Liver failure brings dilemma in possible death penalty case

By Richard A. Serrano

Monday, Sept. 21, 2009 | 2 a.m.

Federal prosecutors here and in Washington are weighing whether to seek the death penalty for the reputed leader of a violent white supremacy prison gang awaiting trial on murder and racketeering charges. If they prevail, Ronald L. (Joey) Sellers would be the first in decades in Nevada to die at the hands of the United States government.

But his death could be swifter. Indicted in federal court for allegedly helping run the vicious Aryan Warriors gang in state prisons, he is ill with liver failure and without a transplant could die within three years.

Indeed, he is so desperate for a transplant that his lawyers say they plan to make it a central part of their argument to spare his life when the Justice Department’s special Capital Case Review committee convenes to determine whether he should be tried for capital murder.

Hanging over that hearing room in Washington will be a searing dilemma.

Prosecutors do not object to a transplant, but point out that he has not yet been deemed a transplant candidate. They want his criminal case to proceed, noting in court papers that in the meantime his “medical treatment is being monitored at the highest levels.”

Defense lawyers argue that health issues should take priority over the criminal case. Why spend untold taxpayer dollars and government manpower to convict, imprison and execute a man who will die a lot faster and a lot cheaper if his liver simply shuts down? “Irony and tragedy is often lost on bureaucrats,” his lawyer, Richard Kammen, said in an interview.

It is the sort of predicament that has confronted other death row cases, and other prosecutors, defense lawyers, judges and prison wardens. Physical ailments often strain the judicial system and make what many see as an imperfect death penalty process all the more medieval.

Time was ticking down for Jerry Joe Bird when he suffered a stroke in his Texas death row cell in June 1991. The prison rushed him to a hospital, where he was treated for a week. Then he was returned to the death house and strapped into the gurney. He was put to death for killing an antique-gun collector in the Rio Grande Valley. “Go ahead,” he told his executioners. “Start things rolling.”

Two years later in Virginia, Charles Sylvester Stamper was carried to the electric chair by prison guards, his lifeless feet dragging along the floor. He was partially paralyzed five years earlier in a prison brawl, and that put him in a wheelchair. He had killed three co-workers at a Shoney’s restaurant, and in the end asked to make his last steps to the chamber with his leg braces and walker. The prison turned him down.

In December 1999, David Martin Long began hoarding prescription anti-depressants in his cell in Huntsville, Texas. Two days before his execution for killing three women in the Dallas area, he swallowed the pills, hoping to commit suicide and cheat the executioner. He was taken to a hospital and placed on life support. He soon was revived and then returned to Huntsville to be executed by lethal injection. As the needle brought him death, a dark liquid drained from his nose and mouth. Officials said it was the solution used to treat his drug overdose.

In Arizona, 94-year-old Viva Leroy Nash, the oldest man on death row in America, still awaits his trip to the chamber for shooting a young coin shop clerk in Phoenix in 1982. On death row Nash has suffered strokes, high blood pressure and heart ailments. But his fragile heart keeps beating and his legal appeals drag on. It is anyone’s guess how he will die.

Just last Tuesday the execution of Romell Broom in Ohio was called off when authorities could not find a suitable artery for injection. He was set to die for raping and killing a 14-year-old Cleveland girl. But years of heroin use had left his veins weakened and unpliable, and after two hours officials gave up. Gov. Ted Strickland issued a one-week reprieve.

Therein lies the quandary, especially for convicts like Nash and Broom, and Joey Sellers in Nevada.

“You can’t punish people twice,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. His nonprofit group monitors capital punishment and seeks to ensure that condemned men are treated fairly — both legally and humanely.

“You can’t give them the death penalty and then shortchange them on proper medical treatment. Constitutionally, you can’t do that,” Dieter said.

Traci Billingsley, a spokeswoman in Washington for the U.S. Bureau of Prisons, said that all federal inmates, including the 55 with death sentences, are given good medical care, including lifesaving operations when appropriate.

“All of our inmates are eligible to be considered for a transplant,” she said when asked about the Sellers case. She said several inmates have been given kidney and bone marrow transplants, but only one received a new liver. Nevertheless, she said, “we do whatever is medically necessary.”

In Nevada, 82 offenders sit on death row in the state prison system. The state has executed 12 people in the past 20 years. The last was Daryl Mack, put to death in April 2006 for strangling a woman in Reno.

On the federal level, sources could not name any executions in Nevada in at least the past 50 years, and could not remember any federal death penalty trials in Nevada since capital punishment was reinstated in 1976 by the U.S. Supreme Court.

That makes the Sellers case all the more significant.

His attorney, Kammen, said “there’s no question” he needs a transplant. His liver was damaged after contracting hepatitis C from alleged unsanitary conditions at the state prison in Ely, where he was incarcerated for life for a string of offenses in Reno, including first-degree murder. “To look at him and to speak to him, he’s obviously quite ill,” Kammen said.

His medical records warn that he has “end stage liver disease due to chronic hepatitis C.” Sellers has lost more than 40 pounds this year and yet is severely bloated. A hernia the size of an adult fist protrudes from his intestines and groin. Last year doctors told him he might not last another three or five years, Kammen said.

His brother and son have offered to donate half their livers to save him. But his future remains unsettled as the prosecution maintains his condition is not so critical. Sellers is now at the Federal Correctional Institute at Terminal Island, Calif.

As Billingsley said, if a transplant is deemed medically necessary, he likely would be taken to a hospital in the community where he is housed. If he is on death row, that would be in Terre Haute, Ind.

Sun researcher Rebecca Clifford-Cruz contributed to this story.