Application for Executive Clemency
Submitted on Behalf of
Joseph Ernest Atkins
to
The Honorable Jim Hodges
Governor of the State of South Carolina
Columbia, South Carolina
Pursuant to S.C. Const. § 14
John H. Blume III
Cornell Law School
Myron Taylor Hall
Ithaca, NY 14853
(607) 255-1030
Hilary Sheard
P.O. Box 11311
Columbia, SC 29211
(803) 765-0650
INTRODUCTION
Joseph Ernest Atkins is a fifty-one year old Vietnam veteran.
In November 1969, Joe received a brief letter from then-Governor
Robert E. McNair, who wrote to welcome Joe home from his service
in Vietnam. “[W]e shall look forward,” wrote Governor McNair,
“to your joining with us in leading South Carolina into the bright
and promising future which lies ahead . . ..”! But Joe’s service in
Vietnam, combined with the circumstances of his life before and
after, left his future far from bright.
Joe was condemned to death for killing his father and a little
girl who lived with her family in a small house behind that of his
father. Because the proceedings leading to his convictions and
sentence were far from perfect, the jury concluded, based on what it
knew, that the punishment he deserved was death. Joe
acknowledges and accepts that judgment. He now seeks your
mercy.
The jury’s job was to impose the punishment it believed Joe
justly deserved. But mercy is different than justice. Mercy is an act
of grace, which speaks as much to the gentleness and virtue of the
mercy-giver as it does to the character and culpability of the mercy-
seeker. Without in any way diminishing the gravity of his crimes,
we will try to explain in what follows why we ask for your mercy, not
only for Joe, but for those who love him and for ourselves, who have
over the years become his friends and who see in him a man who is
‘See Exhibit A.
more than his worst act.
One often hears of criminal defendants who recount the an-
guished conditions of their childhood, or of other circumstances in
their lives, in an effort to excuse their wrongdoing and deny any res-
ponsibility for it. One also often hears of criminal defendants who
are quick to claim that the courts denied them a fair hearing.
We too will recount the conditions in which Joe grew up and
the events in his life that culminated in the crimes for which he was
condemned. Likewise, we too will tell you how in our professional
judgment the courts were too quick to reject constitutional claims
that should have lead to a new trial for our client. But we do so not
to excuse Joe’s crimes, nor to deny him the dignity of accepting
responsibility for what he’s done. We do so simply to try to place
them in context. Joe does not ask you to excuse him for his crimes.
He asks instead for your mercy.
Nothing Joe can do can ever enable him to fully atone for the
crimes for which he was condemned. Yet the man who is guilty of
those crimes is also a man whose life was forever changed by the suf-
fering he endured as a child, and by the time he spent as a soldier in
Vietnam. The man who is guilty of those crimes is aman who, then
and now, lives with a something known as Post-Traumatic Stress
Disorder—PTSD for short. The man who is guilty of those crimes
had at the time of those crimes drunk himself into a stupor. More-
over, the man who is guilty of those crimes was at the time of those
crimes—in his own mind—back in Vietnam.
Nor is the man guilty of those crimes the same man scheduled
to be executed on January 22. None of the facts we will recount be-
low is meant to, nor can they, excuse Joe’s crimes. Nor do any of
the things that have changed since the time of Joe’s crimes serve to
undo them. Nonetheless, we hope that together they will move you
to exercise the prerogative of mercy vested in you by the Constitu-
APPLICATION OF JOSEPH ERNEST ATKINS
tion of South Carolina
I. GROWING Up WITH CHARLES AND B.F.
Joe was born in June 1947. His biological mother was a pro-
stitute. Joe and his half-brother Charles shared the same mother,
but different fathers. Charles was the son of B.F. Atkins, who
reluctantly adopted Joe. Joe never knew who his biological father
was. Indeed, he never knew he was adopted until he was eleven.
B.F. resented having to adopt Joe, who he considered his “bastard,
nigger child.”? In contrast, Charles could do no wrongin his father’s
eyes. This basic conflict set the stage for Joe’s entire life. He
became the family scapegoat, who bore the brunt of both his father’s
and his brother’s anger at the failings in their own lives.
Joe’s only real source of love, and the sole source of security
and comfort, came from his stepmother Gladys, who always showed
?The undersigned are prepared to substantiate the factual claims made
herein. Accordingly, we would request that you submit this application to the
Probation, Parole, and Pardon Services Board pursuant to S.C. Code Ann.
§ 24-21-910, or alternatively, that you hold a hearing that meets the
requirements of S.C. Code Ann. § 24-21-50. At the very least, we respectfully
request a chance to meet with you or with one of your representatives, such
that we might have a fair chance to present our plea for mercy on Joe’s behalf.
3Joe’s biological father was non-Caucasian.
APPLICATION OF JOSEPH ERNEST ATKINS
Joe the love and kindness he never received from his father. Joe was
only fifteen when she died of a brain tumor, and her death left him
alone and insecure. With his stepmother gone, nothing stood be-
tween him and the combined anger of his father and step-brother.
Joe was the regular target of B.F.’s and Charles’ abuse, both
verbal and physical. The often-intense beatings were a fact of every-
day life for Joe. Relatives recounted how Joe would plead for mercy,
but he seldom received any. The beatings were usually admin-
istered with a leather strap, which left Joe bruised and embarrassed
to attend school. Joe ‘always expected his father would sooner or
later kill him. Often absent from school as a result of these beatings,
Joe’s emotional and educational development was stunted, and he
was twice held back, which caused him yet more shame and embarr-
assment.
From the age of seven ‘til the age of twelve or thirteen, B.F.
beat Joe for wetting his bed. Every morning his father would come
into Joe’s bedroom to inspect his sheets. If they were wet, Joe would
be beaten. Adding insult to injury, Joe’s father would rub his adopt-
ed son’s face in the sheets. Gladys would later recall the sheer terror
that Joe would feel each morning when he awoke with wet sheets,
knowing that his father would soon beat him.
B.F.’s temper would flare without notice, and for no apparent
reason. He once threw a wrench at Joe out of the blue. When
B.F.’s temper erupted during dinner, he would often hurl plates and
dinnerware at Joe, or push Joe’s head into his food. When Joe was
about seven, B.F. slapped Joe so hard on the side of the head that he
broke Joe’s eardrum. ‘
Once, when Joe was a teenager, he returned home after his
curfew. B.F. was waiting. After Joe had gotten undressed, B.F. be-
gan beating him with the leather strap. The blows numbered at least
thirty, leaving Joe writhing in pain, with large welts and bruises
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APPLICATION OF JOSEPH ERNEST ATKINS
covering him from head to toe. Gladys found B.F. kicking Joe, who
was lying naked on the floor. The humiliation was unbearable: not
only the pain and humiliation of being beaten, but also of being seen
as a teenager helpless and naked by the only person he believed
cared for him. Gladys tried to comfort Joe, and she tended to his
wounds, which she cleaned with the only antiseptic she had:
rubbing alcohol. Joe still remembers the agonizing sting.
Yet Joe was not the only victim of B.F.’s abuse. B.F. often
beat Gladys, and Joe was just as often a witness to this abuse. On
one occasion B.F. repeatedly slammed Gladys’ head into the wall.
Joe became convinced that it was this attack that ultimately led to
Gladys’ untimely death from a brain tumor. On another occasion
Joe returned home at night to see B.F. on top of his mother, who in
tears was struggling to break free. Only later did Joe understand the
hotror of what his father had done that night.
Despite the beatings, despite the abuse of his beloved stepmo-
ther, Joe desperately wanted the love and respect of his father. A
report produced by the South Carolina Office of Juvenile Au-
thorities shortly after Charles and Joe had been picked up for one of
the petty offenses Charles had orchestrated, noted that Joe “felt
remorse and was close to tears” and “has deep feelings for his
parents.” As for Charles, the report noted that he demonstrated no
remorse and had “ambivalent feelings toward his parents.” Indeed,
the week before Charles’ death, he nearly strangled his father to
death during an argument.
Joe’s father was not the only source of abuse. Charles too
used Joe as an outlet for his anger and rage. Neighbors and relatives
. alike attested to Charles’s brutality, which even extended to the
mistreatment and torture of small animals. Like his father, Charles
was an alcoholic with a legendary temper, which was all too well-
known among family, friends, and neighbors. And, just a few years
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APPLICATION OF JOSEPH ERNEST ATKINS
before his death, Charles would be charged with “a lewd act upona
child,” which resulted in his commitment to the South Carolina
State Hospital.
Charles began abusing Joe when Joe was a child, often after
Charles had been drinking, which he began doing at the age of ten.
When Joe was just seven, Charles threw a beer bottle at his half-
brother that caused a gash “nearly to the bone.” Because Joe’s
father didn’t believe in “unnecessary medical expenses,” Gladys was
forced to sew the wound with a needle and some fishing wire. Joe
still has the scar. Similarly, Charles would often take shots at Joe
when he went hunting, and he once hit Joe over the head with a tire
iron, causing Joe to suffer frequent and regular migraines.
At the height of one of his rages, Charles nearly took Joe’s
life. Returning home late one evening, Charles became convinced
that Joe had stolen money from him, and stabbed Joe with a paring
knife, seven times. Joe managed to stop his half-brother before
Charles succeeded in striking a fatal blow. Joe was left to pull the
knife out himself. After bleeding heavily for at least twenty minutes,
Joe finally convinced Charles to take him to the hospital. When he
arrived at the emergency room, with portions of his intestine dis-
tended, Joe would only tell the police that he landed on the knife
while peeling potatoes—a claim which his father, who was home at
the time, pressured Joe into making because he was afraid that
Charles, who by that point had a growing criminal record, would be
sent to jail.
Charles was also the leader in the petty juvenile crimes that
ultimately landed both Charles and Joe in the Florence School for
Boys. The Florence School was notorious for its unchecked use of
physical and emotional “discipline.” At one point, Joe was locked
for four days in the “sweat box,” a contraption only big enough to
squat in. Ritual humiliation was another often-used form of dis-
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APPLICATION OF JOSEPH ERNEST ATKINS
cipline. Adding to the day-to-day torment, Joe’s beloved mother
Gladys was diagnosed with a brain tumor; she died while Joe was in
Florence. He never had a chance to say goodbye. Indeed, no one
even told Joe his mother had fallen ill. He thought his unanswered
letters meant that Gladys too had abandoned him. Only later did he
learn the truth.
Eventually, Joe was released from the School on probation,
largely because the juvenile authorities recognized that “he was a
follower, and not a doer.” The authorities also recommended that
Joe not be returned home, partly because Gladys was no longer
there to stand between Joe and the full force of her husband’s fury.
But Joe was sent home anyway—to B.F. and the on-going cycle of
abuse.
II. JOE’s VIETNAM EXPERIENCE
Joe was inducted on January 24, 1968. During his Advanced
Infantry Training at Fort Lewis, Washington, Joe earned high scores
on the “Elite Training Test,” which was designed to measure the
combat abilities of new inductees. As a result, Joe was assigned to
the so-called “500 Club,” an elite rank among combat soldiers. Joe
was assigned to the 1st Infantry Division (nicknamed the “Big Red
One”), 125th Infantry Light Brigade, 36th Signal Battalion, A
Company, Bravo Platoon, Delta Squad.
Joe arrived in Vietnam late in 1968, immediately following
the First Tet Offensive. He was in Vietnam for nearly all of 1969, a
period that witnessed the heaviest and most intense fighting of the
war. For three months of his tour of duty Joe served in the signal
corps. He was attached to a unit located near the Cambodian
border, where fire fights and heavy artillery fire were routine. In
fact, Joe entered Cambodia and Laos on at least six occasions on
covert missions. His assignment on these missions was to strike at
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APPLICATION OF JOSEPH ERNEST ATKINS
Vietcong units and supply camps set up near the Vietnam border.
Joe was not accompanied during these missions by other men
from his platoon. Instead, men from different units would simply be
assigned with other men—all strangers to one another.’ Indeed,
missions into Cambodia were called “black box” missions, because
the soldiers who conducted them wore black VC uniforms, removed
their dog tags, and filed the serial numbers off their weapons.
Understandably, Joe was careful never to befriend any of these men:
It didn’t pay to get to know someone too well when the odds were
that they wouldn’t survive the next day’s mission. Conversations
between the soldiers were impersonal, focusing usually on the
mission and the enemy’s activity. Joe remembers where a lot of the
*The Vietnam War also marked the first time the U. S. Military adopteda
policy of assigning and rotating soldiers into and out of the war on an
individual basis under a system known as the “Date Estimated Return from
Overseas” (DEROS). The idea was to provide soldiers with a sense of
motivation by providing them with a certain date on which they could return
home, but the system’s real impact was quite different. Assigning troops on an
individual, as opposed to a group, basis is often cited as, “the key to the
prevalence of PTSD amongst Vietnam Veterans,” because as a result of the
DEROS policy soldiers typically never knew the names of most of the men with
whom they served. The real effect of this policy was to DEROS made the
soldiers feel very much isolated and alone.
iS Gerrans
APPLICATION OF JOSEPH ERNEST ATKINS
men came from—that was a safe subject—but he remembers few of
their names.
Joe was sent on his first covert mission to Cambodia in early
1969. The men were moved into bunkers, which were later blown
up so as to leave no trace of their presence behind. The Americans
outnumbered the North Vietnamese Army about five to one, and
the mission was counted a success. Joe’s unit took the enemy camp
by surprise, recovered some tactical plans, and inflicted between
three and four hundred enemy casualties, with only two Americans
killed and twenty-five wounded.
The next mission, code name “Operation Eagle,” was not so
successful. With a company of only about 180 men and no air sup-
port, the young and inexperienced captain in command had not
done his intelligence work. His dereliction left his men totally un-
prepared when they were ambushed by an entire VC battalion.
Scores of men in Joe’s platoons were mowed down the minute they
left the choppers. Joe recalls hearing the whistle of the Vietcong
artillery. All he could think was: “I’m dead.” Joe spent the night in
the jungle, hiding out in a pile of elephant dung known among the
men as an “elephant bunker.”
Joe was also in Vietnam for the Tet Offensive of June 1969,
and for the battle that has come to be known as “Hamburger Hill,”
two of the bloodiest engagements of the conflict. The Tet Offen-
sive was a week of intense fighting, where an hour or two of sleep
was aluxury. A typical day during the offensive involved four hours
_ on-duty, four hours setting up communications , and the rest of the
time at the “greenline” protecting the base camp. The intensity of
the combat was “unbelievable.”
Two months later Joe was sent to Hamburger Hill to support
the Marines of the 101st Airborne. The name “Hamburger Hill”
attests to the savagery of the fighting and the suffering endured by
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APPLICATION OF JOSEPH ERNEST ATKINS
the combatants. Joe’s mission, together with the other members of
his platoon, was to flush “Charlie” out. Although Joe’s company
lost only ten men, hundreds were killed, many before Joe’s eyes.
Battles in Vietnam had no “front” or “rear.” Indeed, soldiers
often never knew who the enemy really was: men, women, even
children, could all bring danger. Joe saw booby-trapped babies,
children carrying submachine guns on the backs of their bikes, and
the heads of babies placed atop poles as a warning from the Viet-
cong. Joe recalled how one washer women, who had been hired
from the local village to wash the men’s clothes at Joe’s base camp,
was later interned on suspicions of being a member of the VC after
she was caught pacing off the distance from the front gate.
Joe can still recall the war’s atrocities—now a part of his
psyche—in vivid detail. He remembers one day, for example, com-
ing across the bodies of two villagers that had been out in the sun for
days. They had been tortured before death: their eyelids had been
cut off; wounds covered their bloated and grotesquely contorted
bodies.
But Joe’s most haunting memory involves the slow and un-
imaginably painful death of a young man with whom Joe served.
Trapped by the Vietcong in a bamboo pit during a field mission, the
man was captured and tortured. The enemy slowly forced a bamboo
shoot through his rectum, eventually causing it to rupture through
to his internal organs. Joe and a few other soldiers hiding in the
bush nearby could see their fellow soldier and hear his cries, which
became louder and louder as the night wore on, until finally they
stopped. The enemy was using the young man as a lure to try to
force Joe and the others to reveal their locations. Joe still can’t
erase the image of the man’s death.
II]. Post-TRAUMATIC STRESS DISORDER
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APPLICATION OF JOSEPH ERNEST ATKINS
Veterans who, like Joe, grew up in abusive families are espec-
ially likely to develop Post Traumatic Stress Disorder, or PTSD?
Joe’s propensity for PTSD was created long before he set foot in
Vietnam. Joe’s chaotic and abusive childhood already rendered him
vulnerable to PTSD. His experience in Vietnam assured its onset.
A direct and well-established relationship exists between
5A CAT scan of Joe’s brain taken in 1988 revealed further evidence of his
PTSD. In June 1988 Dr. Bachman, the director of Behavioral Neurology at
MUSC, testified that Joe exhibited severe brain atrophy, which causally
contributed to the 1985 crimes. This diagnosis is consistent with recent studies
indicating that people who experience a severe stress reaction following
military combat usually experience some shrinkage of parts of the brain.
Moreover, excessive use of alcohol by someone who, like Joe, has demonstrated
hyper-alert tendencies, has been found to exacerbate pre-existing brain
damage.
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APPLICATION OF JOSEPH ERNEST ATKINS
Vietnam veterans with low self-worth as adolescents and the subse-
quent development of PTSD. Joe’s childhood included all the fact-
ors that predispose vets to PTSD. In the extremely violent house-
hold in which Joe was raised, verbal and physical abuse were com-
mon, producing in Joe a decidedly diminished sense of self. From
the time he was barely able to walk Joe’s father told him he was
“dumb” and “worthless.” Kicks and punches were just a part of
growing up.
Moreover, the nature of the conflict in Vietnam itself in-
creased the likelihood that veterans like Joe would not return home
the same as when they left. The soldiers serving in the war were on
average nineteen years old, younger than any soldiers who had gone
before them. As one expert on PTSD has observed, “[c]oncepts of
duty, patriotism, trust, their individual morality, self-worth, sexuality
and peer acceptance [were] formulated [in Vietnam] not in the
gradual, selective manner conducive to normal development, but in
the highly intensified, highly emotional and formative stages of
military sociology.” As a result, many Vietnam veterans experien-
ced an almost immediate loss of identity.
Similarly, the reality of guerrilla warfare made it difficult for
soldiers to develop any sense of trust, forcing them instead to be-
come vigilant to the point of paranoia. Hyper-vigilance and un-
thinking, reflexive self-defense were keys to survival. Lack of trust
in others is a common characteristic of veterans suffering from
PTSD. Compounding Joe’s problems was the profound guilt he ex-
perienced at having had to leave his comrades to die at the hands of
the Vietcong. Several psychiatrists who examined Joe over the
years have noted the deep and long-standing connection between
this guilt and his persistent depression.
Although PTSD is now well-accepted, the disorder was not
officially recognized by the American Psychiatric Association until
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APPLICATION OF JOSEPH ERNEST ATKINS
1980, well after the war in Vietnam had ended, and much too late to
assist Joe and other veterans in presenting the diagnosis as a
mitigating factor for sentencing in crimes committed after returning
home. As we explain below, the jury that sentenced Joe to death
never knew he was suffering from the syndrome.
PTSD if difficult to diagnose for a variety of reasons. First,
many PTSD victims are completely unaware of the disorder. Sec-
ond, the symptomatic behavior of PTSD is often episodic; conse-
quently, PTSD sufferers may appear quite normal most of the time.
Third, PTSD sufferers often experience memory lapses that render
them unable to remember the original traumatic experience that
subsequently triggers their aberrant behaviors. In Joe’s case, a diag-
nosis was only made after his trial, and only after the examining
psychiatrists had finally received full information about Joe’s family
life and military service.
What makes PTSD so debilitating is the regular reliving of
the trauma that originally brought on the disorder, i.e., the so-called
“flashback.” In order to numb or drown out these flashbacks, PTSD
patients typically resort to drugs or alcohol. They seek to still the
memories that fill their mind’s eye. On the surface, therefore, PTSD
victims often look no different than any other addict or drug abuser.
But that surface appearance is deceptive.
The memories can intrude at any and all times of the day and
night. Sleep therefore comes only with difficulty. Joe’s longtime
girlfriend, Linda Walters, testified that Joe rarely had a restful
night’s sleep. Instead, he would frequently have nightmares, jump-
ing awake in a cold sweat. Hyper-vigilance, constantly being on
edge, is the ordinary state of being for sufferers of PTSD. Joe would
constantly patrol the same route around the neighborhood on his
motorcycle, as if on patrol in Vietnam. His step-mother (B.F. had
remarried following Gladys’ death) also noticed the change. Joe, she
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said, couldn’t sit still for any period of time, constantly going to the
window to see if anyone was approaching.®
Joe drowned out the memories with alcohol. Already an alco-
holic by the time he left Vietnam, Joe’s alcoholism only grew worse
after he got home. Between 1980 and 1985, Joe’s drinking worsened
dramatically. Meant to quiet the memories, Joe’s heavy drinking
only made them worse. Joe moved in a never-ending downward
spiral: flashback, drink, flashback, drink ....
IV. AFTER VIETNAM
The young man who left for Vietnam was not the same man
who returned home. The man who had left for Vietnam had never
shown any sign of violence. The man who returned from Vietnam
was an alcoholic suffering from PTSD who had been trained to kill.
Joe may have changed, but his brother and his father had not.
The abuse and torment Joe thought he had left behind remained to
greet him when he returned. Just one week before Charles’ death,
for example, Charles hit Joe with a pool cue, leaving a large welt on
his head, and earlier in the year, Charles had stuck Joe with the butt
of a rifle. Moreover, no one in Joe’s family seemed to care about
what happened to him in Vietnam. They never asked him about his
Several interviewers, including Dr. Ouzts who examined Joe in 1986,
observed first-hand that Joe demonstrated symptoms of hypervigilance during
the short duration of their interview or examination.
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experiences, which Joe preferred to drown with alcohol anyway.
A. NewYear’s Eve 1969
Charles’ death on New Year’s Eve 1969 was the culmination
of the years of abuse, Vietnam, and an evening of drinking and
violence. Joe was ultimately convicted of first-degree murder for his
brother’s death, but no one who understood what happened that
night really believed he was guilty of first-degree murder.
Both brothers were drinking heavily on New Year’s Eve 1969
at the home of Charles and Lula Mae Simpson. As the night wore
on and the drinking continued, tension between Charles and Joe
began to grow. Charles eventually struck Joe in the head with the
butt of his loaded revolver. The blow left a swollen and bloody mark
on Joe’s forehead. Charles laughed. Joe demanded an explanation,
but Charles ignored him. Joe eventually got away and returned to
his father’s home, where he grabbed a .22 rifle from his father’s
bedroom. He then returned to the Simpson’s. Joe never intended
to harm his brother. He only wanted an explanation, and the rifle
provided him with protection. But when Joe asked his brother why
“he wanted to hit me for nothing,” Charles responded by reaching
for the pistol with which he had beaten Joe earlier in the evening.
Joe fired, hitting his brother twice.
Under the circumstances no one—not even the prosecutor
—thought that Joe was guilty of anything greater than voluntary
manslaughter. Joe acted in what he sincerely believed was self-def-
ense, even if his belief in the need to resort to self-defense was un-
reasonable. Accordingly, Joe was guilty of manslaughter, not
murder, and he was fully prepared to enter a plea of guilty to
voluntary manslaughter and to accept his punishment. But the plea,
which the prosecutor was fully prepared to accept, did not happen.
Why? Because Joe’s lawyer bungled it.’ When Joe tried to
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APPLICATION OF JOSEPH ERNEST ATKINS
explain how he’d acted in self-defense, the trial court refused to
accept his plea. At that point a competent lawyer would have ex-
plained to Joe that his fear that Charles would shoot him on that
night did not by itself give him a valid claim of self-defense. Unless
Joe’s subjective fear was also reasonable, Joe was still guilty of man-
slaughter, which was what he had intended to plead guilty to all
along. Instead, Joe’s lawyer let the plea collapse.
Moreover, Joe’s lawyer—who was clearly not prepared for
trial since he’d been expecting all along to have Joe enter a plea to
manslaughter—never asked for any time to prepare for trial. In-
stead, he allowed the case to proceed directly to trial, which was
over in one day. As a result of his lawyer’s failings, Joe ended up
convicted of first-degree murder and sentenced to life imprison-
ment. This might have been the first time that Joe’s fate turned on
incompetent lawyering, but it was not the last. .
Joe spent the next ten years in prison, where he was a model
prisoner. Like most men who suffer from alcoholism and PTSD, Joe
does fine when he’s institutionalized. When his daily life is given
structure and routine, the flashbacks are less common and his
alcoholism is brought under control. Accordingly, Joe was paroled
in 1980. But without the structure and routine of prison, his
memories of Vietnam and his futile efforts to fight those memories
with alcohol returned. After five years, the old pattern had return-
ed: flashback, drink, flashback, drink... .
B. October 29, 1985
In the early morning hours of October 29, 1985, Joe Atkins
was back in Vietnam. He had been drinking heavily.> He was dress-
ed in combat fatigues. A bandana was around his head. He had cut
the phone wires, and neighbors said it looked like he was “scouting
out” the backyard, as if searching for the enemy. Joe was having a
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APPLICATION OF JOSEPH ERNEST ATKINS
“disassociative” reaction, reverting back to the survival instinct he’d
learned in Vietnam—but the only enemy was in Joe’s mind. In the
end, Joe killed both his father and Karen Patterson.
The 1985 deaths were even more clearly a product of Joe’s
PTSD and his experiences in Vietnam than was the killing fifteen
years earlier of his brother. According to the American Psychiatric
Association, crimes involving victims of PTSD usually share com-
mon characteristics. Joe’s actions on October 29 exhibit them all:
Spontaneity. PTSD crimes are usually spontaneous.
The facts surrounding the crime generally indicate no
forethought or planning.
The killings occurred in broad daylight in a residential neigh-
borhood. Likewise, Joe riddled the side of his father’s house with
bullets, all the while yelling and cursing at an unseen enemy. Joe
was back in Vietnam on that morning. He was attacking the enemy,
not his father and certainly not the innocent little girl.
General non-violence. PTSD crimes are usually com-
mitted by men with little or no previous history of vio-
lence.
Joe is of course a violent man, but only when he experiences a
flashback, or when he is threatened, as he was by his brother in 1970.
Joe is otherwise subdued and mild-manner. For the nearly 22 years
that he has spent in prison, Joe has not once been written up for
violent misbehavior of any sort.
Alcohol abuse. PTSD crimes usually involve alcohol.
Joe’s blood alcohol level on the day of the killings was 0.21,
twice what it takes to get convicted of DWI. Since his days in Viet-
nam, alcohol was Joe’s avenue of escape. Indeed, on several occ-
asions since his return, Joe drank to the point of blacking out.
Often Joe drank to help him sleep, but the drinking only made mat-
ters worse, accentuating the memories and nightmares.
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APPLICATION OF JOSEPH ERNEST ATKINS
Opacity. Men who commit PTSD crimes usually can’t
give any explanation for their behavior.
The most remarkable thing about the 1985 killings is their
utter irrationality. No rational explanation exists for why Joe would
suddenly act in such a violent manner. The killings only “make
sense” if you put yourself in Joe’s shoes, back in Vietnam fighting an
unseen enemy and trying to survive.
Triggers. PTSD crimes typically result from some “trig-
gering event” that transports the perpetrator back to
the original trauma and sets off the associated be-
havior.
Joe’s disassociative state—his break with reality—on the
night of October 29, 1985 could have been triggered by any number
of events. Many Vietnam vets jump at the sound of a car back-fir-
ing, or find themselves back in the jungles of Vietnam while in real-
ity simply walking though a park. All the old responses—the fear,
the hyper-vigilance, the reflexive firing—kick in.
What it was about October 29 that transported Joe back to
Vietnam is impossible to say. Joe himself can’t say. It might have
been the time’s hot and humid weather, which was reminiscent of
Vietnam’s jungles. It might have been something as simple—but for
Joe as profound—as the date: the very morning of the crimes
marked seventeen years to the date that Joe arrived in Vietnam. Or
it might have been the smell of gasoline, or the sight of a tree line.
Joe was tried for capital murder. The proceeding that even-
tually resulted in the death sentences upon which he is scheduled to
be executed on January 22 was far from perfect, and Joe’s lawyers
have tried, though without success, to convince the courts to order
a new trial. We do not ask you to second-guess the courts’
judgments,” but for the sake of full disclosure we nonetheless present
an abbreviated account of the legal errors but for which we believe
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APPLICATION OF JOSEPH ERNEST ATKINS
Joe would not have been sentenced to death:
No one can be sentenced to death in South Carolina
unless his actions fall within the scope of a statutorily
enumerated aggravating factor. In Joe’s case that fac-
tor was that Joe had previously been convicted of
murder, i.e., the murder of his brother Charles. But as
we have explained, Joe was not really guilty of murder.
He was only guilty of, and should only have been con-
victed of, manslaughter. In other words, if Joe had re-
ceived fair legal representation in 1970—if he had
simply been allowed to plead guilty as he had wanted
to—he could not have been sentenced to death at all.
The jury was never allowed to decide for itself whether
or not Joe was in fact guilty of murdering his brother.
They were simply told to assume that he was guilty of
murder. They were never told the full story.
The lawyers who represented Joe in defense of his life
did their best, but inexperience, lack of money, lack of
time, and the general disarray of the public defenders
office at the time conspired against them—and so also
against Joe. “[O]ne of the places that I really failed
Ernest Atkins,” one of his lawyer’s later recalled, “was
that I did not tell his story. I did not tell what he had
experienced and what it had done to him.”
Consequently, although the jury knew that Joe had
served in Vietnam, they were never told exactly what
PTSD is and how it can affect the lives of veterans,
especially veterans who grew up in circumstances like
those in which Joe grew up. If the jury had been given
the full story, we submit that they would have
sentenced Joe to life imprisonment. We have tried to
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APPLICATION OF JOSEPH ERNEST ATKINS
give the barest sketch of that story for you here, but
welcome the chance to present it more fully in-person.
The jury that sentenced Joe to death was initially
hung, with two jurors believing for religious reasons
that Joe should be sentenced to life imprisonment. In
response, one of the jurors brought notes of passages
from the Old Testament into the jury’s deliberations.
She had transcribed those passages the night before
and then used them to persuade the two other jurors
to vote for death. As a result of the one juror’s act-
ions, neither Joe nor the other two jurors got a chance
to respond to the Old Testament passages with
passages from the New Testament. The jurors heard
Leviticus’ unrelenting demand of an “eye for an eye,”
but they never heard Jesus’ words that “[b]lessed as the
merciful: for they shall receive mercy” (Matthew 5:7),
or his admonition to Peter to forgive not “[u]ntil seven
times, but until seventy time seven.” (Matthew 18:21-
22).
These are only some of the problems with the legal pro-
ceedings that lead to Joe’s death sentence. There are more, and
there’s more that can be said about those we have mentioned. But
we will stop here. We are fully prepared to describe these problems
at greater length as you wish.
CONCLUSION
Mercy requires no reason. You are vested with the authority
to commute Joe’s sentence to life imprisonment without any poss-
ibility of parole for any reason or for no reason at all. We nonethe-
less summarize the reasons why we—Joe’s counselors and friends —
— - ask you to extend him mercy, both for his sake and for ours:
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APPLICATION OF JOSEPH ERNEST ATKINS
Joe accepts responsibility for his crimes. We nonethe-
less ask you to understand how the circumstances
under which Joe was raised and his experiences in
Vietnam contributed to the events leading up to those
crimes. Those circumstances and experiences do not
and cannot excuse Joe’s crimes but, we submit, they
should mitigate his punishment from death to life im-
prisonment.
Joe served his country honorably in Vietnam.
Joe believed he was back in Vietnam at the time of the
killings. He never meant to kill his father or the Karen.
Patterson, and he is profoundly remorseful for his
crimes.
Joe is dangerous to no one. For the many years in
which Joe has been in prison, he has been tranquil and
cooperative.'° He believes in God, regularly attending
services and witnessing to his fellow inmates. He
keeps to himself, and troubles no one.
We realize that granting clemency to death-row inmates is
not an easy thing to do. We realize too that it requires an uncom-
mon act of political courage. But we pray you find yourself moved
toward mercy, and we ask you to follow your heart. Five men have
been executed in South Carolina in the past two months. On Joe’s
behalf and ours, we ask that you begin your new administration with
a courageous sign that South Carolina is a state where ja is
tempered by mercy.
Respectfully submitted,
John H. Blume III
Cornell Law School
Myron Taylor Hall
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APPLICATION OF JOSEPH ERNEST ATKINS
Ithaca, NY 14853
(607) 255-1030
Hilary Sheard
P.O. box 11311
Columbia, SC 29211
(803) 765-0650
BY:
JOHN H. BLUME
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