Dead Man Balking

Michael Poland is in the rare situation of asking to be sent back to federal prison. But almost anything would be an improvement over where he is now.

Poland is on death row, set to be executed by the State of Arizona in less than a month. But his lawyers argue that the state can't kill Poland until he's finished with his federal sentence for the same crime--at least 2045, his earliest possible release date.

That means Poland would be 105 before the state could strap him down for lethal injection.

The federal Public Defender's Office filed a lawsuit last week in Washington, D.C., charging that Arizona has violated a 1982 agreement to return Poland to federal custody after his state murder trial. The suit, which names U.S. Attorney General Janet Reno, Arizona Attorney General Grant Woods and Department of Corrections Director Terry Stewart as defendants, asks the court to stay Poland's execution until his federal sentence is completed.

"Since 1983, the federal government and Michael have repeatedly asked for his return to federal custody," Poland's attorney Dale Baich says. "But now that Michael's execution is imminent, it brings the issue to the forefront."

State attorneys say it's not up to Poland whether he serves the bank robbery sentence first, and that the death sentence takes precedence.

Michael Poland and his brother Patrick were sentenced to 100 years each by a federal judge for a 1977 armored car robbery. Disguised as highway patrolmen, the brothers stole more than $300,000 and killed two guards.

After the federal conviction on kidnaping and robbery charges, the State of Arizona charged the Polands with two counts of murder. Michael Poland was convicted, but the verdict was overturned on appeal. He was later convicted again at a retrial. (Patrick Poland's case is still on appeal.)

The federal government agreed to give the state temporary custody during the murder trials, as long as the state agreed to send him back, according to the suit.

The lawyer for the federal Bureau of Prisons even said Arizona would not be able to execute the Polands in a 1981 memo.

"I do not believe that the Poland brothers could legally be transferred to the State of Arizona for the purposes of executing their sentence," Clair Cripe, the bureau's general counsel, wrote in 1981. "I think we are obligated under law to carry out the terms of the federal sentences which have been imposed, and that this effectively precludes Arizona from carrying out the death penalty. . . ."

The Attorney General's Office, in a document attached to the complaint, agreed to return Poland to the feds "immediately after trial."

But when Arizona got a death sentence in the case, it backed out of the deal.

Federal prison officials asked that Poland be returned in 1983, with no response from the state. Poland has been on Arizona's death row ever since.

"They said one thing, years back, and now they've apparently changed their tune. They're putting politics above the law and above their word," Baich says.

He's asked for a stay of execution pending a decision on the custody matter.
But assistant attorney general Kent Cattani says the state intends to carry out the execution, scheduled for October 20. He hadn't seen Poland's lawsuit yet, but says Poland has raised the issue before and has been turned down by the courts.

Cattani says it's the federal government's place--not Poland's--to request Poland's transfer.

"The prisoner doesn't have standing to enforce the [custody] agreement," Cattani says. "That's pretty well-established law."

And even if the federal government did ask to get Poland back, the state would fight it, he adds. The Justice Department didn't return calls for comment.

"If they wanted him, we'd object," Cattani says, noting that the federal government encouraged the state murder prosecution. "We'd say, 'We relied on what you asked us to do 15 years ago.'"

Baich responds that "there's a contract that exists between Poland, the State of Arizona and the federal government" to finish Poland's federal sentence. As a party to that agreement, Poland has the right to ask the court to enforce it, Baich says.

And Arizona can keep Poland if it wants, Baich says. It just can't kill him.
"Michael Poland has no problem serving his time in Arizona," Baich says. "It's just that he can't be executed until the federal sentence is served."

Contact Chris Farnsworth at his online address: [email protected]

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Chris Farnsworth