E.J. Harbison

A Case of Ineffective Counsel, Racial Bias, and Arbitrary Sentencing

E.J. Harbison, a poor, borderline mentally retarded, African-American man, with no prior criminal record, is scheduled to be executed on September 26, 2007. 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 by an all white jury 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 and 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 childhood 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 his 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.” E.J., the passive child in the family, 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 power drill and an iron, among other means of attack used by his father against his mother. He was shot by his mother, 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 the mental institution to which she was committed. Neither the jury nor the courts have ever considered these facts, which legally support a sentence less than death. These facts were not presented because of attorney error. No court has reviewed whether, in light of E.J.’s background and the under whelming facts of the crime, the worst punishment should be inflicted upon E.J.

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 Schraene and searched his sister, Janice Duckett’s home. Duckett also happened to be E.J. Harbison’s girlfriend. Schreane then led the officers to the location of the murder weapon, the marble vase, and fingered E.J. 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 that an eyewitness placed David Schreane across the street from the victim’s house near the time of the crime and did not identify Harbison as the man with Schreane. Schreane, himself, first told police a different person was with him. Yet Schreane served only six years, while Harbison faces a death sentence.

The police file shows 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 Harbison.

E.J. Harbison’s death sentence is inequitable. Instead imposing death upon those who commit the worst crimes or present the greatest danger to society, Harbison, a poor African-American man with a history of abuse and borderline mental retardation, made an easy target for prosecution in the murder of an elderly, white woman.

The function of executive clemency is to allow the Governor to assess all circumstances of a case, especially those facts not considered in the course of the legal system. Call the Governor at (615) 741-2001, tell him E.J. Harbison’s lawyer failed miserably in not presenting obvious facts demonstrating this is not a case for the death penalty. Ask the Governor to grant clemency to E. J. Harbison.