Monday, June 01, 2009


E.J. Harbison: A Case of Ineffective Counsel and Arbitrary Sentencing

E.J. Harbison, a poor, borderline mentally retarded, African-American man, with no prior criminal record, is currently scheduled to be executed in Tennessee pending the outcome of litigation concerning Tennessee's lethal injection protocols. Proponents tout the death penalty as being reserved for the worst of the worst, but Harbison's case demonstrates the emptiness of this claim.

In 1983, Harbison was convicted in Chattanooga of the murder of Edith Russell - an elderly, white woman - during a botched burglary. Although the state claimed the murder was premeditated, Harbison did not carry a weapon. Russell was killed with a vase from her house. While Harbison was sentenced to death, co-defendant David Schreane, whose criminal history included armed robbery and multiple burglaries, accepted a plea and served only six years. Worse still, Harbison's lawyer never told the jury about Harbison's background of horrific child abuse nor was the jury told that in adulthood, he assisted his father on handy-man jobs and was caretaker to his mentally disabled sister and girlfriend's children. Until recently, no one was aware that Harbison's attorney also represented another man who admitted involvement in the same crime but was never charged.

As a child, E.J. Harbison suffered emotional and physical abuse by his alcoholic parents. He and his siblings lived in poverty and often went without food. Juvenile Court records describe the Harbisons' home life as "horrible in all areas imaginable." Harbison was forced to become a defender and intervene in fights between his parents. He often sustained the brunt of those fights and was injured by a a power drill, among other means of attack, used by his father against his mother. He was shot by his father, set on fire by his brother, and beaten regularly. His 14 year old sister, who was terrified of her father, murdered her toddler and newborn in the room next to E.J. She later hung herself in a mental institution. Because of attorney error, neither the jury nor the courts have ever considered these facts, which legally support a sentence of less than death.

Even without such clear mitigating evidence, the sentencing disparity in the case is disturbing. The vehicle observed near the victim's home at the time of the crime was a car Schreane had borrowed. The police ultimately arrested Schreane and searched his sister, Janice Duckett's home. Duckett was also Harbison's girlfriend. Schreane then led the officers to the location of the murder weapon - the vase — and fingered Harbison for the murder. Harbison later confessed after police threatened to have Duckett's children taken from her and placed in foster care.

To complicate matters, police records, first requested before trial, were not turned over to Harbison until 1997, 14 years after they were requested. In the police file, counsel discovered than an eyewitness placed Schreane across the street from the victim's house near the time of the crime and did not identify Haribson as the man with him. Schreane, himself, first told police a different person was with him. Yet, Schreane served only six years, while Harbison faces death. The police file showed substantial involvement by another man, Ray Harrison, who was seen near the victim's house around the time the crime was committed. Harbison's direct appeal attorney also represented Ray Harrison concerning this crime, presenting an obvious conflict of interest. The police extradited Harrison to Florida when Schreane implicated Haribson.

Harbison's death sentence is inequitable. Instead of imposing death upon those who commit the worst crimes or present the greatest danger to society, Haribson, a poor African-American man with a history of abuse, made an easy target for prosecution in this murder.