Attorneys for Joshua Bishop file appeal as execution day approaches

An attorney for condemned killer Joshua Bishop argued in a court filing Tuesday that the jury that sentenced him to die failed to first make certain findings about his intent to murder Leverett Morrison. Consequently, Bishop cannot be put to death Thursday as scheduled, according to the filing.

Bishop, 41, is scheduled to die by lethal injection on Thursday at 7 p.m. for Morrison's 1994 beating death. Though Bishop, then 19, confessed to killing Morrison after several hours of drinking, he still went to trial. His co-defendant, 36-year-old Mark Braxley, however, pleaded guilty and was sentenced to life in prison with the possibility of parole.

In the petition filed with the Superior Court in Butts County, which is where Georgia’s Death Row is located, Bishop’s lawyers said it would be unconstitutional to execute him because the jury that convicted him did not make a specific finding that Bishop “killed, intended to kill or intended to aid in the killing” of Morrison.

That meant, Bishop’s lawyer wrote, Bishop’s “death sentence is unlawful and his execution would constitute a miscarriage of justice …. because he is constitutionally ineligible for capital punishment.”

The filing said the prosecutor incorrectly “argued that it did not matter who killed Mr. Morrison for purposes of convicting Mr. Bishop.”

It was not established at his trial whether Bishop or Braxley delivered the killing blow.

This is the only court challenged filed in Bishop's case since his lethal injection was scheduled on March 11.

The filing also included affidavits from four jurors from his death penalty case who wrote that they would not have voted to have him executed had they known that Braxley was given a deal and much lighter punishment. All four jurors wrote that they were led to believe that the case against Braxley was pending at they heard Bishop’s case.

“We were told during the trial that Mark Braxley would be tried by another jury and that we should focus on Josh Bishop,” Jackie Dixon, one of the jurors in Bishop’s 1996 trial, wrote. “We believed that Mark Braxley would get similar

treatment by the state. I recently found out that this was not the case. I learned that Mark Braxley was not tried for his crimes. Instead, he was offered a deal where he got a life sentence with the possibility of parole. I also understand that this offer was made before Josh Bishop’s trial. If I had known that Mark Braxley would have been given such a light sentence, I would not have voted for the death penalty for Josh.”

Bishop's lawyers will make a similar argument when they meet with the State Board of Pardons and Paroles Wednesday afternoon. They also focused much of their petition for clemency on Bishop's abusive childhood, which was controlled by the alcohol and drug addictions of his mother and many others in his family.

If he is put to death, Bishop will be the third man Georgia has executed this year. The state has scheduled another execution for April 12; Kenneth Fults is to die for the 1996 murder of his 19-year-old neighbor in Spalding County.

Bishop, Braxley and Morrison, 35, had spent much of the day on June 25, 1994, drinking at a Milledgeville bar and then at Braxley’s trailer. Morrison fell asleep and that’s when Braxley decided he wanted to visit his girlfriend. Braxley and Bishop decided to just take Morrison’s Jeep without asking. But Morrison woke when Bishop tried to fish the car keys from his pocket. They struggled and Bishop and Braxley beat him to death, first hitting him with a car battery and then repeatedly striking him with a curtain rod.

After dumping Morrison’s body, the two set fire to his Jeep in some nearby woods.

Bishop and Braxley were arrested within hours and that is when investigators learned there was a second murder. Both admitted to killing Ricky Lee Wills.

Bishop told investigators they killed Wills because he boasted about sexually assaulting Bishop’s mother. He said they had to bend Wills’ legs in unnatural directions to make his body fit into a makeshift grave.