Va. inmate's lawyers argue double jeopardy

By Dena Potter 

RICHMOND

Lawyers for a Virginia inmate scheduled to die next week for killing a 16-year-old — then bragging about it to prosecutors when he thought he couldn't face the death penalty — are asking the U.S. Supreme Court to stop the execution.

Paul Warner Powell's lawyers argue that he was unconstitutionally convicted twice for the 1999 murder and attempted rape of Stacie Reed.

Powell, 31, was convicted in 2000 of killing Reed and raping and trying to kill her 14-year-old relative. He was sentenced to die for Reed's murder.

The Virginia Supreme Court overturned Powell's capital conviction, saying that Prince William County prosecutors failed to prove Powell tried to rob or rape Reed. In order to face capital punishment, defendants must commit other crimes against the victim or meet other aggravating circumstances.

Thinking he could no longer face the death penalty, Powell wrote a profanity-laced, taunting letter to prosecutors offering graphic detail of how he tried to rape Reed before he stabbed her three times and stomped on her throat until she quit breathing.

"Do you just hate yourself for being so stupid and for (messing) up and saving me?" he wrote to Commonwealth's Attorney Paul Ebert in 2001.

Ebert threw out Powell's earlier indictment and charged him with killing and attempting to rape Reed. Powell was convicted again in 2003 and given the death penalty.

Powell's lawyers asked the U.S. Supreme Court to block the execution until it can decide whether his second capital murder charge violated the Fifth Amendment's protection against being tried twice for the same offense.

They argue that convicting Powell the second time "sets a dangerous precedent in which prosecutors now may pursue multiple attempts to secure a sentence of death."

State and federal courts have repeatedly rejected Powell's double jeopardy argument, saying that the original charge was different because he was not accused of attempting to rape Reed.

A divided federal appeals court panel once again denied Powell's claim in April, with Justice Roger L. Gregory dissenting. Gregory called Powell's crime "atrocious" but said his second conviction amounted to double jeopardy.

"Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts," he wrote. "Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees."

Ebert said he didn't think the court would stop the execution because Powell was tried for two separate crimes.

"The two things have entirely different elements, entirely different facts, entirely different victims," he said. "It's not double jeopardy."

Ebert said he plans to witness the execution with Reed's family.

If the Supreme Court rejects Powell's request for a stay, his last hope would be Gov. Timothy M. Kaine.

Powell's lawyers sent a letter to Kaine last month asking for clemency. They argue that jurors were given evidence that Powell had been convicted of at least one additional murder, which he had not. Courts have acknowledged the mistake, but said it was not enough to overturn the conviction.

"The case of Paul Powell involves an individual who clearly evokes no one's sympathy," Powell's lawyers wrote. "Still, confidence in the justice system requires that jurors be given accurate information prior to being asked to choose between life without parole and a death sentence."

If Powell is executed, he will be the 104th inmate put to death in Virginia since the U.S. Supreme Court reinstated capital punishment in 1976. Virginia ranks second only to Texas — with 439 — in the number of executions carried out over that period.

Powell has chosen to die by electrocution instead of lethal injection.