Tennessee Plans Second Execution in a Month

Edward Jerome Harbison is scheduled to be executed on September 26, 2007 in Tennessee. He was sentenced to death in 1985 for the murder of Edith Russell in 1983, yet Harbison has never received adequate counsel or a fair trial. Harbison’s defense and first appeal lawyers both failed to disclose such mitigating factors as severe deprivation and abuse during his childhood.

In addition, significant evidence leading to another suspect in the murder was never revealed and the appeal lawyer failed to disclose a substantial conflict of interest in his handling of the case. Finally, the jury was given the instruction that premeditation can "be formed in an instant," instructions which have since been prohibited by the Tennessee Supreme Court because they removed the distinction between first and second-degree murder. Due to the apparent absence of premeditation in this case, it is unlikely that E.J. Harbison would be convicted of first-degree murder, let alone sentenced to death, if he were tried today.

On January 15, 1983, Edith Russell returned home to discover burglars in her apartment and was bludgeoned to death with a heavy object. After police located some of her stolen items, David Schreane was arrested and led police to a marble vase that had been taken in the burglary. Later, E.J. Harbison was arrested and confessed to killing Edith Russell, stating that he had hit her with the vase. However, Harbison stated that his confession had been coerced by the police.

Harbison's defense and first appeal lawyers both failed to disclose such mitigating evidence as deprivation and abuse during his childhood to the jury at trial, or as grounds for appeal. Both of Harbison's parents were alcoholics and there is evidence that E.J. suffered from Fetal Alcohol Syndrome. Moreover, E. J. Harbison was regularly beaten as a child, and he was witness to violence between his parents, including once when his father fired a gun at his mother, missed, and hit E.J. instead.

A psychologist has testified on appeal that E.J. Harbison "suffers from a number of interrelated cognitive, emotional and psychological impairments. Children like him who experience abuse and witness interfamilial violence have substantial problems in all areas of life... It is my opinion within a reasonable degree of psychological certainty that Harbison suffered from psychological deficits reflected in extreme mental or emotional disturbance at the time of the offense, as he has throughout most of his life. In addition, the trauma he experienced as a child and other mental health and life history-related mitigating circumstances were available and could have been presented to the jury."

Further concerns remain regarding the instruction given to the jury.The jury was told that it could convict Harbison of first-degree murder if it found that he had premeditated the killing. Such premeditation would be difficult to prove, given that the burglars had entered the home when it was empty, and there was no evidence that Harbison had taken a weapon to the crime. However, the jury was instructed that such premeditation could be "formed in an instant." The Tennessee Supreme Court later prohibited this instruction because it removed the distinction between first and second-degree murder, but its ruling came seven years after Harbison's trial.

Harbison's appeal lawyer also failed to inform either Harbison or the courts that he had a conflict of interest, namely that he had previously represented another man, Ray Harrison, when he was one of the suspects in the burglary and murder of Edith Russell.

Though his appeals were denied, Judge Clay, one of the US Court of Appeals for the Sixth Circuit dissented, holding that the failure of the prosecution to hand over police files favorable to the defense had violated Harbison's right to a fair trial. Judge Clay pointed out that the police files provided evidence that Ray Harrison had a motive to rob and/or murder Edith Russell, that he and David Schreane were together on the day of the crime and "in close proximity to the Russell residence," that Ray Harrison's wife "placed Harrison at the scene of the crime," and that "Schreane falsely implicated Harbison in Russell’s murder." The non-disclosure of this information, argued Judge Cole, "undermines confidence in Harbison's guilty verdict."