the car. Bishop and Jessie began kicking Gentry. Jessie struck Gentry numerous times with the hammer. At one point Myhand was asked to hold Gentry while Bishop retrieved beers for himself and Jessie. In response, Myhand begged Jessie to stop. When they finished, Bishop had to dislodge the hammer from Gentry's throat, and then he and Jessie drug Gentry into the bushes. While returning to Myhand's apartment, Jessie and Bishop discussed finding a shovel with which to bury Gentry. At Myhand's apartment, Jessie and Bishop washed off and changed into some clean clothes given to them by Myhand.

¶ 5. When Bishop, Jessie, Cory and Rakestraw finally left the apartment, Myhand and Dobbs called the police. Myhand took the officers to the site of the murder, and Gentry's body was recovered. Gentry's car was there, and a shovel was found nearby. Bishop and Jessie apparently fled the scene when the police car pulled up. They hid out in the woods until they were apprehended on December 13, 1998.

¶ 6. Steven Hayne, M.D., a forensic pathologist who conducted the autopsy on Gentry's body, testified that there were 23 injuries to the head, neck and hand which were produced either by a blunt object with enough force to break or tear the skin, or with a sharp object such as the edge of a claw hammer. These injuries did not include bruises or scrapes which could have been produced from being kicked. Injuries to the hands, forearms and fingers were consistent with defensive posturing by Gentry. According to Dr. Hayne, “Mr. Gentry died from cranial cerebral trauma, secondary to blunt force trauma to the head, and he also died from lacerations, tears of the voice box, with aspiration of blood.”

DISCUSSION

Standard of Review

¶ 7. We review capital murder convictions where a sentence of death has been imposed with heightened scrutiny “under which all bona fide doubts are resolved in favor of the accused.” Flowers v. State, 773 So.2d 309, 317 (Miss.2000) citing Porter v. State, 732 So.2d 899, 902 (Miss.1999) (quoting Williamson v. State, 512 So.2d 868, 872 (Miss.1987)). “What may be harmless error in a case with less at stake [may become] reversible error when the penalty is death.” Id.

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III. WHETHER THE CIRCUIT JUDGE ERRED IN FAILING TO RECUSE HIMSELF.

¶ 17. Bishop argues that Circuit Judge Barry Ford, who merely ruled on pre-trial motions and did not preside over the trial, should have recused himself because he represented Bishop on unrelated charges while serving as a public defender. Bishop alleges that during that representation, he and Judge Ford got into an altercation and that this prior relationship caused Judge Ford to be biased against Bishop.

¶ 18. Bishop has presented no evidence that Judge Ford was connected to any of the parties by affinity or consanguinity. See Green v. State, 631 So.2d 167, 177 (Miss.1994) (citing Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991)). Canon 3(C)(1) of the Code of Judicial Conduct requires disqualification of a judge when “his impartiality might reasonably be questioned, including but not limited to instances where ... ‘he has a personal bias or prejudice concerning a party....’ ” A judge should recuse himself “if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Green, 631 So.2d at 177 (quoting Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990)). See also Dowbak v. State, 666 So.2d 1377, 1389 (Miss.1996). “Primarily, [a judge] is to judge his own qualifications and fairness, and unless a record reflects an abuse of his powers to the extent of showing probable injustice, the Court here will not reverse a case upon such grounds.” Garrett v. State, 187 Miss. 441, 193 So. 452, 455 (1940) (cited with approval in Coleman v. State, 378 So.2d 640, 644 (Miss.1979)).

¶ 19. At the hearing on the motion to recuse, Bishop testified that the prior representation was in 1989 when he was charged with kidnaping, aggravated assault and grand larceny. The charges were ultimately referred to the youth court, and Bishop was sentenced to training school. Judge Ford stipulated to these facts. He then denied the motion for recusal on the basis that he had no recollection of representing Bishop, that the prior representation was remote in time, and that the motion for recusal was made the day before trial. A hearing on pretrial motions was then conducted by Judge Ford.

¶ 20. The next day, Circuit Judge Frank Russell opened court and proceeded with the trial to completion. Though absent from the record, it appears that Judge Ford, after hearing pre-trial motions, decided to request another judge to conduct the trial.

¶ 21. We find no abuse of discretion in Judge Ford's denial of the motion for recusal, particularly under the limited circumstances of his involvement.

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VII. WHETHER THE IMPOSITION OF THE DEATH PENALTY WAS DISPROPORTIONATE.

¶ 43. Bishop argues that the death penalty was disproportionately imposed upon him and that the State failed to prove the required factors for the imposition of the death penalty beyond a reasonable doubt.

A. Whether the evidence was insufficient to support a finding that Bishop contemplated lethal force would be employed.

¶ 44. Bishop argues that the evidence was insufficient to show that he contemplated lethal force, and that the evidence showed that he intended only to give Gentry “a good whooping.”

¶ 45. When the sufficiency of the evidence is challenged, we must view the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict. We have no authority to disturb the verdict short of a conclusion that no rational trier of fact could have found the fact at issue beyond a reasonable doubt. White v. State, 532 So.2d 1207, 1220 (Miss.1988).

¶ 46. Bishop points to the cases of Reddix v. State, 547 So.2d 792 (Miss.1989), and Bullock v. State, 525 So.2d 764 (Miss.1987), in which the imposition of the death penalty was reversed where the defendants did not actually kill the victim, but either watched the murder or committed part of the underlying felony. Bishop, on the other hand, took an active part in Gentry's murder: he provided the weapon used on the victim, kicked the victim, chased the victim down and held him while the lethal blows were being inflicted. It is reasonable to conclude that if one intends to beat someone in the head with an unusually large hammer, that person intends to use lethal force. Furthermore, the length of time between the first blow and the fatal blow indicates that Bishop not only knew that lethal force would be used, but also encouraged the use of lethal force. He also discussed burying the victim after the crime was completed.

¶ 47. This issue is without merit.

B. Whether Death is a Disproportionate Penalty in This Case.

¶ 48. Under Miss.Code Ann. § 99-19-105(3)(c), we must consider “whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Under Miss.Code Ann. § 99-19-101(7) (Supp.2001), for a defendant to be given the death penalty, certain factors must be met:

(7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following: (a) The defendant actually killed; (b) The defendant attempted to kill; (c) The defendant intended that a killing take place; (d) The defendant contemplated that lethal force would be employed.

¶ 49. The United States Supreme Court, in Enmund v. Florida, 458 U.S. 782, 788-801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), required that the imposition of the death penalty be consistent with the Eighth and Fourteenth Amendments to the United States Constitution. The death penalty cannot be given to an aider and abettor who has not killed, attempted to kill, or contemplated that life would be taken.

¶ 50. The record shows that, after Gentry had been hit in the head with the hammer for the first time, Bishop chased after him and brought him back. When Bishop saw Gentry hit with the hammer he knew deadly force was being used. When he ran Gentry down and held Gentry as he was being struck by Jessie, he became more of a principal in the crime. A jury could have easily found that Bishop killed, intended to kill, or at least contemplated that deadly force would be used. This case is not like a robbery where someone is killed on impulse. Bishop took an active role in the killing.

¶ 51. All of these facts show that Bishop's involvement was sufficient to justify the death sentence, even, assuming arguendo, that the actual killer did not receive the death sentence.FN10 See Smith v. State, 724 So.2d 280, 304 (Miss.1998) (citing Ballenger v. State, 667 So.2d 1242, 1268 (Miss.1995); Stringer v. State, 454 So.2d 468, 479 (Miss.1984); Leatherwood v. State, 435 So.2d 645, 656 (Miss.1983)).

FN10. On September 22, 2000, after a jury trial, Jessie Wayne Johnson, Bishop's co-indictee, was sentenced to life imprisonment without parole. An appeal from this verdict and sentence is now pending before the Court of Appeals. See Jessie Dewayne Johnson v. State, No.2000-KA-01954-COA.

¶ 52. We affirmatively find that Bishop contemplated that lethal force would be used and that the sentence of death is neither excessive nor disproportionate to the sentences imposed in similar cases. See attached appendix of death penalty cases decided by this Court.

POSTSCRIPT

¶ 53. Bishop did not offer any mitigating evidence prior to being sentenced by the circuit judge. Following the announcement of the imposition of the death sentence, and upon being given permission by the circuit court to say anything further, Bishop made a statement to Gentry's family, a portion of which is as follows: “For what I did, I deserve to die. I ain't gonna ask this court to spare my life and let me grow old. I ain't gonna do it.”

CONCLUSION

¶ 54. For the foregoing reasons, we affirm the jury verdict and the imposition of the death penalty by the Circuit Court of Lee County, Mississippi.

¶ 55. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION, AFFIRMED.

Bishop v. State, 882 So.2d 135 (Miss. 2004) (PCR).

Background: Defendant was convicted in the Circuit Court, Lee County, Frank A. Russell, J., of capital murder, and the Supreme Court, 812 So.2d 934, affirmed. Defendant filed motion for leave to proceed in trial court with petition for post-conviction relief.

Holdings: The Supreme Court, Waller, P.J., for en banc court, held that:
(1) defendant did not receive ineffective assistance of counsel;
(2) death sentence for murder committed in course of kidnapping was not unconstitutionally excessive;
(3) doctrine of res judicata barred consideration of defendant's post-conviction claims that were raised and addressed on direct appeal;
(4) defendant's waiver of right to have jury determine sentence for capital murder was knowing, voluntary, and intelligent;
(5) defendant failed to make prima facie showing that he was mentally retarded, for purposes of capital sentencing;
(6) defendant was not entitled to relief on claims challenging admission of 911 tape;
(7) defendant was not entitled to consideration of post-conviction claims of ineffective assistance of counsel that were raised for first time in reply brief; and
(8) exhibits and appendices attached to defendant's reply brief could not be used to support claims raised in original petition. Motion denied.

Bishop v. Epps, 265 Fed.Appx. 285 (5th Cir. 2008) (Habeas).

Background: Death-sentenced petitioned sought habeas corpus relief. The United States District Court for the Northern District of Mississippi, 2007 WL 2363465, denied petition and then denied certificate of appealability (COA).