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PROTOGYROU & RIGNEY, P.L.C.
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AND COUNSELLORS AT LAW
215 EAST CITY HALL AVENUE
. MONTICELLO ARCADE
P.O. BOX 3205
NORFOLK, VIRGINIA 23514
625-1
(757) 625-1775
FAX (757) 625-1887
Andrew A, Protogyron Reply to: Norfolk Office
3901 MIDLANDS ROAD
WILLIAMSBURG, VIRGINIA 23188
(757) 259-1775
www.pandrlaw.com
June 15, 2000
The Honorable James 8. Gilmore, III
Governor of the Commonwealth of Virginia
OFFICE OF THE GOVERNOR
State Capitol, 3% Floor
Richmond, VA 23219
Re: Russel William Burket
Petition for Clemency
Dear Governor Gilmore:
We write on behalf of Russel William Burket, who is scheduled to be executed on
Wednesday, June 21, 2000. For reasons discussed below, we request that you grant executive
clemency to Rusty and commute the sentence of death to a sentence of life without the
possibility of parole. I hesitate to state that Mr, Burket’s case is any different than those that you
find before you at other times because it seems that so many of the individuals who come before
you and request clemency are mentally ill. However, the issue of Rusty’s mental illness
pervades from the time of his arrest through today as an underlying problem that Rusty has never
overcome in any type of fight for his life.
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Should you not commute the sentence of death to life, we ask for more time to further
scientifically test evidence,
L. INTRODUCTION
Russel Burket is mentally ill and has been mentally ill his entire life. He has been
determined to be 100 percent mentally disabled and was receiving social security benefits for this
total disability until he was sentenced to death. His disability is so profound that he can neither
read nor write. He has had lifelong attempts at suicide (three times) and has been prescribed
psychotropic medications. He has had involuntary hospitalizations in mental institutions (at least
three times in his life) and secure insane asylums. Rusty has had to rely upon his father to handle
his most minor affairs for a lifetime.
Rusty has never had a criminal record nor evidenced, at any time, violence to others nor
sexually violent behavior. Rusty has never had any issues of sexual involvement of any type
prior to this matter for which he received death.
In his early teens Rusty had been psychiatrically hospitalized and was basically removed
from the world for approximately four to six weeks, His mental disability made him so
dysfunctional it took six months of work with his teacher and his father before Rusty could
understand and repeat answers to questions read to him in order to obtain a driver’s license.
‘After the events of January of 1993, Rusty was incarcerated and his mental illness
increased exponentially. In the course of his pre-trial incarceration he was on a twenty-four hour
suicide watch,
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I, RUSSEL BURKET’S PRE-OFFENSE MENTAL HISTORY
As stated heretofore Rusty has had an extensive history of medication for psychosis and
depression. He has been psychotic as a result of organic brain damage and at times was known
to be a danger to himself and delusional. The following rendition of his psychiatric record is of
profound importance to understanding Rusty as an individual:
12/6/74 - Dr. Michael H. Anthony, Joel T. Boone Clinic, Norfolk
On Ritalin 9-10 months. Short attention span, emotionally labile, can’t keep toys
together or watch T.V, for very long period of time.
8/8/75 - Progress Notes - Michael H. Anthony - Boone Clinic :
Off medication. Color documentation problems. Low motor skills. per
psychological test.
9/30/75 - Joel T, Boone Clinic, Psychological Test results
WISC - R - lower half of dull normal for both scales. Weakest area - visual motor
coordination and organization. His errors were similar to those made by brain
damaged children. Family drawings on 4 year old level. Comparison with 1974
scores show he has not had education experience needed. No special help in
Kindergarten last year. Borderline range intelligence.
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11/30/77 - Dr. Robert V. Rack
Age 9 10/12 - recurrent headaches and pain, Problems with hyperventilation.
(Also in Virginia Beach Jail records of November 20, 1993). Needs special help.
4/18/80 Psychological Evaluation. Dull normal range - language impaired child.
WISC - R: Slow in responding to questions. Retention - unable to retrieve or
respond to examiner
Jastak Wide Range Achievement Test: Severe Educational Retardation.
Reading - 1.3 - less than 1%; Spelling - 1.2 - less than 1%; Arithmetic - 2.8 - 1%
Rusty has difficulty understanding what is expected of him.
Bender: Immature and distant. Poor self-concept. Insecurity. Appears to be doing
as much as he possibly can - needs not to have too much expected of him.
Functioning within low average range of intelligence and ability. However, in
verbal skills, functioning more like a youngster with language impairment who
has great difficulty processing language, retrieving language. Recommendation -
LD - qualifies for special education.
12/15/80 - Admission Note ~ CMHC ~ Eugene F. Maleski, Ph.D., Jerry Morowitz M.D. -
Attending Psychiatrist
Described as depressed loner with self-esteem approaching zero. Afraid to go to
school and parents’ efforts have made him hysterical. Termination of long-term
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friendship. Rather severe sleep disturbances - can’t fall asleep until 5:00 a.m. and
then can’t get up in the morning.
At age 7 began to show signs of emotional distress at Christmas time.
Hyperventilating because not sure if Santa Claus existed and then if Santa Claus
could get presents to his father on the ship.
Says he will not go to school anymore. Doesn’t know why. Hasn’t made suicide
gestures but often says he’d be better off dead. Frequently breaks into tears.
Diagnosis - Depressive neurosis, severe. Admit to inpatient unit of Early
Adolescent Program -demonstrating extreme emotional upset, severely impaired
social functioning and isolation.
12/22/80 - Supplemental Psychological Evaluation
Personality Inventory of Children (PIC) - Parents defensive, under duress -
accuracy may be less than desired. Mild to moderate range of disturbance. The
patents tend to answer items which strongly suggested that the patient functions
with a psychotic disturbance.
12/29/80, 1/5/81, 1/8/81 Psychological Evaluation — Joan McCrae, Ph.D. « Community
Mental Health Center and Psychiatric Institute, Norfolk, VA
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Two head injuries as a child. At age 6, hit head on bookcase which required
stitches. At age 7, fell off monkey bars, needed left ear reattached. At age 8, cut
his eye.
Diagnosis - Depressive Neurosis of rather severe proportions. Functioning
handicapped by depression and anxiety.
12/16/80, 1/15/81 - Testing - Catherine Kerlin, M.S. Ed., Anna Wortham, M.S. Ed. -
Plaza Junior High
Recommended to class for Emotionally Disturbed.
3/6/81 - Letter to Mrs. Mary Walker, Special Education Services, Virginia Beach from
Anne Rollins, Community Service Coordinator and Eugene Maleski, Ph.D.
Inpatient at CMHC & PI since 12/18/80 due to exacerbation of long term
symptomatology at home and in school.
4/17/81 - CMHC Discharge Summary - Dan Sandlin, LCSW; Leonard Lexier, MD
Shortly before Thanksgiving 1980 Rusty crying and screaming loudly when
realized he might have to go to school. Dyslexia, sleep disturbances, high family
mobility identified as most profound problems. School movement detrimental to
learning.
5/7/81 - Letter from Mary B. Walker, Administrative Coordinator of Special Ed.
Services, Virginia Beach Public Schools to the Burkets
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Special Education Eligibility Committee met regarding placement for Rusty as a
severely emotionally disturbed student. Hospital diagnosed emotional disturbance
as primary problem.
11/26/81 - Virginia Beach Due Process Notice
Recommendation: Assignment to class for emotionally handicapped.
8/12/84, 8/13/84 - Psychological Report ~ CMHC-PI, Eugene Maleski, Ph.D.
Rusty seemed within the low average to average range of academic potential
according to WAIS-R. However, there was a significant degree of intersubtest
scatter, ranging from scaled scores of 2-11, which suggests that his full scale IQ
may not be an accurate indication of certain cognitive abilities, significantly low
on subtest of general information. May be due to limited group of facts or
symptomatic of emotional factors. Significantly high on verbal reasoning.
Significantly low on visual associational learning, Significant deficiency in short
term memory skills. Score of 7 years, 6 months on determinative tests of learning
aptitude. Is in 1% of students in visual-motor integration. Woodcock below 1% in
reading/written language. Poorest score was in the word identification subtest.
Math - 6% - mid 5th grade. Rusty within borderline mentally deficient range.
8/21/87 « Virginia Beach General Hospital - Admission Note
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Urgent - 7:28 arrived. Seen at 7:40 for laceration to wrist by razor blade
requiring six sutures.
8/21/87 - Admission Evaluation and Immediate Treatment Plan - Dr. Glen L. Bohike,
Dan Sandlin, TPI-Virginia Beach
Fighting with family for one month. Not wanting to go to work. Difficulties
lifelong. Severe family dysfunction, dyslexia, defiance toward mother, father,
brother. Serious conflict in school. Family repeatedly moving has been
detrimental to treating his dyslexia. In 6th grade walked one mile with broken foot
in cast to avoid being in school. Self paced school - Plaza Junior High. Outpatient
treatment - Dan Sandlin, 3/9/79 - 11/8/83;
Inpatient treatment - CMHC, 12/15/80 - 4/17/81.
Attempt suicide - 8/21/87 - 1:00 a.m. Diagnostic Impression - Dysthymic
Disorder, 15-minute checks needed.
8/21/87 - 9/18/87 - Trial of psychotropic medication
8/23/87 - Doctor’s Orders - Halcion .5 mg. q.hs.
8/25/87 - Elavil - 50 mg, g.hs.
8/26/87 - Still suicidal. Doesn't want to live with parents. Sleeping better with
medication.
8/27/87 - Elavil raised to 75 mg. q.h.s.
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8/28/87 ~ Elavil raised to 100 mg. q.h.s.
8/29/87 - Elavil raised to 125 mg. q-h.s.
8/29/87 - Says, “if he commits suicide again he won’t screw up.” After parents
came for visit feeling suicidal again. Angry at their limit setting. Talks about |
parents keeping him “a little baby.”
8/31/87 - Elavil raised to 150 mg. q.hs.
9/7/87 - Suicide alert - 50 mg, Thorazine IM.
Seclusion.
9/10/87 - Thorazine, 50 mg.
9/2/87 ~ Lab tests - amitriptyline levels. (Clinical response to antidepressants).
9/6/87 - Upset regarding family meeting. Banging head on wall while rocking back and
forth on chair, Loud bang from room. Wouldn’t say what it was. Wouldn’t go to
time out room. Restrained. Banging head. Talking about guns. 11:00 p.m. - Still
banging head and hands on wall. Suicidal. Secluded,
9/8/87 - Rusty said that the family meeting felt the same way he did when he slit his
wrists. Engaged in struggle with staff. Swinging at them, Restrained, secluded.
Restrained to bed in seclusion room. Quiet throughout procedure, Got out of the
restraints. Given a shot. Placed in paper gown in seclusion room.
50 mg. Thorazine,
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9/11/87 - Family Therapy. Unresponsive to parents, who tend to lecture and give advice.
Still suicidal.
9/15/87 ~ Recurrent dreams of cutting wrists. Wakes up with a numb hand. Is concerned
about hurting someone because he’s going over the edge. “I’m going to explode.”
9/18/87 - Discharge Summary
Diagnosis ~ Dysthymic Disorder.
Condition on discharge - fair. Prognosis - guarded.
Medication - Elavil, 150 mg.
10/4/87 - 10/6/87 - Virginia Beach Hospital Notes Medication Overdose
10/4/87 - Dr. Bruce E. Johnson - Last seen awake at 10:30 p.m. Sibling noted he had
vomited. Found in bed the next morning not responsive. Emergency room called.
10/4/87 ~ 17 year old who has been doing poorly for the past six months. Slashed his
wrists six weeks ago and was admitted to TPI for four weeks. Was home two
weeks when he took an overdose of Tylenol, pseudoephedrine, amitriptyline, and
cold tablets,
10/6/87 - 10/9/87 - Tidewater Psychiatric Institute -VA Beach
10/6/87 - 11:00 p.m. ~ Ativan | mg. 11:35 p.m. Admit to Intensive Treatment Unit -
doesn’t remember what happened to him prior to overdose and since overdose.
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10/6/87 - Consult Report - Dr. Johnson to Dr. Bohlke ~ Hostile, threatening. Suicidal.
Diagnosis: — Axis I - Major Depression, Axis II ~ Atypical; Paranoia
10/7/87 ~ Dr. Glen, L, Bohike, Dan Sandlin, LCSW -Admission Evaluation and
Immediate Treatment Plan
19 years old. Third hospitalization, CMHC when 13. TPI, VA Beach for
attempted suicide ~ cut wrists longitudinally requiring 6 sutures. Fighting with
parents for past one month, Fight with Dad became physical. Cut wrists after that
fight. Reported thinking about suicide one month before last hospitalization, “If 1
got into another fight with my father, I might try to kill myself again.” TPI
8/21/87 - 9/18/87. Second admission - 10/6/87 - overdose on medication, 120 pills
over 8 hour period - 40 muscle relaxers, 15 antidepressants (Elavil) and 20 sinus
pills, Parents feel helpless and discouraged. Rusty is withdrawn from family.
Psychomotor functioning retarded.
10/8/87 - Progress Notes - 7:00 a.m. - 11:15 a.m. in and out of four point restraints, 12:00
p.m, - Court hearing held in seclusion room. Discharged to TP1, Norfolk in
custody of Sheriff's Department.
10/9/87 - Transfer Note - Discharged to TPI, Norfolk.
Temporary Detention Order obtained.
10/9/87 - 10/21/87 - TPI, Norfolk
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Medication orders - Dr. Raymond Iglecia -
10/9/87 - Cleocin, 300 mg., Thorazine IM 50 mg.; Norpralnine 25 mg.
10/12/87 - Dalmane, 30 mg. Restoril, 30 mg.
10/13/87 - Dalmane, 60 mg. Discontinue Dalmane. Halcion, .5 mg. Transition to
open unit.
10/14/87 - History and Physical, Mark R. Winters MD. Prior fracture of left foot, 1978;
right foot, 1982; right wrist, 1982. No history of seizures or neurological
problems. Currently stable but lightheaded with gastric disturbance due to
Cleocin, Blood pressure slightly elevated. Try low sodium diet. Currently on
« Cleocin, 300 mg. and antidepressants.
10/9/87 - Chest pains. Found on floor after falling. Nonresponsive to name being called.
Doctor’s Orders - Ativan, Cleocin. Placed in seclusion.
Banging on door to seclusion room. Unable to calm, Placed in 4 point restraints,
2:00 p.m. - Taken out of four point restraints. New medication. Refused to be
medicated. Thorazine - 50 mgs. at 2:00 p.m.
10/11/87 - “I’ve never been happy.” Dreamed of dying and “everything was
perfect.”
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10/12/87 - Says-he’s tried to kill himself two times that no one knows about. Tried to
overdose but woke up the next day. Tried to shoot himself but the gun didn’t go
off. Went outside and shot a squirrel. “You’re looking at a person who has never
been happy.” High suicide risk - four previous attempts, Happy when in the
mountains. Looking forward to going hunting again. Really enjoys hunting.
10/13/87 - Haven't slept in five days. Feel terrible. Given Halcion. It didn’t work.
10/14/87 - No suicidal thoughts. Transferred to open unit,
10/15/87 - Hopeful that Doctor Iglecia will help with dyslexia after he is discharged.
Can’t sleep. Therapy going well. Angry because parents said they will have to sell
his truck due to financial problems.
10/16/87 - Patched things up with Dad, Is going on weekend pass with Dad.
10/17/87 - Returned from weekend pass - got black eye from working with a crowbar and
scratches from clearing briar bushes at campsite, Says it happens all the time.
Came back early because he argued with Mother about wearing shorts.
10/18/87 - Refused one on one therapy. Looks angry. Says he is “o.k.”
10/19/87 - Doesn't want to talk.
10/20/87 - Leaving tomorrow - “I’m fine.” Visit by Dad strained. They have little in
co ; common. Dad rigid, still, standing with hands in pockets.
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10/21/87 ~ Discharge Summary - Admitted due to feeling depressed and lonely, He’s
made suicide attempts in past. Insight and judgment poor. Oriented x 3. Obese.
High suicide risk, Medication administered. Less anxious. Mixed feelings about
leaving - wants to go but not looking forward to inevitable fights with mother.
Discharge diagnosis - Dysthymic Disorder.
10/21/87 - Adjunct Therapies Progress Note, J.S. Crumrine - continues to be depressed;
will need a great deal of support from professionals, and family will need support
and therapy.
5/4/88 - 7:03 a.m. - Case number 138394 - General District Court - Signed by Magistrate
D.W. Phillips
Temporary Detaining Order - mentally ill, suicidal, homicidal.
5/4/88 - Initial Consultation Sheet - Scott Carter, Crisis liaison, Virginia Beach General
Hospital
Brought to emergency room after ingesting 20 Halcion pills. Resistant to
treatment, required 4 point restraints. Suicidal - expressed intention of “going
home and blowing my head off with a shotgun.”
5/4/88 ~ TPI, VA Beach - Howard Weiss, M.D., Attending Physician
Brought in on temporary detaining order due to danger to self. This is third
hospitalization. Says first hospitalization was age 8. 2nd one last year. This time
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5/5/88
5/6/88
5/6/88
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following serious suicide attempt. Discovered in obtunded state after taking all the
pills filled in a prescription for Halcion last Saturday,
Wants to die. “I could get a gun, I would blow my head off now, I just want to
die, leave me alone.” “It’s all my mother’s fault and I can’t stand my parents, I
just don’t want to see them anymore, leave me alone, | just want to die.” Denies
psychotic symptoms. “He is totally an unreliable historian. He is confused and
suffering organic brain syndrome.” Slurred speech, confusion, poor memory.
Abstract ability impaired. Insight and judgment extremely poor.
Diagnosis - Major Depression, recurrent.
This is a clear cut and unequivocal case whereby the patient is mentally ill and
dangerous to himself.,..His judgment is impaired due to mental illness.
- Discussed stressors, conflicts with parents. Mentioned getting into fights,
expressed fear because he doesn’t remember events when angry and fighting.
- Court Order - transfer to TP1, Norfolk
- TP, Norfolk - Dr. Joginder Pal
Admitted to emergency room at Virginia Beach General Hospital. Increasingly
progressive depression attributed to inability to hold down a job. Was previously
hospitalized in 1986 and 1987 for suicide attempts. Rusty discovered by family
member after an overdose of (20) twenty .05 mg pills of Halcion. Was severely
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depressed at initial interview. Records available for review indicate longstanding
history of behavioral and emotional problems dating back to age 8.
5/7/88 - Says less depressed. Wants to be on open unit.
5/9/88 - Master Treatment Plan - Dr. Raymond Iglecia - Diagnosis - Axis I - Major
Depressive Disorder; Recurrent with melancholia, Dysthymic Disorder. Master
Treatment Plans - 5/17/88 and 5/24/88 - main issue - unable to problem solve.
5/13/88 - Social History - Says he has no relationship with parents and brother.
5/27/88 - Discharge Summary - Dr. Raymond Iglecia - Admitted 5/6/88. Discharged
5/27/88, 20-year-old with increasingly progressive depression. Overdose of
Halcion. ITA and 15 minute checks ordered. Medicated.
11/15/88 - Vocational Evaluation Report - Referred by Jesse Sandlin
WRAT (Wide Range Achievernent Test) - less than 3rd grade reading level, Out
of 89 words, could only correctly pronounce 3. Comprehension test could not be
administered because he couldn’t read it.
2/18/89 - Psychiatric Evaluation - Dr. Jerome Blackman, MD FAPA, Dominion
Paychiatric Associates, VA Beach
AxisI-(A) | Organic Brain Syndrome, etiology undetermined
(B) Atypical Psychosis
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“This is a young man with apparent organic damage... 1 feel there may
also be an element of reardetion present.” Severe amount of grandiosity
present coupled with severe negativism, poor frustration tolerance, poor
affect. Idealistic view of his entire life. “The disorder in his thought
process makes it difficult for him to maintain any logical planned goal for
himself. . Much of his negativity and oppositionality no doubt has to do
with the lengthy history of rigid upbringing that he experienced, although
the complications of the family situation are no doubt much more serious
than simple rigidity.”
Moderately paranoid view also applies to any type of psychotherapy.
Resistant to medication. Willing to see me again but wanted to think about
it. Serious defect in intellectual capacities and signs of serious mental
illness.
tL. THE CRIME
Rusty was accused of breaking into the home of Katherine Tafelski and her children on
or about January 13, 1993, Ms. Tafelski was found on January 14" covered in blood and lying
on her bed. She was partially nude and had been sexually assaulted by an object. Her daughter
Ashley’s body was found lying in her bed. It appeared that she had been struck several times
and died from the blunt trauma. Her son Andrew was found lying in his bedroom with facial
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injuries. Chelsea Brothers, Katherine Tafelski’s niece, was found alive in the home with facial
injuries.
A blue washcloth was found at the murder scene. This washcloth was at one time said to
have been found near the body of Katherine Tafelski and another time it was said to have been
found outside the home. The washcloth was found to have spermatozoa stains which were
consistent with approximately 7.8 % of the Caucasian population.
The police, after one week of investigation, began to focus their investigation on Rusty
and his older brother Lester who lived next door to the Tafelski’s. As previously mentioned,
Rusty had no criminal record; however, his brother Lester Burket did. Animal hair and pubic
hair were found at the scene. None of it was linked to Rusty. Further, Chelsea Brothers first told
the police that the assailant was a black man.
In 1991 Lester Burket, Rusty’s brother, was charged with and ultimately plead guilty to
anal sodomy of a child who he knew and whose parents were living with Lester Burket at the
time. Lester was also accused, but not charged, of molesting another female juvenile by
attempting to pull her pants down to sexually assault her.
Both Lester and Rusty were taken by the police for questioning. Lester had been
fTepresented by Bill McGraw, an attorney that was familiar with Lester’s previous case on the
serious sex felony for which he had been arrested and charged in July of 1991. Lester, when
taken into custody by Virginia Beach police, called his mother and instructed her to retain Bill
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McGraw for him on the murder cases. Mrs. Burket contacted McGraw and retained him to
represent Lester and not Rusty. McGraw went to the police station in his capacity as Lester’s
attorney.
When McGraw arrived at the police station he was refused access to Lester but when
Lester's interrogation ceased at approximately 6:00 p.m. McGraw held a press conference, as
Lester’s attomey, anmouncing that no charges would be brought against him. McGraw spent the
following hours with Lester and his parents. When Rusty allegedly gave a statement to some of
the events, McGraw was retained to represent Rusty by his father. McGraw, when retained to
represent Rusty, never terminated his attorney/client relationship with the prime suspect, Lester.
In the alternative he simultaneously represented both suspects in the murders. According to the
law and the rules of ethical conduct this was an absolute conflict of interest.
IV. THE INTERROGATION
Because the only physical evidence linked to Rusty (and 8% of all Caucasian males) was
the washcloth, the interrogation becarne the most important aspect of the Commonwealth’s case.
It was the interrogation that was ultimately appealed, preserved for appeal, and was found to be
satisfactory by the Virginia Supreme Court,
When the police began their interrogation on January 20, 1993 at approximately 2:00
p.m. they knew that Rusty was mentally ill. He was taken to police headquarters and
interrogated by Detectives Hoffman and Sager. He was told that he was not under arrest and that
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he was free to leave at any time. Hoffman and Sager placed a chair in the corner and the two of
them sat between Rusty and the only door out of the small interrogation room which was
equipped to record both by video and audio. The interrogation started without Rusty’s Miranda
tights being read to him. After general questioning Rusty gave his whereabouts as being with his
mother watching a film on television, smoking a cigarette outside, letting his dogs in, and then
going to bed. Rusty was then lied to by the police who stated that the children that had survived
the attack had seen Rusty in the house and that they had hair matching Rusty’s in the home,
Rusty stated “I’m gonna need a lawyer.” Hoffman continued to examine Rusty. He remained
silent. At one point Rusty used the word “accident” but at that time he was no longer free to go.
Hoffman continued the interrogation and again did not provide Rusty his Miranda rights. Rusty
again stated “I think I need a lawyer.” The detectives frisked him and locked him in the room
and left. It was then that his Miranda rights were ultimately read to him by Sager and again re-
tead to him by Hoffman.
Hoffman informed Rusty that Lester was still being interrogated and that one of the shoe
prints was identical to Lester’s. Rusty said that he did not remember doing the murder and he
replied that “his brain was not right.” He said “I flipped out and didn’t know what I was doing,”
and said “I can see things but I don’t remember going and doing it.” Rusty again remained silent
for a period of time and was pressed by the detectives to “cut the crap.” Rusty told Hoffman that
he had used a rusty, old crowbar to break in and gave other details about the inside of the
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Tafelski home. (Rusty had been in the home prior to January 1993). He ended by stating that he
was “out of my head” and “couldn't feel myself being there.” Hoffman accused Rusty of having
sex with Katherine Tafelski and that he masturbated in the room. Rusty denied both, When
Rusty’s interrogation ended Rusty was asked why he used the blue towel and he told Hoffman he
used it to carry the gun so that it would have no prints on it. (An antique gun was found in the
woods behind the Tafelski home). Hoffinan repeatedly entered and left the room with Rusty still
telling him that he was not sure that he did the crime. The interrogation ultimately ended
sometime around 6:45 p.m. when he was told that he was being charged.
V. PRE-TRIAL MENTAL CONDITION
NO COMPETENCY EVALUATION
Despite Rusty’s lifelong history of mental illness, and his attorney’s awareness that Rusty
was suffering from constant hallucinations in jail for which he was receiving anti-psychotic
medication, McGraw never asked the court to address the issue of Rusty’s competency to
stand trial or his sanity at the time of the offense. McGraw never moved for a competency
hearing at any stage in the proceedings despite his awareness of Rusty’s fragile and deteriorating
mental health.
Examples of Rusty’s deteriorating mental health while awaiting trial are found in the jail
records and are summarized as follows:
1/21/93 Social worker: Rusty reports severe headaches in recent months. Denies ever
being on medication.
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1/29/93 Nurse: Code 99; Rusty found lying on his side on the floor with a blanket
wrapped around his head and shoulders “like a hooded cape.” Claims he fell and
hit his head on the door or wall, Minor abrasions to head. Complains of vertigo,
feeling lightheaded. Was seen pacing his cell prior to the incident; deputy said
Rusty leaned his head against the door and “slid down the door.”
2/1/93 Social worker: Nursing staff reported Rusty passed out over the weekend and was
unresponsive. He stated he couldn’t recall what happened - he remembered
walking to the door but nothing else.
2/5/93 Nurse: Deputy stated Burket passed out. Possible high blood pressure with
lethargy.
2/11/93 Doctor: Rusty denies being on medication in the past, doesn’t want to take
antidepressants.
2/23/93 Nurse: Rusty stated “I don’t know why I was moved over here, I need to go back
to the other cell. Why do they keep doing this to me? They spit on my food, they
threaten me. Look at that window, you know who is after me. They are going to
get me, I can’t lay down, I’m not going to be able to sleep or rest. They will get
me, the SEAL’s. You know my next—door neighbor is a SEAL. Why did they
move me? I have to go back.” Observed sitting in corner of his bunk with crossed
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legs, rocking back and forth hugging his pillow, crying heavily at times. Voiced
concerns about being ir a cell with a big window.
2/23/93 Nurse: Rusty observed hunched up, cowered in comer, crying, fearful that the
SEALS will come through the window. “Impending psychotic breakdown?”
4/13/93 No reasoning ability
JUNE 1993 PRELIMINARY HEARING
VIRGINIA BEACH GENERAL DISTRICT COURT
6/25/93 Doctor: “Been having hallucinations for past two months - sees, hears, and
smells old hunting dogs he used to have that are now dead,” Complains of loss
of appetite, feelings of hopelessness, apathetic, Threatened suicide but denies
current intent. Expects one of the SEALs to shoot him if he’s released. Tearful.
6/25/93 Placed on Sinequan, SU mg.; increased to 150 mg. on 7/1/93
8/6/93 Doctor: Rusty complaining meds not helping. Remains depressed and hopeless;
complains of nightmares every night.
9/27/93 Social worker: Rusty stated when he goes to court he will testify against himself
to be sure they kill him.
10/1/93 Doctor: Increased depression and irritability. Thinking somewhat paranoid.
11/17-18 Defense Psychological Evaluation for mitigation purpose performed.
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June 15, 2000
11/20/93 Nurse: Rusty sitting on bunk, curled up, sobbing, stating “They’re going to kill
my mom and dad. They bumed my dog.” Says “they” are monsters - “the
monsters said they’re going to kill my mom and dad. But what do you all care?
I should be dead! Why should I tell you anything, all you do is testify against me.
Every word I say you tell them!” Covered camera, hyperventilating, sitting on
edge of bed, Repeated “I need a phone call. I’ve got to call my mom and dad.
They’re going to kill them.” Nurse instructed to give Rusty Benadryl, 100 mg bid
for anxiety until stable.
11/22/93 Social worker: Referred by nursing staff, complaining of seeing and hearing
demons -“shadows of people in my room talking to me.” The demons said if
Rusty talked to anybody about anything, they would kill his parents. Reports
history of auditory/visual hallucinations in early childhood similar to
hallucinations described now; parents told him they were dreams, These visions
occur mostly at night when Rusty is awake. Appears paranoid, agitated. States he
hasn’t talked to parents or attorney in 2 weeks. Discussed referral to Dr, Bohlke to
evaluate need to change meds in light of new symptoms.
11/26/93 Nurse: Rusty stated “I need to talk to someone about these hallucinations, They
are not getting any better and you people aren’t helping them. They’re dead, I
know they're dead, I haven’t been able to talk to them.” Stated there was no
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June 15, 2000
answer at his parents’ house, he knows they’re dead, Seems distraught. Allowed
to call, spent 45 minutes on phone.
11/26/93 Doctor: Rusty complaining of increased hallucinations “which he believes
are demons.” Exhibiting increased delusional thinking and paranoia, increasing
decompensation. Prescribed Trilafon, Cogentin.
11/29/93 Social worker: Doing better with new medication. Still hears voices, but no
longer experiences visual hallucinations; paranoia also decreased.
12/2/93 Social worker: Reports feeling more calm with new medication, but experiencing
some hand tremors when trying to write. Rusty talked to watch commander about
cracks in wall -doesn’t want to be blamed for cracks.
12/9/93 Social worker: Rusty received upsetting news from attomey today and
subsequently fired him. Admits to being “upset” and “on the edge.” Continues to
report some mood swings.
12/9/93 Nurse: Rusty banging his head on the wall. Wants to call his father to see if he’ll
find him a new lawyer “because I fired mine today.” Inside of wrist red - states “T
bit myself.”
12/10/93 Doctor: Rusty upset with lawyer, feels he was lying to him and he can’t trust
him. Given Cogentin.
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1/4/94 Social worker: Rusty complaining hallucinations are back where they were last
year, “trying to make deals with me.” Complains of seeing demons and
shadows, is having a hard time determining what’s real and what isn’t.
Displays some agitation and paranoia.
1/5/94 Doctor: Double the dose of Trilafon and Cogentin
1/14/94 Doctor: Rusty states he is doing better, hallucinations aren’t as severe, he’s
trying to ignore them. “Patient reports he’s never known a calm like this.
Resolved differences with his lawyer.”
JANUARY 19, 1994 VIRGINIA BEACH CIRCUIT COURT
RUSTY PLEADS GUILTY
2/15/94 Nurse: Rusty states “I don’t know if I need this medicine anymote. I’m going to
ask to go in the electric chair when J get sentenced. What's the point?"
2/23/94 Social worker: “Appears relieved that he is not getting death penalty as
indicated by his attorney.”
3/8/94 Rusty is receiving 200 mg Elavil at bedtime, 8 mg Trilafon twice a day, 2 mg
Cogentin twice a day.
MARCH 24, 1994 VIRGINIA BEACH CIRCUIT COURT
RUSTY IS SENTENCED TO DEATH
Defense counsel retained the services of Psychologist Gary Hawk and Neuropsychologist
Dr. Thomas Ryan. Dr.’s Hawk and Ryan did not have an opportunity to review all available
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records on Rusty which included school, medical and psychological records. Hawk did not see
Rusty until after the preliminary hearing, over a two-day period, in November of 1993 along
with Dr. Ryan. Their final reports were filed in December 1993, They also failed to be provided
Virginia Beach City Jail records which contained references to Rusty’s psychotic condition and
psychotic medications which were prescribed to address his hallucinations and schizophrenia.
McGraw failed to have Rusty’s competency addressed at any time during the proceedings of the
case whether to assist counsel or to address sanity at the time of the offense.
V. THE DNA
As previously mentioned, the washcloth was found with seminal fluid which was
revealed to be consistent with 7.8 percent of the Caucasian population. The testing at the time did
not rule out Lester Burket or Rusty. Lester was a suspect who was interrogated. At this time
further testing should be done on this cloth that would hopefully narrow the scientific
probabilities between Rusty and Lester.
VI. MENTAL INCOMPETENCE REQUIRED FOR REVIEW
Even though Rusty’s various medical records at the time of incarceration in the Virginia
Beach City Jail have been brought before State and Federal Habeas Petitions each Court has
declined review on various procedural grounds,
We ask you to consider the extensive medical records that have been provided to you and
were not available at the time that Rusty encered his plea and was sentenced. We ask you to
temper retribution with mercy. Rusty's ability to understand and voluntarily enter into a plea,
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knowingly and intelligently, at the same time that he is hallucinating and talking to monsters
coupled with the fact that he never is examined for competency to stand trial or assist counsel is
an absolute injustice and could only be overcome by your clemency. Rusty’s representation at
the trial level amounted to nothing.
VII. CONCLUSION
It is asked that clemency be granted on a multi-faceted level. It is requested because
further DNA testing of the washcloth, at this time, may be able to discern whether or not Lester
Burket is the true perpetrator of the crimes that occurred.
Whether the “black man” seen by one of the child witnesses as the assailant is in reality
true, :
Whether admissions during the interrogation were really admissions or suggestions of the
police that Rusty adopted then quickly would say “he was out of his mind.”
Whether a mentally ill individual, never evaluated for competency to stand trial can be
put to death, The minimum required of any counsel in the Commonwealth of Virginia for the
most minor of cases is a request for a mental evaluation for competency. This never occurred.
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The only alternative is I‘fe, without parole, so that Rusty does not become a victim of the
system.
Respectfully submitted,
RUSSEL WILLIAM BURKET
By:
Andrew A. Protogyrou, Esquire
Mark Olive>
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PROTOGYROU & RIGNEY, P.L.C.
ATTORNEYS AND COUNSELLORS AT LAW
www.pandrlaw.com
215 East City Hall Avenue
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P.O, Box 3205, Williamsburg, Virginia 23188
Norfolk, Virginia 23514 (757) 259-1775
(757) 625-1775 (757) 625-1887
Fax: (757) 625-1887
FAX TRANSMISSION COVER SHEET
Date: June 15, 2000
To: Robert E. Lee, Jr., Esquire
Fax: (804) 643-6819
Re: Russel Burket
Sender: Danielle Sheets, Secretary for Andrew A. Protogyrou
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ZEST OG. ST NIE T@d C26 ASNSINSNOMASOLOYd Le8TSZ9
