Va. Governor Commutes First Death Sentence
Washington Post Staff Writer
Thursday, May 13, 1999; Page A1
RICHMOND, May 12Gov. James S. Gilmore III today halted an execution for the first time and granted clemency to convicted killer Calvin E. Swann, whose attorneys contended he was too mentally ill to understand either his crime or the impending punishment.
Swann was given the news about 4 1/2 hours before he had been scheduled to die by injection for the 1993 robbery and murder of a Danville man, whose house he invaded, wielding a shotgun, as he sought money to buy drugs. Swann's sentence was commuted to life without parole.
The 44-year-old Swann, who has suffered from schizophrenia for 25 years, was informed of the commutation by three lawyers, who were sitting outside his cell at the death house.
"We couldn't tell" if Swann comprehended, said Rob Lee, director of the Virginia Capital Representation Resource Center.
Lee said he and the other lawyers, Marta Kahn and Mark Olive, reached through the bars, shook Swann's hand and patted him on the shoulder, "but he didn't react. He was pacing around the cell, and his only reaction was to ask for a cigarette," which a guard gave him.
Swann already had ordered a last meal, consisting of a cheeseburger, fries, cake and tea, according to Corrections Department spokesman Larry Traylor.
Gilmore said in a statement that Swann's case "presents unique and extraordinary circumstances justifying my intervention," adding that prison officials said Swann's behavior on death row had been "nothing short of bizarre and totally devoid of rationality."
Gilmore, who had failed to intervene in 21 previous state-conducted executions in his 16 months as governor, said the state's constitution accords him "the solemn responsibility to intervene in the judicial process to commute a prisoner's death penalty where I believe justice and mercy compel such action.
"I believe that the power of clemency in a matter involving the premeditated murder of another individual should be invoked only in the most compelling and extraordinary of circumstances. In my opinion, the case of Calvin Swann presents such . . . circumstances."
Gilmore, in Lynchburg, Va., for a political event, noted that Swann, who had been incarcerated for most of the last 25 years for several other crimes, including armed robbery, purse snatching and burglary, had committed those crimes when he was not taking medication for his mental condition.
Swann's mental illness was so obvious that even the hard-boiled Danville commonwealth's attorney who prosecuted him, William H. Fuller III, said recently that he would not have sought the death penalty if life without parole had been available at the time of the trial.
Upon learning of Gilmore's action today, Fuller said he "respects the governor's decision." Gilmore said Fuller's second thoughts were "important to my consideration" of clemency.
It was only the sixth time a death sentence has been commuted in Virginia since capital punishment was reinstated in 1976. The state has executed 68 people since then. The clemency power was exercised three times by then-Gov. L. Douglas Wilder (D) and twice by Gilmore's predecessor, George Allen (R).
Nationally, death sentence commutations are rare. In some states, such as Texas, the means for securing them is so convoluted that some capital punishment opponents have scoffed at the commutation process, calling it one more failed element of an unworkable death penalty system.
There was no immediate reaction to the commutation from relatives or friends of the victim of Swann's crime, Conrad Richter, a 62-year-old widower.
Swann said in a recent interview with The Washington Post that he walked into Richter's house in Danville with a shotgun and announced, "This is a stickup." When Richter -- who at 6 feet 3 inches tall and 300 pounds towered over the 5-foot-7, 130-pound Swann -- rose from his dinner table and tried to defend himself, Swann said, "I had to shoot . . . the big white dude . . . [because] I'm little."
The all-white jury that convicted Swann, who is black, heard little about Swann's illness.
After the judge refused a request from Swann's public defender to have a psychiatrist assist him at the trial, the defense rested without offering any testimony or evidence.
Only at the sentencing did the defense try to introduce evidence of Swann's mental condition, and part of that was contradicted by prosecution witnesses.
Gilmore noted that the jury also "was misinformed" that on two previous occasions, Swann had been found mentally incompetent to stand trial, which "should have been brought to the jury's attention at the sentencing phase of his trial."
Swann's mental illness first surfaced at age 19, when after a childhood that included graduation from high school and studying auto mechanics at a junior college, he started "talking to animals" and "speaking in numbers," according to relatives.
His parents had him committed to Central State Hospital, which was his introduction to what now will be a lifetime of shuffling between mental institutions and prisons.
Mark J. Mills, a Washington psychiatrist who examined Swann after he was given the death sentence, said he found him to be "totally crazy, words that I don't normally use," adding that he has seen only one person "exhibiting a more devastating pathology" among more than 10,000 patients he had evaluated over the years.
Earlier today, Swann was visited by three of his siblings, but they left Greensville Correctional Center in Jarratt, about 55 miles south of Richmond, when visiting hours ended at 3 p.m. without hearing the news of the clemency.
The National Alliance for the Mentally Ill hailed the commutation.
"Governor Gilmore has distinguished himself tonight as a man of honor and compassion," said Laurie Flynn, the organization's executive director. "He has chosen to protect both the public safety and the interests of fundamental moral justice. Morally, he made the right choice. We hope that the decision will become a national precedent for other death penalty cases that involve persons with severe, biologically based brain disorders."
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