URGENT ACTION APPEAL
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22 October 2004
UA 294/04 Death penalty/Legal concern
USA (Kentucky) Thomas Clyde Bowling
Kentucky's Attorney General, Greg Stumbo, has asked
Governor Ernie Fletcher to set an execution date of 16
November 2004 for Thomas Bowling (m), white, aged 51,
who was sentenced to death for a double murder committed
in 1990. Governor Fletcher has this week been presented
with a clemency petition.
On the morning of 9 April 1990, Tina and Eddie Earley
were shot dead outside their small dry-cleaning business in
the city of Lexington, Kentucky. Thomas Bowling was
arrested on 11 April in neighboring Tennessee. His car and
a .357 calibre handgun were found hidden at his family's
home in rural Kentucky.
Thomas Bowling's murder trial was held in December
1990. Among the state's witnesses were two eyewitnesses,
the first of whom described the gunman as six feet tall
(Bowling's approximate height) and wearing a black jacket
and hat (Bowling owned such items). He had not been able
to pick Bowling out at a police line-up, however, and also
admitted that he may have told police that the gunman had
long brown hair, a dark complexion and possibly a
moustache - none of which described Bowling. The second
eyewitness could not be located at the time of the trial, and
instead the jury was played an audiotape of a police
interview with him on the day of the shootings. His
description did not identify Bowling. The state also
presented a witness who said that he had sold a .357 gun to
Bowling a few days before the shootings. Expert testimony
identified Thomas Bowling's car as the vehicle used in the
crime and suggested that the bullets fired at the scene could
have come from the retrieved gun. However, the ballistics
expert admitted that there could be millions of guns that
could have fired the bullets. The defense lawyers presented
no witnesses at the guilt/innocence stage of the trial.
At the sentencing, the defense presented six witnesses. A
former work colleague and two jail employees testified to
Thomas Bowling's good character, and his mother, sister
and son testified about their love for him, his marriage
break-up, his dependence on alcohol, his recent depressed
mental and emotional state, and his limited mental ability.
The jury voted for a death sentence.
Thomas Bowling's appeal lawyers are seeking clemency on
the grounds that he has mental retardation. In 1990, shortly
before Bowling's trial, Kentucky legislated to prohibit the
execution of people with mental retardation. His trial
lawyers did not raise the issue. In 2002, in Atkins v.
Virginia, the US Supreme Court outlawed the use of the
death penalty against such offenders. It left it up to each
individual state how to comply with the ruling. The Court
noted that ''clinical definitions of mental retardation require
not only sub-average intellectual functioning, but also
significant limitations in adaptive skills such as
communication, self-care, and self-direction that became
manifest before age 18... Because of their impairments...
by definition they have diminished capacities to understand
and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand the
reactions of others. There is no evidence that they are more
likely to engage in criminal conduct than others, but there
is abundant evidence that they often act on impulse rather than
pursuant to a premeditated plan, and that in group settings they
are followers rather than leaders. Their deficiencies do not
warrant an exemption from criminal sanctions, but they do
diminish their personal culpability.'' Thomas Bowling's
clemency petition argues that he falls within this category. At the
age of 12 or 13, Thomas Bowling's IQ was assessed at 74, which
with the margin of error in such assessments places him within
the range for possible mental retardation if coupled with adaptive
deficits which Bowling is said to have. He was described as a
''follower'' and easily manipulated.
Thomas Bowling's clemency lawyers have also raised evidence
that he is innocent. The evidence against him is circumstantial -
there is no physical evidence placing him at the scene of the
crime, no confession, no identification of him as the gunman, the
weapon linked to him was one of millions that could have been
used in the crime, and while the car used in the crime was his,
there is no proof that he was driving it at the time. The state did
not establish a motive for Thomas Bowling to kill the Earley
couple, whom he did not know and had never met.
The clemency petition suggests that Eddie and Tina Earley may
have been shot because of their involvement with a local family
(the Adams family) - members of which had allegedly run a
drug dealing business from a store situated behind the Earleys'
dry-cleaning business. The petition raises the possibility that one
of the Adams family had shot the Earley couple. The clemency
petition also argues that the Lexington Police Department may
have focused on Thomas Bowling rather than pursuing suspects
from the Adams family because it feared further unfavorable
exposure following a recent corruption scandal involving the
department. The so-called ''Bluegrass Conspiracy'' involved a
cover-up of the murder of a young woman in the 1970s to
prevent exposure of the involvement of police in criminal drugs
activity.
In addition to seeking clemency from the governor, Thomas
Bowling's lawyers are seeking relief in the appeal courts. They
are pursuing the mental retardation issue, which has already been
summarily dismissed at the trial court level. They are seeking
police records from the case, including 10 video tapes of witness
interviews conducted early in the case which may help to show
whether the police wrongly turned away from investigating other
suspects after Thomas Bowling's arrest. The lawyers are also
challenging Kentucky's lethal injection procedures.
The United Nations Safeguards Guaranteeing the Protection of
the Rights of Those Facing the Death Penalty prohibit the
execution of people whose guilt is not based on ''clear and
convincing evidence leaving no room for an alternative
explanation of the facts''. Amnesty International opposes the
death penalty in all cases, regardless of issues of guilt or
innocence, or the method used to kill the prisoner. Today 118
countries are abolitionist in law or practice. Since the USA
resumed executions in 1977, it has executed 937 people,
including 52 this year. During this time more than 100 people
have been released from US death rows on grounds of
innocence. Kentucky has carried out two executions since 1977,
the most recent of which was in May 1999.
RECOMMENDED ACTION: Please send appeals to arrive
as quickly as possible, in your own words:
- expressing sympathy for the family and friends of Tina and
Eddie Earley, and explaining that you are not seeking to condone
the manner or their deaths, or to in any way minimize the
suffering caused;
- noting evidence that Thomas Bowling has mental retardation,
and that if this is the case his execution would violate state and
federal law;
- expressing concern at the doubts surrounding his conviction,
and reminding the governor of the many wrongful convictions
and other errors that have been revealed in capital cases in the
USA;
- calling on the governor to grant clemency.
APPEALS TO:
Ernie Fletcher
Governor of Kentucky
700 Capital Avenue, Suite 100
Frankfort, KY 40601
Fax: 1 502 564-2517
Email, via website: http://governor.ky.gov/contact.htm
Salutation: Dear Governor
PLEASE SEND APPEALS IMMEDIATELY.
Urgent Action Network
Amnesty International USA
PO Box 1270
Nederland CO 80466-1270
Email: [email protected]
http://www.amnestyusa.org/urgent/
Phone: 303 258 1170
Fax: 303 258 7881
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END OF URGENT ACTION APPEAL
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