Swisher Executed for 1997 Rape, Murder of Florist

By Adrienne Schwisow - Pilot Online

July 23, 2003

JARRATT, Va. -- A man who raped and murdered an Augusta County florist was executed Tuesday night after Gov. Mark R. Warner declined to step in for a second time. Bobby Wayne Swisher, convicted of killing 22-year-old Dawn McNees Snyder in 1997, was pronounced dead by injection at the Greensville Correctional Center at 9:05 p.m.

After he was led into the execution chamber and strapped to a gurney, Swisher raised his head and appeared to smile as the prison chaplain spoke in his ear. Swisher then lowered his head and made his final statement before the injection was started. ``I hope you all found the same peace in Jesus Christ as I have,'' Swisher said.

Swisher, 27, had exhausted his court appeals. Last week, his lawyers asked Warner to grant clemency under certain conditions that would have lead to a new sentencing hearing. It was Swisher's last hope, and this time the governor declined to intervene.

Swisher was originally scheduled for execution on July 1, but Warner intervened five hours before and granted Swisher's lawyers three weeks to prepare one final appeal to the Virginia Supreme Court. The high court refused to hear the appeal on Thursday.

Swisher's attorneys claimed he was entitled to a new sentencing hearing because the jury that recommended the death penalty was not told that life in prison without the possibility of parole was also an option.

The sentencing form used by that jury was later ruled invalid by the Virginia Supreme Court in another case. In their latest appeal to the governor, defense attorneys Anthony F. King of Washington and Steven D. Rosenfield of Charlottesville wrote that ``the decision as to whether Mr. Swisher will be illegally executed is yours and yours alone.'' Sister Helen Prejean, author of ``Dead Man Walking'' and a spokeswoman against the death penalty, also wrote a letter urging Warner to stop the execution. But Warner had said three weeks ago that he would not intervene again.

An Augusta County jury convicted Swisher of abducting Snyder from her Stuarts Draft flower shop, raping her, slitting her throat and dumping her in a nearby river. It was Feb. 5, and Snyder was working late to get some Valentine's Day orders completed. Swisher, a high school dropout and former construction worker, confided to friends that he killed Snyder.

He later confessed to police, and DNA testing linked him to the crime. Snyder's body was found 16 days after the slaying in a field along the river. Swisher was sentenced to die for his crimes in February 1998. Swisher's trial lawyers did not dispute what happened but argued that Swisher was too high on drugs and alcohol to know what he was doing.

ProDeathPenalty.com

Bobby Swisher was sentenced to die for the capital murder of 22-year-old Dawn McNees Snyder. On February 5. 1997, Dawn Snyder disappeared from the florist's shop she co-owned. Swisher, who was 20 years-old at the time, gave an audio-taped confession admitting that he murdered Dawn on Feb. 5, 1997.

Her body was recovered Feb. 21, 1997 near the shore of the South River, about two miles away from the Augusta County florist shop in Stuarts Draft. She was a co-owner of the shop.

After murdering Dawn, Swisher told a friend. Swisher stated: "You know the woman, Dawn Snyder . . . I killed her." Swisher related the following details to his friend.

On February 5, 1997, about 7:15 p.m., Swisher's uncle drove Swisher by car to a grocery store located near the florist shop where Snyder worked. Swisher left the grocery store and walked to the florist shop. Swisher entered the shop, approached Snyder, and said, "I have a gun in my pocket."

Swisher showed Snyder a "butcher knife with ridges" and directed her to go with him. Swisher forced Snyder to leave the florist shop through a rear door, and they walked for some distance until they reached a field by the South River.

Then, Swisher stopped Snyder and told her to "suck his dick." He forced her to perform an act of oral sex upon him, and he made her remove her clothes. After he raped her, she put her clothes on, and he forced her to perform another act of oral sex upon him.

Swisher decided to kill Snyder because she had "seen his face." He "pulled out the butcher knife" that had "ridges around the edge of the blade," and he "slit her across the left side of the face and was holding her; then slit her throat and then gouged her and then tossed her into a river."

He walked along the riverbank, watching her in the river, asking her, "[a]re -- are you dead yet?" After Snyder floated in the river for awhile, Swisher saw her "crawl up the bank." Then, "he got scared and took off running straight to his house from that field." Swisher threw his knife in the river. When Swisher finished his confession to the friend, Swisher stated that "it feels like I could do it again." The following morning, the friend called the police.

Swisher was taken in for questioning and admitted, in an audio-taped confession, that he had sodomized, raped, and murdered Snyder by cutting her throat. He also stated that after he cut her throat, he threw her into the South River.

Besides the confession, court documents state that Swisher’s DNA was found in semen on the victim’s clothing and in her body.

UPDATE: Gov. Mark R. Warner postponed the execution of a convicted murderer today to give the man's attorney’s time to file a petition for a new sentencing hearing with the Virginia Supreme Court. Warner stepped in less than four hours before Bobby Wayne Swisher's scheduled execution by injection at 9 p.m. EDT at the Greensville Correctional Center in Jarratt.

The U.S. Supreme Court earlier Tuesday rejected Swisher's appeal for a stay. Warner postponed Swisher's execution for three weeks to allow the state Supreme Court to issue a stay or rule on a petition for a new hearing. Warner said if no action takes place by July 22, he would not intervene again.

Lawyers for Swisher, 27, said he was entitled to a new sentencing because the jury that recommended a death sentence in 1998 for the slaying of Dawn McNees Snyder relied on a form that the Virginia Supreme Court later found defective.

The form did not tell jurors that the alternative to execution was life in prison without the possibility of parole. In 2001, the court ruled that juries must have that information. Defense attorneys and capital punishment opponents say as many as 20 men have been sentenced to death by juries that used the form. They contend that more than a dozen killers executed since 1981 unsuccessfully challenged it.

National Coalition to Abolish the Death Penalty

Bobby Swisher (VA) - July 22, 2003

The state of Virginia is scheduled to execute Bobby Swisher July 22 for the murder of 22-year-old Dawn McNees Snyder in Waynesboro. Swisher, a white man, allegedly abducted and raped Snyder before cutting her throat and throwing her into a river on Feb. 5, 1997. Gov. Mark Warner granted Swisher a three-week reprieve just hours before his scheduled execution July 1 to give the courts another chance to review his appeal; however, Swisher’s attorneys have made little progress since, and now he is facing a July 22 date.

Swisher’s battle with severe depression led a jail doctor to prescribe him medication approximately four months before his trial. However, Swisher apparently did not begin the medication until two days before his trial.

The drugs ended up having a sedative effect on him, making him seem apathetic to the outcome of his case. Yet when his attorneys asked officials at the jail if Swisher was on medication, they told them he was not.

The medication interfered with Swisher’s trial on many levels. First, he could not assist his attorneys in his defense; as one juror later stated, he looked like a “zombie.” Second, as a result of his demeanor his attorneys decided not to put him on the witness stand during the sentencing phase of the trial, striking his only opportunity to plead for his own life.

Third, the jurors perceived his inattentive behavior as arrogant and uncaring, when in reality he was simply under the influence of sedative drugs. Two of the jurors who voted to sentence him to death later said that he “showed no remorse” at his trial; a defendant’s perceived lack of remorse is generally regarded as one of the most highly aggravating factors in the minds of capital jurors.

The medication also raises a critical issue in regard to Swisher’s defense counsel. Given his sedated disposition, he may not have been competent to stand trial in 1998. However, his attorneys failed to ask for a continuance or a competency evaluation, and instead laid out a weak defense, punctuated by a 7-minute closing argument, roughly half of which simply repeated the court’s jury instructions.

On appeal, Swisher unsuccessfully argued that his inexperienced attorneys provided ineffective assistance of counsel at his trial. He also argued, to no avail, that the prosecution withheld potentially exculpatory evidence from the defense.

In April, the Virginia Supreme Court overturned the sentence of another death row inmate, Michael Lenz, finding that the statutory verdict form used in his trial was defective. The state reportedly used the same form in Swisher’s trial, but the courts have refused to consider his case on that issue, claiming that such an argument is procedurally defaulted this late in his appeals process.

Swisher, who had no prior criminal record, has been a trustee – a position only attained through impeccable behavior while in prison – through nearly all of his years on death row. In 2002, he became a “born again” Christian and has chartered a new direction for his spiritual life.

Virginia ranks second only to Texas in its use of capital punishment, and serious problems in its application of the death penalty have been revealed in the last year. In November 2002, the state executed Mir Aimal Kasi, a foreign national from Pakistan, despite questions regarding the denial of his right to consular officers under the Vienna Convention; the Kasi execution ignited massive protests and demonstrations in the international community. In May, Virginia scheduled the execution of Percy Walton, a mentally ill and mentally retarded man; the archconservative U.S. Fourth Circuit Court of Appeals stayed that execution.

Now, the state is preparing to execute Swisher despite issues ranging from questionable competency to ineffective counsel. Gov. Warner, who has the sole authority to grant clemency to death row inmates, should commute this sentence to life in prison. Please contact Gov. Warner and the state of Virginia and request clemency for Bobby Swisher.

Virginians for Alternatives to the Death Penalty

Bobby Swisher

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. Swisher is now scheduled to be executed on July 22, 2003.

Swisher was 21 years old at the time he committed the murder. He had no prior criminal convictions and has been a trustee on death row almost the entire time he has been there. In the Summer of 2002, Swisher became a “born again” Christian and has devoted his life to a new direction. Swisher has been on death row since February 20, 1998.

Governor Warner Press Release

July 1, 2003

Statement of Governor Warner on the Scheduled Execution of Bobby Wayne Swisher

RICHMOND — Governor Mark R. Warner today issued the following statement on the scheduled execution tonight at 9 p.m. of Bobby Wayne Swisher.

"Bobby Wayne Swisher committed a vile and reprehensible act - an act which I believe justifies the death penalty. Although he admits his guilt, Swisher seeks a new sentencing hearing, arguing that the Supreme Court of Virginia has found the verdict form used to sentence him to death to be fundamentally flawed.

"The Supreme Court ruled on a substantially similar verdict form in another case in April, and subsequently vacated its judgment in that case only a few weeks ago - two separate decisions in the last 75 days which leave the law unclear. In essence, Swisher asks me to apply his reading of Supreme Court precedent to the facts of his case. In light of the recent apparent ambiguity of the law, I believe that in this particular case such a decision is more appropriate for the Supreme Court than for a Governor exercising his clemency power.

"In order to ensure just and consistent application of Virginia's capital punishment statute, Swisher's execution date will be delayed for three weeks, until July 22, 2003, for the sole purpose of allowing Swisher to petition the Supreme Court of Virginia and assert his claim regarding the verdict form. If the Court denies Swisher the relief he seeks - either by rejecting the merits of Swisher's petition or by refusing to consider his petition on procedural or other grounds - the execution will go forward on July 22, 2003. In that event, I will not intervene."