In 1997, Bobby Wayne Swisher was convicted of the capital murder of Dawn McNees Snyder in the commission of an abduction or in the commission of or subsequent to rape or forcible sodomy and sentenced to death on the basis of both future dangerousness and vileness.  The crime occurred in Stuarts Draft and the trial occurred in neighboring Staunton.

The Supreme Court of Virginia summarily rejected the majority of Swisher’s claims and affirmed his conviction and sentence of death.  At the state habeas stage, Swisher claimed that his trial counsel were ineffective under the Sixth Amendment, but he was denied discovery and an evidentiary hearing by the state’s highest court.  At his federal habeas stage, Swisher raised many of the same claims and again was denied an evidentiary hearing.  Swisher recently lost in the Fourth Circuit Court of Appeals and the US Supreme Court.

Of particular note are several issues.  Four months prior to trial Swisher was prescribed medication by the jail doctor for his depression, but the medication was not started until two days before his trial began. Swisher’s lawyers asked the jail if their client was on medication because of his mental condition and were told that he was not.  Swisher was so sedated that his lawyers chose not to put him on the witness stand at his sentencing hearing.  Two jurors later said in affidavits that Swisher looked like a “zombie” and that “he showed no remorse.”  Swisher’s lawyers did not ask for a continuance or competentcy to stand trial evaluation. 

His same trial lawyers were ill-prepared for trial.  They failed to keep out inaccurate and inadmissable evidence and when it came time for closing argument at the sentencing phase, the lawyers had not decided who would give the closing argument.  The lawyer who was a few years out of law school and handling his first jury trial gave a 7 minute closing argument almost half of which was reciting the court’s jury instructions.

The key witness against Swisher and the one most relied on by the prosecutor in his closing argument at sentencing gave contrary evidence from what he had told the police and testified under oath that he had no interest in the reward money offered in the case fully knowing that he would be receiving reward money.  This information was not disclosed by the prosecutor to defense counsel as was required by law.

In April, 2003, in another death case, the Virginia Supreme Court ruled that the same statutory verdict form as was used in Swisher’s trial was defective, confusing to the jury and prejudicial, and that the death row prisoner was awarded a new sentencing hearing.  Swisher has made the same arguments, but because trial lawyers did not raise the issue at trial, Swisher cannot obtain a new sentencing hearing from a court.

Swisher was scheduled to be executed July 1, 2003. However, "in light of the recent apparent ambiguity of the law [arising from the Lenz decision]" Governor Warner granted a 21 day stay of execution to allow Swisher's lawyers time to appeal the case to the Virginia Supreme Court. On July 17, 2003 that appeal was turned down on procedural grounds. Although the legality of Swisher's death sentence remained in question, Governor Warner did not intervene again. 

Swisher entered Virginia’s death row on February 20, 1998.  He was executed on July 22, 2003.