Arkansas, P-R, 1885-1999, Undated

1661 2 LSNONV ‘AVGSANHL “‘C1YOM VSTAL

Man Executed
In Arkansas

For Slayings

VARNER, Ark. (AP) — With
five members of his victims’
family watching via television,
an Arkansas prisoner who pro-
claimed his innocence was exe-
cuted by injection Wednesday
night.

Eugene Wallace Perry, 53,
said, “I am innocent of this
crime,” before a deadly mixture
of chemicals was sent through
his veins. The execution started
at 9:02 p.m. Perry was pro-
nounced dead at 9:12 p.m.

Perry was convicted of the
Sept. 10, 1980, slayings of Van
Buren jeweler Kenneth Staton
and his daughter Suzanne Staton
Ware. Staton’s widow, Ruth Sta-
ton Morrison, said Perry cased
the store a week before the
slaying. She witnessed the exe-
cution from an assistant war-
den’s office, but said “but there
will never be a closure.”

Perry claimed another death
row inmate — Marion Pruett —
committed the slayings, and
Pruett has confessed to the kill-
ings. But courts rejected
Pruett’s claims and refused to
toss out Perry’s convictions. .

From a steel gurney in-an ex- )

ecution chamber at the Cum-
mins Unit of the Arkansas pris-
on system, Perry. recited a
Buddhist chant after proclaim-
ing his innocence. BR hat

“I take refuge in the Buddha,
dharma and the sangha. Om
mani padme hung,” Perry said.

Correction Department Direc-
tor: Larry Norris said Perry
once translated the chant as,
aoe jewel has just left the lo-
us.” an
Norris said so many members
of the Staton family wanted to
watch the execution that he left
the selection up to family mem-
bers. Normally, he selects all
witnesses except those repre-
senting the media and the con-
demned man.

--In his appeals, Perry lawyer
Craig Lambert claimed new evi-
~dence showed Perry was inno-

_ cent and said Perry didn’t re-

ceive a fair clemency hearing.

Arkansas killer put to death

Associated Press

, adding

never be a

sadly,” said Staton’s widow,
Staton Morrison

“I felt like justice was served,
r
injection Ruth

Wednesday after proclaiming his that “there will

- innocence.

Courts rejected Pruett’s claims
and upheld Perry’s conviction.

a 1980 robbery ve
by

d

execute

VARNER, Ark. — A man who
shot a jeweler and his daughter

to death durin

was

closure.”

Eugene Wallace Perry, 53, was
convicted of killing Kenneth Sta-
ton and his daughter Suzanne
Staton Ware in Staton’s jewelry
store.

Perry claimed another death
row inmate — Marion Pruett —
committed the slayings, and Pru-
ett has confessed to the killings.

14A/Las Vegas Review-Journal/T hursday, August 7, 1997


CMTS#3:

Page 1
NAME: PERRY, EUGENE WALLACE DATE OF EXEC.: 1997/08/06 NUMBER: 405
S: Yof—e: 97 DR#: AR-SK881 METHOD: INJECTION TIME: 2110

SOC. CLASS: ECO. CLASS: EXECUTION SET : 97/08/06-EXE NO.:
RACE: W SEX M TO-DR: 16.0 T-C: 16.9 AGE ATEXEC.: 53 DOB: 44/07/08

STATE: AR CO: SEBASTIAN CITY: VAN BUREN

HOR: BOOK/MOVIE:

H: L: 3C: 3 E: 2 SPECIAL LIST:

DATE OF CRIME: 1980/09/10 AGE AT CRIME: 36 CATEGORY: LEO:

DATE OF SENT.: 1981/07/27 WEAPON: SHOT

CRIME: MURDER-ROBBERY NO. KILLED: 2 TOTAL KILLED: 2

VICT. CODE: WM50; WF24

CMTS#1: KENNETH STATON (50), robbery of a family jewelry store

SUZANNE STATON WARE [24] —a father & daughter

-both were bound, gagged, shot twice in the head
-had some ofthe stolen rings on him at the time of his arrest

KNOWN PREVIOUS CONVICTIONS:

ACCOMPLICE: yes FIRST ENTER:

CMTS#2: >>> US SC REJECTED APPEAL: 89/11/06

1990 CLAIMED THAT MARION PRUETT (DEATH ROW) ADMITTED TO THE MURDERS

9 YEARS AFTER THE CRIMES
REFUSED: 879 F. Supp. 1053, 1582 "not credible"
PRUETT gave statement but refused to testify or be cross-
examined [wanted payment for his testimony]
EVIDENCE: -claimed not in Arkansas but several eyewitnesses including the
woman who gave him a ride into town from the campgrounds
-several people in the shopping center rememberd him because he was
walking around carrying some rope
-his campsite had the jewelry bags, tags, & trinkets

LAST WORDS: "I am innocent of this crime. | take refuge in the Buddha, dharma,
and the sangha. Om mani padme hung. [The jewel has just left the lotus.]"

Tuesday August 6, 1996 America Online: Galba33 Page: 2


Ex-officer sentenced

to life for rape, murder:

@ EDINBURG, Texas — A for-:

mer police officer has been sen-)

tenced to life in prison for the
rape and stabbing of an 18-year-;
old woman he killed while on du-}
ty. Gilberto Chavero Jr., 24, was?
sentenced Monday in the March:
23, 1996, killing of Iris Yveife
Hidalgo, a McAllen High School
honor student. Mr. Chavero was
convicted of capital murder in:
June for raping and killing Ms.
Hidalgo while on duty for the Eq-
couch Police Department. A
farming community of 3,000 peo-
ple, Edcouch is 10 miles east of
Edinburg in Hidalgo County. The
day after the Slaying, Mr. Chavero
led authorities to Ms. Hidalgo’s
body after finding a note in his
patrol car directing him to a sew-
age canal. Ms. Hidalgo was found
floating face-down, her throat
slashed.

cles
VA fo
4

Court rescinds stay
for Arkansas inmate

Associated Press

LITTLE ROCK, Ark. — The execu-
tion of Eugene Perry was rescheduled
for Wednesday night after an appeals
court rejected claims that he deserved
a full and fair hearing on whether he
committed a 1980 double-murder.

A panel of. the 8th US. Circuit
Court of Appeals said Monday that a
federal judge was wrong to issue a stay
of execution. It said it was likely that
Mr. Perry would fail in attempts to
prove he wasn’t guilty.

“The death penalty is the ultimate
penalty, but that fact alone doesnot
require a stay of execution when legal
challenges are raised,” the panel
wrote.

Judges can issue Stays “only if
there are substantial grounds on
which relief might be granted,” the
court wrote. “Perry has not shown
there is a substantial likelihood of
Success.”

Mr. Perry was sentenced to death
for the Sept. 10, 1980, Shooting deaths
of jeweler Kenneth Staton and his
daughter Suzanne Staton Ware during
a robbery.

US. District Judge George Howard
Jr. issued a stay last week, saying he
wanted to hold a hearing on whether
the clemency board violated Mr. Per-
Ty's rights by refusing to consider his

claim of innocence.

Mr. Perry said that another man
did the killing — a fellow death row
inmate confessed — and that he had

an alibi. However, the appeals court
said Mr. Perry had raised the issues
before and been rejected.

Mr. Perry also made many of the
Same claims before the clemency
board July 7, but the court wrote that
Arkansas law imposes “no standards
--. [Or] criteria” on board members
considering a request for mercy. The
board was free to.seasider or not con.
Sider any information Mr. Perry
brought up, according to the opinion.

“A petitioner does not have a right
under the equal protection clause to
an unbiased decision maker under the
Arkansas executive clemency statute,”
the court wrote.

Mr. Perry’s attorney, Craig Lam-
bert, said he would ask the full 8th US.
Circuit to reconsider the panel’s rul-
ing.

woman Dina Tyler said Mr. Perry ar-
Tived about 7:40 p.m. Monday at an
isolation cell at the Varner Unit,
where the state holds executions.

While at Varner, Mr. Perry will be
held in a cell 31 feet from the death
chamber gurney. On execution night,
25 witnesses can watch him receive a
lethal dose of drugs — and this time, a
new state law will let up to five mem-
bers of the victims’ families watch via
a video feed to an assistant warden’s
Office.

Department of Correction spokes-

Mr. Lambert said he would appeal

Tuesday to the US. Supreme Court.

>

Tuesday, August 5, 1997

Ghe Ballas Morning xave


4


802 FEDERAL SUPPLEMENT PIC

Pi,
pay

a grocery store in Casscoe.
@ ‘who were in the store at the ti

Finally, Pickens claims that certain testi-
mony elicited from his mother left the
impression that he had participated in a

the death penalty that he would £0 to
great extremes to keep it from being

‘ omene

sree: a

Ste eco Sea
oF ake mannan re Semi aoe

won Diaetacee s

er"

thy a"

murder in Michigan. He made no motion
to have the testimony stricken, did not
ask that the jury be admonished, nor has
he shown the testimony was so prejudi-
cial as to warrant a mistrial. Therefore,
he cannot obtain reversal on this point.
Birchett v. State, 294 Ark. 176, 741
S.W.2d 267 (1987).

Pickens v. State, 783 S.W.2d at 341.

{11-13] There is wide latitude on the
cross-examination of an adverse witness.
The cross-examination here did not exceed
proper bounds. It clearly did not offend
due process. In a habeas corpus proceed-
ing, the scope of review as to the trial
court’s ruling on evidentiary matter is lim-
ited. Hobbs v. Lockhart, 791 F.2d 125 (8th
Cir.1986).

xX

IMPEACHMENT OF WITNESS
FATHER FRANZ .

[14] Petitioner alleges that it was im-
proper for the state to impeach a witness,
Father Louis Franz, at the, 1988 resentenc-
ing. Oo

When raised on direct appeal, the Arkan-
sas Supreme Court held in Pickens v.
State, 783 S.W.2d at 346-47:

Third, Pickens presented the testimony

of Father Louis Franz who spoke of the

good works and self-improvement Pick-
ens had undertaken while in prison. On
cross-examination, the state asked Fa-

ther Franz if he had once intervened in a

case to prevent the death penalty from

being carried out, even though it was
against the wishes of the convicted man.

The state was referring to Franz v.

State, 296 Ark. 181, 754 S.W.2d 839

(1988) in which Father Franz, as next

friend, tried to appeal the death sentence

of Ronald Gene Simmons after Simmons
waived his appeal. Pickens objected to
this reference to the Simmons case, but
the trial court allowed the question. The
state was attempting.to show that Fa-
ther Franz was so unalterably opposed to

carried out. Wide latitude is allowed on
cross examination to elicit facts impeach.
ing the credibility of a witness and the
scope of that examination is largely with-
in the discretion of the trial judge. Aler-
ander v. State, 257 Ark. 848, 516 S.W.24
368 (1974).

Petitioner must show a due process viola-
tion before he is entitled to relief on this
issue. Byrd v. Armontrout, 880 F.2d 1
(8th Cir.1989), cert. denied, 494 U.S. 1019,
110 S.Ct. 1826, 108 L.Ed.2d 501 (1990).
Amos v. Minnesota, 849 F.2d 1070 (8th
Cir.1988), cert. denied, 488 U.S. 861, 109
S.Ct. 159, 102 L.Ed.2d 180 (1988); Sullivan
v. Minnesota, 818 F.2d 664 (8th Cir.1987),
cert. denied, 484 U.S. 862, 108 S.Ct. 178, 98
L.Ed.2d 131 (1987); Wood v. Lockhart, 809
F.2d 457 (8th Cir.1987); Ball v. Wyrick,
547 F.2d 78 (8th Cir.1976), cert. denied, 431
U.S. 941, 97 S.Ct. 2657, 58 L.Ed.2d 259
(1977). See also Pentecost v. Estelle, 582
F.2d 1029 (5th Cir.1978).

Petitioner has failed to show that the
cross-examination of the witness violated
due process. Even if error were shown,
which we do not believe to be the case,
petitioner is not entitled to relief under
federal due process. Berrisford v. Wood,
826 F.2d 747 (8th Cir.1987), cert. denied,
484 U.S. 1016, 108 S.Ct. 722, 98 L.Ed.2d 671
(1988). As noted, supra, a federal habeas
court can only grant relief when the state
court’s evidentiary ruling infringes on a
specific constitutional protection or is so
prejudicial that it violates due process.
Cooley v. Lockhart, supra.

XI

DISREGARD OF MITIGATING
EVIDENCE
The petitioner claims that the jury im-
properly ignored evidence presented in mit-
igation and the Supreme Court of Arkansas
has not rectified this omission. The Su-
preme Court of Arkansas effectively an-
swered this contention on the direct appeal:
Pickens was twenty-one years old in 1975
when he and two other men robbed a

a

bere tin Nternelt es iirc ANNA ° Set oats ~— oi oF a aries
, Shite ca nig tl “ SE SPS IY oh agi tee Shoo cis ciation liut beh Nya 4 NSE aD lt : Re
: Ree Ce Te ent e UTR SSS eet wi bate Ss ve eee

~erowded into a small room while
-bery took place. When Pickens
“others determined that there

room in which they could lock
victims, they opened fire on, t
‘shot them repeatedly as they
lessly on the floor. Two peo
_killed and five others were ser
jured.
At the sentencing hearing, on
victims, Jerry Lockridge, testi
Pickens fired first, shooting W
at point blank range. Other sh
by Pickens or the others, then
in rapid succession until the
emptied. The gun was then relc
at least one more shot was fire
ridge said, “during the entire ti
there, ... Mr. Pickens was the :
doing the talking ... he’s the

_ told me to lay on the floor ... h

one that did the talking to Mr
when they found the money.” |
said he perceived Pickens as t
control-of the situation. / **
James Weatherly, said Pi
acting on the instructions 01
From this evidence, the jury «
sonably have concluded that th
ing circumstances of youth an
tion by another person did no
-Pickens also presented evidenc
had corresponded with vario:
people since his imprisonment.
er, the state’s evidence showed
ens had once enclosed a pam)
letter to one student soliciting
his defense. The jury could
found that these efforts by Pic
insincere and self-serving.

E Pickens v. State, 783 S.W.2d at

[15] The credibility of the

} q and the weighing of the testim

“= matters for the jury. It is pres'
j= they took this responsibility
 McGautha v. California, 402 U.S
Mm 91 S.Ct. 1454, 1467, 28 L.Ed.2d'
© This is the third jury which has

| petitioner to death. Such a resul
' a surprise in view of the factual

this particular crime.


216

another jury to resentence an offender, in-
stead of the original jury. He concedes
that this issue was decided adversely to
him in Collins v. Youngblood, 497 U.S. 37,
110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). He
preserves the point only for the purpose of
having it readdressed by the Supreme
Court of the United States.

VI

PROSECUTOR’S REMARKS IN OPEN-
ING STATEMENT AND CLOSING
ARGUMENT ARE GROUNDS FOR
MISTRIAL

In his opening statement the prosecuting
attorney commented as follows:

And when they were through Wes Noble,
a seventy-six year old black man laid
dead; Jimmy Schern, thirty.two year old
white man laid dead; Thelma Gunnell, a
sixty two year old grandmother, white
woman lay raped twice, shot in the neck;
Floyd Lockridge, forty seven year old
white man.

(TR 1253-54).

{5} Petitioner moved for a mistrial but
on reflection did not press for an admoni-
tion (TR 1251). The motion was overruled.
The issue was raised on appeal to the Su-
preme Court of Arkansas, which found that
the trial court “did not abuse its discretion
in denying the mistrial and there was no
manifest prejudice to the appellant.” 783
S.W.2d at 346. In connection with this
issue, the Supreme Court of Arkansas
quite properly said: “Racial descriptions
are irrelevant in almost every instance in a
trial. The race of a victim simply should
not be mentioned to the jury unless neces-
sary....” Id. The views of the trial court
and the Supreme Court that the remarks
were not so egregious as to warrant a
mistrial is entitled to the presumption of
correctness. Schlup v. Armontrout, 941
F.2d 681, 641 (8th Cir.1991); Laws v.
Armontrout, 868 F.2d 1877, 1381 (8th Cir.
1988) (en banc), cert. denied 490 U.S.
1040, 109 S.Ct. 1944, 104 L.Ed.2d 415, re-
hearing denied, 490 U.S. 1117, 109 S.Ct.
3179, 104 L.Ed.2d 1041 (1989).

802 FEDERAL SUPPLEMENT

[6,7] Every improper argument made

by a prosecutor does not necessarily pres-

ent a constitutional violation., Donnelly v.
De Christoforo, 416 U.S. 637, 647, 94 S.Ct.
1868, 1878, 40 L.Ed.2d 481 (1974); Hamil-
ton v. Nix, 809 F.2d 463, 470 (8th Cir.1987),
cert. denied, 483 U.S. 1028, 107 S.Ct. 3270,
97 L.Ed.2d 768 (1987). Petitioner must
show a reasonable probability that absent
the alleged improper remark, the result of
the sentencing would have been different.
Hamilton v. Nix, supra. On this point the
Supreme Court’s comments in Darden »v.
Wainwright, 477 U.S. 168, 180, 106 S.Ct.
2464, 2471, 91 L.Ed.2d 144 (1986) are in-
; |
structive:
Prosecutor McDaniel made several offen-
sive comments reflecting an emotional
reaction to the case. These comments
undoubtedly were improper. But as both
the District Court and the original panel
of the Court of Appeals (whose opinion
on this issue still stands) recognized, it
“is not enough that the prosecutors’ re-
marks were undesirable or even univer-
sally condemned.” Darden v. Wain-
wright, 699 F.2d [1031] at 1036 [(11th
Cir.1983)]. The relevant question is
whether the prosecutor’s comments “so
infected the trial with unfairness as to
make the resulting conviction a denial of
due process.” Donnelly v. DeChristofo-
ro, 416 U.S. 687 [94 S.Ct. 1868, 40
L.Ed.2d 431] (1974). Moreover, the ap-
propriate standard of review for such a
claim on writ of habeas corpus is “the
narrow one of due process, and not the
broad exercise of supervisory power.”
Id. at 642, 94 S.Ct. at 1871.

[8] Pickens also claims that the prose-
cuting attorney implied in his closing argu-
ment that he concocted mitigating evidence
about abuse by his father. A rebuttal wit-
ness testified that Pickens told him in a
newspaper interview published April 29,
1984 that he had a loving father (TR 1658),
which justified the prosecutor’s argument.
However, the Supreme Court of Arkansas
disposed of this contention in one sentence.
“Pickens suffered no prejudice since the
jury unanimously found that this mitigat-
ing circumstance existed.” 783 S.W.2d at
346.

oh UIE ty a pa

ae Reet: RA GRE

ols fi Catto dl

VII

STATE HAD NO RIGHT TO RE
EVIDENCE OR TO MAKE F
CLOSING ARGUMENT
{9] Pickens argues that the «
no right to introduce rebuttal test
to make the final closing argum
bases this argument on the fact
statutory procedure, Ark.Stat.Anr:
602 does not mandate either rebut
order of closing arguments. The:
silent. However, the Arkansas
Court has held on direct appeal
procedure used was proper:
He questions the propriety of tt
presenting a rebuttal witness a)
ond closing argument during a
_ing proceeding. In Pickens v. S
Ark. 362, 730 S.W.2d 230 (1987),
it was proper for the state to
last closing argument because it
burden of proving the aggrave
cumstances outweigh the - mi
We did not address the issue of
testimony, but the same “2°
plies. In order to effectiv |
its burden, the state must be em
to rebut mitigating evidence. S
v. DePew, 38 Ohio St.38d 275, 52
542 (1988) cert. denied, 489 U
109 S.Ct. 1099, 103 L.Ed.2d 24

Pickens v. State, 783 S.W.2d at é

These are purely matters of stat
which the highest court of Arka:
spoken. Such an evidentiary and 5
al ruling cannot be the basis of

=. corpus relief unless it can be shc
f the ruling violates a specific const
@ provision or that it is so prejudic

| violate due process. Hobbs. v. L

§ 791 F.2d 125, 127 (8th Cir.1986); (

& Lockhart, 839 F.2d 481 (8th Cir.19

g titioner has fallen far short of mak
a showing here.

VIII

ALLEGATIONS AND PROC
CONCERNING DEATH 0:
JAMES SCHERM -

a [10] Pickens objects to the te
alleging that he killed Jame~ °~*


Vil

STATE HAD NO RIGHT TO REBUTTAL
EVIDENCE OR TO MAKE FINAL
CLOSING ARGUMENT

(9) Pickens argues that the state had
no right to introduce rebuttal testimony or
“to make the final closing argument. He
» bases this argument on the fact that the
statutory procedure, Ark.Stat.Ann. § o-4~
- 602 does not mandate either rebuttal or the
order of closing arguments. The statute is
. gilent. However, the Arkansas Supreme
Court has held on direct appeal that the
procedure used was proper:
He questions the propriety of the state’s
presenting a rebuttal witness and a sec-
ond closing argument during a sentenc-
ing proceeding. In Pickens v. State, 292
Ark. 362, 730 S.W.2d 280 (1987), we held
it was proper for the state to have the
last closing argument because it has the
burden of proving the aggravating cir-
cumstances outweigh the — mitigating.
We did not address the issue of rebuttal
testimony, but the same reasoning ap-
plies. In order to effectively discharge
| its burden, the state must be empowered
S to rebut mitigating evidence. See State
t ' v. DePew, 38 Ohio St.8d 275, 528 N.E.2d
542 (1988) cert. denied, 489 U.S. 1042,
109 S.Ct. 1099, 108 L.Ed.2d 241 (1989).

Pickens v. State, 783 S.W.2d at 347.

These are purely matters of state law on
Be which the highest court of Arkansas has
Me spoken. Such an evidentiary and procedur-
al ruling cannot be the basis of habeas
i™e corpus relief unless it can be shown that
the ruling violates a specific constitutional
provision or that it is so prejudicial as to
Bviolate due process. Hobbs v. Lockhart,
91 F.2d 125, 127 (8th Cir.1986); Cooley v.
ockhart, 839 F.2d 481 (8th Cir.1988). Pe-
titioner has fallen far short of making such
@ showing here.

OE ee
beret oe rc * P

VIII

ALLEGATIONS AND PROOF
; CONCERNING DEATH OF
s JAMES SCHERM

P10) Pickens objects to the testimony
slleging that he killed James Scherm be-

PICKENS v. LOCKHART
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

217

cause he was only charged with the murder
of Wes Noble. We agree with the disposi- —
tion of this issue by the Supreme Court of
Arkansas:

Second, Pickens complains that the state
attempted to introduce evidence that he
killed Jimmy Scherm, one of the victims
who died in the robbery (Pickens had
only been found guilty of killing Wes
Noble). The basis of Pickens’ argument
is that the state introduced the evidence
to prove the aggravating circumstance of
commission of a prior violent felony.
Ark.Code Ann. § 5—4-604(3) (1987). The
prosecutor did not argue Scherm’s death
to the jury as an aggravating circum-
stance. The only evidence that Pickens
killed Scherm came from the victims’
general testimony of the crime. The
state may prove the underlying facts of
the murder in the resentencing proceed-
ing.
788 S.W.2d at 346. The state had a right
to show the circumstances of the crime.
‘(T]he constitution does not require the
jury to ignore other possible aggravating
factors in the process of selecting those
defendants who will actually be sentenced
to death.” Zant v. Stephen, 462 US. 862,
878, 103 S.Ct. 2738, 2748, 77 L.Ed.2d 235
(1988). While as noted by the Supreme
Court of Arkansas the prosecutor did not
argue the murder of Scherm as an aggra-
vating circumstance, it was part of the
aggravating circumstance of knowingly
creating a great risk of death to persons
other than Wes Noble. The trial court’s
admission of testimony that Pickens killed
Scherm during the robbery and almost si-
multaneous murder of Wes Noble was en-
tirely proper.

IX

IMPROPER CROSS-EXAMINATION
OF PETITIONER’S MOTHER

Pickens claims that his right to due pro- .
cess and a fair trial was violated when
testimony was admitted that implied he had
committed a crime in Michigan. The Su-
preme Court of Arkansas disposed of this
contention as follows:


ERAS SNR SOS

t BERR RDS BS
OTe TE TON IVI VIG Pees OSS ISTO ISVALID UIT)

226 802 FEDERAL SUPPLEMENT

ATTACHMENT—Continued ings, Inc; Pittsburgh Steelers Sports

IT IS SO ORDERED this 22nd day of ‘Inc; The Chargers Football Company,
The San Francisco Forty-Niners Ltd.

May, 1992. : » Utd;
The Seattle Seahawks, Inc.; Tampa Bay

/s/ Henry Wodds Area NFL Football Club, Inc.; and

HENRY WOODS, Us. District Pro-Football, Inc.; Defendants.

Civ. No. 4—92-~876,

United States District Court,
D. Minnesota,
Fourth Division.

Judge

THIS DOCUMENT ENTERED ON DOCK.
ET SHEET IN COMPLIANCE WITH
RULE 58 AND/OR 79(a) FRCP ON 5-26-

92 BY BMC
ai —— Sept. 24, 1999.
Football players sought temporary re.
W Straining order against National Football
© g FEY UNGER pYSTEN - League (NFL) and member teams to pre.

vent enforcement of first refusal/compen-
sation rules restricting player movement {
between teams. The District Court, Doty, 4
J., held that: (1). players demonstrated
Probability of success on the merits, with
or without the application of collateral es-
toppel; (2) other injunction factors also fa-
vored players despite contention that re-
quested relief would harm competitive bal-
Keith JACKSON, D.J. Dozier, Thomas ance between teams; and (3) relief was not
Everett, Louis Lipps, Stephone Paige, precluded by the Norris-LaGuardia Act.
Joseph Phillips, Webster Slaughter, Temporary restraining order issued.
Natu Tuatagaloa, Garin Veris and Leon
White, Plaintiffs,

1. Injunction $138.1, 150 |
\ Court considers four factors when de-
NATIONAL FOOTBALL LEAGUE; The ‘rmining whether to issue temporary re-
Five Smiths, Inc; Buffalo Bills, Inc; *tt@ining order or Preliminary injunction:

i ct Probability that movant will succeed on the
call Bengaie a Cit Ines Cin. Probably that irreparable harm to mor

? ant if
Browns, Inc; The Dallas Cowboys 224 balance between harm to mov

lef j i inj ill result if
Football Club, Ltd; PDB Sports, Ltd; ah pcipeniarag cnt seats intareie
The Detroit Lions, Inc.; The Green Bay
Packers, Inc.; Houston Oilers, Inc.; In- 2. Judgment 4634
dianapolis Colts, Inc; Kansas City Collateral estoppel is appropriate
Chiefs Football Club, Inc.; The Los An- Where: issue is identical to one raised ——
geles Raiders, Lid; Los Angeles Rams Prior adjudication; there was final judg- . g
Football Company, Inc.; Miami Dol. ment on the merits; estopped party was. PS
Phins, Ltd.; Minnesota Vikings Foot- party or in privity with party to the ses Be
ball Club, Ine; KMS Patriots Limited adjudication; and estopped party was rhe
Partnership; The New Orleans Saints full and fair Opportunity to be heard on
Limited Partnership; New York Foot- #djudicated issue.
ball Giants, Inc.; New York Jets Foot- 3. Judgment 3632 ,
ball Club, Inc.; The Philadelphia Ea. There are three factors court should , 4
gles Football Club, Inc; B & B Hold. consider in determining whether to allow 4

he Flarion- Ledger

ON 4

Mississippi

Mississi ppl

s Newspaper

Nea " MaHeely BL a, Apri 12, 1999 Ml 50¢

Jackson woman’s killer faces Ark. execution tonight

Family traveling to
prison; hoping Pruett’s
death won't be delayed

By Beverly Pettigrew Kraft
Clarion-Ledger Staff Writer

Marion Albert Pruett led
officers to the body of the
Jackson loan officer he had
kidnapped and shot, then
asked if they could stop for
breakfast. .

“He said, ‘Can we stop in

- on the way

Meridian

back? I’d
like to have
breakfast at
McDon-
ald *g ; ’ ”
retired U.S.
Marshal
Bennie
Crumpton recalled Friday.
“That was the first thing
that came out of his mouth
after we found the body.”

Pruett

Pruett led officers to
Peggy Lowe’s body in woods
off a dirt road near Liv-
ingston, Ala., a few miles
east of the Mississippi line
on Oct. 28, 1981. He kid-
napped the 43-year-old
mother of two from her job at
Unifirst Federal Savings
and Loan at Metrocenter on
Sept. 17, 1981.

Today, 17! years later, he
is facing execution in
Arkansas. Pruett, 49, who

grew up in Gastonia, N.C.,
has said he wants no more
appeals.

He faces death by lethal
injection for murder of a con-
venience store clerk during
the same 1981 killing spree
that started with Lowe. Bob-
bie Jean Robertson, 30, a
mother of two who worked
the night shift at a Fort
Smith convenience store,
was robbed, abducted and
shot, like Lowe, off a rural

Yan hy

road on Oct. 12, 1981. It was
in a wooded area where she
had played as a child.
Rebertson’s body was
found a day later. Lowe was
missing for six weeks.
Police and relatives
scoured trash heaps, dead-
end roads, fields and woods
for miles around Jackson.
They clung to hope, but
time took that away.
“The time not knowing —
no one can imagine how

gruesome that was,” said
Edward Lowe, 65, of Tay-
lorsville, her husband of 26
years.

“IT just thank God every
day I’ve got what little sanity
I have left. It was pure hell
for all of us.

“T just hope no one else
ever has to go through this,”
he said.

Edward Lowe, his two
children and his wife’s two

See PRUETT, 8A

8A i The Clarion-Ledger ll Monday, April 12, 1999

Pruett: Man fromN.C. left multi-state trail of victims

From 1A

sisters and brother plan to travel to
the Cummins Unit prison near
Varner, Ark., a few miles west of
Rosedale across the Mississippi
River, to await the execution
tonight. They won’t be allowed to
witness it. The Arkansas victim’s
family will watch on closed-circuit
TV.

“Maybe this will go about as
scheduled,” Lowe said. “It’s time
for this to be over and go on to
something else.”

Crumpton accompanied officers
to take custody of Pruett in Texas
because the killer was also facing
federal bank robbery charges.

_ When Pruett agreed to show offi-
cers Lowe’s body, Crumpton was
the first to see her.

He had known Lowe since both
were children.

“She had a bubbly personality.
She was one of those ladies that
you would want to have as a sister,”
Crumpton said.
| “TI never saw Peggy, of all the
years that I was around her, that
she did not have a smile on her
face. I never heard her say anything
derogatory about any person. She
was a first-class lady.”

They had grown up together and
attended the same school in Syl-
varena in Smith County. Crump-
ton played basketball with Lowe’s
brother. His sister played basket-
ball with Peggy Lowe. He had
known Edward Lowe since both
were young.

“It affected me emotionally
because I knew the family. Of all
my years in law enforcement, that
was probably the most devastating
_case I was involved in. It’s one of
those cases where you want to for-
get,” said Crumpton, who retired
from the Marshal Service in 1987.
Since 1988 he has been a district
attorney’s investigator for Coving-
ton, Jasper, Simpson and Smith
counties.

He didn’t tell Pruett of his rela-
tionship. He bought him eggs at
McDonald’s around daybreak.

The details haven’t faded.

It was a misty, dreary night.

Crumpton said he was awak-
ened at 12:05 a.m. by a telephone
call from a Jackson police officer
who said Pruett, in the city jail,
was ready to show officers where
the body was right then. If they
waited until the next morning,

Pruett had said, he wouldn’t.

Officers had tried since Pruett’s
arrest 11 days earlier to get him to
tell where Lowe was.

When he talked, Pruett
described his escape from the
Jackson bank in minute detail. He
had planned to take Lowe’s car,
switch into his own car parked
across from the Metrocenter mall
and lock Lowe in the trunk of her
own car.

When he saw a Jackson police
officer stop at a stop sign and look

his way, Pruett took Lowe with .

him.

Pruett described making his
way to McDowell Road, I-55 then
to I-20 through Meridian and into
rural Alabama. He chose a side
road, then a dirt road in Sumter
County.

As they rode through the Alaba-
ma countryside in the dark of
night, Pruett recalled landmarks
coming up. He described a narrow
wooden bridge along the way, an
old sawmill and a deputy sheriff's
car at a house not far from the
body, Crumpton said.

Pruett told officers that he had
planned to leave Lowe tied in an
abandoned farmhouse. But a dog
barked nearby. He decided to kill her.

He ordered her to partially
undress, discarded her clothes
under a bush, told her to turn her
head and he walked away. He
looked back and she was looking at
him, Crumpton said. He went back
and asked her to repeat her hus-
band’s phone number.

Lowe had asked him to call her
husband and let him know where
she was. She was worried about
Edward Lowe’s health.

She told him the telephone
number again. He told her to put
her head down. And he shot her.

Robertson was the next victim.
Then Pruett killed Colorado con-
venience store clerks Anthony
Taitt in Loveland and James
Balderson in Fort Collins on Oct.
16, 1981.

He was arrested a day later, Oct.
17, in Stratford, Texas. An officer
stopped him for a traffic violation.

He was sentenced to death by a
Columbus jury that heard the case
in 1982 because of pretrial publici-
ty in Jackson. He got a new trial in
Jackson in 1988 because one of the
jurors at the first trial had heard
about the case and formed an opin-

ion. One juror at the second trial
refused to vote for the death penal-
ty, and he was sentenced to life.

He got life sentences in Col-
orado, which does not have a death
penalty.

An Arkansas jury sentenced him
to death in 1982. He told authori-
ties earlier this year that he wanted
no more appeals.

Little Rock death penalty oppo-
nent Gregory Houston Holt filed
an appeal on Pruett’s behalf April
5.

“Mr. Pruett shouldn’t be allowed
to ‘commit suicide’ simply for the
reason that he does not want to live
any longer. It is and should be con-
sidered ‘state assisted suicide,’ ”
Holt wrote.

Arkansas Senior Assistant
Attorney General Darnisa John-
son said, “There is no indication he
even knows him.”

Holt misspelled Pruett’s name
in the petition.

U.S. District Judge Georg:
Howard on April 7 ruled that Holt
had no standing to file the suit.

Hinds County Assistant District
Attorney Tommy Mayfield, who
prosecuted Pruett twice, is skepti-
cal that Pruett really wants to die.

Pruett told police and news
reporters hours after he showed
officers Lowe’s body that he had
killed four people and he wanted to
be executed.

He has spent the past 171 years
fighting to stay alive.

“T don’t think he’s got the decen-
cy to just go ahead and quietly be
executed,” Mayfield said.

Robertson’s mother, Belva Roam
of Fort Smith, is skeptical too.

“We can drive all the way down
there. He’ll probably say no, he’s
not ready to die yet. That’s when

. I'd like to go through there and just

beat the living fire out ofhim. Then
they would probably throw me
under the pen,” the 65-year-old
retired day-care worker and school
bus driver said.

If Pruett is executed, “it will be a
relief in a way because I know
where Bobbie is and I know where
he’s going to go. He’s going straight
to hell, and he sure won’t get to see
Bobbie and my husband up there
in heaven,” Roam said.

Bob Roam, the victim’s father,
said in 1982 that Pruett would out-
live him. Bob Roam died of cancer
on Dec. 31, 1997.

r
{
t
i
t
'

From 1A

‘only long enough to see the hearse
‘bearing Pruett’s body. As the
‘police- -escorted procession sped
‘:past with blue lights flashing,
‘Edward Lowe turned away, shook
‘his head and said, “It’s so useless.”
oe)

' Pruett, when asked ifhe had any
Jast words, said, “I’d like to ask my
‘heavenly father to please forgive me
‘for all my sins in the name of Jesus
‘Christ. I would also like to ask all
‘the people that I ever hurt and their
family members to forgive me for all
‘the pain. And I forgive everybody for
‘what is about to happen to me.’

“I’m praying that I'll be able to,”
‘Edward Lowe said after a prison
‘staff member relayed Pruett’s last
‘words. “I’m praying that I can.”

‘ The Lowes’ daughter, Lana
‘Goodman said, “My Dad doesn’t
‘want to live with hate in his life.”

‘But when asked if she could forgive

‘Pruett, she said, “I can’t.”

‘ Robertson’s mother, daughter,
‘and three sisters watched the exe-
cution on closed-circuit television
‘at the prison.

Sissie Roam Shelby, one of
‘Robertson’s sisters, said to
‘reporters, “He says he forgives us.
‘What does he forgive us for? I didn’t
‘ask him to kill my sister.”

4-— |

. It was a family reunion of sorts.
Only one member of the Lowe fam-
ily was missing.

More than 17 years have passed
since Peggy Lowe was killed, but
the memory of the day she was kid-
napped is still fresh.

. Her son, Mark Lowe, called
Unifirst to talk to his mother while
the robbery was in progress. He
said he wanted to come by the bank
to get some money, then go to
Louisiana to look for ajob.
~ Her voice betrayed nothing of the
<“mpending’peril. She didn’t tell
him what was happening.

: “The last thing she told me was
she loved me. ... She always told me
she loved me, so it didn’t throw a
flag up. I never would have
dreamed that would have been the
last time I talked to her,” said
Lowe, 38, of Jackson. It was the last
time he would hear her voice.

. When he arrived at the Metro-
center branch bank, his pastor
came out and told him she had been
kidnapped.

Goodman was at a breastfeeding
class. She was days away from deliv-
ery of her first child.

Goodman said her mother moved
from the downtown Unifirst, where

Pruett: Killer asks for forgiveness before execution

The Associated Press

Members of the Arkansas Coalition to Abolish the Death Penalty gather at the
Arkansas Governor’s Mansion to protest the execution of Marion Albert Pruett.

she had worked for nine years, to the

Metrocenter branch three months:

earlier to be closer to where Good-
man lived in south Jackson. The
baby was the attraction. Lowe lived
in Brandon and wanted to be able to
check on her daughter.

“She was so excited about the
baby coming. It'was her first grand-
child,” said Goodman, 41, who now
lives in Cordova, Tenn.

“T felt robbed from having her
there to help me with him. She had
the instructions. I felt like there
was a real void there,” she said.

For 41 days, the Lowe family did-
n’t know whether Peggy Lowe was
dead or alive. Pruett led authorities
to her body on a dirt road in Sumter
County, Ala. He:shot her in the
head the same day he abducted her.

Lowe’s sister, Doris Thomas, 68,
of Bay Springs, said, “If it hadn’t
been for the grace of God, none of us
could have stood this.”

Goodman said the first time she
left her baby with someone else was

to go to the funeral home to make
arrangements for the funeral.

Goodman’s sons are 17 and 14.

“They never had her, and they
don’t understand,” she said.

“There just hasn’t been any
peace for any of us,” said Edward
Lowe, 65, of Taylorsville.

Peggy Lowe’s brother, J.W.
Holder, 66, of the Ted community,
said, “It’s awful for it to be pro-
longed like it has been.”

Peggy Lowe’s family met at a

hotel in Dumas, Ark., before going

to the Cummins Unit a few miles
away to await word of the execu-
tion.

They stayed at a roadblock down
the road from the prison. The
closed-circuit viewing of the execu-

‘tion was only for the family of the

Arkansas victim, Bobbie Jean
Robertson. . |

“At least we'll be together as a
family for support,” Edward Lowe
said, “and to help see that the job is
done.”

‘Mad- “dog killer’ Pruett executed in Ark.

Wl “Thank God it’s over,”
husband of Brandon
woman slain in’81 says

By Beverly Pettigrew Kraft
Clarion-Ledger Staff Writer[

VARNER, Ark. — Murder
victim Peggy Lowe’s family
gathered arm-in-arm ina tight
circle and prayed, waiting for
word that Marion Albert
Pruett, the confessed “mad-
dog killer,” was no more.

As darkness fell around the
field near Arkansas’ Cummins
Unit, the family heard what

they had waited more than 17
years to hear. Pruett died from
a lethal injection at 8:09 p.m.

“Thank God it’s over,”
Edward Lowe, the slain
woman’s husband said, his
voice choked with emotion
and tears in his eyes.

"They could have done that
17 years ago,” said her broth-
er, D.W. Holder.

Pruett, 49, was executed for
the Oct. 12, 1981, kidnaping
and slaying of convenience
store clerk Bobbie Jean
Robertson, 30, of Fort Smith.

Lowe, an employee of the

Metrocenter branch of
Unifirst, and Robertson were
killed in a weeklong spree of
terror that led Pruett to dub
himself a “mad-dog killer.”

Earlier in 1981, Pruett killed ~

his common-law wife in New
Mexico. After Lowe’s and
Robertson’s deaths, he killed
two convenience store work-
ers in Colorado.

He received life sentences
for the four killings outside
Arkansas but got the death
sentence for his conviction in
the state. Pruett, who robbed
the convenience stores before

killing their clerks, said at his
New Mexico trial that he was
driven by a $4,000 a week
cocaine habit.

Pruett’s common-law wife,
Pamela Sue Barker, was
bludgeoned with a hammer
and her body set afire; the
others were shot.

In addition to Lowe’s hus-
band, children and brother,
two sisters and a sister-in-law
came to this flatland delta
prison to await word of the
execution.

Family members stayed

See PRUETT, 5A

DATE

INMATE STATE SEX RACE EXECUTED INMATE
Ramsey, Roy Missouri M B ! Revilla,
Randolph, Richard Florida M B Rhoade:
Ransom, Kenneth Ray Texas M B Rhodes.
Raulerson, James Florida M W 1-30-85 Rice, De
Rault, Sterling Louisiana M W 8-24-87 i Rice, To |
Ray, Clarence California M W Rich, Dz |
Ray, John South Carolina M Ww Richard |
Rector, Charles Texas M B Richard
| Richard:
, : Richard
| . : - | Richard:
f Rector, Ricky Arkansas M B Richard:
On March 24, 1981, Ricky Ray Rector shot and killed Bob Martin, a_ i Richard
Conway, Ark., police officer. He shot himself in the head immediately { Richard.
' after the slaying. Surgery to remove the bullet resulted in a pre-frontal Richey,
lobotomy. Rector was convicted in November 1982 and appeals are in Richley,
progress to determine if Rector has the mental capacity to be executed.
Richmo
Redmen, Timothy Nevada M W On At
Reed, Grover Florida M W took Be
Reed, Jonathan B. Texas M W lieved th
Reese, Donald Missouri M WwW tion wit
Reeves, Randolph Nebraska M N Crumme
Reid, Anthony Pennsylvania M B with his
Reilly, Mark California M WwW women |
girls twic
Reilly, Michael Florida M Ww
On Feb. 2, 1988, 27-year-old Michael Reilly sexually assaulted a 4- |
year-old boy, slit his throat and strangled him. Jonathan Wells was” Rickman
fishing alone on a shore near his parents’ home when the fatal attack | @& Riddle, F
occurred. Reilly lived in the same area. Reilly's confession to officers | * & Riddle, €
was barred from the trial after a judge ruled that it was coerced from ‘al Riechma
the borderline mentally retarded man. He testified at trial that he was ae te: Riel, Chez
home when the murder occurred. His first conviction has been over-  ~ ne Riggins,
turned and his second appeal to the Florida Supreme Court has not yet been heard. Riles, Ra
I Riley, Bil
Riley, Ja
Riley, Mi
: Riley, We
Remeta, Daniel Arkansas M N i Rios, Joe
Remeta, Daniel Florida M N i Ritter, W
Resnover, Gregory Indiana M B Rivera, A

DEATH ROW DEATH ROW

194


a

Clinton heads home to cop

By Ron Fournier
The Associated Press __

VARNER, Ark. _ Arkansas Gov.
Bill. Clinton «left. the _Democratic
presidential campaign trail -yester-

day to return home for the sched-
‘uled execution of a brainsdamaged

cop Killer. :
Rickey Ray Rector, 40, was exe-

| cuted by injection last night. Ear- |

lier, the U.S. Supreme Court without
dissent denied a last-ditch appeals

filed on Rector’s behalf in. state and

federal courts.
The execution was delayed for 50
minutes because medical personnel

weren’t able to find a suitable vein in

which to inject the solution, prison
spokesman David White said... a
Asked if he wished to make a final
statement, Rector said, “Yes. I got
baptized and saved.” .
The execution began at 9:50 p.m.

CST, (8:50 p.m. ‘Tucson time) and

Rector - was. y peateonced dead at

10:09 p.m.: (9:09. p.m, in Tucson) by

Lincoln County, . Coroner, Jimmy

Hawkins.

Clinton yealed clemency | to Rec: ?

tor on Thursday,

Rector was the first black inmate

executed in. Arkansas since 1960,

‘The execution could help ‘Clinton
distance ‘himself’ from his party’s

soft:on- crime liberal ‘image, said

some: political observers . in’ New.
-Hampshire, site of the nation’s first

“primary, on Feb. 18,

of!T-think the death “osha is a
trump card : for. being :tough on

crime,” said Kimberly Cook, presi-.
t-.of New Hampshire . Citizens |

A jainst the Death Penalty,
“Dick Bennett of the American Re-
search Group, a New Hampshire-
based polling company, said he’ be-
lieves voters are more concerned

about the economy, but, “My gut-

ye

an ea

* Clinton and his wife will
- appear on ‘‘60 Minutes’ to-
Morrow. Page 7A.

: reaytibn is he’s (Clinton) portraying

himself as a moderate-to-conserva-

tive and the execution of the death
sentence might be attractive.”

Clinton has refused to talk about

“political implications of the execu-
tion. He was unavailable for com-

ment yesterday; his office and cam-

'. paign staff said he wouldn’t give any
- interviews.

Rector was sentenced to Jenth for

“killing Patrolman Bob Martin of
. Conway in 1981,

After shooting the policeman,
Rector shot himself in the head..The
wound and subsequent emergency
Surgery caused brain damage offi-

-cials say had the effect of a fron-

tal lobotomy.
::

killer's execution

Defense attorneys say the brain
damage made Rector incompetent
to be executed. State and federal
courts have repeatedly ruled that
Rector met the federal standard for
competency: He understood what he
did wrong and the extent of his pun-

ishment.
In the appeal to the U. S. Supreme

Court, Rector’s attorneys said Ar-
kansas case law provides a higher
standard for competency. The
higher standard, they argued, was
that the inmate be able to help in his
defense.

Government doctors, who found
Rector competent under the federal
standard years after his conviction,
have said he could not now help in
his own defense if he had the oppor:
tunity to do so.

Rector’s attorneys also said Ar-

kansas’ competency law improperly —

denied Rector the right to have gov-
ernment doctors cross-examined.

pee

© ! 992 The arizona a Dally Star

eS

"Final Edition, Tucson, Satiirday, January: 25, 1992


SpscTok Mtg l Wwe 1992

Search for vein, ( f
slows execution | _,
of police killer .

VARNER, Ark. (AP) — The execu-
tion of a brain-damaged man sen- .
tenced to die for killing a police offi- -
cer was delayed for almost an hour —
last night, while medical workers . |
tried to find a suitable vein for: the -

- lethal solution. 4" Ae ae
“Gov. Bill Clinton took a day away.
from campaigning for the Democrat-
ic presidential nomination to: be in
the state for the execution of Rickey
Ray Rector: About three hours be-
fore the “execution, the governor
refused a request for.a reprieve.
_-oRector, 40, was pronounced dead
at 10:09 p.m. CST. He was convicted
of killing Conway police officer Bob |
Martin in 1981. After shooting Mar- | —
tin, Rector shot himself in the head, |
‘resulting in permanent brain dam-» |

“He (Rector) ‘was stuck at least
eight ‘times”..as medical’ personnel
tried to find a suitable vein, said
John Byus, director of medical and
dental services for the Department
of Correction. . oe |

Earlier yesterday, a last-ditch ap-
peal filed on Rector’s behalf in state
and federal courts was denied by the |
US. Supreme Court. |

Rector’s attorney, Jeff |
Rosenzweig, contended his client —
wasn’t competent to be executed. !

||

“34

SAN DIEGO TRIBUNE’ «A

Saturday, January 25, 1992


side the house. |
later with a me- —
youth of about
the youth they

s taken to head-
ter a short, but
gation, Richard
: and confessed.
nt he gave the:
ly resented the
Mona Phillips.
her boasting of
scharnweber, he
n. By eavesdrop-

air always went: _

‘zvous after leav-

‘der he loitered
| they appeared.
|, he found the
Rivers and stuck
ove his undoing.
his girl friend
holm Road and
hes. Later, when
de a number of
o draw Scharn-
lan worked and
e said he didn't
2s, but only to

was speedily in-
inty grand jury
2, 1943. He was
the first degree,
ry recommended
had no alterna-
» spend the rest
lina State Peni-

: used in this story
der to protect the
y involved in the
or.)

iid he was sure
Frazier, but he
1¢ it.

informant went
» he had heard
omething about
‘d stuck-up, but
irt ima few days.
<illing T thought
» said her boy-
ss Frazier.”
ond?" McShane

Lean had lots of

.e address where
und that she had
nd baggage, on
ying. Where she

’ McShane told

2» post-office and
the lookout for

i; Luella McLean.

ends may know
to her.”

her, located in

d of his daugh-

Eureka Springs .

‘w of no motive
er, he said, had
en. She had al-
lace of her own
he had assumed
ind contentment

\mes nor Luella
wondered if the
ireka Springs to-
ped convict, the
{cLean had said

’s was concerned,

_ her, ahead' of McShane and

.came ‘shortly. A deputy sheriff stationed in

Berryville, only afew miles from Eureka

“ Springs, reported that he had captured ‘the
wanted man, The prisoner was returned to
Eureka Springs, but denied any knowledge
of the Frazier slaying. He contended that
he had been in Berryville since late Saturda
afternoon, before the crime was committer,

' and had been there ever since. A check by
‘officers substantiated his story. He did, how-,

ever, admit he was an escaped convict and

' was locked in jail.

So far nothing new concerning the “dressed-

up city fellow” seen arguing with Miss ’

~ Frazier on ‘her front porch had been un-
earthed. McShane had decided that he could
not have been a jilted lover from Girard
since her father stated that the dead girl
had never been interested in men while
living in her old home town. Definitely, the
stranger's position in the tangled circum-
stances of the case would have to await
further developments. ;
The next day McShane got a phone call
from the postmaster. When he replaced the
receiver he. turned to Deputy Britten and

said, “Come on! Sothebody just mailed a

letter to-Luella McLean!”

When they reached the
postmaster extended. a seal
dressed: Miss Luella’ McLean,
livery, Joplin, Missouti.

“IT don’t know who mailed it, since there
is no return‘address,” the postmaster said.
“T never noticed the. letter until. we were
preparing the outgoing mail.”

ost office the
envelope ad-
General De-

Mcshane studied the heavily scrawled
writing, deciding that it had been ad-
dressed by a man. He told the postmaster
to send the letter on in the usual manner,
“But we'll go to Joplin and when Miss
McLean calls for it we'll be there to greet
her.” ’

The next morning McShane and Britten

arrived in Joplin. They contacted the police
department and were accompanied by De-
tective Luther Lasiter to the post office where
the letter was located. The three officers
stationed themselves out of sight from, the
general delivery window where they could
be summoned quickly when the letter was
called for.

Mfnutes stretched into hours. The officers
cast puzzled glances at each other. They
glanced out at the street where a misty rain
fell from low-hanging clouds. Closing time
drew near and McShane wondered if he had
made a mistake. ‘

Then there was a signal from the clerk.
McShane glanced out and saw an attractive
young woman whom he recognized as Luella

. McLean. She stood near the window and ac-
cepted the letter, McShane started to go out
and confront her, but decided to wait until
she opened the letter and read it.

She turned and started toward the. door,
halted, tearing the envelope open. She read
the enclosed letter with a drawn expression
on her face.

McShane motioned to Deputy Britten and
Detective Lasiter. They moved swiftly to the
woman's side and McShane said, “Hello,
Luella. Remember me? Who's the letter
from?" ;

She looked up with a startled cry on her

lips. Then she clutched the letter tightly to
her breast and bolted toward the front door
of the office. Detective Lasiter plunged after
Britten, but she
reached the door and was outside before he
could stop her. He bounded through the door
and down the wet, slippery steps that went
from the building. to the street. The girl
screamed.

The detective’s hand reached out to grasp
her arm. Then his feet slipped on the wet
steps and he fell head-long, taking her with
him. They ended up.in a twisted heap of
arms and legs at. the bottom of the steps

De

and McShane réached them, jerking the ;
letter from her hand. Britten c
arm and pulled her to her feet.
Unfolded, the letter read: “Keep
mouth shut and destroy
The sheriff suspects me.” It was signed with
the single letter-“R,” no name. *
“Who wrote this?” McShane sna er
' She refused to, answer, glaring null enly at
the officers,

utched her

cb
your —
my other letter. |

When other questions failed to open het |

lips, McShane said, “I'll take her back to”
Eureka Springs. Maybe a few days in jail
will loosen her tongue.”

She suddenly: said, “Go-ahead and ‘take

me back. I haven’t done anything, Besidés, |}

a

I kind of wanted. to go back to Eureka.” ©

When they started down the street to Mc- ||

Shane's car she asked, “You'll let. me go to.
my .room, won't you? I’ve got to change’
clothes and get my things.” ; nee
McShane agreed and in a few minutes they |
arrived at the address she gave. The three-|
officers stopped at the door of the room and }
she went inside to change clothes, saying she
‘would be out in just a moment, A
At first the
in the room,’
quiet. Thinking she mig
McShane knocked loudly on the door and’
called a warning, “I'm conting in, Luella.” |
He bounded through the door and caught :
her rising from a bent position, her arm ex- |
tended as if she had had: her hand behind:

en it was quiet, suspiciously |

a dresser that was against the wall. He. |

leaped forward and shoved her backward.
Then he looked behind the dresser and his.

hand dug downward. It came up holding a ik

soiled envelope.

~_. “Just as I thought,” he ground out; “the.

letter he told you to destroy!”
Lasiter restrained the woman and Mc-
Shane dug the letter from the envelope. The

‘writing corresponded with that of the letter:
confiscated at the post office. It read: “Two. ’ |

S

could hear:her moving about |)

t be: undressed, |

1

of the boys and I started to pull the job, a
They got cold feet and failed to go through.’

with it, 1am going back by myself and do it.” «J

McShane gasped when he saw the signa-.
ture. He showed it to Lasiter and Britten,

“This ‘job’ he speaks of may have.been the

slaying of Winfred Frazier, and it may mean

something else, but whatever it is, Amos’

Ratliff is

going to have some tall explaining
to do!”

He turned to Luella McLean, shooting a; |

barrage of 1 igi at her, but she clamped.
her lips sul

enly, refusing to answer further »

after saying, “I don’t know what he meant.” ne

Back in Eureka Springs she was lodged in
jail, still refusing to talk. McShane and
Britten lost no time going to the Key Saw

Mill where they found Amos Ratliff at work. |

“What's this about?” the young man.
blurted when McShane placed him under
arrest.

“You know the answers as well as we do,
Ratliff,” McShane said. “If you want’ to tell -
us about it, you can. We’ve i
on you. We've ey your girl-friend, Luella .
McLean in jail. She confessed that you were .
going to kill. Winfred’ Frazier, after we ar-~

rested her in Joplin. Here are the two let-. |.

ters you wrote her, if you think I’m lying.”

Ratliff stared at the letters. At last he said,
shaken, “I guess you've got me. I knew
nic get me before long. Yeah, I killed

er—but I didn’t mean to when I started
out to do the job.” f

McShane advised him to wait and tell the
full details before a lawyer and:a notary
public.

Back in the Carrol. County. courthouse
a lawyer and notary public were summonsed.
Before these men and Prosecuting Attorney
P. F. Johnson, Sheriff McShane and Deputy
Britten heard Ratliff dictate a long con-
fession, signing each page, and stating that
the confession was made of his own free will.
He signed an agreement that the confession

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words, “I’m in trouble. I
got to come and see you.
I love you. I’m in real
trouble. I didn’t mean
to do it, but they just
pushed me, you know? I
didn’t know what I was
doin’.” He told her that
some of his acquain-
tances had assured him,
“They gonna kill you,
man. They gonna shoot
you down like a dog.” He
spoke to her, she remem-
bers, like one already
doomed: “They got a
cake baked for me. And

aR

TG oe i |p TAT

MANKo Fj |

“Phone-sex on Line Four, Mr. Davts.”

process of a case, though the parties
were nowhere near exhausting their
remedies, and the execution dates were
almost always stayed. But it enabled
Clinton to say, ‘Look, see how many
executions I’ve ordered.’” By 1992,
Clinton had managed to accumulate
around seventy execution dates, for some
twenty-six subjects on death row—four,
ultimately, for Rector alone. In a visit to
a high-school class in Little Rock in
1988, he declared, even after acknowl-
edging that there was really no conclu-
sive evidence that executions acted as de-
terrents to other killings, that under
certain limited circumstances “the death
penalty is appropriate.” He went on to
say, “I don’t believe it’s the wrong thing
to do,” and reaffirmed that he would
continue to enforce capital punishment
in Arkansas.

One of Rector’s earlier attorneys
reflected recently, “Poor ole Rickey
Rector’s timing just happened to be real
bad.”

OME five months after Clinton’s
1980 defeat, Rector, on a balmy
early-spring Saturday evening in Con-
way, rode with two friends—at twenty-
nine, he had still not learned to drive—
to a dance, attended by about two
hundred guests from the area’s black
community, in a rented back hall of

Tommy’s Old-Fashioned Home-Style

Restaurant, a family eating place on the
edge of town. There Rector, attired in a
black leather coat and a leather cap, with
a full goatee, fell into a dispute at the
door over the three-dollar admission
charge, demanding that one of his
friends, who had only a dollar, be admit-
ted anyway. It ended with Rector
snatching a .38 pistol from the waist of
his slacks and firing away, wounding two
men. A third man, Arthur Criswell,
thirty-three, was hit in the forehead and
throat, and died almost immediately.
Rector then strode out to his friend and
told him to drive him back to his house.

There, with his wife watching, he
paced and stomped from room to room,
pausing repeatedly to glance out a win-
dow. He retreated into the bedroom,
suddenly smacked his fist on the bed,
and cried out “Damn!” He told his wife
that he was taking off, and rushed out of
the house.

He began running. The rest of that
night, and on through the next two days
and nights, he plunged about the back
ways of Conway in a kind of aimless,
circular fleeing—on foot, slipping into a
few friends’ houses, ranging then out
into the countryside, trampling through
tangled woods along the edges of farm-
land and fishponds, huddling in ditches
and the weeds below overpasses. From
somewhere he phoned one of his sisters
in Detroit, telling her, as she recalls his

I’m gonna have to eat it.”

On the third night of
his roamings, he made
his way through several
miles of hilly woods and
brush and gullies to his
sister Stella’s house, out-
side Conway, rapping on
the door at about four in the morning.
She implored him, in low frantic whis-
pers, so her husband might get back to
sleep, to give himself up—he looming
before her, amid the room’s Early
American furniture, bedraggled and un-
shaven, his eyes glaring. He had neither
eaten nor slept for the past three nights,
he told her, but when she offered to
cook him some eggs and pancakes he
said, “No, don’t fix me nothin’, I don’t
want to eat.” Instead, he went into one
of her bedrooms, and sat on the edge of
the bed, mute, staring out the window
into the night. When dawn came, he got
to his feet and left.

gi Ae March 24, 1981, was a
cool, sunny day in Conway.
Around noon, Stella was visiting her
mother in town, in the same house
where Rickey had been raised. (George
Rector had died in 1978.) As Stella was
comforting her mother, the phone rang,
and Stella answered it. It was Rickey.
“He said he wanted to give himself up,
because he knew Mama was worried and
it was the right thing to do,” Stella re-
lates. “But he was still so scared.” And
she remembers that “the very last intelli-
gent thing Rickey ever said to me was
‘You don’t know what they do to you
when they get you in that jail. Just don’t
know what they do to you. And they

really want me this time.’ ”

A DANCE-H“

Around tv
call came *~"
quarters—
later devel,
Patrolman R:
the address «'
testimony di:
consented to
give himsel!
standing the:
the Rector f
child, would b

Bob Mart
the Conway ,
liberate mar
slack build,
of gray hair «
an almost un
tive express:
amiable sou,
wife and th
community
Wooster, whi
his single not:
ing—workin: ~
horses. Accor
what he'd real
a cowboy. ||
ther,” one ot h
years later, “ai
Her most che
him is of the
horses togeth
around Woos
was off duty, h
wearing a

It was
and leisure:
actually, that |
liceman—in ;
wolf style,” «
ant Rodney
few curren!
Conway pol}
with Martin
town as what
“an old-style
rediscoverec
ing,” Pears«
make it a poi
connect pers
community.
great pride i:
complish in
take detectiv:
tended with
diligence to
sonal conta
black neighb
quently hac

/ f <1CKV Kav lé UN Ini. AM Jen, <4 9 195
ILULUL, Dl oy vw 9

105

ANNALS OF LAW AND POLITICS

DEATH IN ARKANSAS

As Arkansas’s governor, Bill Clinton had to

prove that he was a Democrat who could handle

mainstream priorities—including the death penalty. Then, at the most vulnerable moment of his political hfe, he was

confronted with the final appeal from Rickey Ray Rec

tor, a conuicted killer on death row whose self-inflicted

wounds had left him with the erratic comprehension of a child.

N January of last year, just when Bill
Clinton’s prospering Campaign in
the New Hampshire Democratic

primary had suddenly been staggered by
the tabloid allegations about Gennifer
Flowers, Clinton was also confronted
with the decision on whether to allow
the execution, back in Arkansas, of a
forty-year-old black convict named
Rickey Ray Rector,
who had been con-
demned for the kill-
ing of a policeman
more than ten years
earlier. The matter
of Rickey Rector
could hardly have
seemed a more inci-
dental concern in the
political havoc sur-
rounding Clinton at
that moment. With
one poll indicating
that he had toppled
by twelve points,
and with reporters
besieging him for
explanations about
Flowers, the Gov-
ernor held feverish
motel-room sessions
with aides and nego-
tiated with networks
for possible appearances that might
dispel the scandal. Nevertheless, he
flew back to Arkansas on a Thursday
evening, to be in place to attend directly
z to whatever last appeals and legal con-
§ siderations might develop the next day,
& when Rector was scheduled to die.
As Clinton’s plane took off, the con-
9 demned man waited in a windowless
s holding cell in Cummins prison, in the
= southeast corner of the state. Rector, a
$ ponderous two-hundred-and-ninety-
2 eight-pound heap—far from the lithe

OG CABIN

Rector in 1992 with John

friend,” Jewell said.

BY MARSHALL FRADY

youth he had once been—was alter-
nately “dancing around the cell singing
& laughing” in his T-shirt, boxer shorts,
and socks, according to the prison’s
sedulously kept death-watch log, and
“howling and barking like a dog.” He
kept on at this, as indeed he had for
most of his ten years in prison—inter-
mittent bursts of barking, baying, then

blaring laughter and little gleeful shuffles
of dancing, fingers snapping—through
Friday. That afternoon, after Clinton
had refused all final entreaties for clem-
ency, Rector sat with one of his attor-
neys, watching, on a TV outside his cell,
news reports of his impending execu-
tion, two hours away, intermingled with
accounts of Clinton’s travail over the
Flowers charges, and he abruptly an-
nounced, in a thick mumble, “I’m gonna
vote for him. Gonna vote for Clinton.”
It had always been his habit to put aside

Jewell, an attorney who stayed on the case for four years.
‘At no point did I ever feel with Rickey it was anything like a relationship with a
“Because there wasn’t anyone there to connect to.”

his dessert until bedtime, and after eat-
ing his last meal, of steak and fried
chicken in gravy, with cherry Kool-Aid,
he carefully set aside his helping of pe-
can pie, to finish later. One of his attor-
neys had earlier stated that Rector
“thinks he'll be back in his cell on Satur-
day morning.”

Rector’s case ranged beyond custom-
ary considerations of
the question of capital
punishment. In 1981,
after killing two men,
he had put a pistol
to his temple and
shot himself through
the forehead: it had
left him with what
amounted, after sur-
gery, to a frontal lo-
botomy and, according
to subsequent testi-
mony, with about the
understanding of a
young child—a dim
simplicity that the sur-
geon who operated on
him likened to that of
the Jack Nicholson
character after his lo-
botomy in “One Flew
Over the Cuckoo’s
Nest.” At the least, it
appeared incontestable that after lifting
the pistol to his forehead and blasting
away some three inches of the front of
his brain he was not the same being who
only a few moments earlier had casually
murdered a policeman sitting in his
mother’s parlor. To proceed with his ex-
ecution anyway, no matter how dam-
aged and uncomprehending a creature
he might now be, became a test in Ar-
kansas of the lengths to which a society
would pursue the old urge to expiate one
killing by performing another—and a


106

test of the state’s highest temporal au-
thority, the governor, who alone could
stop it.

Clinton’s decision to permit Rector’s
sentence to be carried out did occasion a
few scattered flares of protest. But as his
campaign surged on from the Flowers
affair to his election in November, long
forgotten was the fate of that obscure
black murderer in Arkansas with whom
Clinton’s rise to the Presidency had, for
a few hours the previous January, mor-
tally intersected.

Last fall, just a few days before the
election, I picked up from the office of
one of Rector’s attorneys in Little Rock
a cardboard box heaped with the legal
records of the long process to accom-
plish his execution, and drove north un-
der an afternoon sky dull with impend-
ing rain. Motorcades could be seen
zooming back and forth on the high-
ways, signalling the sudden implosion of
the outside world of power and conse-
quence into this scantily inhabited and
somewhat scruffy back-yard state that
was about to produce a President. After
thirty minutes or so, I reached the town
of Conway, where Rector’s meagre,
troubled life had finally culminated in a
kind of folk parable of blind violence
and innocent suffering and unanswer-
able grief, and the brutal clumsiness of
an essential decency obsessed with larger
purposes, all combining into a tragic
complexity ultimately beyond the con-
stricted measures and rites of law—
and all played out in, as it happened, a
county named Faulkner.

Come grew up beside a railroad
track in the years following the
Civil War, and by 1980 it had become a
sedate community of some
twenty-three thousand souls,
about ten per cent of them
black. The railroad tracks still
divide the town. On one side
stretches a genteel expanse
of neighborhoods of ample
wooded yards and commodious homes.
It was on the other side, among the
bleaker streets of the black quarter, that
Rickey Ray Rector was born—the sixth
of seven children in the spare but rigor-
ously proper household of George Rec-
tor, a cook in a fabled Conway steak-
house of the time (and, briefly, for a
future governor, Winthrop Rockefeller),
and Clyde Lee Rector, a soulfully reli-

gious woman who worked as a maid at a
local college. Unlike Bill Clinton, born
six years earlier in an even smaller ham-
let a hundred miles to the south, who
was described by a local matron as “one
of the brightest little boys that ever lived
in Hope,” Rickey Rector seemed from
his earliest years a curiously lost and
clouded spirit. “Rickey was just different
from the rest of us children,” his sister
Stella Morris recalls. “He would always
play by himself. The rest of us would be
busy with toys and games and things like
that, but Rickey, he’d always sit off by
himself under a chinaberry tree, just
playing with sticks.” It was as if he were
locked into some private daze of with-
drawal. When directly addressed, he
would often only gaze back with a
dreaming secret smile. “I know now it
was probably what’s called a learning
disability,” Stella says. As a small boy, he
accompanied the rest of the family to
services every Sunday at St. James C.M.E.
Church, but “he really wasn’t connecting
with any of it,” according to Stella. “He
was having a hard life even then, and we
just didn’t know what it was, that he
needed special attention. But he always
had trouble because of it.” Another of
his sisters recalls, “He didn’t have no
buddy. He didn’t bond with anybody.
He had only one friend, actually, and
that was Mr. Bland—an old, o/d man,
who had, like, a little farm. Rickey /oved
Mr. Bland, loved those animals at Mr.
Bland’s. He’d just lie there for hours in
Mr. Bland’s wagon. Rickey really was
just a baby, even when he grew big—
loved old people and children and ani-
mals. He had this special, this strange
sort of sweetness about him, you know?”
Their mother, Stella says, “knew that
Rickey was different, but she
wouldn’t acknowledge it”—
though she did once concede
that he had always been “an
odd child,” so solitary that he
would never even venture in
from the yard to ask for some-
thing to drink or to snack on. But
she seemed to cherish him—already
unreachably distant and lost to her—
more protectively than her other chil-
dren. His father, however, taking the
boy’s slowness for simple contrariness,
was unremittingly harsh to him, admin-
istering repeated strappings—as a result
of which, it was later conjectured,
Rickey acquired a permanent, sub-

THE NEW YORKER, FEBRUARY 22, 1993

merged rancor against all male assertions
of authority. Nevertheless, Stella main-
tains, “Rickey never would bother any-
body, just tried to keep to himself.” But
she adds, “Unless they were bothering
him. And then he’d react.” Once, when
a brother kept taunting him, Rickey
finally snatched up a pair of scissors and
stabbed him in the foot.

By the time he reached junior high
school, where he floundered ever more
hopelessly in his classwork, still able only
to print in the laboring hand of a third
grader, Rickey had begun to live in a
constant suspicion that contempt and
hostility were everywhere focussed on
him. His sense of embattled displace-
ment deepened during the first year of
integration in Conway’s middle school.
Stella remembers that Rickey, finding
himself suddenly among a “new set” of
white students, felt that “all these people
didn’t want him to be there’—an im-
pression that was not altogether imagi-
nary. On returning home, she says, he
would frequently be fuming that “he had
been called ‘nigger’ ” and, because of his
evident mental vagueness, “called other
things, just as hurtful.” He began regu-
larly getting into fistfights at school. He
was now a tall, gangling youth, with a
certain languid, smoky handsomeness,
partly offset by a stare that, according to
white townsmen who knew him, hinted
of some faint menace. One Conway
man who was in school with him recalls,
“Wasn't nobody at ease with him. You’d
see him walking down the hall with that
sleepy-eyed look he had, all by himself
with nobody around him, and there was
this feeling that he was trouble. I mean,
he was the sort of guy, if he came into
the bathroom while you were alone in
there, you'd just pinch it off real fast and
get on out.”

He never made it through the tenth
grade—he was expelled for his repeated
fracases. When his parents made a de-
spairing, faltering attempt to talk to him
about it, he exploded at them, too, lung-
ing about the house and shrieking at
them to leave him alone. He began van-
ishing from home for days at a time,
wandering to unknown destinations.
Thus he completed his drift into a last-
ing exile from the everyday world around
him at the age of sixteen. At that same

_age, as it happened, Bill Clinton had

journeyed with a Boys’ Nation delega-
tion to Washington and, in a reception

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ORUARY 22, 1993

ul male assertions

.ess, Stella main-
ould bother any-
) to himself.” But
» were bothering

act.” Once, when

ing him, Rickey

ar of scissors and

ched junior high
idered ever more

ork, still able only
z hand of a third

‘gun to live in a
‘t contempt and
vere focussed on
5attled displace-
the first year of
s middle school.
Rickey, finding
a “new set” of
“all these people
*here”—an im-
‘ogether imagi-
she says, he
: that “he had
., vecause of his
‘s, “called other
Ye began regu-
ts at school. He
3 youth, with a
handsomeness,
at, according to
.ew him, hinted
One Conway
vith him recalls,
vith him. You’d
1e hall with that
, all by himself
., and there was
rouble. I mean,
if he came into
were alone in

iF real fast and

vugh the tenth
or his repeated
ats made a de-
«to talk to him
aem, too, lung-
id shrieking at
He began van-
‘avs at a time,
destinations.
irift into a last-
‘v world around
1. At that same
‘| Clinton had
ition delega-
1a reception

A CHILD DRIFTS AWAY

on the White House
lawn, briefly clasped
the hand of President
John F. Kennedy.
Rickey Rector, as
he grew older, took to
stalking through the
nighttime streets of
Conway until two or
three in the morning,
loping along in solitude
under the street lights.
For a while, he worked:
sporadically at an as-
sortment of jobs as a
hand laborer—a roofer,
a housepainter’s assis-
tant, an asphalt layer.
At some point, appar-
ently in the same desul-
tory fashion, he got
married, and he seems
to have fathered an in-
determinate number
of children by other
women. And through-
out this time, begin-
ning at seventeen, he was jailed by the
Conway police at regular intervals on a
motley succession of charges—disorderly
conduct, assault and battery, forgery,
grand larceny, assault with intent to kill.
The charges all ended in dismissals,
sometimes with prejudice, or fines. Of-
ten when he found himself in such mo-
ments of trouble, Rickey would flee for a
while to Detroit, where two of his sisters
were living, and he was arrested there at
least once, for selling marijuana. As the
picture forms in retrospect, he had en-
tered a kind of slowly accelerating
berserkness, which took him steadily to-
ward the farthest outskirts of society.

\ X J HILE Rector was lurching through

those years, Bill Clinton was
pursuing his own large hopes as a stu-
dent at Georgetown, then Oxford, then
Yale, and finally circling back to his
home state to begin constructing his
future. In 1978, after teaching at the
University of Arkansas, in Fayetteville,
Clinton, still only thirty-two, managed
to get elected governor, becoming the
youngest governor in the country. His
first term was filled with reformist exu-
berance as he sallied forth to regulate the
state’s utility companies, the timber in-
dustry, the trucking industry. But to
many of the state’s political regulars, as

107

“Mr. Simpson, a doctor type will see you now.”

one legislator was still grumping years
later to the Arkansas Democrat Gazette,
“he was a punk kid with long hair, he
had all those longhaired people working
for him, and he was a liberal.” When he
buoyantly ran for a second term, in
1980, the state’s power complex shifted
its support to the Republican candidate,
and Clinton was defeated.

The astonishment of that repudiation
was a trauma that, by all accounts,
hugely sobered and altered Clinton. “I
didn’t like it,” Clinton himself conceded
afterward, “but I learned a lot from it.”
One almost metaphysical lesson it pro-
vided him was never to range, whatever
his own impulses, too far beyond the
standing disposition of the general
populace. He prepared now for another,
redemptive campaign to recover his lost
office as a more muted creature, with
public professions of contrition for the
liberal enthusiasms of his first term. A
special vow was to rectify an impression
that his Republican adversary had seized
upon in the 1980 race—that he might
have been overly considerate of crimi-
nals. He asked to be forgiven for having
commuted some seventy sentences in his
first term, including the life sentences of
thirty-eight first-degree murderers. An
instance that gave him particular dis-
comfort was his commutation, in 1979,

of the life sentence of a seventy-three-
year-old convicted murderer, who had
been described to him by doctors as
mortally ill and posing a possible two-
hundred-thousand-dollar medical bill to
the state, whereas release would make
him eligible for Medicare—and who,
within a year of being freed, shot to
death a sixty-one-year-old man in a rob-
bery attempt. Clinton afterward com-
plained, “That old man was not as sick
as people thought he was,” and he as-
sured everyone, as he offered himself for
governor once more, that he would
never risk letting anything like that hap-

" pen again.

After winning a second chance in
1982, Clinton parcelled out only seven
more commutations throughout his ten
years as governor, and none were for
death sentences. Indeed, upon his
reélection he began setting a profusion
of execution dates. “The defining event
in Bill Clinton’s life was that defeat in
1980,” says Jeff Rosenzweig, who be-
came one of Rector’s attorneys in the last
weeks of the prisoner’s life. “Clinton set
his first execution just before he left
office, so he could say later he had, but it
was entirely premature and was immedi-
ately stayed. Then when he came back
in, he would set new execution dates at
just about every stage, every tick in the


RECTOR v. LOCKHART

399

Cite as 783 F.Supp. 398 (E.D.Ark. 1992)

tional, petitioner abused writ by attempting
to litigate claim that was not raised in first
habeas petition, and (2) as to claim that
statute was unconstitutionally applied, as-
suming that statute created a liberty inter-
est, no due process violation occurred be-
cause its requirements were followed.

Petition denied.

1. Habeas Corpus 366

Habeas petitioner had not procedurally
defaulted in claiming that state statute con-
cerning competency to be executed was
unconstitutional on its face or as applied,
where petitioner had been litigating at
least one of those claims in state court, and
where state trial court denied relief and
state Supreme Court affirmed. 28
U.S.C.A. § 2254.

2. Habeas Corpus ¢898(2)

Habeas petitioner abused writ by at-
tempting to litigate pursuant to second pe-
tition claim that Arkansas statute govern-
_ ing mental competency evaluation prior to
execution is unconstitutional; claim was
not raised in first petition and defendant
did not demonstrate excusable neglect even
though evaluation did not occur until after
dismissal of the first petition, where compe-
tency to be executed had long been at
forefront of campaign for collateral relief
and nothing prevented him from seeking an
earlier evaluation and where, in any event,
petitioner could demonstrate no actual prej-
udice in that he had received the very ex-
amination demanded. 28 U.S.C.A. § 2254;
A.C.A. § 16-90-506.

3. Habeas Corpus ¢898(1)

“Abuse of writ” of habeas corpus oc-
curs when new claim is asserted in second
petition but claim was available at time of
first petition.

See publication Words and Phrases
for other judicial constructions and
definitions.

4. Habeas Corpus ¢=897, 898(2)

: Federal courts will not entertain new
claim in second habeas petition if it has
previously been deliberately abandoned or
not asserted in first petition as result of
inexcusable neglect, and neglect is excusa-

ble if showing of cause and prejudice is
made or fundamental miscarriage of justice
based on actual innocence will occur.

5. Constitutional Law ¢272(1)
Arkansas statute providing for mental
evaluation of convict under sentence of
death does not create a liberty interest, in
that it does not contain particularized sub-
stantive standards to significantly guide
decision makers and, in any event, no due
process violation occurred where statutory
requirements were followed in making
evaluation. A.C.A. §§ 16-90-506, 16-90—
506(d)(1); U.S.C.A. Const.Amend. 14.

6. Constitutional Law ¢254.1

In determining whether statute creates
liberty interest, court applies two-part test:
does the statute contain particularized sub-
stantive standards or criteria that signifi-
cantly guide decision makers; and does
statute use mandatory language requiring
decision makers to act in a certain way.
U.S.C.A. Const.Amends. 5, 14.

John M. Jewell, Little Rock, Ark., for
petitioner.

Jack Gillean, Asst. Atty. Gen., Little
Rock, Ark., for respondents.

MEMORANDUM OPINION
AND ORDER

HENRY WOODS, District Judge.

INTRODUCTION. Ricky Ray Rector
(‘Rector’) has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254
and an application to stay his execution.
For the reasons that follow, both submis-
sions are denied.

FACTS. The facts of this case have
been well documented. On March 22, 1981,
Rector shot and killed Arthur Criswell and
wounded two others at a Conway, Arkan-
sas restaurant. Because Rector was
known to be the assailant, the police began
searching for him.

On March 24, 1981, a uniformed Conway
police officer, Bob Martin, went to the
home of Rector’s mother. Officer Martin

‘was sitting in the living room, visiting with

RUSSELL’S OLD TRADING POST v. US.

=

397

Cite as 783 F.Supp. 395 (N.D.Ind. 1992)

Instead, this court must begin with the
major premise that legislatures can attach
very elaborate conditions regarding the ex-
penditure of public funds. See e.g., Web-
ster v. Reproductive Health Services, 492
U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410
(1989) (upholding a Missouri statute that
banned the use of public facilities and pub-
lic employees to perform nontherapeutic
abortions).

This court does not doubt that the bu-
reaucratic maze confronting the owners of
this small, country grocery store is over-
whelming. However, the Congress of the
United States has a perfect right under
Article I of the Constitution of the United
States‘to create the bureaucratic maze that
characterizes the expenditures of public
funds for the various aspects of the Food
Stamp Program. Furthermore, the Con-
gress and its bureaucratic agencies have
the power to take back anything they give
out so long as established procedures are
followed. Any arguments to the contrary
were laid to rest long ago. See, Wickard
v. Filburn, 317 U.S. 111, 68 S.Ct. 82, 87
L.Ed. 122 (1942).

In his book, Gunning for Justice, Gary
Spence, the great and flamboyant, western,
trial lawyer wrote that appellate courts are
“cold.” Maybe so. The same may also be
said for state and federal bureaucracies.
However, it is not for this court to pass
judgment on the wisdom of the actions
taken against this grocery store and its
owners.

A proper understanding of the limits of
federal judicial power under Article III of
the United States Constitution is an essen-
tial backdrop to the decision in this case.
Under our system of administrative law
and judicial review of administrative deci-
sions, the initial policy decision to act must
be left with the state and federal bureauc-

1. The relevant provisions of 7 CFR § 281.1(n)
provide:

(1) FNS shall withdraw the Food Stamp Pro-
gram authorization of any firm which is dis-
qualified from the WIC Program based in whole
or in part on any act which constitutes a viola-
tion of that program’s regulation and which is
shown to constitute a misdemeanor or felony
violation of law, or for any of the following
specific program violations:

racies. As the statutes and regulations in
question are constitutional, it is only in a
very narrow and precise way that those

‘who disagree with the administrative agen-

cy’s decision can be successful in challeng-
ing such decisions in either state or federal
courts. For this court to change or modify
the actions taken against Russell’s would
constitute the kind of judicial activism that
this court and others of like mind have long
abhorred. While the result here is an un-
fortunate one, in the opinion of this court,
it is beyond the proper scope of this court’s
authority to attempt to correct it. Justice
Frankfurter was often quoted to the effect
that there is not a judicial remedy for every
ill in society. He was quite correct, and
this case illustrates that idea.

Thus, with the greatest reluctance, this
court must most respectfully decline to in-
tervene in this administrative process by

- means of an injunctive command to disrupt

the present status quo. For the reasons
stated below, the plaintiff’s request for a
preliminary injunction is DENIED.

III.

To obtain preliminary injunctive relief,
the plaintiff must establish (1) “irreparable
injury” and (2) a “likelihood of prevailing
on the merits.” 7 U.S.C. § 2023(a). All
parties agree that absent injunctive relief,
the plaintiff will suffer “irreparable inju-
ry.” See, eg. De La Nueces v. United
States, 778 F.Supp. 191 (S.D.N.Y.1991);
and Barbosa v. United States, 633 F.Supp.
16 (E.D.Wis.1986). Thus, the only issue
this court need address is whether the
plaintiff is likely to prevail on the merits.
To that end, this court turns to the applica-
ble statute, 7 CFR § 281.1(n)!

This court is limited to a de novo review
of Russell’s termination from the Food

(vii) Charging for items not received by the
WIC customer....

(2) FNS shall not withdraw the Food Stamp
Program authorization of a firm which is dis-
qualified from the WIC Program unless prior to
the time prescribed for securing review of WIC
disqualification action, the firm was provided
notice that it could be withdrawn from the Food
Stamp Program based on the WIC violation... ..


400

members of Rector’s family, when the fol-

lowing occurred:
... Rector entered the back of the house
and came into the living room. Rector
and the officer knew each other and may
have exchanged a few words of greeting.
Within a few minutes Rector, who had
not joined in the conversation, drew a
pistol and shot Officer Martin twice.
Rector left by the back door and said to
his nephew’s wife, whom he met crossing
the yard: “I just shot that cop.” A few
moments later Rector attempted suicide
by shooting himself in the forehead, the
bullet entering the front part of his
brain. That evening the wound was sur-
gically cleaned and closed.

Rector v. State, 280 Ark. 385, 659 S.W.2d
168, 169 (1983).

The trauma to Rector’s head from the
wound resulted in the severance of approxi-
mately three inches of his left frontal lobe.
See Rector v. Clark, 923 F.2d 570, 571 n. 2
(8th Cir.1991). In medical terms, the
wound resulted in a frontal lobotomy. See
Id.

CRISWELL TRIAL. Rector was tried
first for the murder of Mr. Criswell. Prior
to trial, Rector’s attorney moved for a com-
petency hearing. He was examined by sev-
eral specialists, virtually all of whom testi-
fied at the hearing. As the state Supreme
Court would later note, the expert testimo-
ny at this hearing was “in conflict.” Rec-
tor v. State, 277 Ark. 17, 688 S.W.2d 672,
673 (1982). The trial judge resolved the
conflict in favor of the State and found
Rector competent to stand trial.
later tried for, and convicted of, first de-
gree murder in the death of Mr. Criswell.

CRISWELL APPEAL. Rector appealed
his conviction to the state Supreme Court.
The court affirmed, noting on the issue of
his competency, “[w]ith the evidence hope-
lessly in conflict upon an issue of fact, it
cannot be said that the trial judge’s conclu-
sion [was] clearly erroneous.” Jd.

MARTIN TRIAL. Rector was next tried
for the murder of Officer Martin. Prior to

1. The Court previously summarized the testimo-
ny offered at this hearing. See Rector v. Lock-

He was ~

783 FEDERAL SUPPLEMENT

trial, Rector’s attorneys moved for a sec-
ond competency hearing. He was again
examined by several specialists, virtually
all of whom testified at this hearing.! The
evidence at this hearing was “‘in sharp con-
flict.” Rector v. State, 659 S.W.2d at 174.
The trial judge again resolved the conflict
in favor of the State and found Rector
competent to stand trial. He was subse-
quently tried, and convicted, for the capital
murder of Officer Martin. On November
11, 1982, he was sentenced to death.

MARTIN APPEAL. Rector appealed his
conviction to the state Supreme Court.
One of his claims on appeal challenged his
competency to stand trial. The state Su-
preme Court affirmed his conviction, mak-
ing the following finding:

A second argument for reversal is that
the trial judge should have found Rector
incompetent to stand trial against the
death penalty. A parallel question of
competency was decided adversely to
Rector on his earlier appeal from his
conviction for the murder of Arthur Cris-
well. [Citation omitted]. The proof in
the two cases is quite similar, although
in this case a witness for the State, Dr.
Hamed, thought that Rector’s condition
was much improved as compared to the
time Dr. Hamed saw Rector soon after
his surgery.

The expert proof is in sharp conflict, as
it was on the other appeal.... We must
conclude, as we did on the earlier appeal,
that the trial judge’s decision is not clear-
ly erroneous.

Id. The United States Supreme Court de-
nied certiorari. See Rector v. Arkansas,
466 U.S. 988, 104 S.Ct. 2370, 80 L.Ed.2d 842
(1984).

PB-C-84-287. Rector next filed a peti-
tion for writ of habeas corpus pursuant to
28 U.S.C. § 2254. See 727 F.Supp. 1285.
His petition contained several claims, most
of which were abandoned when he filed an
amended petition raising only one claim.
The lone claim challenged his competency
to be executed. See State’s Exhibit B. He

hart, 727 F.Supp. 1285, 1288-89 (E.D.Ark.1990).

RECTOR v. LOCKHART

401

Cite as 783 F.Supp. 398 (E.D.Ark. 1992)

amended this petition to add a second
claim, that being, his mental capacity at
trial was so diminished as to deny him the
effective assistance of counsel. See State’s
Exhibit B.

Because his competency was in question,
the Court sent Rector to the federal correc-
tion facility in Springfield, Missouri for a
complete psychiatric evaluation. Upon his
return, the Court conducted a hearing on
his petition. One of the questions posed
after the hearing was whether to apply the
standard promulgated in Ford v. Wain-
wright, 477 U.S. 399, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986), or the standard outlined
in § 7-5.6 of the American Bar Association
Criminal Justice Mental Health Standards
(“ABA standard”). Although the ABA
standard was deemed “interesting,” the
Court found it to have no legal effect. See
Rector v. Lockhart, 727 F.Supp. 1285, 1292
(E.D.Ark.1990). The Court applied the
Ford v. Wainwright standard and made
the following findings of facts:

(1) There was abundant evidence in
support of the trial judge’s determination
that Rector was competent to stand trial
for the murder of Officer Bob Martin.

(2) On the basis of my own indepen-
dent review of the evidence presented in
the state court proceedings and at the
habeas hearing before me, I find that
Rector was competent to stand trial in
November of 1982.

(3) I find that the petitioner is aware
of the punishment, its implications, and
the reasons he is about to suffer it.

(4) I further find that Rector has a
basic, rational understanding of the rea-
son why he has been sentenced to death
and why he is presently on death row as
a result of being convicted of a capital
offense.

Id. at 1294. On the basis of these findings,
the Court made the following conclusions
of law:

(1) The result of the competency hear-
ing in state court is entitled to the pre-
sumption of correctness under Sumner
v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66
L.Ed.2d 722 (1981) and Davis v. Wyrick,
766 F.2d 1197 (8th Cir.1985).

(2) The petitioner’s Sixth Amendment
Rights were not violated in the state
court proceedings. Petitioner was at all
times represented by able and. consci-
entious counsel and has been mentally
able to assist them in his defense.

(3) The petitioner’s present mental con-
dition satisfies the standards of Ford v.
Wainwright, supra, and his execution
would not offend the Eighth Amend-
ment.

Id. Thus, his petition was denied.

Rector appealed. He challenged, inter
alia, the standard used by the Court in
determining his competency to be executed.
He took the position that the Court erred
by applying the Ford v. Wainwright stan-
dard. Rather, it was his contention that
the Court should have applied the ABA
standard. The Court of Appeals disagreed:

We agree with the district court that,

“while the [ABA standards] are inter-
esting, they have no legal effect.” Rec-
tor, supra, 727 F.Supp. at 1292. We
hold that the district court was correct in
rejecting the ABA standards and in se-
lecting the Ford test as the appropriate
measure of [Rector’s] competency.

Rector v. Clark, 923 F.2d at 572-73. The
Court of Appeals affirmed in whole the
findings and conclusions made by the
Court. See Id. The United States Su-
preme Court denied certiorari, see Rector v.
Bryant, — U.S. ——, 111 S.Ct. 2872, 115
L.Ed.2d 1038 (1991), and a subsequent re-
quest for rehearing, see Rector v. Bryant,
— US. , 112 S.Ct. 34, 115 L.Ed.2d
1115 (1991).

The State subsequently asked the Court
to dissolve the stay of execution previously
entered. Their request was granted, and
the stay was dissolved. See Order of No-
vember 6, 1991.

ADMINISTRATIVE ACTIVITY. On Oc-
tober 30, 1991, Rector made a request to
respondent A.L. Lockhart, Director of the
Arkansas Department of Correction, for a
mental competency evaluation pursuant to
Ark.Code Ann. § 16-90-506. See Rector’s
Exhibit A. The request was granted, and a
forensic evaluation team from the Arkan-
sas State Hospital (“State Hospital’) exam-


PEARCE, Thomas, hanged at Ashdown, Arkansas, on April 21, 1911,

"April 21, 191l-A special from Ashdown, Ark,, to the ARKANSAS DEMOCRAT (Little Rock) this —
afternoon said that Thomas Pearce, convicted of wife murder, was hanged in the Little |
River county jail this afternoon by Sheriff Collins, The march to the scaffold started at |
3:15 pm, and after religious services, which were conducted on the gallows, the black cap
was adjusted, and Sheriff Collins sprung the trap. The execution was private, only the
legal number of 2wenty=-five being admitted, which excluded the morbidly inclined, No
incidents out of the ordinary occurred,

"In conversation with W. Bishop of the Ashdown (Ark,.( sheriff's office Pearce declared

that his plea of self-defense in his trial was not founded on fact and that Mrs. Pearce

did not at any time attempt to kill him, He said: 'I had suspicions for some time that
my wife was entirely too familiar with a laborer on the place and I set to watch them I
went to a window when I knew they were in the house together and what I saw made me de-
termined to kill my wife and the man, too, The man had gone away, but I killed Mrs, Pearce
She did not try to brain me with a cotton scales weight, as I swore onthe stand at the
time of the trial, I amde that plea in the hope that the jury would give me a préson
sentence intead of death, I have become reconciled to my death this afternoon, I am
satisfied to go and have written my wife's mother and her sister begging them to for-

give me, I killed my wife becuase of her unfaithfulness to me and not in self-

defense,'

"The Arkansas state legislature early this morning adopted a resolution directing Uover=
nor Donaghey to interfere with the proposed execution of Thomas Pearce at Sshdown today,
convicted and sentenced to death for wife muhder,

"The governor refused to interfere, declaring that Pearch himself admitted on the stand
that he had killed his wife and that the sheriff, the judge and the prosecuting attorney
told him Pearce was guilty and should hang." NEWS, Galveston, Texe, lj-22-1911 (3-6,)

The following is undoubtedly the same case. In reporting the crime, the GAZETTE Also gave
the name as Henry Pierce, which leaves doubt as to correct spelling and given name,
"Ashdown, Arke, Dec. 3, 1910-Henry Pierce, who killed his wife in the northern part of
county in October, was today sentenced +to be hanged January 7 by Judge Cowling,
before whom the case was tried this week, The jury retired on the case yesterday
afternoon and in about 2 hours brought in a verdict of first degree murder, Pierce
killed his wife with a shotgun, almost severing the head from the body. The act was
said to have been caused by jealousy. The trial of the case was begun Thursday
morning and was given to the jury on the afternoon of the second day. Only a few
witnesses were examined, The defenant gave notice of an appeal as soon as sentence
was passed, and if the case is taken to the Supreme Court the’ execution will not take
place on the date named," GAZETTE, Little Rock, Arkey Dec. , 1910 (2:2.)

‘TOMA

IUey) sRMoUy

* Only Evening Paper i in Arkdiisas Receiving Full Associated Press Rep

ORE. SRL

Om, 40-—NOs

er Te eT
as a? .. : ar
ATR so

v

Mm
en
LITTLE ROOK; FRIDAY, APRIL 21, 1911. B.

|Senate. Appeals to’ ‘
Governor in Vain :

.
, the ‘4 %
yes
b> raw
7 - Caf.
2 +f
:

bg

i MF MURDER - For Henry Pearce

co

g.
es

ye 7
i Kpeii21.—(epctat )—Henry, ed in’ the Little iver ‘vent? jait un-| tn

€

‘ ne ta we renglution passed the belief that Vearce wus etary at the ate, Giuverove Donaghey stated that be ie
 Soavidea of the murder of his/til this afternoun,. bt night he ate} '” the ate arking the goveruur tu| time ef the tragedy, Whew be shut and} Mad Keven the cane all the eunsideration ‘
. cute ‘the ‘sen | billed ble-wife. Guvernor ts possible, had made up bis miod with
ere, enaybey- re
cast wiater, was hanged atia hearty supper, slept well aad ate uo tence Path assessed against Henry pliew that he had thoroughly yore abe ae ‘o Thar gave senate ‘©
inty jalt this afternoon by. then! hearty breakfast this morniog. Soon Veate we Bittle Kiver Cuunty Cie-]ed the ence; that neither the trial judge he set elite 48 a oe ribotong to =
‘ cuit Governor Donaghey neut the proesecutin : ; os , an 4
iM 8. y a} nor T BK alternes ted wake] gp 17 olen,
ee a: Doon eee be: aig to. be qileded te mpeelf —” pasage te the Mente testing} ed for eummulation; that ais sheriff aes fe see eel + waek aii "
aled” e petition of the State Sen- stuoke, ‘and Sheriff Collings furnished him roy ) ny bia reanane for deuylng| bad added: hie statement that Veurcy ts] Hetow in the Nenate renuluthon: |
. the t of the resolution, und atat gullty, and that in view af all the cir- Following in the apecial memage of ||
ca respite, - : a ee and tobacco, ing Poo duthing now had beew develop cumstances, be could uot teach any] Governor Donaghey to the Senate, inf,
. ed that appeared to justify executive cunelusion: other than that the Iaw | reply: oe
‘e was Broyght : ‘to ‘Auhdown yes- (Continued on Page 9.) latecfereuce, should take its course. !
trom wld, Bock, awd was plac: ‘. 8 Tho Senate based ite request upon Hubsequeat to bin reply to the Sen, (Uadiiiend: on Page 9.)

PPE He ee ae 5 id . Te ein A.

-~ ll el le


Only Evening Paper in Arkansas Receiving Full Associaled Press Rep:

ovta, April 21.—(®pecial.)—Henry

i r

 eouvieted of the murder of his

ere last winter, was hanged at
ity jall this afternoon by Sher
fins, after Governor Donaglwy
aled @ petition of the Btate Sen.
: & respite,

‘@ was broyght ‘to Ashdown yea:

from Lite, Rock,

aud was plac-
FST y GET

ed in’ the Little River County’ jail un-
til thin afternoun. Laide night he ute
a hearty supper, slept well and ate u
hearty breukfast this morniog. Soon
afterward he asked to be alluwed ta
stuoke, ‘and Bheriff Collins furnished him
a plpe and tobacco,

(Continued on VPage 9.)

“

th a ee

LITTLE ROOK, FRIDAY, APRIL 21, 1911,
Senate. Appeals to
Governor in Vain

bs e

£ |
co
a.

In (Bere tow resolution paaned
by the o Ble meking the yovernor tu
cum the sen

ce)
tence S cath assessed nywinet Henry
Peary the bittle Kiver County Cir
cuit », Governor Donaghey neut «
apecl¢ _ famawe te the Memete tenting
forth Hy bin reasons for denviuy

the i a t of the renolution, uni stat
ng Po duthing new had been slevolop
sd that appeared to justify executive
juterforence,

Tho Senate baned ite

request upon

i eee ee

the bolief that Vearce was eravy al the

time of the trayedy, when he shot mn

hilled bis wife. Gluvernor Doumybey ret:
plied that he had theorerghty luvestiyst:
ed the cnee; that neither the trial judge
bur the proseouting ntturnes lined eh
ed for commutation: that the sheer?
hat added dim etutement that Peurce ts
quilly, mud that in view af all the ene:
cumstances, be any
coneluslon- other than Inw
should tale its course

Sobsequeat to hin reply to the Nen,

could teach

the

facet
hot

An eet;

| For Henry Pearce

ate, Gioveruor Dhenayhev stated that he
hal given the came all the eunaideration
had made up bia intod with
the light before hin wad im the belief
that be hed Jone what the governur of
the (Nate ought te de in the matter, aud
that mo far we the executive
office te

possible,

the clse,

von ented, os clued
Vherliow in thee Neate femcolutian:
Following i the spectl message of
Gaovetuor Donayhey tu the Benate, in
reply

(Continued on Page 9.)

i at et)


4

NEWS. SATURDAY, ‘OCTORER..10, 1885

ABILENE.

Se eee

OOK BAY inc ffenelve looking pillow. Bovty but sarely om o mt nerolos and tie pe Aap ona Boa: big 3
| the sweet inflaence steals over his senses; he ‘okory above the spring, ai wo the ae
Se iene b) aie to the teenie mt tie oharm, and sees the | seats oat o' the wagon inside, to keep ‘em Galvestonians Feted~ Fieaty of Basinass—Latze

Main coast, perchance old Castine, which firet | gittin’ a wettin',”
Reve tirth to the pillow of fir. There he sees a For the next few minotes all was bustle and (Sractat To Tas News}

"DY of young and old, each pulling fir, | confusion, while the men were bringing their AniLenr, October 9 —Mesara, Byiva'a
The mother to send her boy in the olty; the | taddles and harnaes into the church for pro Biomard M Marr. of Gal have bw.
)OOEK gir) to place beneath the aching head tection, and even the women ran oat to jook : ¢ J voston, ;

(, ber troubled) father: the old man fora | after lunch baskets that bad been left in the | 9 Abilene wince last evening, What “hei-
"weet restorer. for the tired nerves of bis ia or ances. ater some balf bour | more | buriness ia pe body knows, bat as they have
valid wife {he shower passe away, and the fire of Bro teen studying’ thi . many think

The dredimeof @ hashéesh siunoker must be | ther Ducker’s eloquence began to flame UP | thely bias a came the exten-
age and undelined compared to those en obee more, when a suddén a from without : i &
© trop dreamland by the soothing bali of | eobotnced that difference of opinion bai | or of the Gulf, Colorado and Sante Fe rail-
1h strong contrast with the beat, the | arisen amon the dogs left by their masters | 10nd, They were feted this evening at 3
tthe vats of ‘business, and the moving | @1ound thecburch door, Again the..enorers | ; ‘clock at @ rump tucus dinner, got up by sev-
j Srows-are the ripple and sparkle of the waves, | returned to consciousness, congregetion | rrai proinent - 1ie-os They go here
the fregrarce laden zephyrs. the qulet aisles of P aod directed * by stage to Rownels and Ban Angelo
(he weode, the lightness of a brain free from t earnestness (0 the doors The streets presented @ lively appearance
ore Beautiful memories are. brought from aaters of the disagree this moriing wtih Prairie schooners ladan
the botie of the fir with cotter, The staple is temarkably fas
un Maine to California are redolent end silky, classiog from tidtiing to fons
ht. A welcome gift they among ‘ There area bumber of cotton buyers in town.
¢ Oo uries of a Paris home They dispel the @ N A. Taytor Made, to-d

& from, the London air Tey eto | largest Jand enles, if not the
the jand of lee by the Arotia p hey mede in Taylor county.
res pillow for the heads of Maine® satior | wee nobody left except women and cbtidren. | of 7000 seras lying about
“ % Mio the swelling ocean, aod in the heat | The preacher, however, of Alilene The bu

| ff. the tropiow they” waft homeward ths | bis post. It is true his iste Who will cut it
| 'Poughte of ber exiled children, oftener toward the

PCC er
A QUARTER Day IN GEORGIA.

| How the Pastor at Big Lick Recetved Contribu-
lees from His Parishioners pnw n Ag ‘arian
MAvON, Ga, October 2 —More ‘than half a eacier Ducker's bobtelt biteh
Ululy ego, when Big Lick creek ooald boast T Ransom's yailer boun’! My new SES DT RECA
ar cy @ Gonet bouses along ite borders all the yn en nee 0” tobacker on the ah seg BXECUTIONSR's Bors
“ay from Cedar Rock epring to Dodson'e'tork, | £aic'* pome this way aud shatte anne Carle Petrias Wenged for the Marder of Mette
end (he Rig Lick church was a log cabin with | conflict between the and the devil, when Banke
cia} board roof and punchson floor, Lwasem- | 6 loud yelp from the boh tail biteh ended the (Srectal To Tas News}

hot that] bliyed ty es «lent living in Augusta to look | *trife, Jespng square over the pulpit, the

‘

they bad after a land claim lying op Broad river, a few tga beard hye teal bis — ay
Pei ey.) miles above ite function with the Big Lick. I | appeared ;
Ling inate | “ar cLlertained at the bouse of Captain Joel

heee, frodi

roury, te | Starke, one of ¢he leading men of the settle The me
t anes | ment. The dap after my arrival being Sunday, ané children followed.
* Wout | 1 eeccrmpaniaad the family to church, there was not a sou! left in

ah a ‘the Capteln A@rke lived twelve miles from the Pt eer
theean | Meeting bowse, Our departure was somewhat ¥ ; Fisher Maiden
Seow the | Soeyed Vy the preparation of various ham- ‘dmattehinn aaa oa York bine BB
once Adirondacks

ha?

MAH AS tare el bondbes which my host explained by feli aale
Me nul ; , *p on the grace I suddenly woke
ee a | **)ire 1 wee quarter day, and he was getting with @ feeling that some one was near, aod colored) was ged
Laced fea’y Lis truck for the preacher. The full looking across the atream I saw a Soph le or m f
There stood a bright young girl Mollie Banks, last , in| Woodraft

wemol] weiuitg of (quarter day did not ocour to me, Me
hi wever, tt) Gor arrival at the meeting-house, of a
where Che captain bad bis goods uploaded
fret be green palnted family wagon and
| Seed upon the shoulders of two stout ne-
ror who tharched op the aisle and depodted
emnid « OOllection of similar offerings that
i a cofoer op one side of the rade wooden the water.
it. The servioss had already ao, end | on. river
jreacher, @ broad «bouldered, ‘club-footed
1 bie shirt sleeves, was lHoing oute hymo : oung
the oaptalo aod hit men appeared. the ease of an & The

** three Dams, an’ « side o’ bacda, an' placed
peas for you, Brother Docker,” cried S = wie snakes
riiy hoet, advancing up the elsle, “an’
poloting to the foremost darky,
tthe apple butter en’ the blackberry
“ie yarde o' Drowa jeans what Betsy
7 } u
ber atopped short ln the middle of pe Ay yg a Rom Mes
elestion! emilee overspread bis fea danger :
tearers deposited their burden, ol =, io a8 wees
s yoo, Krother Starke!” he eried, with awe her into the big Canada, 22. Total 307,
} roportioned to the liberality the the tank and dived into pool, bat to my and [85 the Week befor
ite Lord Joveth « cheerful giver chegrin, on coming to the surface | saw ber . —
want iim to prosper 760, my broth: 1) peeedly swimming ashore, She climed CAPCALTI On,
*lgive ta the gospil Yee broth ppom the bank, and,, seeing me, extended her \ rae
ive te the goepl! Let as ating , band to help me out Sheexclalined with ma ~t * Vowth's Fearful Mishap
jer carcass, Brother Daoker,” in heaitinem: ‘Thank’ ye. niister. tut | dida’ Breck to Tas News,
Se stenterien seven frome Sue Sony wraty reed. +e; 1) have been in the id river to meay Vicronia October 9 . A twelte-your old eon
the preacher could? reeume his reading tine , er, ¢ o , f j * t
Sor ack ian abla eaderetnad tow feathn +A on, fue “we ; Aye bon natng out me a Mr, Jobu Sahm tite whe operates & gio about
bere er are Vth) Sppear at 90e end o | -Preey od but tw nema ft 2 An
Te Dureteand nf ying preeen at the i we sat «r n wt rarm. « 6nd while!
y fn 11 Satie meonvent tophe! toward th ly Yd the rit we got well a wsintead M ie
o Peat Pieher epi aaw striding uj) the @isie a rasti | told (hethat, bre Wenve was
agbhory | in bis Phirtalecewes, with the taxi f

 Lemade a full eon-
because she re
fused to marry tim, not having been legal!

husband. er

ig}

divorced from her
ei

BUSINESS TROUBLES.

eekaibe ee

gists, have been attached for the fol
sume: Press Childress, $070. 8. 4, Cox and J.
O. Hicks, #281; a. J. Jord Ovi; J. D.
Gray, $50, The stock will ny $1500 ac
cording 00 best information.

Shak

efestl

rE

ten nile atowe- \ tot wie, Dead his arm fear-

Fully yo@tgied la ‘the K't) Yoaterday | He was
MgC LO this city, where the inj@red mem
or be tx .


212 802 FEDERAL SUPPLEMENT

putting the answer—the language all ap-
peals as to guilt or innocence of the murder
conviction have been exhausted, or all ap-
peals as to guilt, yeah, all appeals as to
guilt of the murder conviction.... Ah,

guilt of the murder conviction have been

exhausted.” (TR 1704-705).

At any rate, there was abundant evi-
dence of petitioner’s guilt adduced in the
hearing now under review. Jerry Lock-
ridge, a member of the army special servic-
es force, home on leave, was one of those
wounded during the robbery. He testified
as follows: .

Q What happened after that?

A_ Ah, probably within two to three sec-

onds after the time that, ah, you heard

the door, ah, close, ah, one of the black
gentlemen walked back in. He walked
over to—

Q Which black gentleman.

A Mr. Pickens walked back in.

Q The gentleman seated here at coun-

sel table?

A Yes, sir. Yes, sir.

Q Is there any doubt in your mind this

is who you saw?

A No doubt in my mind whatsoever, sir.

Q* How—was he armed—still armed at

that time?

A Still armed at that time with the pis

tol in his hand, sir. .

Q O.K.

A He came in and made the statement

that, ah, we’re not here to kill anyone

especially any blacks and less than a

second later he pointed the gun point

blank range at Mr. Noble’s head and
pulled the trigger.

Q Did the gun fire?

A Yes, sir.

Q Did the bullet strike Mr. Noble?

A Ah, yes, sir.

(TR 1274-75).

If there was any need to relitigate peti-
tioner’s guilt, the above testimony estab-
lishes it beyond all question. As the Su-
preme Court of Arkansas said:

At the sentencing hearing, one of the

victims, Jerry Lockridge, testified that

Pickens fired first, shooting Wes Noble

at point blank range. Other shots, fired
by Pickens or the others, then followed

in rapid succession until the gun Was.

emptied. The gun was then reloaded and
at least one more shot was fired. Loc.
ridge said, “during the entire time | was
there, ... Mr. Pickens was the individua)
doing the talking ... he’s the one that
told me to lay down on the floor ... he
was the one that did the talking to Mr
Goacher when they found the money.”
Lockridge said he perceived Pickens as
the one in control of the situation. An.
other victim, James Weatherly, said Pick.
ens was not acting on the instructions of
anyone. From this evidence, the jury
could reasonably have concluded that the
mitigating circumstance of youth and
domination by another person did not
exist.

Pickens v. State, 783 S.W.2d at 345. This

is a fair summary of the testimony concern-

ing Pickens’ role in the offense.

Petitioner presented evidence on this is-
sue in a hearing before this court on Au-
gust 26, 1992. He called Harold Goacher
as his only witness. Goacher was a highly
unsatisfactory witness. He is 78 years of
age, and his mental faculties appear to be
somewhat deficient. At times in his testi-
mony he seemed to say that Clark shot

Wes Noble. At other times he testified .

that he could not say whether Clark or
Pickens shot Noble because they were
passing the pistol back and forth and both
were shooting. The investigating state po-
lice officer, Lt. W.D. Davidson, testified
that Goacher never told him that Clark
shot Noble until the morning of the August
26, 1992 hearing before me, while they
were both in the witness room. On that
occasion he said Clark shot Noble and Pick-
ens shot Scherm. However, in an inter
view with Lt. Davidson on December 12,
1975, Goacher picked out a picture of Pick-
ens as the man who first raped Mrs. Gun-
nells and who fired the first series of shots.
(Resp.Ex. P). It is undisputed that Noble
was killed in the first gunfire.

_ In the first trial Goacher testified that
Pickens and Clark did the shooting—“They
just come in and went to shooting.” All of

ithe, witnesses agreed that
‘@epmplexioned man) did n
pA mistrial was declarec
ee@atithe beginning of the
We Geearing in 1984. This he
4985, after Goacher’s- al

gacher testified as follo:
er they shot the first

ip the store and put m
43 gan, and then when they
# @Pickens done the shootin
4@ the gun one time and Pi
@ @gun one time.” Goacher

| @ehanged hands but that

»stified as follows:
‘A... They shot six

gun and the other one
it” and he come ***"
six more times.
.Q Did they say am
ere shooting?
Well when they «
‘the second one com
hooting, Wes Noble :
bout like that off .tt

A Well all I know &

sp.Ex. U, 111)...

“Based on all of this
pacher given before u
‘ceived in evidence, I f
»:thoroughly unreliable
Hadicted himself a nun
POD the stand before me
the trial and the two ser
eontradictory as well as
en to the prosecuting.a
n my opinion, Goacher

vyhat happened on


this is-
on Au-
70
the.
‘ears of
ir to be
is testi-
rk shot
i testified
‘lark or
‘y were
ind both
state po
testified
it Clark
» August
iile they
On that
and Pick-
an inter-
mber 12,
2 of Pick-
dirs. Gun-
. of shots.
1at Noble

1 ; ; .A mistrial was declared as noted, supra,
#ee at the beginning of the first resentencing

= 1985, after Goacher’s alleged recantation.

' iq A Well when they come back in, after

ified that
g—‘“They
” Allof

: PICKENS v. LOCKHART 213

a Cite as 802 F.Supp. 206 (E.D.Ark. 1992)

q 4 the witnesses agreed that Gooch (the light- 20, 1975. Undoubtedly he was under great

. complexioned man) did no shooting.. stress. He and his customers were victims

of two mass shootings, and his female em-
ployee was brutally raped. He himself was
wounded. While Goacher is correct on the
broad outlines of the episode, he is unrelia-

Goacher testified as follows in this hearing: ble on the specifics.

. “After they shot the first round, they went The testimony of Jerry Lockridge, in my
fi in the store and put more bullets in the opinion, is much more credible on the iden-
f gun, and then when they come in is when tity of the murderer of Wes Noble. Lock-

i hearing in 1984. This hearing resumed in

Be Pickens done the shooting. Clark emptied ridge, who did not testify in the original

@ the gun one time and Pickens emptied the trial because he was overseas in the army,

@ changed hands but that Clark shot Noble. forces unit. He had been wounded in Viet-

‘
® gun one time.” Goacher testified the gun was a combat veteran of an army special
i

R (Pet.Ex. 1). nam. Lockridge would have been much

J -- At the trial of Antonio Clark, Goacher
: | testified as follows:

more likely to maintain his composure
through such an ordeal.

e AC. They shot six times and took the I do not believe that Goacher intentional-

. gun and stepped back out into the store ly committed perjury in the original trial.
building. I could see through that door He now says he confused the actions of
& , one of them sitting up on the deep freeze Clark and Pickens. Both, however, opened
* . with his legs swinging back and forth fire on the helpless victims huddled on the
and they was talking and emptied the floor. I.am completely convinced that the
gun and the other one said, “Let me have conviction of Pickens and the death sen-
it” and he come back in there and shot tence imposed upon him do not rest on
six more times. perjured testimony. Petitioner does not

.. Q Did they say anything while they contend that any testimony adduced in the

hearing now reviewed by me is in any way
tainted by perjury. Goacher did not even
@ = the second one come in and started testify in the hearing I am now reviewing.
Gi _ shooting, Wes Noble raised his head up —_—Although in the August 26, 1992 hearing
Se about like that off the floor (measured Goacher states that he did not commit per-

~ were shooting?

| 4 about four inches). He said, “well we jury by testifying that Pickens killed No-

@ didn’t come down here to kill no blacks le, he does claim that Jack Lassiter, a
i but you old mother fucker you have got former assistant attorney general and a
to go” and shot him in the head. respected member of the bar of this court,
’. Q Did you know, could you—can you told him to give such an answer in the trial.
identify who did the shooting? Goacher says he was not asked the ques-
A Well all I know is the blackest men tion at trial. If he had been asked, he
done the shooting. would have told the truth by stating that
Resp.Ex. U, 111). 7 he did not know which of the two killed

Based on all of this testimony of Mr. Noble. He states in his deposition (Pet’s.

Goacher given before me and the exhibits x. 2) that when Lassiter suggested that
he give this testimony, he was accompanied

received in evidence, I find that Goacher is ‘ rg
i a thoroughly unreliable witness. - He con- by Gary Isbell who is described as being in
Mee tradicted himself a number of times while a wheel chair. Mr. Isbell was then an
ee on the stand before me; his testimony at assistant attorney general and is now cir
fe the trial and the two sentencing hearings is cuit judge of the 14th Judicial District. He

Wee contradictory as well as the deposition giv- "* ® double amputee. ,
At the hearing before me on August 26,

fen to the prosecuting attorney (Pet.Ex. 2).
1992, Goacher’s testimony on this point is

= pin my opinion, Goacher is confused about
ee ; What happened on the afternoon of October confusing, vague and contradictory. Lassi-


214

ter took the stand and vehemently denied
that he had told Goacher to commit perju-
His testimony. was corroborated by

- Judge Isbell. I accept the testimony of

these two men. Their clear, straightfor-
ward testimony is in sharp contrast to the
vacillating, contradictory, confused testimo-
ny of Goacher. I find it inconceivable that
two respected members of the bar and
state officials would have been guilty of
subornation of perjury. At any rate no
perjury occurred in the original trial be-
cause Goacher testified as he did before me
that he could not say for sure who killed
Noble. (Pet.Ex. 1). There is no basis for
setting aside Pickens’ guilty conviction on
the ground that it was obtained on perjured
testimony.

Il

GOERCED CONFESSION ISSUE

This issue was summarily decided by the
court in an order dated May 22, 1992. A
copy of this order is attached hereto. No
further discussion is necessary. I have
permitted petitioner to make an offer of
proof on this issue.

Ill

THE JURY SELECTION ISSUE

(a) Potential Jurors Horner and Robin-
son

[2] Petitioner claims that potential ju-
rors Rosemary Horner and Lyndell Robin-
son were improperly excluded from the
jury because of their views regarding the
death penalty contrary to Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. ‘1770, 20
L.Ed.2d 776 (1968). The Supreme Court of
Arkansas has fairly summarized the Voir
Dire’ testimony of these individuals and
why they were properly excused for cause:

The trial judge committed no error in

excusing the jurors in this case. Venire-

person Lyndell Robinson waivered [sic]
back and forth between saying she

“probably could” impose the death penal-

ty and that she did not believe in the

death penalty. The judge finally excused
her on his own motion. His decision was

802 FEDERAL SUPPLEMENT

based on her inability to give a consistent
answer to the death penalty question and
on her response ‘which indicated she
would be led by other members of the
jury rather than make her own decision.
Venireperson Rosemary Horner started
out saying she was against the death
penalty. When asked if she could im-
pose the penalty, she replied “I guess I
could if I had to,” but that she didn’t
really want to. Later she said she
“guessed” she could consider it and
could keep an open mind “if I had to.”
She was asked if she would refuse to
vote for the death penalty no matter
what and replied “no,” and finally said
she could vote for the death penalty “if I
had to.” The trial court was concerned
that Mrs. Horner’s continuous response
of “if I had to” indicated a person that
might not be able to consider the death
penalty even if the evidence justified it.
Giving considerable deference to the trial
judge’s ability to see and hear Mrs. Hor-
ner, we hold her excusal was not error.

Pickens v. State, 788 S.W.2d at 344.

[3] General objections to the death pen-
alty or conscientious or religious scruples
against the death penalty are not grounds
for excusing a juror for cause. Wither-
spoon v. Illinows, supra. However, if the
views as to the death penalty would sub-
stantially impact the performance of one’s
duties as a juror in accordance with the
court’s instruction and his oath, an excuse€
for cause is proper. Adams v. Texas, 448
U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581
(1980). Adams was followed in Watn-
wright v. Witt, 469 U.S. 412, 105 S.Ct. 844,
83 L.Ed.2d 841 (1985), where the court
pointed out that the presumption of cor
rectness applied to the trial and state appel
late courts’ rulings as to the voir dire,
citing Patton v. Yount, 467 U.S. 1026, 104
S.Ct. 2885, 81 L.Ed.2d 847 (1984). Empha-
sizing the deference given to the rulings ©
the trial court, the Supreme Court said
Witt:

Once it is recognized that excluding pro”.

spective capital sentencing jurors

cause of their opposition to capital pun
ishment is no different from excluding

wi

jurors for innumerable ot
which result in bias, Patto
trol. The trial judge is of «
ing some kind of legal stan
he sees and hears, but his
function in determining “ju
volves credibility findings

cannot be easily discerned fr
late record. These are the
sues” that are subject to §

469 U.S. at 429, 105 S.Ct. at

The standards adopted in
have been applied in this Circ
Armontrout, 880 F.2d 1 (8

. Hulsey v. Sargent, 865 F.2d
© 1989). We hold that the trial ;
1 transgress constitutional bow
- sion of these members of the

i 4 (o) Exhaustion of Peremptor,

| [4] The petitioner claims
4 forced.to use peremptory c!
4 nine venire persons when the i
@ to excuse them for cau:

'@ Ross v. Oklahoma, 487 u.v.
2278, 101 L.Ed.2d 80 (1988) de
@. months before the sentenc
@@ which now concerns us, “the
@® not be on a juror who was
@, challenged but on the person
Psat on the jury,” 783 S:W.2d
upreme Court of Arkansas
that Pickens did not contend °
n who sat on the jury shou
,challenged for cause. “He
ampartial jury to which he is
sonly complains of the loss oi
challenges. Under Ross v. 0.
this is not reversible error.
fourt also cited Gardner v. St
4.754 S.W.2d 518 (1988) an
Mate, 289 Ark. 138, 709 S.W.i

te Supreme Court. in. Ross
feserve this point for habez
fews Pickens must have. ch
ru il. court’s refusal to excuse !
agers who actually served or
at his peremptory challeng
sted. Id. 487 U.S. at 85,
mag, The record does ~-* ~
as done. as

a


jurors for innumerable other reasons
which result in bias, Patton must con-
trol. The trial judge is of course apply-
ing some kind of legal standard to what
he sees and hears, but his predominant
function in determining juror bias in-
-yolves credibility findings whose basis
cannot be easily discerned from an appel-
-Igte record. These are the “factual is-
sues” that are subject to § 2254(d).

469 U.S. at 429, 105 S.Ct. at 855.

The standards adopted in these cases
have been applied in this Circuit. Byrd v.
Armontrout, 880 F.2d 1 (8th Cir.1989);
Hulsey v. Sargent, 865 F.2d 954 (8th Cir.
1989). We hold that the trial judge did not
transgress constitutional bounds in exclu-
® sion of these members of the jury panel.

) Exhaustion of Peremptory Challenges

[4] The petitioner claims that he was
- forced to use peremptory challenges on
nine venire persons when the judge refused
to excuse them for cause. According to
- Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct.
} 2278, 101 L.Ed.2d 80 (1988) decided several
months before the sentencing hearing.
which now concerns us, “the focus should
not. be on a juror who was peremptorily
challenged but on the person who actually
= sat on the jury,” 783 S.W.2d at 345. The
# Supreme Court of Arkansas pointed out
'& that Pickens did not contend that any per
son who sat on the jury should have been
f challenged for cause. “He received the
impartial jury to which he is entitled and
4 only complains of the loss of peremptory
F f challenges. Under Koss ¥. Oklahoma .«:..
ae. this is not reversible error.” Id. . The
Mee court also cited Gardner v. State, 296 Ark.
B 41, 754 S.W.2d 518 (1988) and Watson v.
B® State, 289 Ark. 138, 709 S.W.2d 817 (1986).
| lame The Supreme Court in Ross held that to
; man preserve this point for habeas corpus re-
Meee views Pickens must have challenged .the

& trial court’s refusal to excuse some juror or

ter his peremptory challenges were ex-
‘ hausted. Jd. 487 U.S. at 85, 108 S.Ct. at
F 2276. The record does not show that this
was done.

| jurors who actually served on the jury af-

PICKENS v. LOCKHART 215
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

IV

THE CONSTITUTIONALITY OF
THE ARKANSAS DEATH
PENALTY SCHEME

The Arkansas death penalty scheme has
been recently attacked in a habeas proceed-
ing before me in Swindler v. Lockhart, 698
F.Supp. 760 (E.D.Ark.1988); affd., 885
F.2d 1342 (8th Cir.1989), cert. denied, 495
U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301
(1990), subsequent petition denied, 139
F.Supp. 1828 (1990), aff'd by Court of Ap-
peals, stay of execution denied, 496 U.S.
982, 110 S.Ct. 3208, 110 L.Ed.2d 656 (1990).
The verdict forms used were made an ex-
hibit to my opinion and are the same .as
those used in the case at bar. 739 F.Supp.
at 1829. I upheld the constitutionality of
the Arkansas Scheme in this recent death
penalty case and was affirmed by the
Court of Appeals and the Supreme Court of
the United States. Petitioner concedes
that the Supreme Court of the United
States in Blystone v. Pennsylvania, 494
U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255
(1990) upheld a similar scheme and is dis-
positive of this point. The applicability of
Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1987) and McKoy v.
North Carolina, 494 US. 483, 110 S.Ct.
1227, 108 L.Ed.2d 369 (1990) to the Arkan-
sas Scheme was specifically rejected in
Swindler v. Lockhart, supra. The Mills
analogy was also rejected by the Arkansas
Supreme Court, 783 S.W.2d at 348-44. Pe-
titioner’s attack on the Arkansas Scheme
and Model Criminal Jury Instruction AMCI
1507 is without merit.

Vv

THE RESENTENCING STATUTE IS
UNCONSTITUTIONAL ON EX
POST FACTO GROUNDS |

Pickens contends that the resentencing
statute, Ark.Stat-Ann. §: 54-616, . which
provides for the procedure for remand .af-
ter the vacating of a death sentence, was
unconstitutionally applied to. Pickens. The
statute was enacted in 1983 and applies
retroactively to any defendant sentenced to
death after January. 1, 1974. It allows

O_O

This is a photograph of Judge Parker's Bench from whence he dispensed a Stern Jus-
tice for Many Years, There Was No Appeal. The Old Brick Building at Fort Smith
in which it is Now Housed is a National Historic Site.

ful, so he decided to gohome. He stole
a fine riding horse froma man near Spring-

field and rode back to Eureka Springs. He

told his father he had purchased a small
pony at an auction and in turn traded it to
another man for the mare, agreeing to give
him $13toboot; that this man was in Eu-
reka Springs at the time, and if his father
would give him the money he could close
the deal.

Foolish father patted his son on the
shoulder, toldhim whata shrewd trader he
was and handed over the amount requested.
There beingno deal to close, Johnny spent
papa's money for a good time about town,
and within a few days the owner of the mare
anda Missouri sheriff called at the Pointer
home with a warrant for Johnny's arrest.
Stillbelieving his son's story, certain that
the man to whom Johnny had traded his pony
was the real thief, father hired a lawyer,
put up the price of the mare: and did every-

14

thing possible to reach a compromise with
the man from Missouri.

The owner of the animal could not be
swayedandthe sheriff sent to Missouri for
requisition papers. Meanwhile father got
Johnny released on bail of $1,000, furnish-
edhim expense money to leave the country
and put him on a train for Texas.

No more was heard of the youth until
he turned up in jail at Decatur, due to an-
other misunderstanding over a horse. He

wrote home for money to make his bond,
the request was expedited by his father and
soon Johnny was on his way back to Eureka
Springs, traveling with two men named Ed
Vandiver and William Balding.

Vandiver and Balding were also from
Arkansas. They had driven to Texas ona
trading expedition and with a large roll of
money and a good team and wagon to show
for their trip, they left Decatur for their
homes. Onthe night of December 25, 1891,


Execution of
, 7 erway

: — 7 a ‘
‘ { rf ) ans ae T é
| I domed inh BL a U4 soe ku etal.
i

i | LF SB Maech gd A warmer Dewees

John Poynter
. SEPT. 20, 1894.
| ADMIT BEARER

LP.

=~ Arex aM 8a S.

Tickets were issued to
Judge Parker's~hang-
ings. This isa copy
of the ticket issued for
the hanging of Carroll
County's John Poyn-
ter, who was execut-
ed at 3:45 p.m., Sept-

ember 20, 1894.

they campednear the farm of W. G. Baird
at Wilburton, Choctaw Nation, where they
purchasedhay for their team. Pointer was
still withthem. The following morning their
bodies were foundin a creek near the camp
and Pointer, with the team and wagon and
money was missing. His discription was

furnished deputy marshals who arr ested
him at McAlester attempting to dispose of
the outfit.

Throughout his trial, conviction and
“sentence, Johnny was cocky and calm and
made light ofhis weeping parents, He even
asked Judge Parker for permission to set
the hour of his departure from earth. Judge
Parker consented and Johnny set half past
three in the afternoon. When the time ap-
proached, he weakened. He asked fora
fifteen-minute delay, which was granted.
At 3:45 he was brought from the jail into
the gallows enclosure. He began totrem-

ble. On the scaffold he turned white. His
knees buckled so that he was scarcely able

to stand. He died as he had lived--a cow-
ard.

EDITOR'S NOTE-the above was taken from
the book, ''Law West of Fort Smith" writ-
ten by Glenn Shirley. Page 228, appendix A
Chronology of Hangings, September 24,
1894, Johnny Pointer."

This Bullet Mold for a .38 cal. Gun
sold for $2.50 back in the early
1900's,

One of these molds may be seen

in the Carroll County Museum.

15

PRODUCTION METHOD

CHANGED ON YOUR
HISTORICAL QUARTERLY

This issue of The Carroll County His-
torical Quarterly comes to you with a new
type face due to the fact that its production
is now entirely by offset, the composition
being done on a typewriter.

Facespreviously available through
Linotype composition failed to produce the
desired results and the availability of the
useofprinting equipment created prob-
lems, hense the change.

It maynot be generally known, but for
the past six years the editor of this pub-
lication has been doing all the composition,
muchofthe writing, proof reading and re-
search which goes into this publication...
all because ofhis interest in the preserva-
tionofhappenings of the past. This has all
been gratis...the only expense outside of
a few photographs has been for the actual

printing and mailing.

This has growninto quite atask, there-
fore to make it perhaps a little easier, the
Historical Society purchased a new type-
writer at a cost of approximately $600. 00
to be used for the type composition at the
editor's home office.

Since most Societies of this kind are
normally always shortot money, some may
wonder how this new typewriter was financ-
ed. Over the past few years there has been
ademand for the quarterly and the financ-
es have somewhat accumulated along with
the fact that some help was given by the
County and the Berryville Chamber of
Commerce, andalso with the generous re-
sponse by the members in paying up back
and present dues. All this enabled the So-
ciety to make this purchase without bor-
rowing money from the bank.


Juvenile © Prhaysas

Case of Sohuny Pomber. Exceed 24/94

N.0.Pi0e. 7/2/9% 2:7 reports dismissal of
his appeal by U.S. Supreme Co curt and gives his

age as (7 thtn. Dave of crime B/44/9/ manes eo

Ss a

flit a juvenile. y
e
eae (CJ


4
|
oF
Be.

POINTER, Johnny, white, hanged Fort Smith, Arkansas, (Fed.) 9-2)=189h.

Hanging Judge Isaac Parker Condemns

PREF ACE
Johnny Pointer was tried and convict-
edin Judge Parker's famous court at Fort
Smith.

Carroll county was included in the
western part of Arkansas to come under
the jurisdiction of Parker's court. Parker
servedas judge from 1875 to 1896 and was
known as ''Hanging Judge" Parker. Seventy-
nine men met their deaths on his gallows.
During this time sixty-five of his marshals
were killed trying to bring about order,

The first gallows was open to the pub-
lic and big crowds came to see the hangings
which included up to six at a time.

The second gallows was built in 1886
and was enclosed with a high board fence.

To gain entrance to the enclosure to
witness a hanging, it was necessary to get
aticket as shown elsewhere in this article.

Todaytourists visit the Fort Smith
Historic Site and see the buildings, mu-
seum and re-constructed gallows. --Coy
Logan, President of the Carroll County
Historical Society, wrote and supplied the
information contained in this story.

Carroll County Horse Thief in 1894

13

Replica of the Gallows
at Old Fort Smith which
disposed of Outlaws sen-
tenced in Hanging Judge
Parker's Court, 1872 -
1896.

This isa replica of the
Second Gallows used from
1886 to 1896.

Johnny Pointer was born at Eureka
Springs, Arkansas. His parents were reli-
gious, well-to-do and highly respected peo-
ple, but apparently had never heard the old
adage: ''Spare the rod and spoil the child."

What Johnny wantedhe got, and if they
expressed any opposition, Johnny still had
his way. At the age of twelve he set fire to
a neighbor boy. He was reprimanded. A
year later he stabbed aplaymate with
a knife and was fined $50 ina Carroll Coun-
ty Court. His father paid the fine and little
Johnny boasted: ''My old man will never let
me go to jail."

Within a month he pickeda quarrel with
another boy and beat him senseless with a
rock. True to little Johnny's prediction,
the father made a settlement with the par-
ents of the injured child and Johnny was
neither arrested or punished. By the time
he was seventeen, he was so completely
out ofhand at home that his parents decid-

ed what was needed was a change of scen-.

ery. They sent him to live with relatives
in Missouri.

Johnny had grown up to be a bully and
a braggart. There were no younger boys
here to mistreat. Things were too peace-


commuted;
- Making reference to the fact that Rector is reported to be severely
‘mentally impaired.

‘EALS TO
ame Honorable Bill Clinton
Governor of Arkansas
250 State Capitol Building
Little Rock, AR 72201

[Salutation]
[Dear Governor ]
(Faxes: 1 501 682 1382)
(Telephone: 1 501 682 2345)
(Telegrams: Governor Clinton, Little Rock, AR 72201)

Arkansas Board of Pardons and Paroles [Dear Board Members ]

PO Box 34085 (Telegrams: Board Pardons/Paroles, Little Rock, AR 72203)

Little Rock, AR 72203 (Telephone: 1 501 682 3850)
(Faxes: 1 501 682 3860)

PLEASE SEND APPEALS IMMEDIATELY. Check with the Colorado office between
9:00 am and 6:00 pm, Mountain Time, weekdays only, if sending appeals after
January 23, 1992.

Article 9 - “No one shall be subject to arbitrary arrest,

O Postage costs: airmail letters cost 50 cents a page (% 0z.) to most
detention or exile.”

countries; aerogrammes are 45 cents each; airmail postcards cost
40 cents to most countries. Mail with colorful stamps may not reach

its destination. O Send your appeals in English unless you are fluent with the

language.
O The name of Amnesty International may be used, although letters

written in a private or professional Capacity are often more O) Please take action as soon as you receive this Urgent Action

effective.

Telegrams and letters should be brief and courteous. Stress that
2ur concern for human rights is not in any way politically
artisan. Refer to relevant provisions in international law, such as

«wlé United Nations Universal Declaration of Human Rights:

Article 3 - “Everyone has the right to life, liberty, and
the security of person.”

Article 5 - “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment."

appeal. Carefully read the recommended action and send a tele-
gram or airmail letter immediately to one or more of the
addresses given. Other letters can be sent afterwards.

Correct salutations include: Dear Sir - for local authorities. prison
commanders, police chiefs; Your Honor - for judges: Dear
Admiral, General, Captain, etc. - for military officers: Your
Excellency - for most minister-level officials and state presidents:
in closing use “Yours sincerely” or “Respectfully” for any
authority.


S Aly ey, : +a

ALULON, Micky hey,

Father, son
await fate
on Jan. 24

Boy’s court date set
on dad’s execution day

BY JAY MEISEL . | "
Democrat-Gazette Coriway Bureau’

CONWAY ‘+ The son‘ of:
Ricky Ray Rector will be ar-

‘raigned on 4 shooting charge
‘Jan. 24, the same day his father
is to be executed for murder-
‘ing a policeman in 1981.

@ Suit filed over mental evalua-
tlon of Rector 5A

Keith Beatty, 16, of Conway,
Rector’s. son, «was. charged
Monday in Faulkner County
Circuit Court as an adult with
first-degree battery. Bond was
set at $25,000. He is being held
in a juvenile center outside
the county.

-- It’s unfair for authorities to

treat Beatty any differently be-
cause of his relationship to
Rector, said: Loretta Arm-
strong, his aunt. The shooting
“doesn’t have anything to do
with his daddy.”

Beatty is charged in the
shooting of Moses Credit, 18, of
Mayflower (Faulkner County)
Friday evening. Credit, who
was shot in the face, was listed

in good condition Monday at--- —---.

University Hospital in Little
Rock. .

The bullet went into his
face, exited below his ear and
struck his shoulder, Conway
police detective Bob Barham
said.

The -shooting, authorities
said, followed an argument be-
tween Credit and another per-
son over a jacket and a pager...

Otis Tolbert, 18, of Conway,
‘also. has been charged with
first-degree battery, police
said.

Tolbert also. was charged
with terroristic threatening
after he allegedly threatened
to “pull another Rector" when
police wanted to arrest him,
Barham said.

Rector, 40, of Conway, was
sentenced to death in 1982
after being convicted of mur-
dering Conway policeman Bob

See RECTOR, Page 5A

ack, leth. ing. Ark.

Rector

® Continued from Page One

Martin on March 24, 198i. Rec-
tor snot himself in the head
after killing Martin. Martin
was looking for Rector as a
Suspect in the murder of Ar-

thur Criswell, 34, of Morri?ton .

(Conway County). -.

The state Board of Parole -
and Community Rehabilitation
was to hear Rector’s applica-
tion ‘for clemency at Tucker

Prison today. ie

It's no coincidence, family
members of Beatty said, that
the arraignment for Beatty was
set for the day of Rector’s exe-
cution.

_ They're taking it out on
him,” said Danetta Beatty,
mother of Keith Beatty.

Chancellor Andre McNeil of
Conway, who set the arraign-
ment date, said he didn’t know
at the time the relationship be-
tween Keith Beatty and Rec-
tor.

Her son was quite upset.
when officers joked about the
relationship between Keith
Beatty and Rector, Danetta,
Beatty said.

The family has witnesses to
the statements by police offi-
cers, Armstrong said.

Barham said he doesn’t
know of any statements police
officers made to Keith Beatty.

Keith Beatty hardly knew
his father,-his mother said. She

was pregnant with him when

she married Ienry Beatty. She
listed Henry Beatty as the fa-
ther on Keith Beatty's birth
certificate.

She only recalls one meet-
ing between Rector and his -
son.

“He seen him when he was 2
or 3,” she said.

Family members planned
for Keith Beatty to visit his fa-
ther before the execution, she
said.

“He's never been in any
trouble before,” Danetta
Beatty said of her son.

Her son told her he “didn't
know he had hit the boy,” she
said. “tle was playing around
with the gun.”

David Waters, 27, of Conway,
who was ina truck with Credit,
told police he and Credit

stopped to talk with the
Suspects and the suspects
started hitting on the windows
of Credit’s truck:.

As they drove: off, Credit
was shot and at some point
Credit and Waters switched
places in the truck, and Waters
drove Credit to Conway Re-
gional Hospital, . Waters told
Police): © jg el.
-- Danetta Beatty:.said she’s
not thorougly convinced that
her son did the shooting.- He
might be covering up for some-
one else, she said.

* “We're looking into it,” she
Said.
The mother recalled that
Credit would come every day
to their residence. He always
had a gun with him, she said.
-* She’s worried that, regard-
less of the facts; her son won't
be treated fairly because of his
relationshipto Rector. —

She doesn't believe Rector
Should be executed, she said.
“I don’t think they should exe-
cute anyone. Who gives a
human being the authority to
take another individual’s
life?”

John Jewell, Rector’s attor-
ney, is expected to argue
against capital punishment for
Rector on two grounds. One is
that Rector isn't the same per-

- son since he shot himself in

the head. Jewell also wrote

that Rector shouldn't be exe- .
‘ cuted because he couldn't help

defend himself.

Corrections, clarifications 3

TO OUR READERS:

It is the Intention of the Arkansas
Democrat-Gazette that news reports
be fair and accurate in every respect.
It you have a question of comment
about news coverage, write to John
R.. Starr, managing editor, of call
378-3485 between 9 a.m. and 4:30
p.m., Monday through Friday.

--+ A story in Monday's Arkan-

sas Democrat-Gazette attributed
a statement to the Wrong per-
son.

The article should have at-
tributed a statemeut referring
to last-minute appeals for
death row-inmate Ricky Ray
Rector to Deputy Alforney
General Jack Gillean.

ARKANSAS DEMockAT-CARETTE

TUES.

t— 144-92

URC ENTPACHIONARD

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 « 303-440-0913 « FAX: 303-258-7881
UA_10/92 Death Penalty 8 January 1992

| usa (Arkansas): Ricky Ray RECTOR

Ricky Ray Rector is scheduled to be executed by the state of Arkansas on 24
January 1992. Rector, who is black, was convicted in 1982 of the murder in
November 1981 of Bob Martin, a white police officer who was investigating
Rector’s involvement in another homicide.

After shooting Bob Martin, Rector attempted to take his own life by
shooting himself in the head. The bullet wound, and subsequent surgery to
remove the bullet from Rector’s head resulted in a frontal lobotomy (the
loss of a three-inch section of his brain), leaving him mentally impaired.
He suffered memory loss and medical examinations revealed him to be
severely limited in his mental capacity. He was found to be unable to
recognize or communicate facts, and thus unable to assist his attorneys in
his defence. . oe

On 24 June 1991, the US Supreme Court denied: Rector’s final petition for
federal review of his conviction and death sentence. Justice Thurgood
Marshall dissented in a lengthy opinion, three days before he retired fron
the. Court. Justice Marshall argued that the Court should have granted
review of Rector’s petition in order to decide a comprehensive definition
-* insanity or mental incompetence for execution. He concluded,

1avoidably, the question whether such persons can be put to death once
the deterioration of their faculties has rendered them unable even to
appeal to the law or the compassion of the society that has condemned them
is central to the administration of the death penalty in this Nation."

Amnesty International is concerned that Ricky Rector’s execution may be in
contravention of United Nations Economic and Social Council (EcoSoc)
resolution 1989/64, adopted in May 1989, which recommends "eliminating the
death penalty for persons suffering from mental retardation or extremely
limited mental competence."

The Governor of Arkansas has full clemency authority. However, all clemency
applications are referred to the Board of Pardons and Paroles for
investigation and recommendation. The Arkansas Pardons Board will meet to
consider a clemency application on behalf of Ricky Rector on 14 January
1992.

, BACKGROUND INFORMATION

At the end of 1991 there were 36 prisoners under sentence of death in
Arkansas. The method of execution is either electrocution or lethal
.injection. Two prisoners have been executed in Arkansas under its current
death penalty statute. They were John Swindler and Ronald Gene Simmons who
were both executed in June 1990.

RECOMMENDED ACTION: Telegrams/telexes/faxes/express and airmail letters:
the Governor, and to the Pardons Board:
rging that clemency be granted to Ricky Rector, and his death sentence

This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretariat in London, United
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of ail prisoners without reservation.

; i
Fe

- 03 we

-o—

Clinton went home for execution

ASSOCIATED PRESS

VARNER, Ark. — Gov. Bill
Clinton left the Democratic presi-
dential campaign trail Friday to be
in Arkansas during the execution
of a brain-damaged cop killer.

Rickey Ray Rector, 40, was exe-

cuted by injection Friday night.
‘Earlier, the U.S. Supreme Court
without dissent denied a last-ditch
appeal filed on Rector's behalf: in
state and federal courts.

Clinton denied clemency to
Rector on Thursday.

‘Clinton has refused to talk

about political implications of the
execution. He was unavailable for
comment Friday; his office and
campaign staff said he wouldn’t

ive any interviews. = = =.
7 Rector was sentenced to death

- for killing Patrolman Bob Martin

f Conwayin 1981.0 0 es ws
' After shooting the policeman,

Rector shot himself in the head. .

The wound and emergency surgery
that followed-caused brain damage
that officials say had the effect, of a
frontal lobotomy. a

= ee
‘Saturday

JANUARY 25, 1992 .,

~ HONE DELNERY

EDITION
THIRTY-FIVE CENTS

| pAlZ_
SNAMUTEL

Clinton Returns to Arkansas for Execution

Sh

. Associated Press 4
Varner, Ark. , : oe | .

Rickey Ray Rector, a brain-
damaged man who. was convicted
of killing an Arkansas patrolman
in 1981, was executed by injection
last night.» ek ee”

_ Governor Bill Clinton left the

A a “id Democratic presidential campaign
Vii ae [ eal

trail. yesterday to be in Arkansas © |
for the execution. 2: |
The execution could help Clin-
ton distance himself. from his par-
ty’s- soft-on-crime liberal image, -
Said some political observers; F
Rector was sentenced to death =.

for killing patrolman Bob Martin
of Conway in 1981. .

After shooting the policeman, — |
Rector shot himself in the head.

Defense attorneys said the.
“brain damage made Rector incom. |
petent to be executed. State and ‘
federal courts repeatedly ruled
that Rector met the federal stan. I
dard for competency. g

San Francisco Chronic

THE VOICE OF THE WEST

SATURDAY, JANUARY 25, 1992

\ jut

\

Arkansas Democrat
12/8/89

Death row prisoner:

Called

incompetent

~~
on
84
/-
rea)
'
°
ne
+

CEI Barton. t fe aad»: So Biot strsatlere ing sa dn ol tt

. gti th BOS Cm can 2 Be a Prior wees A ,_' .
Retrial sought for. Rector in‘officer’s death
ye ane de “fo. a hee Ee ta bes. rate SY

By George Wells ©.’ i. 4825545 ‘details of the incidents that might
Gazette Stafh ig LOG See, ‘help them prepare a defense. oe

Ricky Ray Rector is incompetent!’,
to’ stand trial now and was-less:s

competent in 1982 when he .was.
convicted of killing a Conway pox

liceman and sentenced to death, a’,
.. © known effect of blunting a person’s
, a Little.

y

psychologist said Thursday. °'*.

Dr. Douglas A. Stevens F
Rock clinical psychologist who ex:;,
amined Rector before the trial, tes
tified in federal court that Rector.
would remain incompetent forever.

+

Rector lobotomized himself by,\i ee 4 s
#*. Stripling said’ he tried to force

shooting himself in the forehea
making him’ incapable of helping
his lawyers at trial, another psy-.
chologist testified, Lan eiie

A lobotomy is a severance of
either lobe of the brain, Dr. Doug:
las A. Brown, another clinical pay$*
chologist, testified. Doctors surgi: ’;
cally removed the destroyed tissue, '
he said. « .- * ; tia hog ete

Stevens and Brown
nesses in'a hearing at which-U.S,
District Judge Henry Woodsyié’
being asked to order a new trial for.
Rector, 37,of Conway, who haa:

been on death row since’ 1982. ;

They were subpoenaed. because:
both had testified for the defense:
as to his competency during. the:
1982 trial.  cadtagk

Both said Rector suffered major
memory loss as a result of ithe
wound and had severely limited
emotional and intellectual capac:
ity. They said that IQ tests since
the trial indicated that Rector was
recovering slightly but that he was
still incompetent to help his law-
yers. a Ge
Rector was convicted of the 1981
slaying of Patrolman Bob Martin.:
He is also serving a life sentence for
the slaying of another man two
days before he shot Martin and
then turned the piste! on himself,

Lawyers for Rector argue that he
was incompetent to assist his trial
attorneys and therefore should not
have been sentenced to death.

Ron Heller of Little Rock, a for-
mer lawyer who represented Rec-
tor in the first-degree murder trial,
told Woods: “We didn’t have a
client to defend. Ricky was a non-
existent part of the trial.”

Dan Stripling of Clinton, who
represented Rector in the trial for
Martin's slaying, said, “Mr. Rector
was no help at all.” oO

Both lawyers said Rector tried to
be helpful but couldn't recall any

‘

Pa
were wit:

YY
% iene
pened... ,

‘Both also said Rector was devoid
of emotion after getting out of the
hospital, with his, self-inflicted
"WOM ce km es ky
. Brown said a lobotomy “has the
‘emotions to the point the person
‘doesn’t care about anything.” .".
" ,Heller’and Stripling said Rec
tor’s attitude reflected total indif.
ference to what was happening to

rae

him... ,

‘ Rector, who is black, to react emo,
tionally at one point by calling him
names, “including racial epithets.”
He said Rector “just smiled and
agreed with everything I said.” ty

%, After that, Stripling said, he con-

» sidered communications with Rec»

. tor to be futile and made all deci-

-fions withopt consulting his client.

| (After the jury returned a guilty.

,verdict and recommended the

‘death ; sentence, ‘Stripling . said,

Rector stood up and said to him:

“Does this mean I'll get a television

set in my cell now?” The lawyer

;, Said. Rector was completely de-

tached from’ what had just hap-

Assistant Attorney General Jack

‘ Gillean asked the psychologists if
Rector could have been deliber-
ately uncooperative, but both said
they did. not believe that.

Doctors at the State Hospital
found Rector competent to stand
trial before he was tried, but Ste-
vens said State Hospital doctors
tended to be adversarial and say
what prosecutors wanted them to
Bay. ;

Stevens said that “despite their
own findings” by independent
evaluators that Rector was incom.
petent, the psychiatrists at the
State Hospital ruled Rector com-
petent. . .

Stella Morris of Conway, Rec-
tor’s sister, testified that he had
changed dramatically since the
shooting.

“The person you see here looks
like Ricky, he talks like Ricky, he
has some of Ricky's characteris-
tics, but the real Ricky Ray Rector
was destroyed when he shot him-
self with the gun,” she said. “This
is not my brother.”

Woods will rule after lawyers file
proposed findings of fact and con-
clusions of law.

oe onan,

Sialah fae aendamina

‘Rector: ‘suit a

challenges © es
| sanity ruling

at ght’ td stay exécution:,

movés to circuit’ court

BY ELIZABETH CALDWELL
Democrat-Gazette Staff Writer

~'The fight to stay the execu-

‘tion. Of: Ricky Ray Rector, .

scheduled Jan. 24, spilled from
federal: court. into. Pulaski:
alee siaiaha at Court: on. mo
day.: Meets
John. M. Jewell. Rector’siat-
torney, filed..a circuit court.
lawsuit Monday’: challenging
whether. Arkansas law allows a:
more “liberal standard : than:
federal law in determining if'a
defendant ds. sane. ‘for execu-,
nb ne
Jewell’ ‘also asserts that the’
mental’ evaluation “given to’
Rectéfat.the State Hospital in
‘Décember:1991 ‘violated his
due’ process: rights’ under the
‘staté-constitution. ,
is: CIreuit Judge David Bogard
‘set; a hearing on ee matter for
9 a.m-Friday. .
Les Rector, ‘40, : ‘was . convicted:
‘and: gentenced*to die for the
‘1981 Shooting death of Conway:
‘police: officer Bob Martin.
‘After shooting Martin, Rector.
‘shot-himself In the head, suf-.
fering brain damagezi%y 1:
ss LittlYe - Rock.; ilawyer. Jeff
‘Rosenzweig, - stepping iin - ‘for:
Jewell; “met Monday with Bo-
‘gard and’ Deputy: Attorneys
General Jack Gillean and Olan
Reeves to discuss the case::' -

ae assist his attorney. °.

--Rasenzweig ..said he may’

- represent Rectér at’. Friday’s:

hearing because Jewell may:
need: to testify about Rector's

"Rosenzweig: said#after' ‘the
iceting: that the circuit court
lawsuit was filed because, of
objections raised’ by:.the state
Friday, in; responding: to Rec-
tor’s federal suit, filed Jan. 6. |

: The:state said. Arkansas’
defini tion of insanity as it re-
lates. to executions: had. not
been addressed '‘in state court.
- “Some court will have to an-
nounce what is the state’s
standard,” Rosenzweig said. -

. Rosenzweig :contends Ar--
kansas- case law supports the.
view that a prisoner shouldn't
be executed if he becomes in-
sane after conviction hecause |
he cnn’t assist his attorney in
arpuing against death.

The federal’ standard for
mental competency reyvarding |
executions only says defend- -
ants must understand the pun-
ishment and why “ are re-
ceving It

- During the peeling. Bogard
pointed out that a 1989 inde-
pendent federal mental evalu-
ation ‘declared ‘Rector. compe-

"feng oe an
Bute Rosenzweig said. sanity:

is not a condition that neces-
sarily remains.the same and
that Rector had suffered |
“some decomposition” ,re-:
cently. y bniite:


Another men

BY TRACIE DUNGAN

Democrat-Gazette Staff Writer

' A brain-damaged Arkansas
death row inmate has been
. §ranted another mental exami-
‘Nation, prompting the gover-
'nor’s office to delay setting an
execution date, the state said
- Friday. ’

An execution date had been
due sometime next week for
Ricky Ray Rector, 39, of Con-
way. convicted in the death of
a Conway police officer a dec-

ade ago.

: AL. “Art” Lockhart, direc-
tor of the state Department of
Correction, directed his staff

ARKANSAS

Friday to call the State Hospi-
tal, prison spokesman David
White said, but an examina-
tion date has not been set.

Susie Whitacre, assistant.

press secretary for Gov. Bill

Clinton, said he will not set an -

execution before the examina-
tion results are in.

Whitacre said her office
didn’t know when to expect the
results, but understood it
might take two to three weeks.

Rector’s attorney, John
Jewell, had requested the ex-
amination early this month,
Citing a state statute giving the
prison director the responsi-

bility to ensure inmates set for
execution are mentally compe-
tent

U.S. District Judge Henry
Woods dissolved Rector’s Stay
of execution Nov. 6, Saying a
mental examination wouldn’t
justify sustaining the Stay.

The case has involved years
of appeals, mental examina-
tions, competency hearings
and requests for retrial. An ex-
ecution date has been set and

stayed for Rector three times. |

Rector lost a U.S. Supreme

Court appeal June 24. In Sep- .

tember, the court denied Rec-

tor’s subsequent petition to

OE MeCRAT - GABE TTE

rence

tal test delays execution

rehear the case.

Jewell has said Rector
hasn’t been examined at the
State Hospital since his trials.

‘Rector was convicted in No-
vember 1982 of capital murder
in the death of Conway officer
Bob Martin. He also was con-
victed of first-degree murder
on Nov. 18, 1981, in the shoot-
ing death of a restaurant pa-
tron.

Rector shot himself in the
head after the Martin slaying.
Surgery to remove the bullet
resulted in a prefrontal lobo-
tomy.

—_

ee

~waee ew ow

>? he i

Troubling questions

@ he prisoner who was con-
demned to die a year ago in
Arkansas was probably teo men-
tally defective (he had shot him- |
self in the head after killing a
policeman) to defend himself — a

‘ condition the U.S. Supreme Court

says should invalidate convic-
tions under the death penalty.
Yet a competency hearing said
that Ricky Ray Rector must
stand trial. And when he did, and
when he was convicted, then-Gov.
Bill Clinton did not pardon the
man who went to the chair.

The panel conducting the hear-
ing on Reetor’s competency was
under pressure to assuage de-
mands for justice corning from the
relatives of the white officer who
was killed. Would those demands
have been as clamorous had Rec-
tor been white instead ef black?
Community anger at the black,

_ as a natural enemy of the police,

means that a whole range of
crimes, or threatened crimes, or
imagined crimes, ean be symbol-

- ized when one black like Rector is

in. the witness stand.

This situation helps explain a
statistic that troubles some de-
fenders of the death penalty —
the disproportionate number of
blacks who end up on death row.
And a disproportionate number of
those are there for crimes com-
mitted. against whites, even

though most black crimes are

committed against other blacks.
There is obviously a greater
readiness to prosecute, to ask for

the death penalty, and to convict, -

for some crimes rather than for
other crimes.

People naturally hesitate to
think that jurors will convict a
black or release a white out of
simple prejudice. But the case is
more complicated than that.
There is a whole series of deci-
sions that must be made between
the apprehension of a suspect and
the snuffing out of a convict’s life:

Should a man be held on slight
evidence while more proof is
sought? Should a white witness

be trusted more than'a black one -

in the preliminary investigation?
Should a doubtful ‘case be

:. brought? Should a heavier penal-
ty be'asked for? Should a panel be
assembled to test eonpetency?

Vote eT “
Vedigtllin 8 ae a re ee

about death row

arry Wills
Should a “strange” black man be
considered erazy or just ornery?
At each of these stages, a mere
hunch or slight predisposition
can marginally tip the scale for a
harsher or a more lenient course.
At each stage, a white prisoner
may get some benefit of the
doubt, ending up with a lesser
charge, with a greater regard for
alleviating circumstances, with
more sensitive weighing of his
mental state.

46 It’s less a matter
of blatant prejudice
at one final stage
— the jury's
conviction — than
of communal
atmospherics all
along the way. But
... often the black
man dies while the
white man walks
away.

le

All these considerations make
it less a matter of blatant preju-
dice at one final stage — the ju-
ry’s conviction — than of commu-
nal atmospherics all along the
way. But the result is the same:
Often the black man dies while
the white man walks away.

No wonder the perception of
unfairness erupted in violence in
Les Angeles after the exoneration
of the white officers who beat
‘Rodney King. Does anyone think
that King would have escaped
conviction if he had been on trial
for an offense attested to with
even half the indicators of guilt
that the white officers labored
under? No wonder the rest of the
nation is watching the new trial
of the officers with such appre-
hension.

Syndicated totumnist Garry Wills is ad-

junct professor of history at Northwest-

ern University:

ruesday, March 16

2 1993/Las Vegas Review-Journal/9B

,

398

Stamp Program. In this case that requires
revisiting the two factual determinations
made by the administrative agency:

(1) The plaintiff’s WIC violation fell

within the categories set out in 7 CFR

§ 281.1(n)(1) requiring mandatory sus-

pension; and

(2) The plaintiff received notification

that a WIC violation might result in its

being withdrawn from the Food Stamp

Program as required by 7 CFR § 281.-

1(n)(2).

The ALJ determined that Russell’s charged
the WIC program for food which the partic-
ipant did not accept. (ALJ’s Findings and
Order of May 23, 1991, page 6). This viola-
tion is specifically listed in 7 CFR § 281.-
1(n)(1)(vii).

The plaintiff argues that it did not re-
ceive adequate notice because the January
9, 1991 letter it received from the Indiana
State Board of Health misled Russell’s to
believe that withdrawal from the Food
Stamp Program was entirely discretionary
and incorrectly cited the statute. For the
following reasons, this court is not per-
suaded by the plaintiff’s arguments.

[1] The statute itself only requires noti-
fication that a WIC violation “could” effect
food stamp participation. 7 CFR § 278.-
1(nX(2). The January 9, 1991 letter indi-
cated that “disqualification from WIC may
result in withdrawal of authorization to
participate in the Food Stamp Program.”
(emphasis added). At least one other court
has found this to be sufficient notice. De
La Nueces, 778 F.Supp. 191. Given the
statutory language, this court must agree
with the De La Nueces court’s conclusion.

{2] Furthermore, this court is not per-
suaded by the argument that the plaintiff
received improper notice because the Janu-
ary 9, 1991 letter incorrectly cited the rele-
vant CFR provision. The regulation re-
quires that a firm be notified that it “could
be withdrawn from the Food Stamp Pro-
gram based on the WIC violation” and that
such notice be made “prior to the time
prescribed for securing review of WIC dis-
qualification action.” 7 CFR § 281.1(n).
The January 9, 1991 letter cited 7 CFR
§ 278.1(0)(1) which was the proper cite for

a (hector - execu#eHh Man. Poles oe

783 FEDERAL SUPPLEMENT <7 f Cama

the 1990 edition of the CFR. In the 1991
edition of the CFR the provision was redes-
ignated 7 CFR § 278.1(n)(1). At the time
notice was required to be given, the citation
provided was correct according to the CFR
edition then available. As a result, this
court cannot say that the plaintiff was pre-
vented from ascertaining the applicable
law.

IV.

Therefore, this court finds that the plain-
tiff has not met its burden of proving a
likelihood of success on the merits in this
case, and plaintiff’s request for a prelimi-
nary injunction is DENIED. Each party
will bear its own costs. The Clerk shall
enter judgment accordingly. IT IS SO OR-
DERED.

W
° E key NUMBER SYSTEM

T

Ricky Ray RECTOR, Pelion, >)

v. Sen

A.L. LOCKHART, Director of the Arkan-
sas Department of Correction, and
Winston Bryant, Attorney General of
the State of Arkansas, Respondents.

No. PB-C-92-02.

United States District Court,
E.D. Arkansas,
Pine Bluff Division.

Jan. 22, 1992.

Following affirmance of capital mur-
der conviction and death sentence, 280 Ark.
385, 659 S.W.2d 168, and denial of first
habeas corpus petition, 727 F.Supp. 1285,
and affirmance, 923 F.2d 570, prisoner filed
second petition for habeas corpus. The
District Court, Henry Woods, J., held that:
(1) as to claim that Arkansas statute con-
cerning competency evaluation of convict
under sentence of death was unconstitu-

She told him,
now that I’m
execution to-
a groan, “It’s
crible.” As she
in his voice a
h—I’d never,
“ “Jsually, she
wing grief
aposed and

yu know, he’s

crs him ex-
> startlement,
the confer-
en absorbed
‘ow by blow”
“Te then said,
- Hillary just
ak”
I'm so sorry.
s this week,
. the Flowers
ned,” she re-
ved on into
imately, she
und up “much
aifer Flowers
was happening
aent down at

rtains over the
viewing room
‘eveal an anti-
rere fluorescent
clare on white-
walls. And on
vas bolted fast
the vinyl-tile
ite fixtures

1e vast bulk
with blue and

orange straps, and draped in a sheet up
to his chin, his head held fast by a tan
leather strap to a kind of V-shaped
clamp of boards. His right arm was
strapped to a narrow tray extending
from the gurney’s side. Blood was spat-
tered on the sheet from the futile at-
tempt with the scalpel, but now a cath-
eter and a tube were at last in place,
taped to the top of his right hand. His
thick fingers were curled around a lump
of gauze.

The tubing ran under the sheet cov-
ering Rector and then up to two bottles
suspended above his head. They held
some fluids that, when used in combi-
nation, are known as the Texas Mix:
sodium pentothal, which slackens the
muscles and depresses the central ner-
vous system while beginning to induce
unconsciousness; Pavulon, which blocks
the exchanges between nerves and
muscles, suppressing the respiratory sys-
tem and beginning to arrest the heart,
and potassium chloride, which stuns the
heart to a stop altogether with an elec-
trolyte imbalance—each one of these
chemicals in a dosage heavy enough
to be fatal in itself. This load of fluids
was attached then to other connec-
tions that disappeared into a tiny, com-
pletely enclosed compartment just be-
hind Rector’s immobilized head, a cu-
bicle three feet wide and five long,
where two executioners were stationed,
unseen, unknown.

On the wall above Rector were a cir-
cular, metal-rimmed Seth Thomas
clock and a beige wall phone, and near
the foot of the gurney was a wooden
lectern, where the prison’s last few
bookkeeping notations on the prisoner
were entered onto a standard form.
Standing by the lectern were Lockhart,

holding a clipboard from which he was
to read out to Rector the formal procla-
mation of his sentence just before its
enactment, and Willis Sargent, the war-
den. Byus was still fretfully checking the
whole setup, himself rigged with a
headset to communicate with the ex-
ecutioners, in their little walled-off
room. A heart-monitoring machine
stood on the floor just below Rector, it
faced outward, toward the viewing
room, so that Rector couldn’t see it.
The windows separating the witnesses
from this brightly lit tableau were one-
way, and, from within the execution
room itself, merely mirrored back its
own confines.

Rector was breathing, the sheet ris-
ing and falling on his chest, and he was
gazing dully into the middle of the
room but glancing now and then to-
ward Lockhart and Sargent. Then his
mouth moved, in response to a query
from Lockhart, and he delivered his last
words (he had been rather strenuously
coached over the last day or so by his
attorneys and Motton, so he would not
blurt out something unseemly). What
he said was “Yeh, I got baptized and
saved,” but from the shadowy room on
the other side of the glass, Rosenzweig
recalls, “it was like sitting there watch-
ing a silent play.” Then someone no-
ticed that fluid had begun to drip from
one of the bottles into the tubing. “It
was so strange,” Jewell says. “All so
clinical-looking that automatically you
feel that this is a hospital setting and
somebody is being helped. But they are
killing him.” There was another un-
heard remark from Rector on the other
side of the glass: “I’m gettin’ dizzy.”
Pearson will now allow himself to ob-
serve, of the moments when the fatal

131

chemicals were being transmitted to
Rector, “I could almost say he was very
dignified at that part. I'll have to give
him credit for that. Didn’t blink, didn’t
flinch.” Jewell says, “It just seemed un-
real. Unreal. You're sitting there watch-
ing somebody like they’re just falling
asleep.” After a few moments, Rector’s
eyes slowly closed—his last glimpse of
life the flat glow of two fluorescent pan-
els in the ceiling above him.

Some of the viewers now leaned for-
ward, and others rose from their chairs
and moved to the window for a closer
look. Everyone was watching a lumi-
nous green dot still leaping on the
heart-monitor screen. Then Rector’s
mouth sagged open. “You could see he
was gasping for air,” Motton says.
Rosenzweig says, “There was this sort
of small shiver that ran along his
body,” which Motton describes as
something like “a slow shrug.” Some-
one said, “It looks like it’s flat-lining.”
Then “Oh, there was a jump. There’s
another flutter.” But after that last
lurch the green dot began tracing a
steady, level line. At 10:09 P.M., nine-
teen minutes after the fluids had begun
dropping into the tube, Rickey Ray Rec-
tor died.

ae PEARSON drove back to
Conway that night with two of his
fellow-officers, and reached the Conway
Police Department around midnight.
There, to two officers who had been at
the house of Rector’s mother that
March afternoon almost eleven years
before, Pearson described the execution
of Bob Martin’s slayer. One of the
officers, as he listened, began to weep.
Stella says of the night after her

brother’s execution, “TI slept well for the


(32

very first time in years. It was over. It
was lifted. 1 could rest.”

Some eleven years, then, after Bob
Martin‘ was buried near his country
place at Wooster, the body of his killer
was brought back to Conway and, hav-
ing been cremated, also buried in
Faulkner County earth, under an oak
tree, on a warm and overcast January af-
ternoon. During the brief graveside ser-
vice, Stella noticed a stranger standing
nearby, a white man in a tan raincoat,
who was weeping. He was “sobbing so
hard,” Motton, who also noticed him,
recalls, that when, after the service, he
walked over to the man, “it took me a
hard time to get him composed to tell
us what was wrong.” It turned out that
he was the son of
one of the jurors at °
Rector’s trial, who
voted to condemn
him to death. Before
his own death, a few
years later, the juror
had passed on to his son his remorse
and guilt over that judgment.

Chaplain Dennis Pigman was also at
the burial service, and he saw another
stranger, standing off apart from the
family—“this young black girl, about
eighteen or nineteen,” he says. “She was
all by herself, but she had this oddly fa-
miliar look to me. I went over and asked
her who she was. She said, ‘I’m his
daughter,’ and she began crying.”

Shortly after Rector’s execution,
Pigman left the Arkansas prison system,
and he has since undergone periodic
sessions of psychotherapy. “I hate mur-
der,” he says today. “I hate murderers.
But to execute children? What was done
to Rickey Ray Rector was in itself, abso-
lutely, a crime. A horrible crime. We're
not supposed to execute children.”

“Te day after Rector’s death, Clin-
ton flew out of Little Rock for
campaign appearances in Washington
and Boston, and a rally that had been
scheduled for that evening in Manches-
ter, New Hampshire. In Washington,
he presented himself in a candidates’
forum before a convocation of Jesse
Jackson’s National Rainbow Coalition.
“I know most of you in this room do
not support the death penalty and dis-
agree with the decision I made yester-
day,” he said. But, he went on, in all
three of his executions now, he had

“prayed in private, not in public, for the
souls of the condemned as well as those
they killed,” and, he said, “last night I
thought of Mr. Rector” but “also of
Robert Martin, the police officer who
was killed in cold blood . . . and I prayed
that I had not made the wrong deci-
sion.” Mostly, though, he had to answer
questions about Gennifer Flowers. On
the Sunday after Rector’s execution, he
and his wife taped the “60 Minutes” in-
terview about the Flowers matter, in
Boston, and then flew back to Little
Rock to watch the program in the
Governor’s Mansion.

Over the following months, there
were only occasional comments on
Clinton’s decision to permit Rector’s ex-

ecution, and _ they
mostly came down to
what the black politi-
cal analyst Eddie
Williams said at a
press conference in
October for his Joint
Center for Political and Economic
Studies: Clinton had “looked like he
was strong on crime, since the Ameri-
can public seems to equate capital pun-
ishment with a position on crime,” and
he had “persuasively to the Reagan
Democrats indicated he was a different
sort of Democrat.” Others observed that
the Rector execution had at least served
as a conclusive preémptive strike against
any possible assaults, like those about
his attitude toward law and order which
had beset him in 1980. Indeed, once
Clinton’s campaign against Bush began,
it came to be generally appreciated that
his decision on Rector, as a California
Democratic activist told the Houston
Chronicle, “completely undermines” the
Bush campaign strategists’ “attempt to
define Bill Clinton and Al Gore as out
of touch with mainstream public and
even mainstream Democrats.” New
York’s seasoned political impresario
David Garth put it more simply: “He
had someone put to death who had only
part of a brain. You can’t find them any
tougher than that.”

In May, Clinton again interrupted his
campaign to fly back to Little Rock, this
time to sanction his fourth execution—
of a white man convicted of murdering
a state police investigator. In Octo-
ber, the day after a campaign spot
began advertising his sternness about
crime and his endorsement of the death

THIET NEW YORKER, FEBRUARY 22, 1993

penalty, he set the date for still another
execution.

OO Election Night in Little Rock,
a wet and gusty evening, the
downtown streets turned into some-
thing like state-fair midways: they were
filled with the continuous roar of an
enormous throng that seethed along
sidewalk stands peddling nachos and
hot dogs and funnel cakes. Massed
around them were titanic satellite relay
dishes, while generators were hum-
ming everywhere, cables were looped
over the pavement, and smoke from
barbecue stoves blew up through the
white flare of klieg lights. A mammoth
video screen on a flatbed trailer broad-
cast the progress of the national vote.
Rumors of celebrity sightings ran
through the crowd: Nicholson, Streisand,
Madonna.

The next morning, in my motel
room in Conway, I opened a plastic

trash bag containing Rector’s last be- .

longings, which had been sent to Stella
from Cummins. “This is his legacy,” she
had said in giving it to me. “This is all
that’s left of Rickey Ray Rector.” Now
I began taking out of the bag the
final debris of his life. A number of
little religious pamphlets and Rector’s
“Certificate of Baptism,” on imitation
parchment. An unused tube of tooth-
paste. Glasses in brown plastic frames
of a clumsy bulkiness. A commissary
request form, laboringly printed out
by Rector, listing his “present account
balance” as
97
cent
6 Dollar

and requesting “3 Salem Cigarettes 1
Hot Chocolate 1 Speed Stick,” which
came to seven dollars and thirty-one
cents—thirty-four cents more than he
had in the world at that point. And a
letter to “Dear Mr. Rector” that read,
“After a careful review of the informa-
tion provided, your request for executive

clemency has been denied. Sincerely,
Bill Clinton.”

HE following Sunday morning, in
downtown Little Rock, I attended

the eleven-o’clock worship service at
Clinton’s church, Immanuel Baptist,
which is a citadel-like edifice of yellow-
ochre brick with faintly Alhambran nu-
ances. As the organist and the choir be-

FORGIVEN 5

gan booming
expanses thi
Jesus,” Cl
aisle, a B
other wors:
Eventually, !
lately groo:
freshness :
His sermon
be about |
Abraham to
Horne said,
is a person t’
believers on
right, noble t
After the
shake hands
below the p
offer my co:
that boyish
from our mc
stant and so:
in fact—“\'
Where yor
gonna be h
or so later,
Rock. Seve:
cated that h:
discuss the |
event, howe
you may ki,
policy of nev.
tions,” and .
send us a fa:
no response.

Non
wi

brilliant-bluc
the care cent
where she ha:
She led me «
terraced lawn
her patients-
calls them—
bravest perso!
for love of am
her fellow-att«
In a large,
about half a d:
ranged in a se:
tened into the
fact retarded
working with
so much of :
tending. He
Rickey’s im:
sometimes \'
the middle
room aroun

RY 22,1993

rill another

ittle Rock,
ening, the
nto some-
: they were
roar of an
“hed along
rchos and
-. Massed
‘lite relay
re hum-
sre looped
»ke from
rough the
mammoth
ailer broad-
jonal vote.
Jitings ran
a, Streisand,

ny motel

a plastic
-or’s last be-
sent to Stella
s legacy,” she
e. “This is all
xector.” Now
the bag the
number of
and Rector’s
on imitation
ibe of tooth-
rlastic frames
commissary
‘printed out
esent account

Cigarettes 1
stick,” which
| thirty-one
rore than he
point. And a
or” that read,
the informa-
for executive
-d. Sincerely,

- morning, in

‘ck, I attended

", service at
el Baptist,
uve of yellow-
Jhambran nu-
| the choir be-

FORGIVENESS

gan booming over the sanctuary’s grand
expanses the anthem “In the Name of
Jesus,” Clinton came striding down the
aisle, a Bible in his hand, and joined
other worshippers in a pew at the front.
Eventually, Dr. Rex Horne, an immacu-
lately groomed man with a collegiate
freshness about him, took the pulpit.
His sermon that morning happened to
be about God’s commandment to
Abraham to sacrifice Isaac. In Abraham,
Horne said, God recognized “that there
is a person to be tested,” as he tests all
believers on whether they will “do the
right, noble thing, even if it’s painful.”

After the service, Clinton lingered to
shake hands with well-wishers in front,
below the pulpit. I wandered over to
offer my congratulations. He still had
that boyish earnestness I remembered
from our meeting years before. His in-
stant and somewhat startling affability,
in fact—“What are you doing here?
Where you staying? How long you
gonna be here?”—prompted me, a day
or so later, to call his office in Little
Rock. Several friends of his had indi-
cated that he just might feel moved to
discuss the Rector case with me. In the
event, however, a press aide said, “As
you may know, the Governor has a
policy of never commenting after execu-
tions,” and another asked, “Could you
send us a fax on that?” I did so, and got
no response.

O* my last morning in Conway,
with icy winds blowing under a
brilliant-blue sky, I called on Stella, at
the care center for the mentally retarded
where she has been working for so long.
She led me down a walkway between
terraced lawn plots to the building where
her patients—or “clients,” as the center
calls them—are quartered. “She’s the
bravest person with the greatest capacity
for love of anyone I’ve ever met,” one of
her fellow-attendants volunteered to me.
In a large, wide-windowed dayroom,
about half a dozen of their charges were
ranged in a semicircle of tall chairs—fas-
tened into them, for all of them were in
fact retarded to such an extent that
working with them seemed a matter not
so much of rehabilitation as of simple
tending. Here, through the years of
Rickey’s imprisonment, Stella would
sometimes wander over to a window in
the middle of the day and, with the

room around her filled, as always, with

133

Bo exiealh aey ob

_/ Es
/ x

“This 1s my husband, Leonard, at approximately one-third actual size.”

the moans and gurglings and yowls of
these even more profoundly marred hu-
man beings in her care, she would gaze
out over the grounds while saying a
silent prayer for her brother. Or she
would retreat for a few minutes to her
desk in the room, set off behind parti-
tions to form a small enclosure of semi-
privacy, for a brief solitary devotional.

A few days earlier, when she gave me
the plastic bag containing her brother's
possessions, she had said, “I’m voting for
Clinton, yes. I don’t have any bitterness.
I’ve had to work at it, I admit. But the
mercy Rickey wasn’t able to get in this
world has been granted him in the other,
and I’m going to see him again one of
these days, in Heaven. He paid his dues
in this life. Did he ever. Probably no-
body can ever know what he had to go
through all his life, from its very begin-
ning. Like my mother would say, ‘A lot
sees—but only a few knows.’ I would
only hope Bill Clinton never has to go
through what my family—and the Mar-

tin family, too, yes—have gone through.

But if anything ever happened to him
that I could help him with, I would help
him. I would. Because I know that if I
had any malice in my heart toward Bill
Clinton it would separate me from
Rickey—because it would separate me
from God.”

On Stella’s desk was a large calendar
pad with Bible verses written by her into
the square spaces of its days (“Though
you have made me see troubles, many
and bitter, you will restore my life again;
from the depths of the earth you will
again bring me up”), and other verses,
written on leaves from a small yellow
notepad, were stuck up on the partitions
around her. “These were all that kept
me going,” she said. Before I left
her, she peeled one of them off and gave
it to me. I did not finally read it until I
was on the flight out of Arkansas. It was
I Corinthians 4:5. “Therefore judge
nothing before its time; wait till the
Lord comes. He will bring to light what
is hidden in darkness and expose the mo-
tives in men’s hearts.” #


6 . ‘
BE
a
oot
&
©
&

CTEM

IPTT

s See SALY RNA Aled here un Saturday,

TWO NEGROES DIED ON

‘“

—a ease Pa
6

"| GALLOWS AT HELENA :
fi O
° ‘ 25 . 7
1| One Killed His Brother and the Other =
1 Killed His Wife—Neither Betrayed
z ' Bigns of Fear, 5
5 Deredbitese Bais «ip ancietan { ¢
; Helena, Aug. 7.~-Tom Wilson, slayer | ‘ re
, {Of bis brother, and Will Robertson, wife ; U
, | ™urderor, paid tho penalty of | their vie
crimes on the seaffold here today. Both :

men were negroes, and both inct death

with perfect composure, declaring that ri
they were ready to die. a

5 Tho drop was six and a half feot. Wil- a
von died of strangulation and Robert- oe

: sun's neck was broken, 4

z wily gt: 3

bt

a

ce
Co

I

J

I
}-4

\O
©


*SPECIA

mink 3

BY ANDY GOTLIEB
Oemociat-Gazetie Stale Desk

Eight of Arkansas’ 34 death
row inmates stand a good
chance of being executed by
the end of 1993, according to
Deputy Attorney General Jack
Gillean.

Gillean cautioned that his -

predictions are guesses at best
and that the unpredictable na-
‘ture of the appeals process
could delay some of the execu-
tions. °

The two inmates whose
appeals are furthest along are
Charles Singleton and Barry
Lee Fairchild, who has come
close to being executed before.
Both could be executed in late
1992, although early 1993 is
more likely, Gillean said. i

Fairchild's third round of
federal appeals is before the
8th U.S. Circuit Court of
Appeals. Should the 8th Cir-
cuit reject the appeal. the U.S.
Supreme Court would not
likely grant a stay of execution
~ because it is a third appeal
~. while it decides whether to
review the case, Gillean said.

‘Singleton's appeal already
has been rejected by a three-
judge panel of the 8th Circuit.
He has asked for a rehearing
before the court.

‘Although Singleton techni-
cally is closer than Fairchild
to ending his appeals, the U.S.
Supreme Court routinely
grants stays of execution while
it decides whether to review a
first appeal, Gillean said,

Four inmates convicted in
1981 of capital murder ina sin-
gle incident - Hoyt Franklin
Clines, James William Holmes,
Darryl V. Richley and Michael
Ray Orndorff - face possible
executions by spring 1993.
sr And by mid- to late-1993, the
appeals process could be over
for inmates Eugene Wallace
Perry and Bobby Ray Fretwell

vi.
Here are brief histories of
the 34 men awaiting execution
in Arkansas, including their
appeals status. Inmates are
listed by length of time on
death row.
““e@ Lloyd Dewayne Hulsey, 39,
was sen- kt ie ;
tenced to
death Nov. 10,
1975, and is
one of the
longest-sery-
ing death row B&
ecm! tee the $¥
nited States. 4?
Hulsey was su Hujsev D,
sentenced (0 sectsemany
die for the shooting death of
service station attendant
Johnny Easley Jr., 42, of Earle
(Crittenden County) during a
robbery. Ilulsey’s appeal is
pending before U.S. District
Judge G. Thomas Eisele. us
@ Charles Edward Pickens,
38, reecived the death penalty
in 1976 for the
1975 murdéfs
of James
Scherm  Jr.,
3lx% and Wes-
ley Noble, 76,
during a rob-
bery of a
Casscoe (Ar-

m County) gro-
cery store. Seven others were
wounded during that robbery.
Pickens was sentenced to
death again in 1989, six years
after the 8th U.S. Circuit Court
of Appeals ordered a reduc:
tion of his sentence to life in
prison without parole ora new f
sentencing procedure. His ap-
peal is now before U.S. Dis- |
trict Judge Henry Woods. j

—_

‘SPECIAL: REPORT: LIFE ON DEATH ROW 7”
Appeals could run out
Sy py Bad

Richie, the ‘Magazine (Logan
County) town marshal, and
Opal James, a federal park
ranger. Denton and Ruiz were
escapees from an Oklahoma
prison at the time. The two
men were retried in 1979 and
resentenced again in 1987,
Their seeest are pending be-
fore Eisele.

¢ Eddie Lee Miller, 40,
received a + get
death = sen-
tence for the
1978 shooting Baiquxt
death of W.F. . Ha
Bolin, 51. at
his Blythe-
ville sewing
center. Mil-
ler’s appeal is Pas a
pending be- :
fore U.S. District Judge George
Howard, :

cae

© Charles Singleton. 33, was '

sentenced to
die for the
1979 stabbing
death of Mary
Lou York, 62,
during a rob-
bery of her
Hamburg
(Ashley
County) store.
: 44 He has filed a
petition for a rehearing with
the 8th Circuit after his convic-
tion was affirmed there earlier
this year,
© Darrel Wayne Hill, 51, has
been ondeath aR
TOW Since +e Aes
1980, when he , * ffeil °
was convicled * @
of murdering a *
Don Teague, #3
32, a wildlife *
officer with +. PS
the State >, @&

£

Fish Commis- ~~ ,7*
sion’ in Montgomery County.
Hlis appeal is before Howard,
e Clay Anthony Ford, 33, was
sentenced to
die in 1981 for
the 1980
Shooting of
Arkansas
State Police
Set. F. Glen
Bailey near
. Marion (Crit-
tenden
. County). Ford
had escaped from a Tennessee
work-release’ center. Baile
was manning a _ roadbloc
trying to recapture Ford.
Ford's appeal is before How.
ard.

Co) vor oy Wallace Pergy, 47,
receive a 1) my,
death Sen- SE
tence in 1981 4+ Aas,
for the 1980 nent
shooting of
Kenneth and é
Suzanne, Sta- thy
ton of Van ,
Buren during ‘
a robbery, His
second fed-
eral appeals petition is pend-
ing before Eisele.

© Hoyt Franklin Clines, 35,
James William Holmes, 35, Dar-
ryl V. Richley, 41, and Michael

-bery of her

Mstee

g Sori
< Oi?

indortt
Ray Orndorff. 33, were sen-
tenced to death in 1981 for the
beating and shooting of Don-
ald. Lehman of Rogers. The
four were convicted of break-
ing into Lehman's home, beat-
ing him and Shooting him
while forcing his family to
watch. Oral arguments were
held this month before the 8th
Circuit,

© Wilburn Anthony HMender-
son, 50, was sentenced to death
in 1982 for the
1980 shooting
of Willa Dean
O'Neal. 51,
during a rob-

Fort): Smith
store. Ilender-
son ‘was re,
tried earlier.
this year and Puan get
ugain sentenced to death. Ilis
appeal is now before the Ar-
kansas Supreme Court. «:

® Barry Lee Fairchild, 38,
geht was sen-
ake P teneed to
death for the
1983 rape and
murder of 2nd
Lt Marjorie

nurse at the

Little Rock

‘ Air ~ Force

Base. His appeal - in what

may be the most widely publi-

cized of all Arkansas death

row cases - is pending before

the 8th Circuit. Oral arguments

were held in March. ‘

° reels Ray

receive a
death — sen- §
tence for the ¥

Sullins, 81,
during a rob-
bery at Sul-

Marshall
(Searcy
County). Although U.S, District
Judge Elsijane Roy had va-
cated Fretwell's sentence, the
U.S. Supreme Court: an-
nounced last month it would
consider, reinstating the sen-
tence. ;

‘e Richard © Snell,
given ithe
death penalty
for: the ‘1984:
shooting:
death ‘of Bill
Stumpp, °36,:
during a rob-
bery of
Stumpp’s Tex:
arkana > pawn
shop. Ile also we,
is serving'a life sentence for
the 1984 shooting of Arkansas
State , Police «Trooper Louis.
Perry, Bryant, 37. Although”?
Snell was granted relief at the

district ca it Jevely the? state,
Mi 2s, wa

62. was

in °93 for

‘death for the -§
December «'
1985 strangu- &}

‘ death of Gla-

0
sy at
A

WS Sey ana

has appealed to the 8th Cir-
cuil.

© William Frank Parker, 37,
received a
death sen-
tence for the
1984 shooting
of -his ex.
wife's par-
ents, James
and Sandra
bch we Bh
Crward, Par- * st}
ker held shis “
ex-wife hostage (Or several
hours at the Rogers Police De-
Parineny, shooting one officer

cfore his capture. His appeal
is pending before U.S. District

ssf. Judge Susan Webber Wright,

© Samuel Davis Duncan, 35,
was sen-
tenced to die

“a for the 1985
fatal shooting
ay

petice olticer:
ohn Fallis,
26. Ilis convie-
tion has been
Bay. reversed

“ehh. 7 twice by the
Arkansas Supreme Court. A
lirst retrial resulted in Duncan
again being, sentenced to
death. He is awaiting a second

retrial, ,

© Mark Edward Gardner, 3h,
was‘) sen-): * 5, ;
tenced’ to

lations of Joe Hy
Le:

Joyce; his
wife, Martha = ‘
JOyce: sand ue Aose

their daugh- veers cm ow
ter, Sara e8ebasage
McCurdy, in Fort Smith. His
appeal is before Howard,

© David Starr, 31, was given
a death sen- atetn

tence -for the
1985 beating

dys Ford, 76,
of Marvell
GPhillips
County) dur-
ing a robbery
at her home.

cuit. 3
® Michael O'Rourke, 44, was

sentenced to

die in 1986 for

the 1983 mur. ,

ders of his: wa
parents, Fran- {& Wy

‘cis and Beu- if
lah O'Rourke, o's
in their home { & AS
near Dar- toy

danelle (Yell is
County), Their pets VINTAGE
bodies were found’ in’ Okla-
homa in the trunk of the family
car, Howard has suspended ac-
tivity in the case beeause of
questions about
mental compelenee,
O'Rourke's attorney has filed a
motion to reopen the case,

more, 48, was

for the , 1986
Keel slaying . of
Essic Mae
Black. 62. dur-
ing a robbery
at her Mount
Ida (Montgom-
ery County)
home. Whit-

PA Nef

* more's appeal is pending be-

Might vi. uo g hai bg
te : ‘84 fe FULL -

if

SHON BANA Rayer arias,

of Pine Blulf » “3

O'Rourke's -

sentenced to,
4 death in 1987...

2

Sik

¢ Marion Pritt, 42, was sen-
tenced to dic Frm

in 1982 for the ¥

death of Fort FA3#
Smith conven- 4
ience. store hey
clerk Bobbie
Jean Robert- RY ~
Son, 30, during §
a robbery.
Pruitt had
been on death Y"# Se} me
row in Mississippi, but his con-
viction there was reversed and
he was transferred to aArkan-
sas. His appeal is pending be-
fore Howard.

¢ Kirt Wainwright, 26. was
Sage. Sentenced to
death in 1989
for the 1988
shooting of
Prescott (Ne-
vada County)
convenience
sture” clerk
Barbara
Smith, 38. He
also was sen-

‘tenced to life in prison without

parole afler pleading guilty to
killing a convenience store
clerk in Hope in 1988. His ap-
peal is pending before Eisele.
© Roger Coulter, 32, was sen-
tenced to
death in 1989
for the April
12, 1989, slay-
ing of Natasha $;
Phelps. 5. of
Warren (Brad-

ley County), sya!

Ilis appeal for
post-convic-
tion relief is
before the Ashley County Cir-
cenit Court :
¢ Johnie Michael Cox, 36,
“psa. 7 received the
, { death penalty
b> in 1990 for the
m4 Nov. 1, 1989,
Slayings in
Kensett
wi White
’ County) of his
~] Step-grand-
4 mother Maric
D m2 Sullens, 68;
Margaret Brown, 34; and Billy
Brown, 32. The bodies were
discovered inside a house Cox
had set on fire. His appeal for
post-conviction relief is pend-
ing before the White County
Circuit Court, -
© Gary Wayne Mauppin, 36,
was sen- ue.
tenced to die pR a ‘
in 1990 for the pre
1985 shooting
deaths of |
Dolphus
Sams, 39, and &
Ervin D. BS
Snyder, 50, ®
both of Wynne
(Cross ‘ ?
County). Two police officers
“also were wounded in the inci-
dent. Mauppin was not tried
for several years while he re-
covered from a self-inflicted
gunshot wound to the head.
The Arkansas Supreme Court
reversed Mauppin's conviction
last month. A retrial is pend-
ng.
© Bruce Earl Ward. 35, was
vipa sentenced to
death in 1990
for the Aug.
11, 1989, stran-
pling of Re-
ecca Lynn
Doss, 18, ata
Little Rock
convenience
~t Slore. His sen-
5 , tence, but not
the conviction, was reversed
by the Arkansas Supreme
Court in February. He awaits
resentencing.

4
om ¢ Py ay aks :
et Ps DO ARR Ce

r 8 of 34 on death row

® Darrell Wayne Sheridan,
2 gh ae death sentence
or the Feb, tar
10, 1990, Sgarpasrn
Stabbing and ‘es
slashing
death of Lau-
rie Ann
Brown, 28, of
Benton.
Brown, who
was Sheri-
dan's former ‘ ;
girlfriend, was five months
pregnant at the time. An ap-
peal is pending with the Ar-
kansas Supreme Court.

® David Wayne Johnson, 29,
was sen- : '
tenced to
death in 1990 3
for the Sept. 2, .
1989, slaying
of Leo Brown,
62, a Liltle *:
Rock security ns
pears. After pS “
cing aly SNe ed
firmed by the ii Sstyuet=]"-
Arkansas Supreme Court,
Johnson's appeal is before the
U.S. Supreme Court. ~

@ Raymond Sanders. 31, was
whys Sentenced to
} die for the
Noy. 20, 1989,
Slayings of
Charles and
Nancy Bran-
nun of Mal-
vern. He is
ae, , also serwene 2

see” pee Sentence of
¢ dies 9 life in prison
without parole for a separate
1989 murder. Sanders awaits
resentencing aNer the Arkan-
aio Supreme Court atfirmed
his conviction, but set aside
the death sentence. :

® Ilerbert Fred Brenk, 53,
received aj. ts:
death = sen- © ‘
tence in 1991 .
for the slaying
of his wife, .}:
Lou Alice \,
Brenk, 50. Her
torso was -
found Noating ..;
in Lake Nor. 4
fork in a (yee!
cement-filled cooler on Aug.
23, 1990. Ilis appeal is pending
are the Astensal Supreme

ourt. ;
¢ Don W. Davis, 29, was sen-

e tenced to die
¢— in March for
the Oct. -.12,

’ 1990, death of

Jane Daniel,
62. during a

"* robbery of her

¢- Rogers home.

Ile has filed

‘gan initial ap-

Us ** peal with the

Arkansas Supreme Court.

The back-and-forth status of
appeals weigh heavily on the
inmates’ minds.

Ilulsey referred repeatedly
to his lengthy stay on death
row, When he arrived there in
late 1975, there were three
other condemned men. All
have long since successfully
appealed their death sen-
tences and had them reduced
to life in prison without
parole. He predates Me four
men executed since 1990,

“I'm tired of watching in-

‘males come and go,” Hulsey

said.

On two occasions Hulsey
has asked that his appeals be
dropped, but then changed his
mind, Like with many of his
peers, he said hopelessness
can become overwhelming.

“L feel I already should be
dead or in the general popula-
tion by now." he ssid

THURS. TUNE 20, ma)
ARKANSAS OEMOCRAT

July 16 execution date
set in 1975 slaying

BY RACHEL O'NEAL

Democrat Capitol Bureau

A July 16 exccution’ date
was set Wednesday for Ed-
ward Charles Pickens in the
1975 slaying of a 72-year-old
Stuttgartman,

Pickens, 36, of Detroit, was
convicted of capital: murder
in 1976 by a Perry County. Cir-:

cuit Court jury for the shoot-
‘ing death of Wesley Noble.

The execution date was set

Wednesday by Gov. Bill Clin-
ton.

Pickens’ attorney, Jeff
Rosenzweig, said Wednesday
the execution date is prema-
ture because his client has
not exhausted his appeals.

“It's purely politice),” he
said. “He’s nowhere near ex-
hausting his federal remed-
ies and he’s still got to go
through the 8th Circuit (Court
of Appeals at St. Louis) and
through the U.S. Supreme
Court.” = ete

Pickens’ sentence ‘already

‘has been overturned twice.

He otiginally received the
death, sentence'in 1976 ‘for
murdering. Noble during a

‘robbery at Cloude’s Grocery
in Casscoe (Arkansas County)

on Oct. 20, 1975. Pickens was
91 years old at the time of the
slaying. _

James E. Scherm Jr., 31,.0f
Stuttgart, also was killed in,
the robbery. Five other peo+
ple were shot and ‘a: woman.
was raped. -
| pickens’ death sentence
was overturned in 1983 by the
8th Circuit Court.

‘ ' Pickens’ case was then of-
dered for a rehearing and he
received the deatn-sentence

‘again in 1985. |

The state Supreme’ Court
reversed the second ‘death
sentence in 1987 because
Pickeng’ wasn’t allowed to
present his good behavior on
death row as evidence. |


i
ii!

{

7

‘9

e .
Arkansas executes drifter

hy ®
who killed good Samaritan

| A drifter convicted of killing a woman who fed
him milk and cookies was executed in Arkansas
or, Wednesday. Meanwhile, an Arkansas man who
ignored a plea for mercy during an armed rob-
béry lost his request for a stay of execution in an
appeal to the U.S. Supreme Court. |

|, Jonas Whitmore was pronounced dead at 8:08
p.m., said prison spokesman Alan Ables.

| _ «| Edward Charles Pickens was schedwed to die
by lethal injection within a few hours; the U.S. Su-
preme Court voted 6-3 to deny his lawyers’ re-
quest for a stay.

_ Whitmore’s request for a stay also was denied
Wednesday evening, with only Justice Harry
Blackmun dissenting, Supreme Court spokes-
woman Toni House said. It would be the first time
a state had executed two people on the same day
since the U.S. Supreme Court allowed states to re-
sume executions in 1976.

' Whitmore, 50, was convicted of killing Essie
Mae Black, who let him into her home in Mount
Ida, Ark., in August 1986 even though he was a
stranger. The 62-year-old woman gave him milk |
and cookies before she was stabbed 10 times, her
throat cut and an “X” sliced into her right cheek.
The killer stole $250 from the house.

The Atlanta Journal / The Atlanta Constitution |

NATION

CG Thursday, May 12, 1994 axnsse

Well asvunie- ..

> EXECUTIONS: Arkansas executed two murderers by
injection. Jonas Whitmore, 50, stabbed a woman who fed
him milk and cookies at her home in 1986. Edward Pick-
ens, 39, was one of three grocery robbers who in 1975 shot
to death two men, wounded five and raped a woman.

USG (ODAY |
5-14-1944 (3A)


By The Associated Press

The number of inmates on
death row in Arkansas was
reduced to 32 with the Monday
night. execution of John Ed-
ward Swindler.

The number is expected to
drop to 31 on June 25 when
Ronald Gene Simmons ,is
scheduled to die by lethal in-
jection for the 1987 murders of
16 people, including 14 family.
members, in Pope County.

Thomas Winfred Simmons,
46, and Barry Lee Fairchild,
36, are the death row inmates
most likely to be executed af-
ter Swindler and Gene Sim-
mons, a spokesman for the
attorney general’s office said.

Thomas Winfred Simmons,
who is on death row for the
1981 slayings of four people in
Van Buren, is nearing the end
of his appeals, said James Lee
of the attorney general’s office.

Fairchild was sentenced to
death for the 1983 rape and
murder of 2nd Lt. Marjorie
“‘Greta’’ Mason, a nurse at
Little Rock Air Force Base. He
was. close to execution last
year, before his lawyer raised
the issue that Fairchild was
mildly retarded.

Here is a list of the 32 men
on death row in Arkansas in
order of how long they: have
been on death row, the crimes
for which they were sentenced
to death, and the status of their
appeals:

Lloyd Dewayne Hulsey,

37, has been on death row since.

Nov. 10, 1975. Hulsey was sen-
tenced to die for the shooting
death of Johnny Easley, Jr.,
42, of Earle, a service station
attendant. His appeal is pend-

ing ‘before U.S District Judge.

Thomas Eisele.
Charles Edward Pickens,

36, for the 1975 killings of

James Scherm Jr., 31,. and
Wesley. Noble, 76, during a
grocery store robbery in Cas-
scoe. In 1983, the 8th Circuit
Court of Appeals ordered ‘a
sentence reduction to life in
prison without parole or a new
sentencing procedure. Last
year, Pickens was again sen-
tenced to death, and the sen-

Tnirty-two lett
on death row |

tence was affirmed Feb. 5 by
the state Supreme Court. Pick-
ens has appealed to the U‘S.
Supreme Court.

f Earl Van Denton, 40, and
Paul Ruiz, 42, for the 1977
execution-style slayings of
Magazine town marshall Mar-
vin Richie and federal park
ranger Opal James. Both have
appeals pending before Eisele.

Eddie Lee Miller, 38, for
the 1978 slaying of W.F. Bolin
during a robbery at Bolin’s
Blytheville sewing center. Mill-
er’s appeal is pending before
U.S. District Judge George
Howard.

Charles Singleton, 31, for
the 1979 stabbing death of
Mary Lou York during a rob-
bery at her Hamburg store.
His appeal is in the 8th Circuit.

Darrel Wayne Hill, 48, for
the 1980 death of Game and
Fish wildlife officer Don
Teague in Montgomery County.
Hill’s appeal is before Howard.

T.J. Hayes, 52, for the
1979 shooting deaths of Cather-
ine Carter and J.W. Lunsford
in Pine Bluff. In August 1989,

‘the 8th Circuit ruled Hayes was

denied a fair sentencing trial
because the prosecutor told ju-

‘rors too. much about the vic-
.tim. On May 3, the court or-

dered the state to retry Hayes
within 90 days. If no trial
occurs, Hayes’ sentence would
be reduced to life without pa-
role.

B} Clay Anthony Ford, 31, for
the 1980 shooting death of Ar-
kansas State Police Sgt. F.
Glen Bailey near Marion.

Ford’s appeal is before How-

ard.

Eugene Wallace Perry, 49,
for the 1980 shooting of Ken-
neth Staton and Suzanne Staton
Ware of Van Buren during a
robbery. His appeal is before
Eisele.

Thomas Winfred Simmons,
46, for the 1981 slayings of Fort
Smith police detective Ray
Tate, Holly Gentry, Jawana
Price and Larry Price. His
appeal is pending before the
8th Circuit.

Hoyt Franklin Clines, 33;
James William Holmes, 33;

(See State, page 5A)

lyy0

19,

Ark. Tuesday, June

Southwest Times Record—Fort Smith,

es:

Sara Ge

ht dat ee

*
of
Rs
4
:
5
*

eet ae


1454 4 FEDERAL REPORTER, 3d SERIES

rebuttal witness that petitioner told him in a
newspaper interview published in 1984 that
he had a loving father. In addition, as noted
by the state courts and the district court, this
comment could not have prejudiced petition-
er because the jury unanimously found that
the mitigating circumstance of an abusive
upbringing existed. 802 F.Supp. at 216, cit-
ing 783 S.W.2d at 346.

IMPROPER IMPEACHMENT

[12] Petitioner next argues he was de-
nied due process when the prosecutor im-
properly impeached defense witness Father
Louis Franz at the 1988 resentencing trial.
Father Franz testified about petitioner’s
good works and accomplishments while in
prison. On cross-examination, over a de-
fense objection, the prosecutor asked Father
Franz about his intervention in another
death penalty case, against the wishes of the
prisoner, in an attempt to show that Father
Franz was so opposed to the death penalty
that he would go to great lengths to prevent
its imposition. Petitioner argues the ques-
tion was an inflammatory reference to a no-
torious and tragic case and that the decision
to pursue legal process to determine a ques-
tion of law is not a proper subject for im-
peachment.

[13]. The proper scope of cross-examina-
tion is a question of state law, and ordinarily
wide latitude is allowed on cross-examination
with respect to witness credibility and bias.
Such an evidentiary error would not warrant
federal habeas relief unless it can be shown
that the ruling violated a specific constitu-
tional provision or resulted in a trial so fun-
damentally unfair as to violate due process.
E.g., Cooley v. Lockhart, 889 F.2d 481, 432
(8th Cir.1988) (per curiam); Hobbs v. Lock-
hart, 791 F.2d 125, 127 (8th Cir.1986).. We
agree with the district court that even if
Father Franz’s involvement in another death
penalty case was not a proper subject for
impeachment, it was not so prejudicial as to
violate due process. 802 F.Supp. at 217.

4. Comparative proportionality review of death
sentences is not constitutionally required. Pulley
v. Harris, 465 U.S. 37, 51, 104 S.Ct. 871, 879, 79
L.Ed.2d 29 (1984). Arkansas conducts such a
review as part of the appellate review process.
Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441
(1983) (per curiam).

EVIDENCE OF MITIGATING CIRCUM- .

STANCES

[14] Petitioner next argues the jury im-
properly ignored evidence presented in miti-
gation and that the state supreme court
failed to correct this error on direct appellate
review. The jury unanimously found only
the existence of the mitigating circumstance
of a deprived childhood. The record does
not support petitioner’s claim that the jury
improperly ignored other mitigating evi-
dence. Although there was considerable evi-
dence of petitioner’s youth and domination
by Clark and of petitioner’s good works and
accomplishments while in prison, there was
also evidence that during the crime petitioner
was the one in control and was not acting on
the instructions of anyone and that petition-
er’s prison activities were not as extensive or
as altruistic as he represented. 802 F.Supp.
at 219, citing 783 S.W.2d at 345.

[15] With respect to petitioner’s argu-
ment that the state supreme court failed to
conduct a comparative proportionality re-
view‘ of his death sentence, the state su-
preme court performed such a review twice,
once after his conviction in 1976 and again
after the resentencing in 1988, and each time
concluded that there was “no basis in the
record to hold that the sentence of death was
wantonly or freakishly imposed against [peti-
tioner].” Pickens v. State, No. CR 89-94,
1990 WL 210641, slip op. at 1, citing Pickens
v. State, 551 S.W.2d 212. In particular, we
agree with the district court that the three
cases cited by petitioner ® in which the state
supreme court vacated the death sentences
are distinguishable from the present case.
802 F.Supp. at 219.

Accordingly, we affirm the judgment of the
district court denying the petition for writ of
habeas ‘corpus.

w
° st NUMBER SYSTEM

5. Henry v. State, 278 Ark. 478, 647 S.W.2d 419,
cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78
L.Ed.2d 119 (1983); Sumlin v. State, 273 Ark.
185, 617 S.W.2d 372 (1981); Giles v. State, 261
Ark. 413, 549 S.W.2d 479, cert. denied; 434 U.S.
894, 98 S.Ct. 272, 54 LEd.2d 180 (1977


1452

WITHERSPOON EXCLUDABLE

[4] Petitioner next argues the district
court erred in holding that prospective juror
Rosemary Horner was a Witherspoon ex-
cludable. 802 F.Supp. at 215. Petitioner
argues the state courts, and the district
court, misread Horner’s voir dire testimony
and reviewed it out of context. He argues
that at most her voir dire testimony indicated
that she had “opinions” about the death pen-
alty but that she could set them aside “if
[she] had to.” -

[5,6] “General objections to the death
penalty or conscientious or religious scruples
against the death penalty are not grounds for
excusing a juror for cause.” Jd. at 214,
citing Witherspoon, 391 U.S. at 520, 88 S.Ct.
at 1776 (excuse for cause if juror would not
consider imposing the death penalty). The
constitutional standard is whether the pro-
spective juror’s views against the death pen-
alty would prevent or substantially impair
the performance of the juror’s duties as a
juror in accordance with the court’s instruc-
tions andthe juror’s oath. Wainwright v.
Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985); Byrd v. Armontrout, 880
F.2d 1, 9 (8th Cir.1989), cert. denied, 494 U.S.
1019, 110:S.Ct. 1326, 108 L.Ed.2d 501 (1990).
The state trial and appellate courts applied
this standard to petitioner’s claim and con-
cluded that Horner was excusable for cause
because her “continuous response of ‘if I had
to’ indicated a person that might not be able
to consider the death penalty even if the
evidence’ justified. it.” 783 S.W.2d at 345.
The presumption of correctness for factual
issues, 28 U.S.C. § 2254(d), applies to state
trial and appellate court rulings on juror
bias. Wainwright v. Witt, 469 U.S. at 429,
105 S.Ct. at 854. The record supports the
state courts’ characterization of Horner’s voir
dire testimony, and we agree with the dis-
trict court that excusing Horner for cause
did not violate petitioner’s constitutional
rights.

SUBORNATION OF PERJURY

As noted above, petitioner was tried for
the murder of Wes Noble. At trial Goacher,
the store owner, testified that petitioner and
Clark did all the shooting. At the first re-

4 FEDERAL REPORTER, 3d SERIES

sentencing proceeding Goacher changed his
trial testimony and testified that everything
that he had testified petitioner had done
during the robbery, Clark did, including the
shooting of Noble, and everything that he
had testified Clark had done, petitioner did.
Goacher claimed that he was told by special
prosecutor Lassiter to testify that petitioner,
not Clark, shot Noble and that Lassiter ad-
vised him to so testify in the presence of the
other special prosecutor, Gary Isbell, who is
now a state circuit judge. The district court
found that, even though Goacher may have
confused the actions of petitioner and Clark,
Goacher did not intentionally commit perjury
in the original trial and that special prosecu-
tor Lassiter did not tell Goacher to testify
petitioner shot Noble. 802 F.Supp. at 213-
14,

[7] Petitioner argues the district court’s
findings are clearly erroneous. Petitioner
argues Goacher had no motive other than his
guilty conscience to recant his trial testimony
and that Goacher’s claim that the special
prosecutor told him to lie was “consistent
with the political realities existing” at the
time of the trial, particularly in light of the
special prosecutor’s failure to disclose the
police officer’s admission that he had threat-
ened petitioner during interrogation.

The district court’s findings were based on
its assessment of the credibility of the wit-
nesses. The special prosecutors and Goach-
er testified at an evidentiary hearing before
the district court in August 1992. The dis-
trict court specifically credited the testimony
of the special prosecutors and discredited the
testimony of Goacher. We hold the findings
of the district court on this issue are not
clearly erroneous and agree with the district
court that there is no basis for setting aside
petitioner’s conviction on the ground that it
was obtained on perjured testimony as a
result of prosecutorial misconduct.

VERDICT FORMS

[8] Petitioner next argues the Arkansas
death penalty scheme is unconstitutional be-
cause it impermissibly mandates the death
penalty. Petitioner argues the verdict forms
improperly required unanimity on mitigating
circumstances in violation of Mills v. Mary-

—
aie et

tome,
a i —

eaten


PICKENS v. LOCKHART

1453

Cite as 4 F.3d 1446 (8th Cir. 1993)

land, 486 U.S. 367, 108 S.Ct. 1860, 100
L.Ed.2d 384 (1988). The district court cor-
rectly decided petitioner was not entitled to
relief on this claim in light of the Supreme
Court’s decision in Blystone v. Pennsylvania,
494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255
(1990) (upholding Pennsylvania death penalty
scheme which is similar to that of Arkansas).
802 F.Supp. at 215; see also Swindler v.
Lockhart, 739 F.Supp. 1823, 1825-27, 1329
(E.D.Ark.1990) (Woods, J.) (rejecting Mills v.
Maryland challenge to Arkansas mitigating
circumstances instruction and verdict forms).
Petitioner conceded this point in his Brief for
Appellant at 58.

EX POST FACTO VIOLATION

[9] Petitioner next argues Ark.Code Ann.
§ 5-4-616, which provides the procedure for
resentencing after the vacating of a death
sentence, is unconstitutional as applied to
him. The resentencing statute was enacted
in 1983 and applies retroactively to any de-
fendant sentenced to death after January 1,
1974. Under the resentencing statute, a sec-
ond jury resentences the defendant rather
than the original jury. Petitioner argues
that the resentencing statute violates the ex
post facto clause because, under the law in
effect at the time the offense was committed,
he was entitled to a new guilt phase proceed-
ing, if there was an error in sentencing. The
district court correctly decided petitioner was
not entitled to relief on this claim in light of
the Supreme Court’s decision in Collins v.
Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111
L.Ed.2d 30 (1990) (retroactive reformation of
verdict pursuant to state statute allowing
appellate court to reform improper verdict
held no violation of ex post facto clause). 802
F.Supp. at 216. Petitioner conceded this
point in his Brief for Appellant at 63.

IMPROPER STATEMENTS

[10] Petitioner next argues the district
court erred in denying his claim that the
prosecutor’s opening and closing arguments
in the 1988 resentencing proceeding denied
him due process. In the opening argument
the prosecutor described the victims by their
age, race and sex. Petitioner argues the
prosecutor’s racial references were improper

and inflammatory. Defense counsel moved
for a mistrial, which the state trial court
denied. On appeal the state supreme court
concluded that although racial descriptions
were almost always irrelevant and that the
race of a victim should not be mentioned to
the jury unless necessary, the prosecutor’s
references to the races of the victims were
not so egregious as to warrant a mistrial.
783 S.W.2d at 346. The state trial and appel-
late courts’ rulings on this issue are entitled
to the presumption of correctness. See, ¢.9.,
Schlup v. Armontrout, 941 F.2d 631, 641 (8th
Cir.1991), cert. denied, —- US. ——, 112
S.Ct. 1278, 117 L.Ed.2d 499 (1992). We
agree with the state courts and the district
court that the prosecutor’s racial references
were improper. 802 F.Supp. at 216, citing
783 S.W.2d at 346. However, it is not
enough that the prosecutor’s remarks were
“andesirable or even universally con-
demned.” Jd. citing Darden v. Wainwright,
699 F.2d 1031, 1086 (1983), rev'd on other
grounds, 725 F.2d 1526 (llth Cir.1984)
(banc), affd, 477 U.S. 168, 106 S.Ct. 2464, 91.
L.Ed.2d 144 (1986). “The relevant question
is whether the prosecutor's comments ‘so
infected the trial with unfairness as to make
the resulting conviction a denial of due pro-
cess.” Darden v. Wainwright, 477 U.S. at
181, 106 S.Ct. at 2471, citing Donnelly v.
DeChristoforo, 416 U.S. 687, 643, 94 S.Ct.
1868, 1871, 40 L.Ed.2d 431 (1974). Under
this standard of review, we agree with the
state courts and the district court that the
prosecutor’s references to the races of the
victims did not deprive petitioner of a fair
resentencing trial. The prosecutor’s com-
ments did not manipulate or misstate the
evidence or implicate other specific constitu-
tional rights of the accused such as the right
to counsel or the right to remain silent. In
addition, the substantial evidence of aggrava-
ting circumstances reduced the likelihood
that the jury’s resentencing decision was in-
fluenced by the improper argument.

[11] Petitioner also argues the district
court erred in denying his due process claim
that the prosecutor suggested during closing
argument that petitioner had fabricated cer-
tain mitigating evidence about abuse by his
father. We disagree. The prosecutor’s com-
ment was based upon the testimony of a


© |? Arkansa Penitentiary, Walter P xr dest, Foreman”, - o |
fa It therefore considered, ordered and adjudged by the court. thot ‘said a&efendant |

| State ofArkansas,:- and there vonfined at hard labor for the period of two—-(2)-years~end—

We ys the jury find the défendant eure of pr er An, jhe. first: fegres, as charged . in the

2 “of manslaughter as charBaa in the: indictment and fix her ‘Dani shnent ott 2 years in the

be remanded into the. “cus tody-- of the Sheriff of Lonoke County, am to be by him safely
and speedily transported to the -Penttentiary house or StateConvict Farm or camps of the |

that the State of Arkansas do have and recover of “ana: -from-séid defendant all the costs.
of this prosecution have execution therefors— It is further-orgered by the court, that
the Clerk of this court make out--and deliver to said Sheriffa certified copy of hke
foregoing judgment to be-by him delivered to the agent or keeper of said-Penitentiary
as sufficient authority for him to receive end ¢ ont tne: he Seid. Mabel A
manner aforesaid. ; :

ee AL HP & av
ek STATE OF < RRKANSAS (235 Uaggi ei | PLAINTIFF. ) - lee
VS RARE USA: See eT i ake ‘) 8 | JORDERGTAL~ 0 pane
DUNCAN PIGUE ee eae Poe DEFENDANT, Me ,

‘On this’ * day eine" is pai ved. fo a1 seding > |

arwelennent waived and plea of not guilty. The defendant files demurrer to the inf ormation,

“and upon consideration ¢ hereor the same is by ihe court overruled, ans har poeta of the |

court the defendant. at the time eens pa oe pearance nee
“STATE OF ARKANAAS | : ne PLAINTIFF. ys Ar aie Suet

| at ¥ Si asia caogtice cate aie ys “yuRy. TRIAL Death Penalty.
DUNCAN PIGUE as ne AN ee — DBBENDANT. }

. This day comes. the State of Arkansas
by Geo. i, Hartje, ‘Prosecuting attorney , and comes the defendant. in proper.person in
“custody of the S heriff'and by his. attorneys, : J,B,Reed and W.W. McCrary: dr., and both
sides announcing ready for trial,-‘comes the’ jury ' of twelve: men’ selécted from the 7

- regular panel of petit jurors, who are duly examined, sworn. and empanelled as the |
‘law directs, and who after hearing'all the testimony adduced, the instrurtions of the

_ court, and argument of couns « 1 retire to consider their verdict, and after some time
~ ppnnt in consideration thereof return into open court’ the following | werdict, to-wit:

“indictment, E. L.Bailey, F oreman," oe) et re peer ne mo

Ordered that count stand ad jou ed Be November el 1937.

Ae GoM ein oa Ts aL Seige |
ce November 27, “TE87- “eourt- oéusened. Ae to Fadi outiment ;nresen+ and seceldire

.: Hon eW. Je Waggoner, Judge, Geo.F. Harkje,-Prosecuting— attorney, Troy Carroll,Sheriff and
Albert G.Sexton,Clerk; Court was” “Opened "in due form of law wwhen- the-following proceedings
Bwera: had, bom-whts

ae ra ¢ Peo Sacer Gas eae RN aL ete EA

I
et nat OE 5 RES te pea Rice Ea a ace fovn

- srape-OF ARKANSAS PLAINTIFF.) ,
| VS- ) ‘FINE.

naan OT Tr AT VITTIF NTR ITAA ATOM \

Sepa
met, gel Settee RS

eK MRE ye mi

‘jovtq ‘ueoung “anoTa

Je a INL ois i
Yairi AB ne

— *QE6T St] Acenaged uo (eyoucT ) sesueyly poynooi7zoeTe

1 ne

lived very

oO

cows,

ef her aloginess,
dirt a fit of rage.
ai, this: point, that
ue fe officers involved
2 fousid today.. ‘Their
“igdietions and evident
veal many things was
<@ted che circumstan-
‘bee nh Wazier sas dead and
we ee ee Se 4 ' any ; Coe % $8 motive
more than ioc bes ‘ ,

and sesriy
O-acte Tarn i

are, as die the
Pom. a sex anite,

tes, aud

ther examai-
The half-de

r)

exiilar

eae
j the stabs from @ kriife or
ds of aix unknown

ry ee ee ' i se diet.

tin

UCR SENT ea

Sey ene

ma

Mea ,
i adc ; es ”

: hant

szenigh (ete. ove - , as -. . FES ; , Caiedes Ty a walks
. ~ ; i ; ee Brook
pn far
“‘Borce
‘ol Col
. the to

Pe Above, Ed’ McStiine™
day, and at left,“as he
appeared when "Shieriff)

5 b RG

described. the
* wearitig: “ci
lds i

g of importanée. He

3
kn ‘W wither he was in}:
1 or not,” Ratliff. said at.

Sheriff McShane and Deputy Brit- ing the youth, had re ud to be a,shiftless
ten decided that the killer could not was in a @feat hurry to. get home to” young man in his middle 20s whose
have escaped without getting blood milk her/cows before dark. ~  aSsociates usually included the
on his clothing, so they started work Sheriff M¢Shane knew Amos Ratliff \ roygher element about Eureka

from this angle. They drove about the
countryside questioning farmers and
their wives in the hope: that a man

and that he worked at the’ Key Saw
Mill, near-town. He and Deputy Brit-
ten dréve there and fotnd’that Ratliff

Springs.
Leaving Ratliff, the two officers

‘went in’ séarch“of “Ames. He was not

“swith bloodstained ‘clothing had been ~ was away;j but ‘the mill owner said, ‘ at his home, nor did they find any
seen. They gained nothing on this “You'll find him in town. Yes; hé bor- trace of him about “town. ‘The re:

yen

“Score, but.one woman said she had. rowed my.old shotgun’ yesterday to do- ;

passed ‘the Frazier cabin about two a little hinting, and said he was going
a

weeks before and had seen-a strange
man talking to the murdered woman,
on the tiny front porch, They had ap-
peared to be in an argument: She

fishing, later, with some’ frien
Blue Hole on White River. He lef
about 6;0’clock and returned abou
daylight~without any fish, Said

further developments in ‘the case.
_ Monday morning; however, the

; ‘sheriff learned something further from

his brother, Robert’ McShane, who
Operated a [Continued on page 74]

mainder ofthe day’ went by without Mo

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YE sf
TF comes out vesily, gently. :

The investigators realized that this checked
with the bowling alley manager's statement
that he last saw the suspect on the afternoon
of the murder,

Hurrying back to headquarters, Heise
learned that a couple of hikers had brought
in a bundle of bloodstained clothing which
they had found in.a ravine about a hundred
Eee off Fairway Avenue. Examined by the
ab, the stains were found to match the blood
type of the injured blonde!

“Fairway Avenue is pay a short distance
from where the driver picked up the sus-
‘pect every day,” Heise told Brown. “Round
up every man, we're going to turn that area
inside out.”

At the scene, Heise assigned his men to
teams and gave them specific areas to cover.

“In addition to a good description of the
suspect, you also have his first name,” Heise
told his men. “If you get a lead, take no
chances. He's already killed once and has
nothing to lose.”

doors. No one recalled a youth answering
the description of the suspect. Nor did: the
name’ Dick strike a bell in anyone’s memory;
Heise _ was nning’ to wonder if they
weren't on a wild chase when he spied
the name Richard E..Neeley painted on a
roadside mailbox, mn
He grabbed Brown's arm. “Keeley, Mele,
Neeley,” he said. “I've got a hunch this is it.

Y Keep your gun handy

They swung into a neatly graveled walk
and knocked on the door of a small, one-
‘story farmhouse. A tall, weatherbeaten man
‘in his late 60s, answered their knock,

_ Heise flashed his badge, “You got a young:
man living here named Dick?” he inquired.

Watcha want him for?” | :
“Just. like to ask him a few questions if:

For three hours they kept knocking on~

_ he shot the soldier down.

' The man nodded. “Reckon so, Sheriff.

you don’t mind,” yeplied Heise. ’ Pg

The man disappeared inside the house.
He returned a few minutes Jater with a me-
dium height, good-looking youth of about
20. His description matched the youth they
were seeking to a T!

Despite his protests, he was taken to head-
quarters and questioned. After a short, but
intensive period of interrogation, Richard
Edward Neeley broke down and confessed.

According to the statement he gave the

olice, young Neeley deeply resented the

rush-off he received from Mona Phillips.
Thus, when he overheard her boasting of
her new conquest, Sergeant Scharnweber, he |
made up his mind to get even. By eavesdrop-
ping, he learned that the pair always went
to the Trenholm Road rendezvous after leav-
ing the Hi Hatt Club. ;

On the night of the murder he loitered
around the parking lot until they appeared.
While awaiting their arrival, he found the —
hat check dropped by Fred Rivers and stuck
it in his pocket. It was to prove his undoing.
_. When Scharnweber and his girl friend
showed up, he went to Trenholm Road and
concealed himself in the bushes. Later, when
the couple appedred, he made a number of
suspicious sounds hoping to draw Scharn-
weber from the car. The plan worked and
e said he didn’t
intend to kill Mrs. Phillips, but only to
frighten her.

The good-looking youth was speedily in-
dicted by the Richland County grand jury
and went on trial Sept. 22, 1943. He was
found guilty of murder in the first degree,
but because of his age, the jury recommended
ee 2 The presiding judge had no alterna-
tive but to sentence him to spend the rest
of his life in the South Carolina State Peni-
tentiary in Columbia.

(The name Mrs, Mona Phillips used in this story

“is not real, but fictitious, in order. to protect. the
». tdentity | f
“murder investigation.—The Editor.)

ofa person innocently involved in the

bee Case of the .

- Mistaken
Verdict

sy

, ‘ Ohi [Continued from poge:16]

i ’
flour and feed store. Miss Frazier had been

| >in the store late Saturday evening and had

purchased a small bag of meal for fort on
Ollar
and had received fifty-five cents in change.

she had carried

‘had’ not been the motive for her slaying.

’, The girl shoo!
j request,, After she had ridden away Ames
Ni wa

* angry. McShane said he had figured that

. 1° Ames asked’ her for a date and had. been
|) refused. :

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74

beads

’ This, Sheriff McShane reasoned, showed that’ *
no cash on her, and if she*
“had spent the change for some small item.
before leaving town, would explain why ~
. there was no cash of any kind about her .
cabin..It confirmed his theory that robbery
‘any letters addressed to Miss Luella McLean.

“had

Robert McShane went ahead to say ‘that -

» as. Miss Frazier rode down the street he had«

4+ seen John oie stop her and talk a moment.
-her head as if refusing soma’

past the’ feed store and appeared

associates and one fellow said he was’ sure
Ames had not killed Miss Frazier, but he
knew who might have done it.

“It was a womah,” the informant went

‘yon, “About two weeks ago he had heard

Miss Luella McLean say something about
Miss Frazier being so darned stuck-up, but

that she wouldn't feel so smart ira few days. -
The minute I heard of the peers T thought

of what she had said, She said her boy-
friend was going to fix Miss Frazier.”
."“Who was the boy-friend?” McShane
‘asked.’ |.
“He didn’t ‘know. Miss McLean had lots of
boy-friends, . ‘
“The sheriff hurried. to the address where

“Miss McLean roomed but found that she had

left town, suddenly, bag and baggage, on
Saturday, the day of the slaying. Where she
one, no one knew. ~

- “We've ‘got to find her,” McShane told

Deputy Britten. “Go to the post office and
tell.

the postmaster to be on the lookout for

-One of her many ‘boy-friends may know

Where she went and write to her,”

<The dead woman's father, located in
Girard, Kansas, was notified of his daugh-

*-ter’s death and he came to Eureka Springs .

“to claim the body. He knew of no motive

‘for the slaying, His daughter, he said, had

- never been interested in men, She had al-

F vat dreamed of a small place of her own
ai

from her letters to him, he had assumed

- She had fqund happiness and contentment
“on her Ozark farm,
~~ With no trace of
“<McLean, Sheriff M

ohn-Ames nor Luella -
ane wondered if the
“#wo might not have left Eureka Springs to-
t vaeis Was Ames, the escaped convict, the
y-friend whom Luella. McLean had said |

would fix Miss Frazier? aS

_The answer, so far'as Ames was concerned,

- him. They ended

i

came shortly.
Berryville, on
Springs, repo:
wanted man
Eureka Spring
of the Frazie:
he had been i:
afternoon, bef:
and had been
officers substan
ever, admit he
was locked in j
So far nothin;
up city felloy
Frazier on he)
earthed. McSha
not have been
since her fathc
had never bec
living in her o|
stranger's posit
stances of the
further develop
The next day
from the postm:
receiver he tur
said, “Come or
letter to Luella
When they 3
postmaster exte
dressed: Miss L
livery, Joplin, M
“T don’t know
is no return’ ad
“T never notice
preparing the «

Mcshane st
writing, decidir
dressed by a.m:
to send the lett:
“But we'll go
McLean calls fo

her,”

The next mor
arrived in Joplin
department and
tective Luther La
the letter was
stationed themse
general delivery
be summoned qi
called for.

Minutes stretc!
cast puzzled gla
glanced out at th
fell from low-hai
drew near and M
made a mistake.

Then there wa
McShane glanced
young woman wh

.McLean. She stoo
cepted the letter.
and confront her
she opened the lc

She turned anc
halted, tearing th
the enclosed lette
on her face.

McShane motio
Detective Lasiter.
woman's side an
Luella. Rememlx

\ from?"

She looked up
lips. Then she clu
her breast and bo!
of the office. Detec

. her, ahead’ of McS

reachéd the door :

, could stop her. He

and down the wet
from the buildin;
screamed.

The detective’s |
her arm.’ Then hi
steps and he fell h

arms and legs at


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4 "ated his confession, claiming that he
#nothing about: the slaying of Winfred’

|ipnad only been) the figmen

" He stated flatly that he had s Ay aa the night! :

te River.) |): Amoa Ratliff asked for no appeal and was

/. woman. He realized that his best bet now was.
17, to prove that. Amos Ratliff bei not spent the
i p night nee 3 a yey claimed,

should be introduced and used against him
as evidence in court.

‘In the confession he said that he had ‘be-
lieved that Wimtred Frazier was hoarding a
large sum of money in her hill cabin. He
had been planning to rob her for a long
time. He had suggested the robbery to two
friends but they refused, He then’ decided
to do it alone,

Borrowing a twelve'gauge shotgun loaded
‘with buckshot from his boss, Mr. Key, he
4 aera to go fishing. He hid-in the woods,

e. said,, until late thay night, then ap-

proached the cabin to find a light still burn- *

ing. He went to a window and saw Miss
Frazier undressing for bed.

He then tied his handkerchief about the
lowex part of his face, he confessed, and
‘went to the door, shoved it open and stepped

‘into the roont, yelling to her that it was a

_ holdup. 4 ra tel

: ~The nude woman, startled; whirled to
iface him, then cried, “Get out of here, Amos
Ratliff! Are you crazy?” |

“When she r ized me, I knew I had
ito kill her,” Ratliff stated to the officers,

So 1 did: it.”

‘Tears were streaming down his cheeks

i hoon ‘he had finished the confession to this

point.’
“What ‘did. you do with
the knife?” 5

“Knife?” Ratliff “echoed. ve | didn’t use. a
knife, I. shot; her: with the shotgun.’

A bomb explosion couldn’ have caused
more excitement among the listening: group
than Ratliff’s singular statement, “What are
‘you trying to te]l'us?”.McShane rasped,

“It's the :truth,” Ratliff wailed, “I shot
her.” And no amount of questioning could

islodge him from the statement. - .

| The next morning’s paper came out with

he Hemera story that Ratliff’s confession’

as false. One of those cases where an in:
nt man confesses to a crime he knows!

othin about. Ratliff claimed he had shot

Fi

wary ahs ‘any 00 ou, be oh her when everyone knew she was knifed!
‘ D pi oF fond $4.09 | z he
fa its vente teh:

De LARN aR | shad made the investigation to have not been

|}-able to distinguish the difference between.

At

‘} Coroner Newton flatly stated that it was’
mpossible for a jury, of twelve men, who

oun

inflicted by ‘a shotgun and a knife.
» Ivat

citizens. clambored. for Ratliff's re-,

lease.
And that \afternoon the prisoner) re udi-
new,

' "Frazier. He. said that h s) confession | story ”
of his imagina-
Hon brought on by nervousness and duress,

fishing at-Blue.Hole on A

Sheriff. McShane was ‘in a predicament,
and: he knew ‘it. He questioned Luella.
McLean further but got nothing from the:

He started about the country asking, “Any-
one fishing at Blue Hole on White River
the night Winfred Frazier was killed? Any-
one see Amos Ratliff at the river?”

At first the questions brought nothing
of value, but at last C. M, Arbuckle, an
ardent fisherman of the section, said, “!
spent the entire night there with a party
of friends. We were up and down all that
-part of the river. It would have been im-
possible for Ratliff to have been there with-
out us seeing him—and we didn’t.”

McShane hunted out the other persons in
the party and they substantiated Arbuckle’s
statement.

Then a farmer came to McShane and sdid,
“My kids were hunting our cows the morning
you found Miss Frazier. They were in the
woods near a creek when they saw a naked
man washing his overalls and shirt in the
water, They didn't tell me until yesterday,
but now I'm wondering—”

| McShane was wondering too. Ratliff had

returned to the mill in wet clothing, claim-.
ing to have fallen into a creek. Instead he
had washed the blood from his clothing. . .
The. sheriff went to Mr, Key and examined
‘the gun Ratliff had borrowed. Key said it
had jbeen jloaded with buckshot and that a
load of latge shot like that would constitute
only a) few pellets. McShane ‘found brown
stains on oe gun-barrel that might have been
hlood 5

“I’m tea to Girard, Kansas, and com-
plete this case!” he said, determinately.

Two days later a group of stern-faced men
assembled at the Girard, Kansas, cemetery.
With McShane there was Coroner Newton,’
Prosecutor Johnson and a well-known doctor!
from Eureka Springs. Accompanying these
men were several Kansas officials and a doctor

“from Girard.

An order to disinter Winfred Frazier's
body for the purpose of holding a post-'
mortem. examina had been obtained
from the Kansas Court.

Two diggers removed the body from ithe
grave. Two doctors went swiftly and effi-. |

'ciently to work, And the autopsy revealed a
half dozen pellets of buckshot that had
‘pierced: the victim’s ‘heart.
“IT guess that tells the story and makes}
the case complete,” McShane said, placing
‘the shots in a small bottle. These will be used
,as evidence in the coming trial.
, Amos Ratliff went on trial for his life,
, August 4, 1921, After listenin ing to-all of the
‘evidence, including the signed statement by
the accused, a~jury of twelve grim-faced
' | men found Ratliff guilt of first degree mur-'
“der, The judge immediately sentenced the,
‘convicted killer to death.

,executed in. the electric chair at Little Rock,
"Arkansas, September 80, 1921.

Among the last words. he said to Sherif
‘Ed McShane were: “And to think, all I got»?
out of it was fifty-five cents that she had
left from buying that bag of meal.”

13 Steps to Hell

een soe! Y ms
a Continue vista fea de 39]

4 thirteen: stone ‘nl Coranas Brodie set the:

‘|e time of death at between $ and 5 o'clock

that’ morning}within the time Shirley: was
seen talking with a panpeeme young stranger
ined blocks away, :-
A.check mie gil’
no. man answerin;
was: ean res here, and relatives were posi-|
e. cae ei: with any)

loyers revealed,

emp
¢ suspect's description|) ' linvestigatio

Chet 4)
fellow

\

A oudla wri station house. “Get. someone over (ui

“to, that store on Blackstone where the man
‘and girl werg seen in some kind of gare 1
tion,” he ordered. “Then go on to the a)
ment house, learn what you can of any’ ing?
‘, unusual ‘the tenants there may have seen or -

t

eis

heard. Assign. plainclothesmen cw canvass
the entire neighborhood, check on’ all men |

‘even remotely resembling ‘the’ description
' igiven of this wolf by Mrs. Kinley.”
( Back at his, office, Storms found Detec-

| ‘ve Murphy ewaiting with a rt on his,

on m at the pwankecockeall lounge
‘where the suspect had tried to persuade
«Mrs. Kinle

1

homicide investigator:
““Bartender on duty earlier in the nigh
low _named ” Larry, Mictmeyer# had no

40 drink with him. Ri ported the |

j

+

Hy

trouble remem!
described him,
out on the proy
face that wasn’t
for the smooth n
and the kind of
“Been hangin;
quired Storms
“No, it was th
bered secing hi
and a cigaret gir
that he aaot ‘
mistaken. Here
book from his |
words describing
“He wasn't fr
It was just the »
his black eyes x
my clothes. And
him down, he k
whom someone
eyes went glassy
actually slaverin

Before nigh

complete failure
Mrs. Kinley who
anything to help
tigation.
Consolidatin
Mrs. Kinley, the
the cigaret girl,
slayer to be abo:
wide shoulders ar
hair and cold b!
to have been d:
with a light top «
polished shoes an:
it was suspected,
dyed Navy or An
Although sever
general descriptic
the next three di:
nishing alibis—th
morning of the :
advanced than th
the crime was d
That day Biai
attorney in charge

| | together all men
' ) made the followir

“We will find |
, is a maniacal de
/ met her for the
or two of her de
_ recently arrived j
| it’s very probable
| —deathly afraid ;
| that his descriptio
f Cast. ”

4 Even as Storm:

| again over the w

| hours, two Harp:
|, | teered some signif

Both these il
or

1 ue of the Licalzi

sided with her ma
had seen, within
baa, answering
dly-wanted «i
him wandering bi

|| the Licalzi residen

An immediate
the neighborhood
of learning if any
the vicinity had 1
of the slayer’s de:
being done Coror
Hs as examinati:

e index fi a
had’ been wp
with the assailant.

“Not a trace of z
the torn fingernai
i a cA as mi

P t on a
“pointed out. “Th:
, torn that nail when

Hl z __ harasurfaced obje


Execution to be scheduled |

for brain-damagedimurderer

LITTLE ROCK (AP) — The
way has been cleared for a brain-
damaged murderer to be execut-
ed. :

‘US. Dist. Judge Henry Woods
on Wednesday lifted a stay of ex-
ecution that had’ kept the state
from setting an execution date
for Ricky Ray Rector, 39; of Con-
way.

Rector was convicted in No-
vember 1982 of capital murder
in the death of Conway police of-
ficer Bob Martin. He: was con-
victed of first-degree murder in
November 1981 for the shooting
death of Arthur Criswell of Mor-

rilton. Rector shot himself ir.

the head after shooting Martin.
Surgery to remove the bullet:

frdim Rector’s head resulted in:

* lobotomy, leaving him mentally

impaired.
Attorneys for Rector have ap-
pealed his execution for yeags,

paying a mentally impaired per-
‘son should not be put to death.
‘The case has involved mental

exams, competency hearings
and requests for retrial. ?
Execution dates for Rector
have been set and stayed three
times. ~
Rector last week asked Judge

Woods to delay ruling on a state’

motion to dissolve his stay, so he
could seek another mental ex-
amination. Woods said Wednes-

* day that the mental examination

Rector's attorney is seeking

would not justify keeping the
stay of execution ineffects: ;

Rector lost: a US. Supreme |
Court appeal June 24 Justice
Thurgood Marshall wrote a six-
page dissenting opinion three
days before resigning from the '
court.

The high court in September |;
denied Rector’s petition for the '
court to rehear the case.

Deputy Atty. Gen. Jack Gillean
said that when the judge’s order |
lifting the stay is delivered to!
Gov. Bill Clinton’s office, Clin-:
ton will have 10 working days to!
set an execution date. The ex-;
ecution must fall within 30 cal-|
endar days, Gillean said.

=

MEMPHIS CTEww-)
COMMERCIAL APPEAL

Mon. wov- Il, P91

RRKAWSAS

Judge'rules

ote lt nm wt *s

nmate.

; ty oe a

fit for oeeeition ¢ ta

BY LARRY AULT
Democrat Staff Writer. ’ , od if

The execution of death->
wew inmate Ricky Ray Rector¢

can proceed because he-~i

not incompetent and undena®

stands why he was sentenced;

4y the murder of a police offi-y.
-cer, U.S. District Judge ripaciadld

Woods ruled Wednesday.

.«Rector’s’ death sentence —
came after his‘ conviction for::.;
the March 24, 1981, murder of...
Gonway police officer 7 ‘Bobs.
rtin. - «utes Darah f
sq ector | appealed his. ‘send,
t8nce to federal court, claims
ing it would violate the 2
Eighth “Amendment to‘; j the #
WS. Constitution, which’ pro: -

técts against cruel and “unu*
sual punishment. ~?

a4 re Py
= ae ‘petency™ was * 3 raised ° oe ‘his
- state court trials, but the trial]
‘judge found ‘Rector. Lomipe,
tent to'stand trial.” 28

teat pendent:

eae ee eee

“During the’ Siseal’ to ‘fed-|

eral court, Woods conducted,
2*a- hearing’ Dec. 7, 1989, on!
-whether Réctor’s *' constitu.
tional rights-would ‘be-vio-
: lated if he were executed for |
_Martin’s murder. a ae

‘In a 22-page order issued |

Wednesday’ 1», Woods “Said: 4

“There was: abundant ' -evi- |

‘dence in: support. of the.trial |
judge’s... determination ; that
‘Rector :;wasy competent ‘to.
stand trial’for the murder of |
officer Bob Martin.” i‘: = hae
® ‘Woods said:his own inde-::
‘teview: of the’ evi- :

‘The ‘Eighth ‘ Amendment:*: dence’:.presented :‘at* state '
prohibits a state from execut?* ‘court proceedings and at:an

ing an insane. _prisoner,
Woods said. ~— -: Et tity
4sA few moments after Ree

-. appea

tor shot and killed Martin: atigetand trial for.-Martin’s maT. |

Rector’s mother’s home -in’ ¥#der

Faulkner County, he ‘at-.
tempted suicide by shooting .
himself in the forehead. The ©
bullet entered the front of his

brain, leaving a wound that _

amounted to a lobotomy.

The shootings occurred
after a search by Martin for
Rector in connection with the
murder of a man March 22,
1981, at a Conway restaurant.
“Rector was tried and con-
victed for the murder at the
eatery and sentenced to life
in prison. He later was con-
victed of capital murder in

‘Martin’s death and sentenced
to death.

The issue of Rector’s com-

DEMOCRAT

€:: meh Soll»

it «] find that the petitioner:

Fis aware of the punishment,

‘its implications and the rea-
sons he is about to suffer it,”

Woods said.
“I further find that Rector

has a basic, rational under-

standing of the reason why he

has been sentenced to death
‘>and why he is presently on

death row as a result of being
convicted of a capital of-
fense.” —_-

Woods also said Rector

‘was at all times represented
by “able and conscientious ‘

counsel and has been men-
tally able to assist them in his
defense.”

THURS.

hearing in federal -
‘court in December convinced |
»him- Rector was competent to |

in44~ Jo


Z66I ‘Gz Arsnuve ‘Avpinyes

NOIN| ODAIC NVS FHL
Yoo

,

Clinton home
for execution
of cop-killer

ASSOCIATED PRESS

VARNER, Ark. — Gov. Bill Clin-
ton left the Democratic presidential
campaign trail yesterday to be in
Arkansas for the execution of a
brain-damaged cop-killer.

Rickey Ray Rector, 40, was exe-
cuted by injection last night. Earli-
er, the U.S. Supreme Court with-
out dissent denied a last-ditch ap-
peal filed on Rector’s behalf in state
and federal courts.

The execution was delayed for
50 minutes because medical per-
sonnel weren’t able to find a suit-
/ able vein in which to inject the solu-
tion, prison spokesman David
White said.

Asked if he wished to make a
final statement, Rector said: ‘Yes.
I got.baptized and saved.”

The execution began at 9:50
p.m. CST, and Rector was pro-
nounced dead at 10:09 p.m. by Lin-
coln County Coroner Jimmy. Haw-
kins.

Clinton denied clemency to Rec-
tor on Thursday. Rector was the
first black executed in Arkansas
since 1960. |

The execution could help Clinton

distance himself from his. party’s.....). |
soft-on-crime image, said some po-

litical observers in New Hampshire,

site of the nation’s first primary on ..

Feb. 18. — )

“{ think the death penalty is a
trump card for being tough on

crime,” said Kimberly Cook, presi-
dent of New Hampshire. Citizens. .

Against the Death Penalty.

Clinton has refused to talk about —
political implications of the execu-
tion. He was{ unavailable for com-
ment yesterday; his office and cam-
paign staff said he wouldn't give
any interviews. ~

The five-term governor. has
scheduled 68 executions during his
11 years in office. Only two in-
mates had previously been put to
death during his administration,
both in 1990.

Rector was sentenced to death

for killing patrolman Bob Martin of

Conway in 1981. Police said Martin
had gone to the home of Rector’s
mother seeking: Rector for the
shooting of three people, one of
whom died. \ — US

After shooting the ‘policeman,
Rector shot himself in the head.
The wound and emergency surgery
that followed caused brain damage
that officials say had the effect of.a
frontal lobotomy.

Defense attorneys said the brain —
damage: made Rector incompetent
to be executed, but state and '‘feder-
al courts repeatedly ruled that; Rec-
tor met’ the federal standard for
compétency:’He understood: what
he did wrong and the extent of his
punishment. = = ©
: - ad

yn


ARKANSAS 24 JANUARY 1992 LETHAL INJECTION OR ELECTROCUTION
RICKY LEE RECTOR, (Black), age 39. Rector was convicted of the 1981 murder of a

white police officer. After the shooting, Rector shot himself in the forehead.
Surgery to remove the bullet from Rector’s head resulted in a lobotomy, leaving him
permanently mentally impaired. Psychologists have said that Rector will be
incompetent forever.
TAKE ACTION, CONTACT: Gov. Bill Clinton

State Capitol

Little Rock AR 72201

(501) 682-2345

FAX (501) 682-1382

OKLAHOMA LETHAL INJECTION
ROBYN LEROY PARKS, (Black), age 37 has been on death row since October 1978.
He was convicted of the murder of a gas station attendant. Mr. Parks was denied
by the Pardon & Parole Board 4-1 for a recommendation of clemency. A
execution date setting hearing has been scheduled for January 10, 1992. The
Governor does not have executive clemency power without the recommendation
of the Pardon & Parole Board.

TAKE ACTION, CONTACT: Gov. David Walters | OK Pardon & Parole Board
State Capitol ~~ 4040 N Lincoln Blvd. Ste 219
Oklahoma City OK 73105 Oklahoma City OK 73105
(405) 521-2342 (405)427-8601
FAX (405) 521-33353 FAX (405) 427-6648

OK Pardon Board: Ms. Jari Askins, Chair, PO Box 391, Duncan OK 73534
Mr. Marzee Douglass, Vice-Chair, PO Box 2297, Ardmore OK 73402
Ms. Carolyn Crump, PO Box 50043, Tulsa “OK 74150-0043
Mr. Farrell Hatch, PO Box 1099, Durant OK 74702
Mr. Carl Hamm, PO Box 122, Perry OK 73077

UPDATES- Donald Harding, Arizona, received a stay but does have a April 6, 1992
execution date scheduled.

Johnny Frank Garrett, Texas, received a 30-day reprieve from Governor
Richards on January 6, 1992. (Letters to Governor Richards are
encouraged. Send them to: Governor Ann Richards, PO Box 12428, Austin TX
78711-2428. Phone (512) 463-2000 or FAX (512) 463-1849)

There have been 157 executions in the United States since the reinstatement of the death
benaity in 1976.

National Execution Alert Network
c/o NCADP

1325 G St. NW LL-B

Washington DC 20005


126

said he was coming back to deal with the
execution issue with Rector. I mean,
who’s he gonna /a/k to, if not the de-
fense attorneys?” But, he relates, “I was
told again and again, ‘We've given him
your message.’” Nonetheless, Rosen-
zweig pleaded throughout the morning
to anyone he could get on the line,
“Please, please have him call me. Be-
cause there’re some things he needs to
know.”

' Rosenzweig, as it happened, had
grown up with Clinton, in Hot Springs,
and his father had been Clinton’s pedia-
trician. After graduating from Princeton
and studying law at Southern Methodist
University, in Dallas, Rosenzweig had
returned to Arkansas to develop his
practice. A pale, somewhat rumpled
man, with a beard prematurely frosted
after only forty years of age, Rosenzweig
now operates at a constant pitch of ur-
gency from a Little Rock office crammed
with computer equipment, books, car-
tons, and papers. Here, he continued
trying to reach Clinton by phone, his
final, thin hope being that in considering
Rector’s situation Clinton “had been
dealing totally off paper, just the legal
record of it.” He explains, “I doubted
deeply if he had actually talked with
anyone who really knew Rector and the
actual condition he was in. He needed to
hear an affirmation from somebody who
actually knew Rector and whom he
knew, hear it himself ear to ear, plainly,
that this guy was indeed truly zombied
out, seriously, seriously mentally deficient,
just no doubt about it.” Also, Rosen-
zweig says, he calculated that “the poli-
tics of it he should be aware of as well—
that Rector had been convicted by
an all-white jury, and this was
something that just might come
to waylay him down the road.”

But Clinton had now with-
drawn into a resolute seclusion in the
Governor’s Mansion. What principally
occupied him through that last day of
Rector’s life were continuing emergency
sessions with aides and supporters about
the Flowers crisis. He finally decided on
an appearance with Mrs. Clinton on “60
Minutes,” in a special broadcast that
Sunday after the Super Bowl, which
held the promise of an audience of
twenty-four million households. “This
weekend is a critical time for him,” one
adviser told the Boston Globe, and
Clinton’s campaign manager, David
Wilhelm, explored with reporters in

Little Rock throughout the day the vari-
ous hazards posed by the issue. James
Carville, the campaign strategist, later
reflected, “I think everybody under-
stood . . . it was high noon.”

In the meantime, in Cummins,
Chaplain Pigman paid his last call on
Rector, in the prison’s visitation center.
As the two sat at a small round table
there, Rector in leg irons and manacles
and chains, “I had church with him
again,” Pigman says. When Pigman was
stirring to leave, Rickey said, “Aren’t we
gonna sing, Chaplain?” Recalling this
ten months later, Pigman—a small,
crisply neat, graying man in glasses—
suddenly flushes, and his eyes blur with
tears. “And we sang together for the last
time ‘Amazing Grace,’” he says, and
then the little Sunday-school tune that
was Rickey’s favorite, their voices echo-
ing over the tin shed: “Jesus loves the
little children, all the children of the
world. Red and yellow, black and white,

they are precious in his sight. Jesus loves.

the little children of the world.”

As the day wore on into the after-
noon, even the warden at Cummins,
Willis Sargent, who was a burly former
Army noncommissioned officer, “seemed
coming apart the closer it got,” accord-
ing to Stella’s pastor, the Reverend
Kelan Motton. Sargent confided to
Motton, “Rickey’s a harmless guy. This
is not something I want to do.” Ten
months later, Sargent remarked, shifting
uneasily behind his desk, that most of
the public “just doesn’t know how sensi-
tive we are,” and he went on to explain,
“I dread to see these days approach. It’s a
hard business. You have to work hard to
prepare yourself.” He conceded that “ex-

ecutions are a part of the job that I

accepted” but said, “I have mixed

emotions.” His voice sank to a

murmur as he went on, “Legally,
it’s correct, but morally—morally—I
don’t know.”

Around four that afternoon, Rosen-
zweig, in a frenzy of frustration over his
failure to break through to Clinton,
finally complained about his isolation to
a local television reporter who had come
by to interview him about the execution.
Shortly thereafter, he left for Cummins,
driving south out of Little Rock through
darkening forestland, in about half an
hour entering the northern outskirts of
Pine Bluff on the Martha Mitchell
Highway, passing through a shabby
fringe of weedy auto scrapyards and

high-tension power lines. Then, at one
large intersection, he pulled into a Road
Runner filling station, across from a
Burger King and a Western Sizzlin’
Steakhouse, and, from an outside pay
phone, called his office. He was told that
shortly after the local newscast aired his
protests about Clinton’s unreachability
Clinton’s office had called with a request
that Rosenzweig phone Clinton at the
Governor's Mansion.

For a stretch of minutes then, Rosen-
zweig tried to get through to the man-
sion from the pay phone outside the
Road Runner station, as traffic whisked
past him on the highway—the warm
January afternoon had now begun to
dim and cool—but he kept getting a
busy signal. Finally, he began frantically
trying to call from both pay phones on
the wall of the station, in rapid alterna-
tion, but he met with only recurrent

beeps on both. He plunged back in his '

car and drove on through Pine Bluff as
far as an E-Z Mart beside a Conoco gas
station. From a pay phone at one end of
the store’s brick front, he at last man-
aged to get through to the Governor's
Mansion by first calling his office, telling
his staff there to put him through, and,
when someone at the mansion informed
him that Clinton was in a meeting, in-
sisting that Clinton at least be told he
was returning his call. And after a few
moments Clinton’s voice came on the
line: “Jeff, how are you?”

“Not real good,” Rosenzweig remem-
bers saying. “How’re you?”

With just the smallest hang of a pause,
Clinton said, “All right,” with a sigh—
his voice “real glum,” Rosenzweig recalls.

Rosenzweig quickly undertook to de-
scribe Rector’s condition. “The thing
you got to bear in mind is, he really is
greatly mentally defective. He’s a zom-
bie, he doesn’t understand death is per-
manent, he’s a child. If you’re gonna
execute people, this is just not the
appropriate one.”

“Well, why did Henry approve of it if
it’s as bad as you say it is?” Clinton

asked, referring to Henry Woods, the’

federal district court judge in Arkansas
who had denied Rector’s appeals.

“His hands were tied because of the
way the case was presented to him,”
Rosenzweig declared, and then posed to
Clinton what in fact amounted to a fun-

damental issue about the whole system.

of law itself—that considerations of sub-
stance about Rector’s true situation had

“And

128

sifted out of the process by the time it
reached: the higher courts, so that the
judges had been obliged to defer to
Hartje’s local ruling of competency.
Rosenzweig then pleaded, with trucks
booming by on the highway beside him,
“The guy is truly, truly a human blank,
just pathetic. If there’s anything you can
do, please do it—”

“Where are you?” Clinton suddenly
asked.

“Where am I? I’m at a pay phone at a
convenience store in Pine Bluff—I’m
headed on down to the prison.”

But Clinton ended their exchange
with only a noncommittal geniality.

Rosenzweig now admits that he had
made the effort to reach him with only
minimal expectations, in view of the for-
midable political barometrics surround-
ing Clinton then. “But I thought he just
might not want to be seen as merciless.
And that we might be able to get a re-
prieve that could shift it into, you know,
a less political time.”

He drove on out of Pine Bluff. It was
dark by the time he reached Cummins,
and a hard cold had come into the Janu-
ary night.

Earlier that afternoon, at Cummins,
Rector had asked the guard “what time
the tie down team would come to get
him,” the log says, and shortly afterward
fell asleep, snoring. Around one o'clock,
a party of three men arrived, including
an inmate, to prepare for Rector’s short
passage that night to the death chamber.
The log records, “All locks were lubri-
cated and visually examined. Inmate
Rector layed down on the bunk quietly
and didn’t say anything.” As soon as this
operation was finished and the men left,
though, “Rector walked to the center of
the cell and began dancing and howl-
ing.” Presently, a pint of black-walnut
ice cream was brought to him, and he
spooned it down while sitting on the
edge of his bunk in his shirt, shorts, and
socks. But upon finishing it he began
bawling out, “Cold Duck! Cold Duck!”
At 2:52 P.M., he was lying on his right
side, his back to the guard, with his legs
stretched out straight and stiff, his feet
clamped together, and he was howling.

A 2:57 P.M., his final meal arrived,
with Rector watching its ap-
proach and snapping his fingers in im-
patient glee: one steak, well done, fried
chicken in heavy gravy, and brown

beans, with three rolls, cherry Kool-Aid,
and a plump helping of pecan pie. He
set to it, sitting on his bunk and facing,
as he raptly chewed, a blank wall. He got
up once to proclaim, “Chicken is good.”
When he had finished, he wiped his
hands on a towel and ambled about a bit
with his paper cup of Kool-Aid. The
death-watch log notes that at this point,
after his tray was taken away, “Kept the
pecan pie.”

Motton, Stella’s pastor, now reflects,
“The way Rickey would always eat, he
would always save part of his dessert to
eat just before he went to sleep,” and
Pigman says, “He was clearly planning
to come back when the whole thing was
over with. Rickey otherwise would have
never left anything like a slice of pecan
pie uneaten, never.” Jewell had earlier
declared, during one plea for a stay of
execution in Little Rock circuit court,
“When you sit down and, face to face,
explain to somebody that they're going
to die, and then the next thing they
say is ‘Man, when I get out on the
street,’ or, you know, “Well, what’s going
to happen next?’... it leads me to the
conclusion . . . that he doesn’t grasp that
he’s going to die.”

Motton remembers that when he vis-
ited Rector about thirty minutes after his
last meal “he started asking me again
about some friends from his childhood,
twenty years ago, some of whom had
died, even though I'd told him over and
over they were dead. Even some of the
people he said he wanted to be pallbear-
ers at his funeral, when I asked him
about that, they were already dead,
though I’d told him about that, too.” Af-
ter praying with him, Motton left, and
Rector lay back on his bunk and
watched “Geraldo.”

Soon, though, he began repeatedly
rubbing his forehead, under the half-
moon scar, first with his left hand, then

HHI NEW YORKER, FEBRUARY 22, 1993

with both hands, then with his right. A
little after six o'clock, after asking the
guard exactly what time he was sup-
posed to go to the death chamber, he
watched a news story about his execu-
tion, now only a few hours away, which
reported that all petitions for a stay and
commutation had been denied, and he
began mumbling, “T’m in trouble. I’m in
trouble.”

Rosenzweig arrived at Cummins
around six o’clock and was taken in a
prison car to the building—it was vanilla
white—that housed the death chamber
and the holding cell containing Rector.
He found that Rector’s beard had been
shaved off, leaving his massive round
face now slickly bare—“He did it be-
cause he knew I didn’t like it,” Stella says
of the beard—and Rector told Rosen-
zweig, “Yeah, I wanna look good.”
While they were talking, a newscast ap-
peared on the television set above them
about Clinton’s continuing political
woes over the Gennifer Flowers affair,
and it was then that Rector said with a
grunt to Rosenzweig, “Don’t none of
that matter, I’m gonna vote for him for
President.”

Left alone again for a while, Rector
lay back on his bunk, his hand lying
across his forehead, his legs drawn up,
and presently he inquired of the guard,
though he was to be cremated, whether
the guard had any idea when he was to
be embalmed. Four minutes later, he
was standing at the bars of his cell, chat-
ting with the guard, according to the
log, “about opposim and racoons and
their teeth.” Later, Rector spoke to
Rosenzweig and Jewell about how he
would be strapped down when the hour
came, but then he began chatting to
them about picking pecans.

At eight minutes after eight that
evening, Rector was given a short-
sleeved white shirt, white pants, and
calf-length white athletic socks to
change into. The last death-watch log
entries report, “8:21 PM Inmate Rector
apears to be nervous, pacing and asking
questions... continues to pace in cell
and is asking questions about dieing. . . .
8:27 PM Tie-down team in death cham-
ber lobby.” At 8:36 P.M., Rector was
taken out of the cell and led, surrounded
by seven large prison guards in black
helmets and carrying riot shields, to a
tan metal door bearing the sign “Exit”: it
opened onto a turn into a short corri-

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STEAK AND FRIED CHICKEN

dor that led into the
execution chamber
itself.

pote nine o'clock,

a somewhat dis-
parate delegation of
thirteen witnesses was
assembled by prison
officials to watch the
execution from what
the prison called, with
a certain mortuarial
delicacy, “the viewing
room.” They included
Motton, Jewell, and
Rosenzweig, and also
four Faulkner County
law officers, among
them Lieutenant Rod-
ney Pearson. One of
the officers explained
his presence there this
way: “I wanted to see
justice served. You
don’t get that many
chances.” Pearson
now says, “I was the
only one left in the
department who was
originally associated
with the case, and I went as a private
citizen on behalf of those others. I
wanted to close the books on it.”

When Pearson arrived at Cummins,
with others driven there in a van from
Pine Bluff, and they all got out into the
cold darkness of its hushed grounds, he
noticed “about a hundred yards away
from the death house, parked back in
shadows with its parking lights on, this
very large black stretch hearse, like a bird
of prey.” He said later, “It was an omi-
nous feeling to see that hearse standing
by to pick up the body of a human being
that was still alive at that moment.” The
group was conducted into the view-
ing room—a concrete-block chamber
painted cream, under low white ceiling
tiles and with a streaky tan vinyl lino-
leum floor. Orange plastic chairs were
ranged in three precise rows before a
wall of four large glass panes, like de-
partment-store windows, across which a
black velveteen curtain had been drawn
from the other side. Affixed to opposite
walls near the ceiling were two little
boxes—one an automatic air-freshener
and the other an insecticide spray
mechanism. “Mosquitoes really get in

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here in the summer,” a prison guard po-
litely explained when I visited the facility
about ten months later. Also on the
chairs that night were air-sickness bags,
and a nurse was standing by to attend to
anyone who might fall ill from what the
group had gathered to observe.

Pearson and two other Conway po-
licemen took seats in the front row,
beside the Reverend Mr. Motton, who
had brought along a small Bible. The
lighting in the room was discreetly
dim, but along the top of the black cur-
tains was a streak of light from the room
beyond. Pearson now admits that
“although I volunteered, I wondered
if this was a good idea, when you're
sitting there in a darkened room, and
you know you are about to witness the
death of a human being, a planned
execution.”

As the minutes passed, with a sub-
dued rustle of voices, and an occasional
stirring of the curtain from the passing
brush of someone behind it, the group
began to sense that something was
amiss. Eventually, the director of the
Department of Corrections, Art Lock-
hart, opened the door from the hall

129

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my being a little out of control!”

to tell the assembled spectators that
medical technicians were having some
difhculty locating a serviceable vein in
one of Rector’s arms. With that, he
stepped back, and the door was locked
after him.

As it turned out, the witnesses had
to sit waiting for a full hour, hearing
from behind the curtain periodic hand
slaps on skin and sudden great grunting
groans (“That’s him,” Rosenzweig said
once, from his seat in the last row) as
the medical technicians made yet an-
other stab at a vein. One witness, a
sheriff from a neighboring county, ob-
served to everyone after another groan
from behind the curtain, “Sounds like
they're really having trouble.” In fact,
the medical crew was soon increased
from two to five in an urgent scrim-
mage—if the execution didn’t take place
before midnight, it would have to be
postponed until another date decreed by
Clinton—to find a vein that would not
wilt at the needle’s insertion, a difficulty
later attributed to Rector’s bulk and his
regular dosages of the antipsychotic
drug Mellaril. Rector himself, it is re-
ported, once obligingly tried to help


gO

them find a suitable vein. At one point,
after applying a local anesthetic, the
medical crew employed a scalpel to slash
into the crook of his arm, in what the
attending supervisor, John Byus, a
former military medic, afterward de-
scribed as a “cut down” method of
finding a usable vein. “He gave us quite
a go,” Byus admitted to the Log Cabin
Democrat, remarking that he himself
was not “a great advocate of injection,”
and preferred the old sure simplicity of
electrocution. During that hour, eight
outcries from Rector were heard. In the
stillness in between, the automatic air-
freshener on the wall would occasionally
discharge, startling the people in the
chairs below.

All this time, back in Conway,
Stella, two of her sisters, and their fami-
lies were collected in her small den
watching television for further reports
from Cummins. “We were all sitting
holding hands,” Stella recalls. “Just us,
now, all alone.” And, with the periodic
announcements of the continuing delay,
one of the sisters finally cried, “Lord,
please lead him on! Lead him on!”

Shortly after nine o'clock in Little
Rock, Carolyn Y. Staley, the director of
the Governors Commission on Adult
Literacy and a particularly close friend
of Clinton’s—the daughter of a Hot
Springs preacher, she grew up next door
to him—left Temple B’nai Israel,
where, although she is a Baptist, she
sings every Friday, and heard on the car
radio that Rector’s execution was stalled.
Staley, who is deeply opposed to the
death penalty, remembers thinking, Oh,
my God, e's not dead yet, and when she
got home the thought came to her:
Well, maybe he still doesn’t have to die.
She phoned Clinton at the Governor's

Mansion, prompted by concern over his
gruelling week. It was then around
nine-thirty.

Staley has always refrained from any
strenuous discussions with Clinton
about the death penalty, because, she
says, “I know that Bill comes from some
other place on this that I don’t under-
stand. He very much believes in life. I
really believe he doesn’t like capital pun-
ishment. But the people of the state he
governs feel very strongly about crime
and very strongly about the death pen-
alty, and he has come to his own reli-
gious-slash-political terms with it. I
don’t believe he has any guilt about
those things—executions—because he
feels it’s something he just has to do.”
Nevertheless, she says, that accommo-
dation has not been without its own
personal toll on him. One night after an
earlier execution, Staley says, Clinton
telephoned her and said, “I wish I'd
known you were home all this time. I've
been here all alone.” He explained that
because he had to remain bunkered in
the mansion on the night of an execu-
tion, in order to be immediately reach-
able, he had “no distraction” from
dwelling on what was keeping him
confined there.

When Staley telephoned the man-
sion on the night of Rector’s execution,
a guard answered, and she said, “Is Bill
in?” The guard, she relates, told her,
“He’s in conference now. He’s sur-
rounded by people.” Staley said, “Would
you just tell him that Carolyn called and
I’m praying for him?”

Just moments later, she says, the
phone rang. “And it was Bill.” Clinton
began the conversation, she recounts,
“speaking in a whisper, these low, low
whispers, kind of like, ’m not able to

breathe, I’m destroyed.’” She told him,
“I just wanted you to know that I’m
praying for you about the execution to-
night,” and he replied, in a groan, “It’s
just awful. Just terrible, terrible.” As she
recalls it now, “I heard in his voice a

self—a depth of anguish—I’d never,

never heard in him before.” Usually, she —

says, when Clinton was showing grief
“he still had a very composed and
statesmanlike demeanor.”

She then told him, “You know, he’s
not even dead yet.”

“What?” she remembers him ex-
claiming. “What?” From his startlement,
it was obvious to her that the confer-
ence in which he had been absorbed
had not exactly been a “blow by blow”
account of Rector’s fate. He then said,
“I can’t talk long, because Hillary just
got home and we need to talk.”

Staley told him, “Bill, I’m so sorry.
We've had two executions this week,
haven’t we?” She meant the Flowers
allegations. “He just groaned,” she re-
members, and they moved on into
discussing that topic. Ultimately, she
says, the conversation wound up “much
more about the Gennifer Flowers
matter” than about what was happening
to Rector at that moment down at
Cummins.

~~ last, the black curtains over the
windows of the viewing room
were pulled back, to reveal an anti-
septically stark room, where fluorescent
lights cast a shadowless glare on white-
painted concrete-block walls. And on
a hospital gurney that was bolted fast
on its trolley wheels to the vinyl-tile
floor, over the metal-plate fixtures
for the electric chair, lay the vast bulk
of Rickey Rector, bound with blue and

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Standing by

1292

The other witnesses who testified at th

hearing before me had not seen him for six

or seven years. Their opinion on hi

Present condition was based on the reports A. Well
from Springfield and the deposition of Dr.
Reuterfors. Only Rector’s sister had seen

him recently, and I do not accord her testi
mony substantia] weight.

Court in Ford v, Wainwright, 477 U.S. 399,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) and

also the American Bar Association, I am
bound by the former Standards. While the

latter are interesting, they have no legal
effect.

The evaluation by Drs. Leach and Reu-
terfors of the mental condition of Ricky
Ray Rector in accordance with Ford y,
Wainwright, Supra, was summarized as
follows: i |

understanding of the reason why he was
on death ‘row. Mr. Rector understood
that he had been convicted of a capitol
[sic] offense. Mr. Rector also appeared
to understand that the consequence of
that conviction was that he was sen-
tenced to die. Mr. Rector also stated on
a number of occasions that he preferred
to die rather than endure the conditions .
on death row in the Arkansas Penitentia-
ry. In the opinions of the undersigned

examiners, Mr. Rector Satisfies the com-

petency standard contained in Ford y,

Wainwright. That is, it appears that no

mental] illness or defect prevents Mr.
Rector from being aware of his impend-
ing execution and the reason for it.

Initial Forensic Report, p. 5, Ricky Rector,
8-8-89 (PX 1).
In his deposition Dr. Reuterfors Stated:
Q. Now we're going to get into your
discussion and your opinions, and
we've ‘been—we’vye probably’ been
through most of what is in here by
going through the report, but you’ve
Stated two opinions based on two
Standards in this Section .of your re-

727 FEDERAL SUPPLEMENT

Springfield, Missouri federal] correctional
facility, where | Sent Rector for evaluation. }

Although the
Springfield team made an evaluation under

the standards promulgated by the Supreme

e Setting. out here, could
. what the. standard wa.
S were applying there?.

that standard is whether or not, the
defendant, due to mental illness, or

situation and his impending etna
tion and the reasons for his being
Sentenced to death. ‘That's escrts

Standard is.
Q. And under that Standard, your’
ion was? AE @

In my opinion, Mr. Rector is'g
meet that standard. He appreciates

understanding of his Situation... And;

according to that standard, I believe 4

that he’s competent. Togs
PX 11, pp. 88-89. g4

In one respect the testimony from th
psychologists on behalf of Mr. Rector. I
the hearing before me was somewhat dam-,”
aging to him. They testified that based on, |
the test and reports from Springfield and.
the deposition of Dr. Reuterfors, Rector’s. we
mental condition has improved since. they - a
saw him in 1982. west

e

ts OCHS
[3,4] Based upon the testimony and ex,
hibits introduced in the hearing before me/
on December 7, 1989, I find that Rector’s}
mental condition is such that the State of.
Arkansas may legally proceed to execute:
him. “[{T]he condemned prisoner does not;
enjoy the same presumption accorded a de;
fendant who has yet to be convicted or; -
sentenced.” Ford y, Wainwright, SUPTAs. .
at 411, 106 S.Ct. at 2602. But under, the;
Eighth Amendment a State is prohibited; .
from carrying out a sentence of death upon; .,
a prisoner who is insane. Jd. at 410, 106, is)
S.Ct. at 2602. When the issue is raised j aij:

habeas cor
Court must
has not bee
corded petit
a fair and f
lack of con
statutory pr
supra, it v
Rector’s cas
before me o
make the fa
tor’s present
down in Fo
whether his
from compr:
penalty or it
S.Ct. at 2605
Ford v. Wai
ty opinion, a
Powell was 1
ment. Justi
ring opinion:
[P]etitione:
insanity a;
On the con
convicted a
have been:
al, or his
sufficiently
question fc
therefore n
titioner rer
tence is to
quire a sub
insanity m«
process.
Id. at 425-26

Here no tk
was required,
full and fair r¢
tency issue.

Unlike issue

tion of petit

cally subj
cases). Anc
whether the
in a particu
termination
pert analysi:
“subtleties :

Powell, J. con
2610.


Q

1294 727 FEDERAL SUPPLEMENT

Springfield examiner: “The patient re-
ceived a verbal intelligence quotient of 69,
a performance intelligence quotient of 74,
and full scale intelligence quotient of 70.
This full scale intelligence quotient placed
Mr. Rector right at the cut off for mental
retardation.” (PX 1, p. 3).

The Springfield evaluation is the only
current assessment of Rector’s mental con-
dition. Except for petitioner’s sister, none
of the witnesses at the habeas hearing had
seen him for seven years. Although Penry
does not deal with the issue here presented,
there is language in Justice O’Connor’s
separate opinion in Part IV(c) which hardly
gives comfort to petitioner:

In sum, mental retardation is a factor
that may well lessen a defendant’s culpa-
bility for a capital offense. But we can-
“not conclude today that the Eighth
“Amendment precludes the execution of
any mentally retarded person of Penry’s
ability convicted of a capital offense sim-
ply by virtue of their mental retardation
alone. So long as sentencers can consid-
er and give effect to mitigating evidence
‘of mental retardation in imposing sen-
tence, an individualized determination of
whether “death is the appropriate pun-
ishment” can be made in each particular
case.

Id. at 34.

In Rector’s case the sentencers con-
sidered and gave effect to mitigating evi-
dence of mental retardation in imposing
sentence. As Justice O’Connor noted: “A
number of states explicity mention ‘mental
defect’ in connection with such a mitigating
circumstance.” Jd. at 31. This statement
is footnoted to the statutes of ten states,
including Ark.Code Ann. § 5-4-605(3).
The statute was scrupulously followed in
Rector’s case by the instructions to the
jury, as noted supra. The reason for the
remand in Penry was that the jury was
given no opportunity to consider Penry’s
mental impairment as a mitigating circum-

stance. In the Rector case the jury was

fully accorded this opportunity.

In summary, my findings of fact are as

- follows:

(1) There was abundant evidence n.sup-
port of the trial judge’s determination thaty
Rector was competent to stand trial f
murder of Officer Bob Martin. 22;

(2) On the basis of my own indepe a
review of the evidence presented in’
state court proceedings and at the’
hearing before me, I find that Rector was
competent to stand trial in November of

1982. , eC.a
(3) I find that the petitioner oe aware. pee

(4) I further find that Rector has si a :

rational understanding of the reason n Wh

(1) The result of the competency h i,

in state court is entitled to the presumpti n

U.S. 539, 101 S.Ct. 764, 66 L.Ed 2d
(1981) and Davis v. Wyrick, 766 F. 2d
(8th Cir.1985).

Rights were not violated in the state court
proceedings. Petitioner was at all: times
represented by able and- conscientious —
counsel and has been mentally on to as:
sist them in his defense. oe

(3) The petitioner’s present mental condi Le
tion satisfies the standards of Ford _ v.
Wainwright, supra, and his execution |

would not offend the Eighth Amendment.
thas

fe
oe

O.: & KEY NUMBER SYSTEM

sums

UNITED STA

PREMISES D
BOX 61-C,
With all Bu
and Improv

C.

United.
\
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In a civil
ant to the Cor
vention and G
Oren Harris,
that there w:
established tk
addressed to
erty, that cor
on lessor’s |
made payable
sor’s purse, t
finding that r
itate illegal r
warrant forf:

Order in

1. Drugs an

Unlike a
ture proce€
Drug Abuse
an in rem ci
erty of a p
apart from :
ed at the pe
ty. Compre
tion and Cor
amended, 21)

2. Drugs ar

Term “
feiture pro:
Drug Abuse
interpreted
prohibited ¢

RECTOR v. LOCKHART

1291

Cite as 727 F.Supp. 1285 (E.D.Ark. 1990)

. [T]hat during’ that interview he par-

ticularly concerned himself with the capi-
tal aspects of the case, and particularly
the issue of the presence of aggravating
and mitigating circumstances and tried
to develop those issues and the ones that
were present in this case, and that he
was unable to do so with Mr. Rector (T.
185).
That in his opinion, Mr. Rector does not
understand the importance of these cir-
cumstances in his case, and does not
have the ability to consider aggravating
and mitigating circumstances.

RX 2A, p. 93.

Heller’s testimony was considered by the
state trial judge. I have also considered
his testimony in the two competency hear-
-ings and in the hearing before me on De-
cember 7, 1989.

The other attorney, Dan Stripling, repre-
sented Rector in the capital murder trial
under scrutiny in this proceeding. His tes-
timony, like that of Heller, was directed
toward Rector’s-.mental condition at the
time of the trial. Neither Heller nor Stri-
pling has seen Rector since representing
him. He has had other attorneys in the
habeas proceedings.

The principal basis for the opinions of
Heller and Stripling that Rector was not
competent to stand trial was his passivity
and unemotional affect along with his
amnesia. “However, lack of memory is an
inadequate ground for holding a defendant
incompetent.” Deason v. State, 263 Ark.
36, 562 S.W.2d 79, 81 (1978), citing United
States v. Stevens, 461 F.2d 317 (7th Cir.
1972). ‘We agree with the Second Circuit
that amnesia is not a bar to prosecution of
an otherwise competent defendant.” Jd. at
320. See also Davis v. Wyrick, supra at
1202. The testimony of Rector’s sister was
that since his self-inflicted gunshot wound
he had undergone a personality change and
was now a different person. When the
testimony of these three witnesses is juxta-
posed against the testimony of the four
highly qualified experts who testified at
Prior to Rector’s 1982 state trial, I am not
impressed.

The additional testimony and exhibits re-'
ceived at the the December 7, 1989 hearing
before me have failed to establish that Rec-
tor was not competent to stand trial in the
fall of 1982. Petitioner has fallen far short
of meeting the standard raeansien -by 28
U.S.C. § 2254(d).

It is worthy of note that the jury found
none of the following mitigating factors
submitted for their consideration to be
present:

1. The capital murder was committed
while Ricky Rector was. under ex-
treme mental or emotional distur-
bance.

The capital murder was committed
while Ricky Rector was acting under
unusual pressures or influence or un-
der the domination of another per-
son. : .

Ricky Rector has undergone a signif-
icant personality change as a result
of his self-inflicted gunshot wound.

Ricky Rector suffers from mental re-
tardation. |

Ricky Rector suffers from aaa
cant brain damage.

Rector v. State, No. CR83-39, Abstract and
Appellant’s Brief, Vol. 1, pp 18-14. . (RX 2).

In summary, Rector has been found com-
petent to stand trial by the trial judge, the
jury, the Supreme Court: of Arkansas
(whose decision was reviewed certiorari by
the Supreme Court of the United States).
On the basis of the transcript of the Octo-
ber 25, 1982, the competency hearing tran-
script, the trial transcript, and the testimo-
ny and exhibits introduced before me in the
hearing of December 7, 1989, I find inde-
pendently that Ricky Ray Rector was com-
petent to stand trial for the capital murder
of Officer Bob Martin. In fact, I find that
the evidence preponderates in favor of this
conclusion.

{2] The remaining ‘issue before me is
whether Rector’s present mental condition
is such that he may be legally executed.
On this issue the only testimony having
significant probative value is that of Dr.
Leach and Dr. Reuterfors, the psychiatrist
and psychologist, respectively, at the


Cite as 727 F.Supp
habeas corpus petition, the U.S. District
Court must hold a plenary hearing if there
has not been a state procedure which ac-
corded petitioner due process and gave him
a fair and full opportunity to establish his
lack of competency. Although this is a
statutory procedure in Arkansas as noted,
supra, it was not sought or applied in
Rector’s case. Therefore the matter was
before me on a plenary de novo hearing to
make the factual determination as to Rec-
tor’s present competency. The test as laid
down in Ford v, Wainwright, supra, is
whether his “mental illness prevents him
from comprehending the reasons for the
penalty or its implication.” Jd. at 417 , 106
S.Ct. at 2605. Justice Marshall’s opinion in
Ford v. Wainwright, supra, was a plurali-
ty opinion, and the concurrence of’ Justice
Powell was necessary for the court’s judg-
ment. Justice Powell wrote in his concur-
ring opinion:
[P]etitioner does not make his claim of
insanity against a neutral background.
On the contrary, in order to have been.
convicted and sentenced, petitioner must
have been judged competent to stand tri-
al, or his competency must have been
sufficiently clear as not to raise a serious
question for the trial court. The State
therefore may properly presume that pe-
titioner remains sane at the time sen-.
tence is to be carried out, and may re-
quire a substantial threshold showing. of
insanity merely to trigger the hearing
process.
Id. at 425-26, 106 S.Ct. at 2609-10.

Here no threshold showing of insanity
was required, but petitioner was accorded a
full and fair plenary hearing on the compe-
tency issue.

Unlike issues of historical fact, the ques-

tion of petitioner’s sanity calls for a basi-

cally subjective judgment. (Citing
cases). And unlike the determination of
whether the death penalty is appropriate
in a particular case, the competency de-
termination depends substantially on ex-
Pert analysis in a discipline fraught with
“subtleties and nuances.”

Powell, J. concurring at 426, 106 S.Ct. at
2610.

RECTOR v. LOCKHART | 1293

. 1285 (E.D.Ark. 1990)

Penry v. Lynaugh, — US. —, 109
S.Ct. 2934, 106 L.Ed.2d 256 (1989) does not
aid the petitioner. The: Penry case does
not present the same issue as Ford v,
Wainwright, supra. It was ‘argued that
Penry was so retarded mentally at the time
the crime was committed that he did not
have such culpability for the crime as
would justify exaction of the death penalty.
There is no contention that Rector was
mentally impaired at the time he murdered
the police officer. His alleged impairment
resulted from a self-inflicted head wound a
few minutes after the murder.

There is also wide disparity in the degree
of impairment:

As a child, Penry was diagnosed as hav-
ing organic brain damage, which was
probably caused by trauma to the brain
at birth.. Penry was tested over the
years as having an IQ between 50 and
63, which indicates mild to moderate re-
tardation. Dr. Brown’s own testing be-
fore the trial indicated that Penry had an
IQ of 54. Dr. Brown’s evaluation also
revealted that Penry, who was 22 years
old at the time of the crime, had the
mental age of a 6% year old.

Penry v. Lynaugh, supra, — US. at
—-, 109 S.Ct. at 2941. Rector’s IQ on the
other hand was found to be 70 by the
examining psychologist at Springfield.
(Dep. of Dr. Reuterfors, p. 70). This places
Rector right at the dividing line for mental
retardation. As Justice O’Connor noted in
footnote 1:
Under the AAMR [American Association
of Mental Retardation] classification Sys-
tem, individuals with IQ scores between
50-55 and 70 have “mild” retardation.
Individuals with scores between 35-40
and 50-55 have “moderate” retardation.
“Severely” retarded people have IQ
scores between 20-25 and 35-40 and
“profoundly” retarded people have
scores below 20 or 25.

Penry v. Lynaugh, supra, — US. at
—, 109 S.Ct. at 2941. While Penry was
“mildly” or “moderately” retarded, accord-
ing to the above classification system,
there is a question whether Rector is re-
tarded at all. As stated in the report of the


570

profit. The injury is analogous to the cost
of moving expénses incurred as‘a result of
promised employment in — and. Peper
Cola. R seat & oe .
Nor were his sid scans mean-
ingless restatements of ‘an understood ‘at-
will relationship. " With its current business
opportunity, General stood at a crossroads.
Circumstances foreshadowed a “costly de-
mise for the company, but it was able to
negotiate an alternative. Far ‘from con-
firming the obvious, Bacardi wrote its as-
surances on a clean slate with full knowl-
edge that General was just ‘as. likely ‘to
reject the offered. relationship as “embrace
it. “That this was. the situation is ‘indicated
most clearly by. Bacardi’s repeated calls. to
check on Stout’s. impending. decision. Ba-
cardi reassured. Stout of its commitment i in

full. knowledge that he. planned to reject _ sony

National’s. offer. and with the reasonable
expectation that. an ‘immediate _ pull, out
would severely. undermine. General’s asking
price. Like the, plaintiffs - in. Eby. “who
moved based on the promise. of a job, Gen-
eral. incurred a.cost..in rejecting, the. deal
that. was non-recoverable once’ Bacardi’s. la-
ter decision, became mown. .

There may: always exist the sibel te for

avatinsiteya in a‘promissory estoppel action
biased on'a promise of at-will employment.
When could Bacardi terminate the relation-
ship with General without fear of. liability
for reliance costs, once it made the assur-
ances in question? ‘Obviously we do’ not
hold that General and Bacardi had formed
a new, permanent employment relationship.
How long an employee can rely on the
employer’s promise is not a matter we can
decide here. é issue is one of reasonable
_ reliance, and to the extent that there might
be questions, they should be for trial.

MW

...We have, of course, reviewed this case in
the posture of summary judgment. Gener-
al’s allegations still must be proven‘at trial.
However, under Indiana law, we think ‘that
Bacardi’s ‘promise’ was of a sort on which
General might rely, with the possibility’ of

& C107 x9 ky

923 ‘FEDERAL’ REPORTER, 2d SERIES —

Kee

damages for breach: 'For that reason the
judgment of: the district court’ is

REVERSED, AND. REMANDED.

Ww
€ KEY NUMBER SYSTEM
Thos

Ricky Ray RECTOR, Appellant,

re : We on’ 1) tye -

Steve CLARK, Attorney General, State of
Arkansas; and, A:L. Lockhart, Director
‘of Arkansas ee of hungbieciaes
> Appelees x us

_ No. 90-1204. _

nee
: Tobiason © a

United! States Court of. Appeals,
: ‘Eighth Circuit. *
. “Submitted Oct.. 12, 1990.

_ Decided: Jan.. 2, 1991..

‘Rehearing and Rehearing En ‘Bane ™ nt
_ Denied 1 Feb. (123, ie

Petitioner ee habeas corpus relief

Ga.

md

from ‘death .sentence imposed. in capital

murder ‘prosecution. The United States
District. Court for.the Eastern District of
Arkansas, 727 F.Supp..1285, Henry Woods,

J., denied relief. Petitioner appealed. .The.

Court of. Appeals, Ross,.Senior Circuit
Judge, held that: (1) ability: to inform .coun-
sel or court of any:fact which might make

punishment unjust or unlawful was not

prerequisite to. determination that petition-
er was competent to be executed; (2) peti-
tioner was competent to be executed; and
(3) state court determination that petitioner
was competent to stand trial, notwithstand-
ing frontal lobotomy, had to be presumed
to be correct, in the absence of basis to
question: the state court pehernapetion.

Affirmed.

1: Criminal Law €1213.8(8) 2. ees
‘Execution of incompetent criminal con-
stitutes cruel and unusual punishment un-

a eee


RECTOR v. CLARK . .

571

Cite as 923 F.2d 570 (8th Cir. 1991)

der the - peragt Amendment. . U.S. C. A.
Const.Amend.. 8. ad

2 Criminal Law €=981(1)

Two. factors must be examined in as-
sessing defendant’s competency to be. exe-
cuted: .whether defendant understands that
he is to be punished by execution and
whether defendant. understands why he is
to be punished; the ability to inform coun-
sel.or court. of any fact which would make
punishment unjust or unlawful is not condi-
tion precedent to.determination that defen-
dant is competent to be executed. . U. S.C.A.
Const.Amend..8. ;

3. Criminal Law <981(1)

** Defendant;:who:had frontal Sobotsiny,
was competent tobe executed; examining
physicians stated that: defendant..had :no
mental illness or: defect’ which would. pre-
vent’ defendant from ‘being aware ‘of ‘the

impending execution or ae reason ° for: it.
US.C.A. Const.Amend: 8."

4. ‘Habeas Corpus e771. wrarers

if State court. determination. that patel
murder. defendant, who had. frontal loboto-
my, was competent | to stand trial had to be
presumed .correct,. in. the, absence, of basis
to question :the state court determination.

5. Criminal Law e625. 25

”” Determination in, 1989 that ‘defendant
did not possess “the ability’ to inform coun-
sel or the court of any fact which would
make punishment ‘unjust or unlawful could
not be used ‘to prove or disprove defen-
dant’s competency in | 1982 to stand trial for
capital murder. a

John Mason n Jowell, Little Rock, ia for
appellant. —

Jack Gillean, Little Rock, Ark., for appel-
lee. _

Before BOWMAN and WOLLMAN,
Circuit Judges and pee Penn ‘Circuit
Judge. 7. 6 :
1. The Honorable Henry Woods, United States

District Judge for the Eastern District of Arkan-

_ suspect in the murder.
-was talking ; with Mrs.. Rector, petitioner

‘ROSS, Senior Circuit Judge.

Petitioner, Ricky Ray Rector, appeals the
district court’s' denial’ of habeas corpus
relief. We affirm. i .

FACTS

On March $22, 1981, Ricky Ray Rector
shot and killed Arthur Criswell and wound-
ed two others at a Conway, Arkansas res-
taurant. On March 24, 1981, Officer Bob
Martin of the Conway Police Department
went to the home of petitioner’s mother in

search of petitioner, as he was the prime
While the officer

entered the back .of the. house, ,proceeded
into the living ; room,and fatally shot Offi-
cer Martin. .Moments later. petitioner. un-

successfully attempted suicide ‘by-shooting

himself in the forehead.?: ‘He was taken:to

.a hospital where: his: gunshot.» ‘wound: was
cleaned: and surgically. closed... mrees

“A ‘jury found ~ petitioner aiiilty” of ‘first
degree murder in the Criswell shooting.

Prior to the trial, the judge found petitioner

competent “to stand trial.:*: The: Supreme
Court of:Arkansas. affirmed:the conviction,

‘Rector v.:State, 277 “Ark. 17, 638 S.W.2d

672 (1982), and petitioner. was sentenced to

-a life term in’ prison.“ Next, petitioner was
tried for the capital murder of Officer: Mar-

tin: :-Prior to this ‘second:-trial, petitioner
was again’ found to ‘be competent to’ stand
trial.'.“A jury found petitioner guilty of the
capital murder of Officer Martin and peti-
tioner was sentenced to death on Novem-
ber 11, 1982. This conviction was affirmed
by the Arkansas Supreme Court ‘and the
United States Supreme Court denied certio-
rari. Rector v. State, 280 Ark. 385, 659
S.W.2d ‘168: (1983), cert. denied, 466 U.S.
988, 104 S. Ct. 2370, 80 L.Ed. 2d 842 (1984).

Petitioner filed a petition for writ of ha-
beas corpus, which was twice amended.
Two issues were addressed in the habeas
proceeding: (1) whether _ petitioner’s
present mental ability. should prevent his
execution; and (2)..whether petitioner's

2. The trauma to petitioner's head resulted in the
severance of about three inches of the left fron-

__tal-pole. This is commonly referred to in medi-
‘cal terms as a frontal. lobotomy. atte eal

ere ee a
BFeFi nas


572 923 FEDERAL: REPORTER, 2d SERIES

mental ability: at his capital murder - trial
was so diminished that he was unable to
receive the requisite. assistance of counsel
so as to satisfy the sixth amendment. The
district court denied habeas relief and peti-
tioner appealed. See Rector v. Lockhart,

“727-F Supp. 1285 (E.D.Ark.1990).: We now

affirm. ...
DISCUSSION #8000 5 |
FO The execution “of an incompetent

‘criminal constitutes cruel and ‘unusual pun-

ishment ° under’ ‘the eighth amendment.

Ford v: Wainwright, 477 U.S. 399, 417, 106
S.Ct:°2595, 2605; 91 L.Ed.2d 835 (1986): In

addition, Arkansas ‘has enacted’‘a ‘statute

’

making “it illegalto ‘execute the ‘insane.

‘See Ark-Code'“Anih'§ 16-90-506(d) (1987).

Our‘ task is’to“determine whether the exe-_
‘cution of Ricky’ Ray Rector would be ‘viola-

‘tive™of: the’ eighth amendment. Weare

Guided ‘by the:Supreme’ Court’s decision in

Ford, supra,*in our: selection of-an ‘appro-

Priate test by which to. assess petitioner’s

competency..,_ in gid Mi TGS serppan
~ [2,3] » The:Ford majority. found that the

eighth amendment prevented the execution
of “one whose’ mental:illness ‘prevents :him |
~ from comprehending ‘the reasons forthe

penalty: or.its implications,” Ford,:‘supra,
ATT U:S. at 417;:106 S.Ct: at:2606.--Similar-
ly, in-his. concurring opinion, Justice. Powell
stated:...“T'-would -hold.. that: the Eighth
Amendment forbids. the execution only of
those who are unaware of the punishment
they are about to suffer and why they are
to. suffer it.” Jd. at 422, 106 S.Ct. at 2608.
In. .the . Missouri case of Smith ».
Armontrout, 857 F.2d 1228, 1230 (8th Cir.
1988), ‘this. court. cited to -Ford: “Under
[Ford ],. it would be a violation of the
Eighth . Amendment. to execute someone
who lacks capacity to understand the na-
ture and purpose of the punishment about
to be imposed on him.” Therefore, accord-
ing to Ford, we must examine two factors
in assessing petitioner’s competency to be
executed: (1) whether petitioner under-
stands that he is to be punished by execu-
tion; and (2) whether petitioner’: under-
stands. why he is being punished. An ex-
amination ‘of the-record leads us to believe
that petitioner is competent to be executed
under these ‘standards. ° © °°"

tion’ of ‘whether’ thé ‘convict: poss
ability ‘to ‘inform’ counsel ‘or the
any’ fact which
‘make the punishment’ unjust: or ‘unlawful.

| After petitioner raised this competency-
to-be-executed issue, the district court or-
dered the petitioner to undergo a competen-
cy evaluation at the United States’ Medical

‘Center for Federal Prisoners (MCFP) in

Springfield, Missouri. In the final forensic

‘report of August 1989, the examining
‘MCFP doctors stated: ;

In the opinions of the undersigned exam-
' iners, Mr. Rector ‘satisfies the competen-
cy standard contained in Ford v. Wain-
“wright. That is, it appears that no men-
tal illness or defect prevents Mr: ‘Rector
_ from being aware of his impending exe-
cution and the reason for it.
(Petitioner’s exhibit :1,-p. 5). aretivesigl) £
‘Petitioner, -however; :: argues. that the

‘Ford test isan incomplete competency ‘test
‘and urges this‘court to adopt the :test set
forth: in §. 7-5.6: of the: American Bar-Asso-
ciation »Criminal .-Justice Mental . Health

Standards - (ABA standards). : The .ABA
standards incorporate. the ‘Ford test -de-
scribed above, but add a second dimension. .
This added dimension involves a determina-
esses the
court of
‘might ‘exist which® would

ren

The doctors ‘who examined petitioner at the
MCFP found that although petitioner was

Competent.under the Ford test, he was -

incompetent under. the ABA standards: )

. In the opinions of the undersigned exam-

iners, Mr. Rector would have. considera-
ble difficulty due to his organic deficits
in being able to work ina collaborative,
cooperative effort with an attorney. In
Our opinions it appears that he would not
be able to recognize or understand facts
which might be related to his case which
might make his punishment unjust or
unlawful. _ |
(Petitioner’s exhibit 1, p. 5-6).
Apparently this difference in opinion under
the ABA standards is’ due’ to the added
ability-to-assist-counsel requirement, which
is not required under the Ford test..:,;.
... We, agree with. the district court. that,
“{w]hile the. [ABA..standards] are interest-
ing, they have no legal effect.” Rector,
supra, 727 F.Supp. at 1292. We hold that


the district court was correct in rejecting
the ABA standards and in selecting the
Ford test as the appropriate measure of
petitioner's competency. Furthermore, af-
ter reviewing the record, we find that the
district court’s application of the Ford test
to the’ present facts ‘was not erroneous.
Therefore, we affirm the district court’s

finding that petitioner i is competent 1 to. ‘be
executed.” _

[4] Petitionér also urges this ‘court ‘to
reverse the finding. of .the_ district .court

that petitioner was competent to stand trial -

in, 1982: for, the capital murder of Officer
Martin. Petitioner does. not. dispute his
competency . at.. the time he, actually. shot
Officer Martin, but rather. claims that. the

self-inflicted gunshot wound and resulting .

head injury caused him to become incompe-
tent at.the time.of. the capital murder. trial
in 1982. Petitioner raised this competency
issue before the state trial court ata com-
petency hearing at which two psychologists
testified on behalf of petitioner, while two
psychologists and. two psychiatrists from
the State Hospital testified for the State.
The testimony was in conflict as.to whether
petitioner was competent to stand trial.

The trial court found petitioner compe-
tent to stand'trial and,’‘on“appeal, ‘the Ar-
kansas Supreme Court ‘affirmed, Rector v.
State, supra. The district court reviewed
these state court findings as well as hew
testimony presented by petitioner.’ At. the
federal habeas hearing, petitioner called
three lay witnesses, two of his prior attor-

neys and his sister, to testify as to his”

competency. The attorneys’ testimony fo-
cused on petitioner’s “passivity and unemo-
tional affect along with his amnesia.” 727
F.Supp. at: 1291. Petitioner’s: sister: testi-
fied that: petitioner had undergone a per-
sonality change following the self-inflicted

gunshot wound. It should be noted that —

none of the above three witnesses have
received any formal training in psychology
or psychiatry. “We agree-with the district
court that:: “When the testimony: of these
three witnesses’ is juxtaposed against the
testimony :of:the four highly’ qualified ex-
perts-who testified at prior to [sic] Rector’s

RECTOR v. CLARK. .
Cite as 923 F.2d 570 (8th Cir. 1991)

381, 88. L.Ed.2d 334. 1985};
§ 2254(@).

o73

1982 state trial, [we] are not impressed.”
Id. ae aks |

We also recognize that petitioner’s com-
petency to stand trial is a factual issue for
the state court to decide. Finding no basis
to question the state court’s findings, those
findings are presumed to be correct. See
Wright v. Minnesota, 833 F.2d 746, 748-49
(8th Cir.1987), cert. denied, 485 U.S. 1011,
108 S.Ct. 1481, 99 L.Ed.2d 709 (1988);
Beans v. Black, 757 F.2d 983, 985 (8th
Cir.), cert. denied, 474 U.S. 979, 106 S.Ct.
“an U.S.C.

nce "analy, perianal asia. ‘that ‘the

final ‘report of the MCFP. supports. his .con-
tention that he was not competent to stand
trial... «Petitioner seems ..to argue .that. be-
cause he failed to,meet the ability-to-assist- .

counsel requirement of the ABA standards
when evaluated at the. MCFP in 1989 for
his competency to be executed, that some- ©
how this evaluation ought to reflect on
petitioner’s competency to stand trial for
the capital murder in 1982:.'. The* district

court . properly: rejected « this’ argument.

The .doctors. completing :the 1989 ‘-MCFP

report testified that:they were not making

any kind of:comment or suggestion regard-
ing petitioner’s competency to stand trial
when he was tried for capital murder in
1982. Clearly, this testimony cannot be
used to prove or disprove petitioner’s com-
petency back in 1982, . _

CONCLUSION.

For the foregoing reasons, we affirm.

-(o Exey numser sysTEM

«(sume

92%)


208 802 FEDERAL SUPPLEMENT —_//,- KANSAS oo
clashes and difficulties he experienced with dant petitioned for habeas corpus. The | y other jurors, and judg
other employees. More importantly, how- United States District Court, Eastern Dig. ed that other juror’s con
ever, for purposes of summary judgment, trict of Arkansas, 542 F.Supp. 585, denieq | se of “if I had to” indicat
the plaintiff has offered nothing to demon. relief. On defendant’s appeal, the Court of fj may:not have been able to con
strate that others of any race, color or sex Appeals, 714 F.2d 1455, vacated death sen | ity even if evidence justifi
were treated differently. In fact, his state- tence and remanded with instructions. Fo. 9
ments only support the statements made in lowing resentencing, defendant was again &
Ben Barnes’ affidavit. The Plaintiff has sentenced to death, and he appealed. The @ General objections to death
not demonstrated that he was doing his job Supreme Court, 292 Ark. 362, 730 S.W.2g  @ egiscientious or religious scrup
well enough to meet the employer's reason- 230, reversed. On resentencing, defendant 4 h penalty are not grounds f
able requirements. Rather, the Plaintiff was sentenced to death for third time, and @ jaror for cause.
engages in supposition and conjecture that he again a ealed. The Supreme :
his supervisors and fellow employees were 301 Ack 244, 783 S.W.2d 341. aba u ahem eo .
“out to get him.” “A subjective belief of . Defendant again filed for federal habeas | m, Habeas petitioner's claims t
discrimination no matter how genuine, can- corpus relief. The District Court, Henry | ed to use pees oe
not be the sole basis for a finding of dis- Woods, J,, held that: (1) neither conviction fae venire persons when judge
crimination.” Kizer, 962 F.2d at 613. For nor death sentence rested on perjured testi  § se them for en “Webel
these reasons, this court holds that the mony; (2) trial judge did not transgress  @ for habeas corpus review, absen
plaintiff has failed to make out a prima constitutional bounds when it excluded po © ®'trial court’s refusal a eecus
facia case of racial or sexual] discrimination tential jurors because of their views re | actually served on jury aft
under Title VII. garding death penalty; (3) views of trial 4 ‘peremptory challenges wer
. court and state Supreme Court, that prose 4 :
VI. CONCLUSION cutor’s comments on race of victims were i €=770
Therefore, based upon the foregoing dis- N0t 80 egregious as to warrant mistrial, ‘eigen ea art aiid ste
cussion and the facts and authorities cited, Were entitled to Presumption of correct.  @ ig’ Views of trial co ‘panda
it is ORDERED that Defendant City of €88; and (4) petitioner failed to show due 4 Part, that re
. : é i fi F ictims in capital murder ]
Elkhart Parks and Recreation Depart- Process violation in cross-examination of ; !

ment’s Motion for Summary Judgment is Witness. | Seca pier lta
GRANTED. IT IS SO ORDERED. Petition denied. 4 ae

n habeas corpus review.

) ; rimi €718
| 1. Homicide ¢=234(1), 358(1) minal Law

Neither defendant’s murder conviction Every Wee ae isi
~ nor death sentence rested on perjured testi- ecutor apn at n
ye mony, notwithstanding change in witness’ titutional violation.

testimony, to effect that what he had said ahead Compas @n497
defendant had done had actually been done Rong

by codefendant, and vice versa, and despite. y Habeas petitioner Sprint
v. that witness’ charge that assistant Attor eee scaeailen _
A.L. LOCKHART, Director Arkansas _"°Y8 General had told him to Coen Len onable probability that, abs:
Department of Correction, ry in oar that codefendant - oe oper remark, result of sent
Respondent. shoot vietim; there was abundant evidence tion of death penalty, would
of defendant’s guilt, and Witness, who was :
No. PB-C-91-331. 78 years old, was thoroughly unreliable. ig

Edward Charles PICKENS, Petitioner,

esac -

United States District Court, 2 Jury emits. fecriminal Law ¢720(9)
ELD. Arkansas, Trial judge did not transgress constitu- fitness’ testimony that capi
Pine Bluff Division. tional bounds when it excluded potential @ @eendant told witness in newst
Sept. 2, 1992, jurors because of their views regarding ew, | !
death penalty; judge excused one juror fe prosecutor’s argument duril

| based on her inability. to give consistent Ephase implying that defenda:
Following affirmance of defendant’s

answer to death penalty question and on | | ited mitigating evidence abou
murder conviction, 551 S.W.2d 212, defen- her response indicating that she would be


210

tal murder prosecution, and it was pre-
sumed on habeas review that jury took that
responsibility seriously, despite claim that
jury improperly ignored. mitigating evi-
dence.

16. Criminal Law ¢1134(3)

Comparative review of cases in which
death sentences had been vacated was not
required of Arkansas Supreme Court in
reviewing defendant’s death sentence;
facts of those cases were far different
frorn those in instant case.

Jeffrey M. Rosenzweig, Little Rock,
Ark., for petitioner.

Olan W. Reeves, Asst. Atty. Gen., Little
Rock, Ark., for respondent.

MEMORANDUM OPINION
‘HENRY WOODS, District Judge.

HISTORY OF LITIGATION

Edward Charles Pickens has been on
death row for seventeen years. The facts
in his case are set forth in the appeal of his
original conviction and sentence. Pickens
v. State, 261 Ark. 756, 551 S.W.2d 212
(1977), cert. denied, 435 U.S. 909, 98 S.Ct.
1459, 55 L.Ed.2d 500 (1978); petition for
post-conviction relief, Pickens v. State, 266
Ark. 486, 586 S.W.2d 1 (1979), cert. denied,
451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342
(1981). The facts are also set out in detail
in my original federal habeas decision.

Pickens v. Lockhart, 542 F.Supp. 585°

(E.D.Ark.1982). In his original petition
Pickens raised twenty federal constitution-
al issues, all of which were rejected by the
district court. On appeal to the Court of
Appeals, the Eighth Circuit declined to-set
aside the conviction but ordered a new trial
on the penalty phase because counsel was
ineffective. in that. aspect of the trial.

Counsel was found to be ineffective for his.

failure to present evidence of mitigating
circumstances and in failing to object to an
erroneous instruction. Pickens v. Lock-
hart, 714 F.2d 1455 (8th Cir.1983). In two
new penalty-phase trials, evidence was
presented of mitigating circumstances and
the erroneous instruction was not given.

802 FEDERAL SUPPLEMENT

The first resentencing trial was Scheduled
in November, 1984 in Prairie County,
where the case had been moved by the

defendant in a change of venue, but

mistrial was declared because of the fo}.

‘lowing developments.

“After voir dire of the jury panel hag
begun, one of the State’s witnesses at the
original trial, Harold Goacher, informed the
prosecutor that-what he had said petitioner
Pickens had done during the crime Antonio
Clark did, and what he said Clark did,
petitioner had done.” Pickens v. State,
284 Ark. 506, 683 S.W.2d 614, 615 (1985).
After Goacher made this statement, Pick.
ens moved for a hearing. When his motion
was denied, he applied to the Supreme
Court of Arkansas for writs of mandamus,
certiorari, and error coram nobis. All of
these writs were denied. After this inter-
ruption, a resentencing jury was impan-
elled September, 1985 and Pickens was
again sentenced to death. Pickens v.
State, 292 Ark. 362, 730 S.W.2d 230 (1987),
cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98
L.Ed.2d 226 (1987). The Supreme Court of
Arkansas reversed, finding that the trial
court erroneously limited the proof of mit
gating circumstances to a time period be
fore the murder was committed. The trial
judge should have allowed Pickens “to in-
troduce the testimony of various witnesses
regarding character, rehabilitation, adjust-
ment to prison and good works he had
undergone or performed since the murder
occurred.” Jd. 730 S.W.2d at 232.

After the reversal, another resentencing
jury was impanelled, this time in Arkansas
County at the defendant’s request. Pick-
ens was sentenced to death a third time.
The Supreme Court of Arkansas affirmed.
Pickens v. State, 301 Ark. 244, 783 S.W.2d
341 (1990), cert. denied, — U.S. —, 110
S.Ct. 8257, 111 L.Ed.2d 766 (1990). Pickens
filed a Rule 37 petition which was denied.
Pickens v. State, C.R. 89-94, 1990 WL
210641 (Dec. 17, 1990).

He again filed for federal habeas corpus ~ F. |

relief, raising the following issues:

(1) recantation of witness testimony ~

from 1976 trial;

’ PICK
! Cite as 80;
.°) coerced confession admitted a
At al;
(8) denial of fair jury during
encing because of death qualifica:
a Peue;
} 4 4) trial court at 1988 resentenci
@etused to give proposed mitigatir
Seecumstance instruction;
(5) Arkansas resentencing statute
' Pe Xonstitutional as it violates ex posi
: B\6) denial of due process when tria
* ermitted improper prosecutor ar
1988 resentencing;
) denial of due process when th
presented rebuttal evidence and a
gument at 1988 resentencing;
) denial of due process when trie
1988 resentencing allowed pro:
refer to the killing of one of th

(9) denial of due process when tri
‘at 1988 resentencing allowed e

{court at 1988 resentencing allov
 peachment of witness; and
(il) denial of rights at 1988 |
“because the jury did not find mit
" circumstances as presented by pet

I

_ THE RECANTATION ISSU.

1] Harold Goacher, one of the
@stified at trial that the two da
ickens and Clark) did all the s!
e of them came into the room
even victims were on the floor-a
em. Subsequently one of ther
f@ypack again and shot the two lx
aie an, Jimmy Scherm, and Wes Nob
fatter pair died from their wounds
; was tried for the murder of We:
Gdacher, however, testified that I
is “make a positive identification
a Bes actual murderer. ©: ° **

‘When this case was remanded fo
ial by the Court of Appeals on °

te Bact g phase only, as noted supra
rs Pinformed the prosecutor: that '
fad said Pickens had done, Clark h

pO) coerced confession admitted at 1976
ee trial:

f(8) denial of fair jury during 1988 resen-
tencing because of death Guslitiataoes is-
sue;

nh 4) trial court at 1988 resentencing re-
fused to give proposed mitigating cir-
oe cumstance instruction;

(5) Arkansas resentencing statute is un-
onstitutional as it violates ex post facto}
(6) denial of due process when trial court
permitted i improper prosecutor argument
at 1988 resentencing;

= (7) denial of due process when the state
resented rebuttal evidence and a closing
argument at 1988 resentencing;

(8) denial of due process when trial court
at 1988 resentencing allowed prosecutor
to refer to the killing of one of the other

9) denial of due process when trial court
at 1988 resentencing allowed evidence
@ concerning petitioner’s crime committed
© in Michigan;

(10) denial of due process when trial
court at 1988 resentencing allowed im-
peachment of witness; and

(11) denial of rights at 1988 resentencing
use the jury did not find mitigating
‘eumatances as presented by petitioner.

I

‘THE RECANTATION ISSUE.

{1] Harold Goacher, one of the victims,
tified at trial that the two dark men
é kens and Clark) did all the shooting.
Orie of them came into the room where
ven victims were on the floor and shot
em. Subsequently one of them came
k again and shot the two Lockridge
, Jimmy Scherm, and Wes Noble. The
tter pair died from their wounds. Pick-
is was tried for the murder of Wes Noble.
facher, however, testified that he could
HOt make a positive identification of No-
mié's actual murderer.

FWhen this case was remanded for a new
1 by the Court of Appeals on the sen-
cing phase only, as noted supra, Goach-
erinformed the prosecutor that what he

- PICKENS v. LOCKHART ~~
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

ied said Pickens had done, Clark had actu-

see or Bt ees

ally done, and what he said Clark had done,
Pickens had actually done. With reference
to this change in Goacher’s testimony, we
agree with the statement of the Supreme
Court of Arkansas:

Furthermore, even if the petition for writ
of error coram nobis were timely, the
record does not indicate that there would
be any difference in the outcome of the
guilt phase. Mr. Goacher testified that
both of the men he described as dark-
skinned men (Clark and Pickens) did the
shooting, although he did not separate
their specific actions. Since Clark was
also found guilty and received the death
penalty, it cannot be said that the result
of the guilt phase would have been dif-
ferent. If Goacher’s testimony would go
to mitigation, it may be heard in the
sentencing proceeding now in progress.
Pickens v. State, 683 S.W.2d at 616.

Goacher made a more serious charge,
claiming that he was told by special prose-
cutor Jack Lassiter and Gary Isbell to com-
mit perjury in testifying that Clark did not
shoot Wes Noble. Lassiter and Isbell were
Assistant Attorneys General at the time
and were highly respected members of the
Arkansas Bar. Lassiter denied this charge
at the first resentencing hearing in 1984.
On the basis of these events, Pickens now
asks that his original conviction be set
aside. There are several fallacies in this
argument. First, the guilt of Pickens was
established in the first trial and the subse-
quent habeas proceedings from which there
was no appeal from the Eighth Circuit to
the Supreme Court of the United States.
The present habeas proceeding is only in-
volved with the last sentencing hearing
which was unanimously affirmed by the
Supreme Court of Arkansas. Pickens v.
State, 783 S.W.2d 341. Neither Goacher
nor Lassiter testified at the hearing which
is now under review in this proceeding.
Pickens’ guilt was simply not at issue, as
his attorney conceded when the jury during
their deliberations sent the following note:
“Has Mr. Pickens exhausted all his appeals
on his murder conviction?” (TR 1704). . Pe-
titioner’s attorney responded: “O.K.- I
don’t have any problem with the. Court

Mg aN sie AW atlas cae:


S/NY¥Y74 pase ALY

THE NEW YORK TIMES NATI(

VHITMORE

ARKANSAS DEPARTMENT
OF CORRECTIONS _
MAX SECURITY UNIT

cuted at 8 P.M.

*

RKANSAS DEPARTMEN

_ OF CORRECTIONS
Ch 1 & ‘ 4 2 AG ES
ee a who was execut-

Photos by Associated Press
Jonas Whitmore, who was exe-

2 Executed
In Arkansas

On Same.Night

VARNER, Ark., May 12 (AP) —
Two men convicted of separate mur-
ders in Arkansas were executed by
injection on Wednesday night an hour
apart. It was the first time since
capital punishment resumed in the
United States in 1977 that a state put
two people to death on the same day.

One inmate, Jonas Whitmore, went
to his death at 8 P.M. for killing a
‘woman who had invited him into her
home and had fed him milk and cook-
ies. He was pronounced dead at 8:08.

At 9 P.M., the second inmate
ee Edward eran was execut-

e same chambe illi

man ina ences r for killing a
he United States Suprem

denied late-hour Aran Grou bosk
men on Wednesday afternoon.

A spokesman for the Corrections
Department, Alan Ables, said back-
to-back executions had been sched-
uled because the men had been near-
ing the end of their appeals about the
same time. He said more such multi-
ple executions were being considered
as a way to save on overtime pay for
nan ee and to reduce the

conductin i
sind Bh g frequent single

“There’s a lot of strain in an -
cution,’”’ Mr. Ables said. ‘‘It’s ait of
rehearsal; it’s a lot of walk-through
sgh the director right on down.”

S many as three inmates cou
put to death on the same day, he oh
Seren has 41 inmates on death

Mr. Whitmore, 50, was convicte
killing Essie Mae Black, 62, ores
him into her home in Mount Ida in
1986. A stranger to her, Mr. Whitmore
stabbed Mrs. Black 10 times, cut her
throat and sliced an ‘‘X”’ into her
right cheek. He also stole $250.

1

Victim Pleaded for Life

During his trial, Mr. Whitmore said |
he had experienced a flashback of
childhood sexual abuse while in Mrs.
Black’s home.

Mr. Pickens, 39, was convicted of
murdering Wesley Noble, a 76-year-
old retired farmer, in a 1975 holdup
at a grocery store in Casscoe. Wit-
nesses said Mr, Noble pleaded for his
life just before he was killed. Mr.
Pickens was one of three men from
Detroit ‘involved in the crime, in
which a second man was also killed,
five people were wounded and a wom-
an was raped. All were robbed of
jewelry and money. Mr. Pickens was
21 at the time.

Mr. Pickens’s two companions, An-
tonio Clark and Vincent Gooch, were
also convicted of capital murder. Mr.
Clark, now 39, was sentenced to death
and is serving a life term in Michigan
for another crime. Mr. Gooch, now 42,
pleaded guilty and was sentenced to
life without parole.

Mr. Pickens issued a statement be-
fore his execution admitting that he
had helped in the robbery but denying
that he had killed Mr. Noble. In his

final statement, he thanked all the
ministers who had visited death row
and said farewell to a fellow inmate.

Mr. Whitmore had no last words.

Sentence Was Overturned

The United States Supreme Court
struck down the death penalty as
cruel and unusual punishment in 1972
but changed course in 1976. Execu-
tions resumed in 1977.

Mr. Whitmore and Mr. Pickens
were the fifth and sixth inmates exe-
cuted in Arkansas since the 1976 rul-
ing. Mr. Pickens’s 1976 death sen-
tence was overturned twice. But last
September, the United States Court of
Appeals for the Eighth Circuit af-
firmed a Federal district judge’s rul-
ing and upheld the murder conviction
and death sentence. Mr. Pickens re-
ceived a stay on Monday from a
three-judge panel of the appeals
court, but the full 10-judge court lifted

the stay on Tuesday night.

.f
4)

ae

.granted’ and said defendant is given 45. days within which to prepare and: file his’ bill af
|. of exceptions. herein, ‘and: the: defendant’ ‘being asked if he had. any legal: excuse’ tor ‘Give

chair as privided by law, and’ between the hours of sunrise ands sunset, the Superintendent

> ee mb ge .
ys t aS ie ee be

PSMoww Ley VL taal wy eer sera ses foes @ Wh Chita Chi GO roy hel
(2 STATE: OF ARKANSAS | <a = , ete : E
VS. Rega ihgivce? UeR Lo ee. i ORDER OVVERULING MOTION FOR
DUNCAN PIGUE 33 SEG ee ” DEFENDANT, NEW TRIAL= Sentence,

On thie. day comes the defendant in his”

own proper per son and by his attorneys, J.B.Reed and W.W. McCrary Jr., and* presents to the |

court his motionfor a new t rial, and POR consideration of said coe oe, the court doth
find that the same should be overruled,::

It is therefore considered, ordered’ and: ‘adjudged. by: ‘the court ‘that. the motion for new |

_ trial filed herein be and the:same is hereby overruled. !'°.)%, yi
To the’ action of the courf in overruling said motion fora. new ‘trial, nthe defendant
excepted anii asked that his exceptions be notdd. of. record, which is aceordingly done; .
the defendant prays an. appeal. to the Supreme Court of Arkansas, which is by the court.

why sentence should not be passed’on him at this time an@ none being given, ;° :
It is thsrefore considered, ordered and adjudged by the court that said defendant be:
remanded into the custody. of the Sheriff of Lonoke County, and to be by him safely ami.

speedily transported to the State Penitentiary House or, State Convict. Farms or camps: ot ee

the State of Arkansas, and. there confined in the death chamber until- the.” 21 day: of):
January, 1938, and on said date the said Duncan Pigue shall be placed. in the slootrie me

warden, agents or employees of. that institution shall cause to pass. ‘through his body a:

1h

4. current. of shectrishty..of. sutficiont.foree.Domer. and. inkensi ty... ond. d.sugh.applicat) Once

sf * pee ges ‘

; aphshenta 2 tet aap ats iu Gs i ; 5a ae sete, a
‘ es vaseg oe meat ty enna
PAS Meg Miah sia oe ste! st


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é 4
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ra

oe

4

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ie
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eit ig ;

SeatTic ete oe SESE Se tes Se ee a ee 3 PTS Tea kee ie ke em eta  hm etoe = woah Emin a bast

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pvcarrapenerts semper wr Nacroeereee +7)

ME chi mertemre ggrennegeicree

[of slectiricity shail continue

ei aii ia sD me
pa’ ss through his body with stich power, force ami
intensity until he is pronounced dead, and*that the, It is further ordered by thex court |

, that the Glerk of this court shall make out ami deliver to said Sheriff a certified copy of
the foregoing judgment to be by him delivered to said Keeper of said Penitentiary &s

sufficient authority for him to execute the said Duncan Pigue in the mnmer aforesaid,

j
a pene | se 8,
6 eae es, Mes

‘Ordered that-courS stand adjourned until December ]3° 1937.

ea ee

JUdReCe

sis i

Decembor 13, 1938, court convened pursuant to adjournment, “present and presiding Hone
W. J.Waggoner, Judge, Geo.f. Harfje, Prosecuting Attorney, Troy Carroll, Sheriff and
Alvert G.Sexton,Clerk ; Court was opened in due form of law when the following proceedings


ee Pe ee
120 SOUTHWESTERN 292

POE, Harry, black, 17, hanged at Hot Springs, Arkansas, on September 2, 1910,

"(Special to-the Gszette) Hot Springs, Sept. 1 = The first legal hanging in Garland County
will take place tomorrow when Harry Poe, a negro, convicted and sentenced to hang for
assault on a little white girl, a pupil of the Oaklawn school, last January, will be hang
ed, The hanging will ta ke place in private, an enclosing having been built around the
scaffold to prevent public gaze, To prevent any outbreak in an effort to take the
prisoner from the hands of the officers, a special cordon of 50 special deputy sheiffs
surround the jail tonight, Upon orders from Gov, Donaghey, the local militia has been ine
structed to report to the sheriff on call, There has been no demontration among the ne-
groes, Many of them, however, have gathered about the jail during the day through curi-
osity and in an effort to get a look at the condemned negro, The negro was brought from
Little Rock today, where he has been kept to prevent any mob violence since his convice

tion, A death watch has been placed over him that will remain with him until he is taken

out of the cell to go to his execution tomorrow, 4 last mffort on the part of Poe's

attorney to get a stay of execution was made several days ago when Attorney Maxey applied

to Governor Donaghey, Attoeney General Norwood and a member of the Supreme Court in

Little Rock, A reprieve was asked for onthe ground that the sentence of the tial judge

was illegal, in that it stated that the negro should be publicly hanged, when as a matter

of fact the statute has been repealed, Gov, Donaghey declined to interfere on the ground
that it was a legal question that the courts should rule on,

"Up to the last moment that Poe remained in the local penitentiary, he maintained the $amh&
same air of indifference that has characterized him during his entire incarceration, The
officials at the skate penitentiary say that he is of a rather low grade of intelligence

and they doubt if he is able to fully comprehend the fact that he is doomed, Poe has

never given the penitentiary officials any trouble, He was kept constantly jocked in a

cell, only being removed 2 or 3 times a week to be allowed to take a bath, e seemed

cheerful, although when asked how he felt he invariable replied that he was 'mighty tired
of being locked up! and would like to get outdoors again even if for but a short time,"
GAZETTE, Little Rock, Arkansas, September 2, 1 910 (2=3,)

"(Special to the GAZETTE) Hot Springs, Sept. 2 = Declaring his innocence to the last,
Harry Poe, the negro convicted of assaulting Lena Adams, a white school girl 11 years

old, last March, expiated his crime on the gallows here today at noon, ‘the trap was
sprung by Sheriff Sid Houp}, and the negro died from strangulation , The noose of the
rope slipped and the negro s neck was not broken in the fall, To prevent any possible
outbreak in an effort to pfevent the hanging a detachment of Company C,, First Regiment,
Arkansas National Guard, of this city, surrounded the jail under the command of Capt, A.
F, B. O'Den, assisted by Capt, Smith of the Prescott ompany, There was no demonstration
of any kind, and the execution was without incident, Just before the black cap was ad-=
justed, Poe declared his innocence, and before leaving his cell said that he did not be-
lieve an assault had been committed, He also complained that he had not been fairly
treated by the courts in his trial, The crime for which Poe paid the penalty was
committed in day time, his victim being a school girl of 11 years of age, She lived in the
suburbs of the city, and was returning home in the afternoon when the assault was
committed, When Poe was arrested and taken before her she unhesitatingly identified him
as her assailant. The identification was further established by other witnesses, The ne=-
gro was immediately indicted and was tried and convicted at a special term of the Garland
County Circuit Court. So intense was the feeling against the negro that a detachment

of militia was on hand during the trial, After his conviction, fearing that he would be
lynched, Poe was taken to Little Rock and placed in the penitentiary for safe keeping,
While he was in the penitentiary an appeal was taken to the Supreme Court and overruled,
and the negro ordered to be hanged, Poe was taken to the jail here Thursday from Little
Rock, and a cordon of 50 deputy sheriffs surrounded the jail Thursday night to prevent any
outbreak in an effort to lynch him, The militia was also kept in readiness, but there

was not the slightest demonstration during the night," GAZETTE, Little Rock, Arkansas,
September 3, 1910 (2=2,)


(AP) Little Rock, Arke, Nov. , 1915-Fearing mob violence Hot Springs officers last
night cut a hole in the roof of the Garland County Jail and removed Robert Bluthen-
thal, a negro, alleged assailant of a white girl, The negro was rushed.to Little
Rock in an automobile. Harry Poe, a negro lynched (this is in error) two years ago,
died charging Bluthenthal with the assault,."- ADVERTISER, Montgomery, Alas, Nove (
5, 1915 (1:6.) Fig OF ‘ “af rye
|
!

4 t @

|
LH

Atte he

Seen

ae OO

emir seberenistwararsimraiteein saree

He had gone a dozen yards before his shocked senses began to
revive. “No wonder the horse was ‘frightened,” he chattered
aloud. “He smelled the blood.” .

In a few minutes the farmer was running. Down the road
half a mile there was a telephone. He must summon help.

Sheriff Ed McShane of Carroll county, Ark., was just leaving
his office in Eureka Springs’ when he received the startling call.
The experienced officer had dealt with violence in the hills for
many years but for a second he could not believe the wild report.

Why would anyone murder the young woman hermit? She
had no apparent wealth. She lived isolated, made
no friends and apparently needed none.

But McShane knew this’ was no
time for pondering. He hurriedly
got in touch with the coroner-
undertaker and the two raced the
five miles to the small hill farm. It
was then about 10 a. m. of Sunday,
June 5.

When the sheriff arrived at the
isolated cottage he found _ several
farmers and woodsmen already gath-
ered. McShane’s gaze ran around the
group, cataloguing the faces. He could
question them later but he wanted to
remember every man who had rushed to
the scene. Was the murderer in the
crowd?

He broke the lock on the flimsy door
and the two men entered. They steeled
themselves for their gruesome task and
strode into the bedroom. :

' Winfred Frazier, at 30, had been a beauti-
ful woman. Her flashing brown eyes and
superb figure testified to the healthy outdoor
life she loved. But now she was still in death.

McShane gasped. The picture that his
trained eyes read was something he had never
encountered before. “She must have lived.
several hours without being able to get help,”
he said hoarsely,

The coroner examined the body.

“There was no struggle with her assailant,”
he said positively. “She seems to have been stabbed
a number of times. But from the way these peculiar
wounds bled, I’d say the thrust that took her life
was the first one. She couldn’t have fought after
that.”

‘ The officers exchanged glances. What sort of fiend ‘
could have perpetrated the strange, midnight murder ?

They could not answer those questions yet. “How
long has she been dead?” McShane asked.

“Several hours,” the coroner said. “She must have
been stabbed around one o’clock. But she lived for some
time.”

McShane turned to an inspection of the room. He was
not equipped for fingerprinting and before he could sum-
mon expert help the trail would be cold. It was up to him
to find out facts without delay. ; \

The room gave up no clues. McShane went on to the
adjoining kitchen-living room. He quickly saw that this
room had been ransacked. Drawers were opened, contents
thrown out. Dishes had been jerked from the cupboard.

“Whoever did this was hunting for something,” McShane
muttered to himself. “But what could it be? Surely nobody
expected this woman to have money.”

To solve the crime, the sheriff suddenly realized, he might
have to probe back into the unknown life of the young Arkansas
hermit. He returned to the bedroom. *

As he entered, his gaze fell upon something. A window pane
had been shattered and broken glass lay in the room. More-
over, the dresser was standing at an odd angle. k

The sheriff frowned. He turned to the coroner. “Did you
say that woman was stabbed?” he asked. ’

“That’s what it looks like,” the coroner answered. “Stabbed
a number of times. There are a dozen wounds.”

“Looks to me,” McShane said, “as if somebody stood outside

this window and fired a shot into the room,”
34 oh Ng:

.

“That doesn’t make sense,” the corener argued, frowning.

McShane walked outside and studied the ground around .the
window. Some glass also was outside. There was no
sign of a discharged shell but in the soft earth be-
neath the window, he saw several large
tracks. “Did any of you men stand ,
by this window?” he asked: *'

The awed farmers
shook _ their

roner argued, frowning.
-d the ground around .the
le. There was no

ft earth be-

large

heads. Though aroused they had stood at a respectful dis-
tance to await instructions from their sheriff.
McShane felt a momentary exultation. If he could find the
man whose tracks matched those beneath the window he
probably would have the murderer.

Questioning the farmers brought very little information.
The woman who had been so brutally murdered was a

stranger though she had lived in the community for
several years. The natives did not pry into the affairs of
newcomers and Winfred Frazier had chosen to remain
a stranger to them.

Only one man offered a significant clue. “I saw a

man walking along the road not far from here last

night,” he said. ‘““He came out of the woods near here
and it looked like he carried a gun.”

“Can you describe him?'’, McShane asked quickly.

“No, only he looked like a bun Had on overalls

but it was late and dark. I didn’t pay much atten-
tion.”

“How late?” the sheriff asked.
“Well, sir. It was after midnight. I was coming
in from town when I saw him.” .
“Must have been out pretty late yourself,” Mc-
Shane hinted. ; .

The farmer looked embarrassed. “You know
how it is on Saturday nights,’’ he mumbled.
“Everybody stays in town late.”

¢ McShane knew that was true. Usually too,
. Winfred Frazier rode into town on Satur-
days. After her weekly shopping tour, she
often remained late. “Did you happen to

see Miss Frazier coming home?” he asked.

The farmer shook his head. The man

who had found the body interrupted, “I

heard Winfred coming home last night,”
he told McShane. ‘She was riding and
singing as usual. It must have been
after. midnight.”

“Do you know if she was alone?”
McShane asked.

“T didn’t look out. But I only heard
one horse and Miss Frazier was
singing as if she was alone.”

McShane’s hopes fell. He had little

reason to expect that any of the
neighbors could tell him more.
None of the natives ever visited
the lonely girl. He was surprised
when the next farmer he ques-
tioned offered a suggestion.
“This is just hearsay, Sheriff,”
the man said, “but it’s rumored
around that Winfred Frazier
had a sweetheart. He used to
call on her late at night.”
“Used to?” McShane ex-
claimed. ‘‘Didn’t he come
to see her any more?”

“Well, not lately. Nobody

knows much about him,
or who he is. But maybe
he was on the road last
night.”

Whether he was or not,
McShane knew he
must run down the

rumor of the secret
lover. He made a
mental note to do
some more checking
on that, then turned

£
“

‘

> >|

Often a young man
was seen to call at
the isolated cabin
of the pretty girl
and was welcomed
affectionately.

35


hing that he had overlooked
ient of the moment.

lipped away from the mur-
t morning,” he murmured
led distinctly now. When
| at the scene, a thin, dark
clothes had been standing
door. When he had come
yuse where the murdered
lay, that man was gone.
alked on thoughtfully. He
ill where he had seen the
He filed the thought for
ce and went on to the shop.
mith shop was a favorite
Saturday nights. In most
nithing was a lost art. But
‘ings, both tourists and na-
) find an endless fascination
ie forges.

was a friendly man. He
. “Sure,” he said, answer-
s questions, “I had a crowd
‘ight, same as always.”
Nielson from Rogers in
ine asked.
k so. I’m not sure I know
-e weren’t any strangers
uess everybody in town
netime during the evening
ided with pride.
t fine,’ McShane said in a
uppose you start in and tell
you remember seeing that

the smithy began to list his
he midst of pronouncing a
ed. His eyes were round
nt as he asked in a hoarse
you say that girl was

ght,” McShane snapped.
te to accuse anybody,” the
dedly, “but Tom Isham was
lay night and he got me to
f the most vicious looking
s I ever laid eyes on.”

‘as instantly alert. ‘What
?” he rapped.

no’clock. I asked him what
o with that pig sticker, and
iessed it—he aimed to stick

smith handed the sheriff a
prepared to resume his
s about the size and weight
1e said.
ow anything about Isham ?”
He’s just a young chap,
n. He came in here with a
med Amos Ratliff. Isham
d doing a lot of bragging.”
of bragging ?”
da roll of money and said
e he could get plenty more,”
<plained.
ad heard enough. He raced
obile, and in seconds was
e home of the suspect. He
at home but the young man
arm over the sheriff’s visit.
you that knife,” he offered,
rove that I didn’t kill that

e to,” McShane said grimly.
tinued on. page 68]

DARING

The blacksmith handed the sheriff a knife and
prepared to resume work. “It was about the
size and weight of that one,” he said.

The blacksmith shop in Eureka Springs where the sheriff

—— | ‘ found a major clue is shown at left. "a

DETECTIVE


‘

to the work at hand. He detailed several
farmers to aid in a search of the premises.
But an hour’s labor brought nothing to
light. There was no sign of the murder
weapon and no obvious trail.

McShane followed the faint footprints
that led from beneath the shattered win-
dow. Though mostly obliterated, the trail
proved that the killer had walked in from
the road and returned the same way.

But from there which way had he
gone? Many cars had passed during the
night, the usual crowd of farmers going
home from Saturday night dances.

Moreover, Eureka Springs, a health
and pleasure resort, was full of summer
tourists. They drove over the roads and
roamed the hillsides at will. If he started
checking up on all of them it would take
weeks,

HILE the sheriff worked over the

grounds, the coroner called a jury
and held an inquest. He ordered the body
removed to the undertaking parlors. Then
he made a painstaking inspection of the
house.

When McShane rejoined him the off-
cial shook his head in discouragement.
“It's a strange case, Sheriff,” he said.
“There's nothing to indicate that the
woman was criminally attacked and no
bruises on the body. I can’t find a thing
to indicate what the motive for the crime
might have been.”

“What about her personal life?” Mc-

Shane asked. “Find anything on that?” .

“IT found letters from relatives in Gar-
den City, Kansas,” the coroner answered.
“Evidently that’s where she came from.
But if she had any love affairs, there’s
no record. She has no letters from friends
and she didn’t keep a diary.”

McShane was encouraged. If he could
locate the girl’s relatives, perhaps they
could give him a lead. “One thing I’m
sure of,” he said. ‘““Whoever committed
this murder was not a stranger to her.
The house isn’t visible from the road, so
the murderer was no hitch-hiker.

“I’m not sure an entry was forced
through that window. It looks as if she
let the killer in and locked the door after
him. Yet the only clue I have is that a
bum was seen walking on the road.”

“Maybe he was somebody she had
known before,” his companion suggested.

“That’s what I believe,” McShane ©

agreed. “But it’s going to be a tough job
to locate Winfred Frazier’s friends.”

McShane drove hastily into town and
wired Garden City. While he marked
time waiting for an answer, he searched
the town for more evidence.

He was handicapped because the busi-'

ness houses were closed on Sunday. The
hundreds of people who thronged the
town on Saturday night were not in their
homes. A canvass of the town brought
no trace of the overalled tramp seen near
the murder spot and no new clues,

McShane decided to concentrate on
questioning the women of the town. “If
there’s anything to this rumor of a mys-
terious suitor, the women will know about
it,” he said. i

Within an hour he had picked up sev-

36

eral bits of gossip, all confusing. The
horror that had gripped the village at the
stunning news of the woman’s death, had
started tongues wagging. “Winfred
Frazier was strange,’ one woman ex-

plained. “She was usually alone in town. °

But I’ve seen her a time or two talking
with a strange man.”

Other neighbors added to this. Often
a young man was seen to call at the iso-

lated cabin of the pretty girl and was wel- ~

comed affectionately. °

For a time that was as near the strange
rumor as the sheriff could get. Exaspera-
tion dogged him. When he had sifted all
of the stories, he knew only tw6 things:
The mysterious lover was known only as
“Bob” and it was believed that he had
followed the murdered woman into
Arkansas.

By morning, relatives of the girl arrived
after an all-night drive. The murdered
girl’s father, shocked at the tragedy, was
unable to give McShane a single lead.
If Winfred had serious men friends, he
never knew it, he said. She never had
cared for love affairs. She wanted to be
alone. When she settled at the cabin she
wrote that she had found a quiet place
where she could be by herself.

“Do you know if she kept any money
about the place?” McShane probed.

No, he was sure she did not. She
had written that she raised and sold
enough vegetables to keep her but had
no other income.

‘After an hour’s talk with the grief-
stricken father, McShane knew he could
expect little help in solving the mystery
through-the family. It was up to him.

The sheriff went next to the business
houses where merchants were back on
duty. He found that the news had spread
and confusing stories came to his ears.
But he had to follow up each suggestion.

-No telling now where truth ended and

gossip began. Unexpectedly, he at last
picked up a definite clue.

A merchant remembered the man who
had reputedly been seen at various times
with Winfred Frazier. ‘“That’s Bob
Nielson, I’m sure,” he said. “He was in
town Saturday night.

“Where does he live?” McShane
asked.

“He lives in Rogers. But I saw him
hanging around the blacksmith shop late
Saturday night. Then he got on his horse
and. rode out the Huntsville road, toward
Winfred Frazier’s home. That was about
eleven o'clock,”

“But she was in town at that time,”
McShane exclaimed. “Are you sure they
weren’t together ?”

“T’m dead sure,” the merchant said. “I
saw Nielson leave town before the girl
did.”

McShane did some quick figuring. If
Nielson had planned the crime, he might
have ridden out ahead of the unsuspecting
woman, + oil

The sheriff went to the telephone and
contacted Rogers police. He asked that
Bob Nielson be brought in at once. Then
he started for the blacksmith shop. Half-
way there, he stopped still in his tracks.
His mind had suddenly flashed back to-the
morning of the murder discovery and he

- recalled something that he had overlooked

in the excitement of the moment.

“One man slipped away from the mur-
der house that morning,” he murmured
aloud. He recalled distinctly now. When
he had arrived at the scene, a thin, dark
man in soiled clothes had been standing
near the front door.. When he had come
out of the house where the murdered
woman’s body lay, that man was gone.

McShane walked on thoughtfully. He
could not recall where he had seen the
man before. He filed the thought for
future reference and went on to the shop.

The blacksmith shop was a favorite
hangout on Saturday nights. In most
towns, blacksmithing was a lost art. But
in Eureka Springs, both tourists and na-
tives seemed to find an endless fascination
in watching the forges.

The smithy was a friendly man. He
liked company. “Sure,” he said, answer-
ing McShane’s questions, “I had a crowd
on Saturday night, same as always.”

“Was Bob Nielson from Rogers in
here?” McShane asked.

“Don’t think so. I’m not sure I know
him but there weren’t any strangers
around. I guess everybody in town
dropped in sometime during the evening

_ though,” he added with pride.

“That’s just fine,” McShane said in a
thin voice. “Suppose you start in and tell
me everybody you remember seeing that
night.”

Obligingly, the smithy began to list his

. visitors. In the midst of pronouncing a

name, he halted. His eyes were round
with excitement as he asked in a hoarse
voice, “Did you say that girl was
stabbed ?”

“That’s right,’ McShane snapped.

“Ed, I’d hate to accuse anybody,” the
man said guardedly, “but Tom Isham was
in here Saturday night and he got me to
sharpen one of the most vicious looking
hunting knives I ever laid eyes on.”

McShane was instantly alert. “What
time was that?” he rapped.

“Around ten o’clock. I asked him what
he aimed to do: with that pig sticker, and
he said I’d guessed it—he aimed to stick
pigs.” :

‘THE blacksmith handed the sheriff a
knife and prepared to resume his
work, “It was about the size and weight
of that one,” he said.
“Do you know anything about Isham ?”
“Not much. He’s just a young chap,
about eighteen. He came in here with a

farmhand named Amos Ratliff. Isham

was drunk and doing a lot of bragging.”

“What sort of bragging ?”

“He showed a roll of money and said
he‘knew where he could get plenty more,”
the smithy explained.

McShane had heard enough. He raced
to his automobile, and in seconds was
driving to the home of the suspect. He
found Isham at home but the young man
showed no-alarm over the sheriff’s visit.
“T can show you that knife,” he offered,
“and I can prove that I didn’t kill that
girl.” -

“You'll have to,” McShane said grimly.

[Continued on. page 68]

DARING


Jatt

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Contras Costfx on J [Mes
Confre Co sf County

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28

By Ron Fournier
Associated Press

VARNER, Ark. — Gov: Bill Clin-
ton left the Democratic presidential

. Glinton 7 halts campaign
| for Arkansas execution

campaign Friday. to be in Arkansas __.

for the execution of a brain-dam-

; aged. killer-of a police officer.

Rickey Ray Rector, 40, was exe-

cuted by injection Friday night. Ear-
. lier, the U.S. Supreme Court with-
out dissent denied a last-ditch .
_ appeal filed for Rector in: site and
a federal courts... ee Og Gees
...) The’ execution ‘was. delayed for’ a
“50 minutes because medical person- |
e nel weren’t able to find a suitable #
~ vein in which to inject the solution, —

prison spokesman : David White
said...

Asked if he tied to make a fi-
nal statement, Rector ‘said, “Yes.
got baptized and saved.”
The execution began at 9:50 p.
CST, and Rector was pronounc
dead at 10:09 p.m. by Lincoln Co
ty Coroner Jimmy Hawkins.

Clinton denied clemency to Rec-.

tor on Thursday.
Rector was the first black execut-
ed in Arkansas since 1960. — :
The execution could help Clinton

distance himself from his party’s .
soft-on-crime liberal image, said

some political observers in New |
Hampshire, site of the nation’s first ©

primary, on Feb. 18.

“I think the death penalty is “a

trump card for.being tough on
crime,” said Kimberly Cook, presi-

dent of New Hampshire Citizens

Against the Death Penalty.

Dick Bennett of the American | administration, both in 1990.

SE WR ED” ——1

_-as a moderate-to- conservative and

is he’s (Clinton) pd

the execution of the death sentence
might be attractive.”

eet t+ p gg Gb 5

Clinton has refused to talk about

political implications of the execu-
tion. He was unavailable for com-
ment. Friday; his office. and cam-
paign staff said he wouldn't give
any interviews,

The five-term governor has
scheduled 68 executions during his
11 years in office. Only two inmates
have been put to. death during his


Clinton to face infidelity questions

Arkansas’ Demo governor, wife scheduled on ‘60 Minutes’

fsgciated Press

; WASHINGTON — Democratic
presidentia! hopeful Bill Clinton and
his wife plan to appear on television’s
“60. ‘Minutes” on Sunday to respond
to. ‘a tabloid account of alleged infi-
delity, advisers said Friday.

’ In other developments, the Arkan-
sas governor left the Democratic
presidential campaign trail Friday to
be in his home state for the sched-
‘uled execution of a cop killer.

Rickey Ray Rector, 40, was sched-
uled to die by injection if last-ditch
appeals to the U.S. Supreme Court
failed to keep him alive.

; The execution could help Clinton
distance himself from his party’s
soft-on-crime liberal image, said
some political observers in New
Hampshire, site of the nation’s first
primary, on Feb. 18. Clinton has re-

fused to talk about political implices

tions of the execution.
Clinton spent the day in Little Rock

conferring with advisers and eles

8

Gennifer
Flowers

Her charges
came in an
interview
witha.
supermarket
tabloid.

friends about how to put the sexual
allegations behind him.

CBS News said the couple would
talk about their marriage in a special
edition of “60 Minutes” scheduled to
air immediately after the Super Bowl.

“Bill and Hillary want and wel-.
come the opportunity to say in.a)
forthright and open way what they.,
have. to say,” said Clinton campaign
se “manager David Wilhelm.)

The: governor “has adamantly

nied the allegations | of an Arkansas :

Aft 2. The Sacramento Bee Final ¢ naan sry 25, Le

Sa crame cto, Calif WORLD/NATION

EEO

woman who said she had a 12-year
affair with Clinton. The allegations

by Gennifer Flowers came in a paid .

interview with the Star, a supermar-
kettabloid. .

Star editor Dick Kaplan said Flow-
ers had an exclusive contract with
the Star and would discuss her story
at a news conference on Tuesday.

Clinton has never issued a blanket
denial of infidelity, but he has on
three occasions denied any relation-
ship with Flowers.

Before he entered the presidential
race Clinton tried to distance himself
from repeated but unsubstantiated
rumors of infidelity. He and his wife
last fall met with national reporters
and acknowledged their marriage
had gone through rocky periods.

By having Clinton acknowledge on
television that his marriage has had a
rocky past the campaign hopes to put
an end to “have you ever” questions
about extramarital affairs.

“We're going to tackle these un-
true allegations head on,” said Clin-
ton strategist Paul Begala.

ane en ee eee ee” “ ee ee pee ee ee

A=6 Saturday, January 25, 1992

~ NATION
IN BRIEF |

Bin re

wae

ARKANSAS ©:

“linton goes home
°“for execution

VARNER — Gov. Bill
‘* Clinton left the Democrat-
ve dC presidential campaign
aiatrail yesterday to be in
_erArkansas for the sched-

uled execution of a brain-
= damaged cop killer.

*~’’ Rickey Ray Rector, 40,
“was executed by injection
“last night. Earlier, the
U.S. Supreme Court with-
out dissent denied a last-
ditch appeals filed on Rec-
tor’s behalf in state and
federal courts.
The execution was de-
“*layed for 50 minutes while

eae na? vara)

_. Suitable vein in which to
_ inject the solution.

_ Asked if he wished to
-make a final statement,
Rector said, “Yes. I got
baptized and saved.”

With

medical personnel found a-

-


Ye 7

-Z66L ‘v7 AMVANVE ‘AVCldS ° AVGOL VSN

\) K

Campaign
spotlight

|| focuses on

executions

By Tony Mauro
USA TODAY

The politics of capital pun-
ishment swirled through sever-
al states Thursday and reached

‘the presidential campaign of

Arkansas Gov. Bill Clinton. |

Clinton returned to. Little
Rock to oversee the execution
by lethal injection of Ricky Lee
Rector, 40, who murdered a
police officer in 1981.

A demonstration by death
penalty foes is planned before
the execution, set for tonight.

On Thursday, Clinton’s of-
fice said he’d turn down final
appeals for clemency. Rector’s
lawyers say his ability to un-
derstand his punishment was
erased by brain damage he suf-
fered when he shot himself
moments after the murder.

“He barks like a dog and
howls in his cell,” Rector’s law-
yer John Jewell said Thursday.
“He’s a defenseless human be-
ing, and society hurts itself by
executing him.”

Clinton’s action is in keeping
with the state parole board and
-||-federal and:state courts. —

Capital punishment critics

said Clinton’s denial of clemén-
cy for Rector was done for po-
litical gain. “The question is
whether he is putting politics
before doing what is right,”
says Leigh Dingerson of the
National Coalition to Abolish
the Death Penalty.
Y At the Jan. 19 Democratic
candidate debate in New
Hampshire, Clinton was joined
| | by Bob Kerrey and Paul Tson-
- | gas in favoring capital punish-
ment as a tool in the fight
against crime; Tom Harkin and
Jerry Brown opposed it. Presi-
dent Bush has asked Congress
repeatedly to expand the death
penalty to more crimes.

Also Thursday:

Wilder, a former presidential
candidate, commuted the
death sentence of Herbert Bas-
sette Jr. just hours before he
was scheduled for electrocu-
tion for a 1979 murder. Wilder
cited new evidence that cast
doubt on Bassette’s guilt.

> More on politics, 1A, 4A,
8A, 11A, 13A

EE A SE
|

_ > Virginia Gov. Douglas |


18A_ Saturday, January 25, 1992 m San Jose Mercury News

San Tore
CAC F.

Clidtens wife
to appear on

“00 Minutes’

iLos Angeles Times

i

; WASHINGTON — Democratic presidential hopeful
; Bill Clinton, going on the offensive to combat rumors

Tat ee ee ee me me

' about his personal life, decided Friday to appear with .

‘his wife, Hillary, on the CBS television program “60
' Minutes”. to ariswer questions about their marriage.
: The decision, made after a day of discussions be-
‘tween officials of Clinton’s ‘campaign and the net-
; work, as well as high-level meetings among top Clin-
‘ton aides, is likely to be a pivotal moment: for Clin-
‘ton’s campaign.
- To be broadcast Sunday night just after ie Super
‘Bowl in most television markets, the
show will place Clinton before a vast
audience — possibly 24 million
‘households —-one far larger than
‘any politician other than President
‘Bush normally can command. It will
-_provide Clinton with a made-to-or-
‘der forum for presenting his cam-
‘paign themes. :
_ At the same time, however, the §
show will open him up to lengthy
questioning of his personal life.
Clinton and his staff decided to make the appear-

Flowers

ance after a supermarket tabloid, the Star, published

allegations Thursday by an Arkansas woman, Genni-
fer Flowers, that she had a 12-year affair with Clin-
ton. Clinton denied the charge. It was the second time
in a week that the tabloid, which paid Flowers an
undisclosed sum, had printed accusations of infidelity
and forced Clinton into a public denial.

Some party professionals warned Friday that Clin-
ton’s presidential bid might be finished if he did not
find a way to break out of the cycle of tabloid charges
and denials.

Clinton’s strategy will be to try not only to put the

“Associated Press:

READY FOR TV — Arkansas: Democratic
presidential hopeful Gov. Bill Clinton and. his

wife, Hillary, will appear on. “60 Minutes” to |

answer tabloid allegations about his sex life. .

most recent rumors to rest, but also pe cipae off the
subject for good by tapping into the Widespread public
discomfort with the intrusion of pérsonal-life ques- |
tions into politics, his aides and advisers said.

«Somebody's got to stand up and say, ‘Enough is |

enough.’ We’re destroying the political process, and
somebody’s got to put a stop, to it,”, Said “Clinton
strategist Frank Greer.

A year ago, Flowers herself denied that she had had
an affair with Clinton. She hired #lawyer ‘to threaten |

a suit against a Little Rock radio ‘station for having.

“wrongfully and untruthfully alleged. an affair”. be-:

tween her and Clinton.

Clinton interrupted his campaign: Friday to be in |

Arkansas for the execution of a brain-damaged man
convicted of killing a police officer.

Rickey Ray Rector, 40, was executed by injection
Friday night.

The execution is considered likely to help Clinton |
distance himself from his party’s soft-on-crime liberal
image, according to some political. observers.

The Associated Press contributed to this report.


chasing the

he skull,

GRAHAM

1 in Ford v.
che accused,
must first
sentenced
ehend why.
-ompetency,
rgued, is
ay, ‘Yes, I

ited’; it in-

LIKE A WARPED RECORD

cludes a genuine appreciation of those
consequences.”

One of Rector’s early attorneys would
testify, “My first impression of Mr. Rec-
tor, frankly, was that he was better off
than the reports that I had would indi-
cate. I talked to him a good while. He
wanted to codperate with me. He an-
swered my questions directly.” The at-
torney went on to say, “After the second
and third interview, I came to conclude
that we had the same conversation over
and over.... He would make every
effort, I thought, to say what he thought
I wanted him to say. He would always
come back to the same points.” Partly
for that reason, his attorneys began to
sense, in their discussions of that March
afternoon, that Rector was, as one said,
“giving me information that someone
else had given him.”

One psychologist who examined him
testified for the defense, “Most of what
Rickey told me... appeared to have
been based on hearsay, what others have
told him about what happened.” Fur-
ther, the psychologist said that while
Rector apparently “understood
what murder was,” it seemed
the recognition “a child might
give...maybe a nine- or
ten-year-old.” Although he
seemed to have “a very low ba-
sic level” of understanding of
what might happen to him, he
had “marked deficits in his
ability to think abstractly, to,
go beyond the very concrete
right here and now,” and had
an I.Q. of sixty-three. If Rec-
tor was asked what should be
done about someone who had
killed someone else, the psy-
chologist said, “Very passively,
very blandly, and very quietly,
he stated, ‘I guess they ought
to send me to the chair if I did
it, but I don’t remember doing
it.” A year later, Rector told
the same examiner that “if
they’re going to do it, there
ain't nothin’ I can do about it
except get dressed and go on
down and sit in the chair and
they'll barbecue me”—this ut-
tered, the examiner said, with
“absolutely no emotion.” He
remarked, “It’s almost as if you
are speaking with a person
talking about someone else’s

life ... the life of another person that
he’s outside looking at.”

In frustration, one of his early attor-
neys testified, he finally tried to jolt some
feeling out of Rector by describing to
him how, when someone is being elec-
trocuted, “sometimes the blood boils,
there’s all kinds of very gruesome things
that happen to a body.” But, the attor-
ney said, “he was totally oblivious to
it... that this could relate to him.” An-
other attorney testified, “I went in one
time just determined to get some emo-
tion out of him, good, bad, or indiffer-
ent.” He was about to kick him on the
shin, “just to see if he would do some-
thing, and then I decided that might be
inappropriate.”

One attorney, assigned to Rector’s
case in 1988, did persevere all the way to
the end. He was John Jewell, the scion
of a relatively patrician family in Little
Rock, whose father was a venerable Ar-
kansas attorney. A meticulously serious
young man, stocky and pale, with thin
dark hair and gold wire-rimmed spec-
tacles, Jewell has a quiet and almost

113

primly correct demeanor, and there is a
vaguely seminarial air about him. He
testified that, in his first sessions with
Rector, “after maybe four or five min-
utes, all communication that I was trying
to direct broke down, and it became
merely a series of questions. . . . “What
would you do if somebody spit in your
face? What would you do if Tommy
Robinson jumped you?... Is Little
Rock bad?’—just a repetition of that
type of question, and you couldn’t focus
him again.”

One death-row inmate later likened
the working of Rector’s consciousness to
that of a needle on a warped record,
bumping and skimming randomly from
one momentary refrain to another, com-
pletely separate and dissonant, and then
at some point staying hung on the end-
less revolving of another stray passage.
Once, while he was in prison, Stella
brought him word that one of his broth-
ers had died. “He asked only a few ques-
tions,” she says, “and then all of a sud-
den, ‘You see all that monkey smoke in
here?’ And began to pace like a wild


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“And whose little marriage are we?”

animal. ‘See all that monkey smoke?” I
said, ‘Are you getting in trouble?’—
because he knew when he was about to
float away again and would make up
things to cover it up when it began.
‘Are you losing it?’ I said, and he said
Yeah.”

At first, Jewell says, “he wouldn’t
know who I was when I'd come back
to see him,” but eventually, whenever
he saw Jewell again, he yelped, “There's
my man!” And before long Jewell
came to feel a profound and abiding
pity and sorrow for him. “It was just that
he, you know, couldn’t do anything
whatsoever for himself, to help him-
self,” he says. Even after leaving his
law firm for a position as a corporate
attorney in Little Rock, Jewell con-
tinued to labor on Rector’s case. “But
at no point did I ever feel with Rickey
it was anything like a relationship
with a friend,” he says. “Because there
wasn’t anyone there to connect to.”
Another of Rector’s attorneys later
lamented, “We didn’t have a client to

defend. Rickey was a nonexistent part of
the trial.”

The question ultimately became,
then, as one psychologist put it, “if
Rickey is truly the same man he was be-
fore he shot himself, or do we now have
a different individual?” Rector’s sister
Stella testified, “The person you see here
and the person that I see, it looks like
Rickey. He talks like Rickey, he has
some characteristics of Rickey. But the
real Rickey Ray Rector was destroyed
when he shot himself with the gun. This
person is just an appearance. It is not my
brother.” During one of his trials, his at-
torney finally posed the issue as: “The
person who shot Officer Martin cannot
be executed. He no longer lives. If we
cannot execute that person, must we,
nevertheless, execute his body?”

Ve the case unfolded, of course, that
was more or less the determina-
tion of the officials of justice for
Faulkner County and the State of Ar-
kansas. Even so, there was first the obli-

THE NEW YORKER, FEBRUARY 22, 1993

gation of satisfying the law’s technical
punctilio by undertaking to demonstrate
that there was at least a sufficient sem-
blance of a mind in Rector to qualify
him as “competent” for trial and punish-
ment. To begin with, both the prosecu-
tion and the defense had put him
through a series of psychological and
neurological examinations to clinically
evaluate his fitness to be legally tried and
put to death. There followed two com-
petency hearings, preliminary to his trial
for first-degree murder in Arthur
Criswell’s death, which was not neces-
sarily a capital matter, and his trial in
Martin’s death, which inescapably was.
With Rector’s commission of the
murders unquestioned by the defense,
both hearings really amounted to the
definitive determinations of what would
become of him, and were conducted
for the deliberation of the local judge,

George F. Hartje, alone, without a -

jury, in the Faulkner County Court-
house.

The medical specialists for the de-
fense testified to Rector’s psychic desti-
tution, declaring that he was manifestly
incapable of assisting his attorneys in any
real way. A neuropsychologist insisted
that there was no possibility that Rector
was shamming his pitiable performances
in their examinations; one of the state’s
specialists agreed, and even made the
peculiarly poignant concession that Rec-
tor was “trying to do the best he could
on those tests.”

Brazil, the prosecutor, also produced
his own succession of specialists assigned
to examine Rector—some of whom, it
turned out, had never read the surgeon’s
report on Rector’s operation or had read
it only that morning. (One of them
had no idea how much brain tissue was
removed, had only briefly examined
Rector’s medical charts, and passed only
some twenty minutes interviewing him.)
Nevertheless, the specialists variously ex-
plained Rector’s condition by reporting
that he was “attempting to fake psycho-
pathology,” that he offered irrelevant an-
swers “primarily to avoid focussing the
discussion on the issues related to the
charges,” that he was “generally hostile,
irritable, and suspicious,” and merely
affecting a “cool daddy” pose. One psy-
chologist discounted the ruin of Rector’s
mind reported by defense experts by as-
serting, “He gave a performance,” and
cited, as a reason for his conclusion that

THE PSYCHI-

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- JARY 22, 1993

v's technical
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and punish-
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verts by as-
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clusion that

THE PSYCHIATRISTS DEBATE

Rector was fully capable of assisting his
attorney, “He was codperative with my
exam” and “always seemed to appreciate
my questions and didn’t seem to be
holding back with me.” Another cited as
evidence for the same conclusion the fact
that Rector was able “to express himself
quite openly” in saying that “he does not
remember anything. He was able to ex-
press that quite clearly.”

A psychiatrist who testified for the
prosecution told the court, regarding
Rector’s apparent emptiness of emotion
and his serene and vacant muzziness
interspersed with a frenetic childlike
scatter of attentions—his condition since
his surgery—that “those are his life
choices,” his “personality adaptation in
life.” Rector could still “respond in an
emotional way if he chooses,” and so
“could choose to codperate more” with
his defense. “I believe he’s faking on
some aspects of this,” the psychiatrist
said, adding that Rector had “attempted
to make himself look sick.” Rector’s
ploy, he explained, was “intentionally
dawdling before answering.” (One of
this doctor’s colleagues had testified
that he found Rector to be “pretty
prompt.”)

All this produced what a higher court
would later characterize as testimony
“hopelessly in conflict,” which left Judge
Hartje free to decide either way. In this
instance, the benefit of the doubt did not
go to the defendant. In both competency
hearings Hartje decreed that Rector was
competent to be tried and so, ultimately,
executed.

Shortly after Hartje’s first ruling—
about seven months after Rector shot
himself—Rector’s mother died. “She
had vowed that she would never testify
against Rickey,” Stella says. “About two
days before she went, she called me in
and said—they were her last words to
me—‘Stella, I want you to promise me
to take care of Rickey.’ And I looked
into her eyes and promised her, ‘Mama,
I don’t know if anybody can really help
Rickey now—but I'll do what I can.’”
Even though Stella says that “Rickey
and my mother had always had this sort
of special bond between them,” one of
his attorneys recalls that when Rector
was told, in prison, that she was dead
“there was absolutely no reaction,” add-
ing, “Only said, ‘She is?” And then,
‘When’s dinner?” ” Stella was permitted

to take him to the funeral home to view

her body, “and he started laughing when
he saw her,” Stella says. “Said, ‘Yeah,
that’s her all right, she’s dead.’ ”

Rector’s two trials were about a year
apart. In the first, for the killing of
Arthur Criswell, he was sentenced to life
without parole. That alone would have
served, of course, to remove him from
any further possible distress to Arkansas
society. In the Martin trial, it took an
all-white jury only fifteen minutes to
find him guilty of capital murder, and
the jury then moved on to decide his
sentence. Rector’s attorney at the time,
Dan Stripling, recalls, “You know you're
in bad trouble when the retired Meth-
odist minister on the jury grabs for that
death form to sign.”

After Rector heard his sentence
sounded—death by electrocution—he
stood for a few moments as spectators
began leaving the courtroom and the
judge and jury also departed, and then
turned to Stripling and muttered, “Does
this mean I'll get a television in my
cell now?”

ECTOR was sent to death row,
which at the time was at Cum-

mins prison, a former cotton plantation
that is now a gigantic penal farming
complex in Arkansas’s delta bottom-
lands. At Cummins, Stella, keeping her
promise to her mother, visited Rickey at
least once every two months, sometimes

IS

in cramped, childlike, punctuationless
printing:

Dear Sister How is everythang going I
am doing Fine I have been doing Fine. . . .
it is a lots of punks and thugs down
there. ... I am trying to stay out of trouble
the best I can... . I read in the paper where
my lawyer is droping my case a see if you
can Find another on For me right way...
if I kill some Body I don’t no nothing about
it I thank I am getting Frame by somebody.

Stella says of her visits to him, “His
cell was just filthy. He didn’t know how
to clean it. And 4e was filthy—nasty—
his shirt all crumpled and dirty, the color
of that dirt out there in that yard.” He
still consumed whatever food appeared
before him, with an almost unnoticing,
headlong voracity. “He doesn’t seem to
know when to stop eating,” Stella would
testify. “On my bimonthly visits, we buy
him anywhere from five to ten dollars in
junk food, and he eats all of it and he
eats it very fast and he eats it very uncivi-
lized. He thrusts it in his mouth, I
mean, continuously.”

A prison chaplain named Dennis
Pigman, an Assembly of God minister
originally from Minnesota, recalls the
first time he visited Rector. “I thought
the guy was completely crazy. He was
standing at the bars, hollering, dancing.
He would jump up and down like some
ape. Playing cowboys and Indians in his
cell all by himself, dancing around and

then jumping over and shooting at

with one or more of her
sisters. “We never aban-
doned Rickey for what he
did,” she says. A mother
of two (her husband is a
quality-control inspector
at a Conway plant), Stella
Morris is a tall, trim
woman; her hair has a
light-maple hue, and
she has an eager, richly
hoarse voice. She has
worked for more than
twenty years in a state facility in Conway
for the care of the mentally retarded.
“Not because of Rickey,” she says, “but it
sure helped me over the years to under-
stand Rickey.” On her visits to Cum-
mins, she would give him pre-addressed
and stamped envelopes, along with
sheets of notepaper decorated in a lower
corner with a picture of Kermit the Frog
talking on a telephone, in the hope that
it might induce him to write letters to
her, and he would occasionally do so,

where he had been danc-
ing. It was obvious he had
the mentality of about a
six- or seven-year-old.”
Eventually, at some point,
Rector began to howl, day
and night, in his cell.
“The more he sensed
himself threatened, the
more he became like a
scared child,” Stella says.
He became convinced
that prison guards were
setting loose chickens and alligators in
his cell. Stella remembers, “He was
afraid of everything that moved. He was
afraid to go outside in the yard, because
he thought somebody would hurt him,
do something to him.” And for one
stretch of three weeks, day after day, he
just cowered in a corner of his cell, “like
a child cringing in his bunk,” Chaplain
Pigman says. Pigman finally arranged
for him to come to chapel alone, he told
me, “because he was afraid somebody


116

would kill him”: the chaplain would
conduct his service with Rector hulking
there by himself, in a small concrete-
block room.

Rector exasperated the other death-
row inmates. During the day, one said,
“no one can pass his cell without an-
swering a long repertoire of questions
that he has about dogs. . . . In the middle
of the night, his light goes out, he'll start
screaming. He’s afraid of the dark. And
everybody is up because Rector has woke
everybody up.”

Inmates began supplying him with
their own medications in the hopes of
calming him at least at night. But in
time the condemned men around him
began to feel a peculiar care and solici-
tude for him. William Frank Parker, a
white death-row inmate, was among
several witnesses who testified for Rector
at some of his last hearings. Parker as-
sured the court that ordinarily he would
feel little moved to make appeals for
anyone else on death row, but he went
on to say, “I seen you attacking a re-
tarded child, I’m going to get in it. Rec-
tor is not normal.” Parker added, “He
has no foothold on reality. He doesn’t
know what’s going on most of the

time. ... I don’t care what all these psy-
chiatrists and psychologists say... it
doesn’t take a licensed— A garbage-
truck guy, or anybody, could tell you that
Rector is not normal.” At a clemency
hearing, Parker even admitted that at
one point, out of a simple rage of pity for
him, “T tried to get him to commit sui-
cide,” but “he wouldn’t do it.”

At times, Stella says, “until the day he
died,” he believed those he was told he
had killed “were still walking around
somewhere alive.” At other times, he
continued to propose, John Jewell says,
“that the police had killed the policeman
and then shot him in the head.” Rector
announced to those presiding at one
clemency hearing that his first victim
was in fact still living in some little town
near Conway. One of Rector’s attorneys
testified that he “continually told me
that the gentleman he was supposed to
have killed was driving around the jail in
a big white car, a Cadillac or something,
and he had seen this guy and he knew he
wasn’t dead.” That was also his notion
about the brother of his who had died
while he was in prison—“Rickey kept
asking me how he was doing,” Stella
says—and about his mother. “He told

“Don’t trample on a young girl’s hopes and dreams, Roy.”

THE NEW YORKER, FEBRUARY 22, 1993

me that he saw Mother, she came to
visit him at night,” Stella recalls. In
1989, during a two-month stay at the
federal medical center for prisoners in
Missouri, he consistently referred to his
mother, in examinations, in the present
tense, informing staffers that “she has a
bad heart” but never once mentioning
that she had died. It was noted that he
said “at times he heard the voice of his
mother talking to him,” and also that of
his dead brother. And another of
Rector’s sisters, Celestine, recalls that,
though their father had died some three
years before the shootings, on several of
her visits to him “he would ask me
again, ‘Why Daddy.won’t come to see
me?’ and I'd tell him, ‘Rickey, like I told
you before, he is dead.’ And he’d go over
and sit on his bunk and drop his head.”
Celestine says that he continued to

suppose that her children were the same .

age they had been that Tuesday in
March of 1981—“like time had just
stopped still forever for him that after-
noon.” He never again, Stella declares,
“consistently knew what time, what day,
what month, what year it actually was.”
When he returned to Arkansas’s death
row after his two months at the federal
center in Missouri, Stella
asked him how long he'd
been there, “and he told
me he had been there two
years.”

Rector had been trans-
ported to the Missouri fa-
cility at the direction of a
federal district judge in
Arkansas, for further ex-
amination prior to an ap-
peal hearing on his sen-
tence. This time, his 1.Q,
was measured at seventy,
but he performed as ab-
jectly on the other tests as
he had previously. The
staff psychologist who
evaluated him, Dr. David
Reuterfors, later described
his linguistic functioning
as “at a very low level... a
very, very primitive type of
level.” Rector had told
staff personnel that as-
sorted people were peering
in his window at night
and that once the guard
tower turned its lights on
them and shots sent them

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U.S. SUPREME COURT REPORTS

recognize. or communicate facts that
might .make his punishment: unlaw-
ful or unjust was of no legal conse-
quence. See 923 F2d, at 572-573.
Purporting to draw on :the majority
opinion in Ford and on Justice Pow-
ell’s. concurring opinion, the Court of
Appeals concluded that the only con-
siderations: relevant to petitioner’s
competency were ‘(1) whether peti-
tioner understands that he is to be
punished by execution; and (2)
whether petitioner understands why
he is being punished.” Id., at 572
(emphasis added). Because the medi-
cal examiners had determined that
petitioner was competent to be exe-
cuted by these criteria, the Court of
Appeals affirmed the District Court’s
denial of habeas relief. | . ao

The lower courts clearly erred in
viewing Ford as settling the. issue
whether a prisoner can. be. deemed
competent to. be executed notwith-
standing his inability to recognize or
communicate facts showing his sen-
tence to be unlawful or unjust. Al-
though the Court in Ford did empha-
size. the injustice “of executing a
person who'has.no comprehension of
why he has been singled out and
stripped of his fundamental right to
life,”. 477 US, at 409, 91 L Ed 2d 335,
106 S Ct 2595, the Court stressed
that this was just one of many condi-
tions that were treated as rendering
a prisoner incompetent (or insane) at
common law, see id., at 407-408, 409-
410, 91 L.Ed 2d 335, 106 S Ct 2595.
Indeed, the Court quoted with ap-
proval Blackstone’s discussion of this
topic, which clearly treats as a bar
to execution a prisoner’s inability to
recognize grounds for avoiding the
sentence: : . “eS

“(I}f, after judgment, [a capital
prisoner] becomes of nonsane

1040

115 L Ed 2d

‘‘memory, ‘execution. shall be
stayed: for peradventure, says the
humanity of the English law; had

‘the prisoner been of sound mem-
ory, he might have alleged some-
thing in stay of judgment or
execution.’” Id., at 407 (emphasis
added), quoting 4 W. Blackstone,
Commentaries *24-*25 (1769).

It is true, as the Court of Appeals |

noted, that Justice Powell addressed
and rejected this definition of incom-
petence in his concurring opinion.
See 477 US, at 419-421, 91 L Ed 2d
335, 106 S Ct 2595. But even he
recognized that the full Court left
the issue open. See id., at 418, 91 L
Fd 2d 335, 106 S Ct 2595 (noting
that Court does not resolve “the
meaning of insanity in this con-
text”).

In. my..view, a strong argument
can be made that Justice Powell’s
answer to this open question is the
wrong one. As we have emphasized,
the* Eighth Amendment. prohibits
any punishment . considered’ cruel
and unusual at common law as well
as any punishment contrary to “the
‘evolving standards of decency that
mark the progress ‘of a maturing
society.’” Penry v Lynaugh, 492 US
302, 330-331, 106 L Ed 2d 256, 109 S
Ct 2934 (1989), quoting Trop v
Dulles, 356 US 86, 101, 2 L.Ed 2d
630, 78 S Ct 590 (1958) (plurality
opinion); accord, Stanford v Ken-
tucky, 492 US. 361, 368-369, 106. L:
Ed 2d 306, 109 S Ct 2969 (1989);
Ford v Wainwright, supra, at 405-
406, 91 L Ed 2d 335, 106 S Ct 2595.
The common law’s: hostility to put-
ting a man to death under such
circumstances is documented not
only by Blackstone, see 4 W. Black-
stone, supra, *24-*25, *388-*389, but
also by other commentators on En-
glish common law, see 1 M. Hale,


406

Jeffrey A. Dickstein, Tulsa, Okl., for de-
fendants.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.
I. Statement of the Case

The issue before the court is whether the
defendant, Tony Alamo, has met his burden
of showing that he is not able to pay judg-
ments for back wages in the total amount
of $241,666.35 plus interest, obtained by
the Secretary of Labor because of his fail-
ure and the failure of certain organizations
that he controlled to pay minimum wage
and overtime compensation to certain of his
followers who were employed in various
businesses controlled by him. A hearing
was held on this issue on September 27,
1991.

Although the above accurately describes
the status of this matter at the present
time, it by no means adequately describes
the checkered past that this case and asso-
ciated cases have had in this court. Ac-
cording to the evidence, this all started in
approximately the 1960’s when Tony and
his wife, Susan, started a ministry which
involved witnessing to and preaching to
people on the streets, apparently primarily
in California. Subsequently, the head-
quarters of the “church” was moved to the
Alma, Arkansas, area.

Over the years, the organization built
numerous buildings on what is known as
“Georgia Ridge” near Alma, including dor-
mitories for followers who joined their or-
ganization and moved to that area. The
organization grew, and apparently pros-
pered, and it purchased or started a num-
ber of private businesses in the Alma area.
Additionally, at some point, the group also
started and operated what was apparently
a popular retail clothing and accessories
establishment,. in Nashville, Tennessee,
known as the Alamo of Nashville.

In 1977 this matter was filed by the
Secretary of Labor contending that Susan
and Tony Alamo, and various of the orga-

1. Fora description of the actions which resulted
in these charges, see the court's description in
the case of Miller v. Tony and Susan Alamo

783 FEDERAL SUPPLEMENT

nizations controlled by them, were “em-
ploying” numerous persons to run the
many business establishments operated by
them and that they were violating the Fair
Labor Standards Act by failing to keep the
records required and by failing and re-
fusing to pay their “employees” minimum
wages and overtime pay. According to the
file that developed in this case, after years
of litigation, involving numerous discovery
disputes, a judgment was entered on No-
vember 26, 1986, in the total amount of
$182,996.14 and a second judgment was
entered on May 30, 1989, in the total
amount of $58,670.21. The defendants
were enjoined and restrained from with-
holding payment of such amounts, and
were given 14 days to pay the first judg-
ment and ten days to pay the second. The
matter was affirmed by the Court of Ap-
peals. Brock v. Tony and Susan Alamo
Foundation, et al., 842 F.2d 1018 (8th Cir.
1988).

On August 21, 1989, the Secretary of
Labor filed a motion to adjudge the defen-
dants in civil contempt. A hearing was
held by this court (with another judge pre-
siding) on the motion. Tony Alamo did not
appear. He was found in civil contempt
and was required to purge himself of the
contempt by paying the judgments. It was
also ordered that he be committed to the
custody of the U.S. Marshal to be confined
until he purges himself of such contempt.
A bench warrant was issued for his arrest.

Prior to the issuance of the federal bench
warrant on October 31, 1989, Mr. Alamo
was already a fugitive. The State of Cali-
fornia had issued a warrant for his arrest
on child abuse charges! on January l,
1989, and a federal warrant was issued on
June 20, 1989, for unlawful flight to avoid
prosecution. This warrant was in connec-
tion with the California warrant. On July
9, 1991, the State of California reissued the
arrest warrant on the child abuse charges,
and raised the bond to $1,000,000.

At the hearing, defendant’s counsel re-
quested that the court take judicial notice

Foundation, 748 F.Supp. 695, 697 (W.D.Ark.
1990).


a
}

| pa . noe
It sc 700

cece :
U.S. SUPREME COURT REPORTS >) -

Ax

Ate,

115 L Ed 2d

No. 90-1684. Robert P. Brewer,
Natural Guardian and Duly Ap-
pointed Next Friend of Robert
C. Brewer, Petitioner v Lincoln

. National Life Insurance :Com-
pany

June 24, 1991. The motion of Na-
tional Depressive and Manic Depres-
sive Association for leave to file a
brief as amicus curiae is granted.
Petition for writ of certiorari to the
United States Court of Appeals for
the Eighth Circuit denied.

Same case below, 921 F2d 150.

No. 90-5950. David Wayne Spence,
- Petitioner v Texas |

“June 24,1991. Petition for writ of
certiorari to the Court of Criminal
Appeals of Texas denied. _ .
_ Same case below, 790 SW2d 339.

| Justice Marshall, dissenting.

A

Adhering to my view that the
death penalty is in all circumstances
cruel and unusual punishment pro-
hibited by the Eighth and Four-
teenth Amendments, Gregg v Geor-
gia, 428 US 153, 231, 49 L Ed 2d.
859, 96 S Ct 2909 (1976), I would

grant certiorari ‘and ‘vacate the
death sentence in this case.

No. 90-8175. Arthur Lee Williams,
Petitioner v Texas

June 24, 1991. Petition for writ of
1038

ram 4 ecute of . :
Fridey (-UF - 72

VAL Nef

tr karso-s

oe

certiorari. to the Court of Criminal
Appeals of Texas denied.

Same case below, 804 SW2d 95.
Justice Marshall, dissenting.

Adhering to my view that the
death penalty is in all circumstances
cruel and unusual punishment pro-
hibited by the Eighth and Four-
teenth Amendments, Gregg v Geor-
gia, 428 US 153, 231, 49 L Ed 2d
859, 96 S Ct 2909 (1976), I would
grant certiorari and vacate the
death sentence in this case.

No. 90-7755. Ricky ‘Ray Rector,
Petitioner v Winston Bryant,
Attorney General of Arkansas,
et abe. veg cs . :

June 24, 1991. The petition for a
writ of certiorari to the United
States Court of Appeals for the
Eighth Circuit is denied.

Same case below, 923 F2d 570.
Justice Marshall, dissenting.

In’ Ford v Wainwright, 477 US
399, 91 L Ed 2d 335, 106 S Ct 2595
(1986), this Court recognized that
“the Eighth Amendment prohibits a
State from carrying out a sentence
of death upon a prisoner ‘who is
insane.” Id., at 409-410, 91 L Ed 2d
335, 106 S Ct 2595. The full Court,
however, did not attempt a compre-
hensive definition of insanity or in-
competence in this setting. See id.,
at 407-408, 409-410, 91 L Ed 2d 335,
106 S Ct 2595; id., at 418, 91 L Ed 2d

only chism ir) Wechr i
/s 7 feaf habeas aypeal P
Compe-featy So Se

€CxXe cuffed

335,106 S Ct
curring in pat
the judgment).
the question

whose’ mental
him unable to
nicate facts tl
sentence unlaw
theless compet
Because Ford
unanswered, a1
important and
administration
I would grant t

- After shootin
officer sent to i
involvement it
petitioner atte
life by shooting

' The gunshot d

However, it: di
section of peti
ing,.in.a front.
F2d. 570; 571,
The : trial court
claim: that: he

‘stand trial-for

officer::; Petitio:
sentence. of. de:

appeal.

Petitioner tk
tion: for a‘ writ
federal ' district
his . deteriorat
rendered him i
cuted: The Dis
mental evaluat

1. ABA Standard
“A convict, is incon
a result of mental
tion, the convict «
ture of the pendin
she was tried for,
ment, or the nati
convict is also ine

(335,106 S Ct 2595. (Powell, J.,.con-
curring in. part and concurring in

the judgment), This petition. presents
the question whether . a. prisoner
whose’ mental incapacity . .renders
him unable to recognize or commu-
nicate facts that would make his
sentence unlawful or unjust is none-
theless competent to be. executed.
Because Ford leaves this question
unanswered, and because this is an
important and recurring issue in the
administration of the death penalty,
I would grant the petition, =~ 9 =

“I

After shooting and killing a police
officer sent to investigate petitioner’s
involvement in another homicide,
petitioner attempted to end his own
life by shooting himself in the head.
_ The. gunshot.did not kill: petitioner.
However, it:did sever a. three-inch
section of petitioner’s. brain, result-
ing, in.a frontal. lobotomy. See 923
F2d 570; 571, and n 2 (CA8 1991).
The - trial - court, rejected: petitioner’s
claim: that: he -was ‘Incompetent: to
stand trial-for. murder of the police
officer::; Petitioner’s «: conviction * and
sentence of death. were affirmed on
appeal. secscend oor Ta Wo

Petitioner thereafter filed a‘ peti-
tion’ for a writ of habeas ‘corpus’ in
federal district court, arguing that:
his . deteriorated mental : condition
rendered him incompetent to be exe-
cuted: The District Court ordered a
mental evaluation of petitioner to be

o ROE AP ‘yy MEMORANDUM CASES

conducted by the United States Med-

ical. Center for. Federal Prisoners.
The examiners reached two conclu-
sions. First, the examiners. deter-
mined “that. no mental illness or
defect prevents [petitioner] from be-
ing aware of his. impending execu-

‘tion and the reason for it.” Id., at

572. Second, applying the compe-
tency standard: adopted’ by the
American: Bar Association: in its
Criminal Justice. Mental : Health
Standards,’ the examiners reported

deficits in. being able to work in: a
« ‘collaborative, cooperative . effort

with an attorney. In our opinions
it appears that he would not be
‘-able'to recognize’ or ‘understand
facts which might be related to his
- case ‘which: might make his pun-

ishment unjust’ or urtla wful:” Ibid.
‘ (emphasis added). ee eae
The District Court concluded_ that;
for purposes of Ford v Wainwright,
supra, - petitioner’s competency ‘to be
executed: turned’ solely on his appre-
ciation: of thé nature of his punish:
ment. Consequently, the court de-
nied the writ. See 727 F Supp 1285;
1292 (ED Ark 1990). ao
: Petitioner ‘appealed this’ determi-
nation: to. the Court‘ ‘of Appeals for
the Eighth Circuit:'Like the District
Court, the Court’ of Appeals - con-
cluded that petitioner’s inability to

1. ABA Standard 7-5.6(b) provides: «.
“A convict is incompetent to be executed if, as
a result of mental illness or mental retarda-
tion, the convict cannot understand the na-
ture of the pending: proceedings, what he or

she was tried for, the reason for the’ punish- -

ment, or the nature of the punishment.. 'A-
convict is also incompetent if, as a result of

mental illness or mental retardation, the con-
vict lacks: sufficient capacity to recognize or
understand any fact which amight exist which
would make the punishment unjust or unlaw-
ful, or lacks the ability to convey such infor-
mation to counsel or to the court.” ABA

Criminal Justice Mental Health Standards 7- _

5.6(b) (1989) (emphasis added).
1039

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22 SAR PSE INS


ow ence

;,- federal appeals court
if lifted a stay. of execution ‘that had *
been granted a day earlier for
Edward Charles Pickens,"
_The action cleared the” way for
Pickens to. be executed :Wednes-
day, along with another death row

IN

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© © 661 ‘Zi AVN ‘AVGSHNHL ©

‘Stay was denied

ening, . with only

ce Ha

on Tuesday a

om . 2

o- - 1

ro

a three
that
Pickens.

oe

‘
+ «lage @e =

’

' Two prison

inmates were
stabbed recently in separate in-
cidents, a Department of

Inmates, Stabbed at Prisons —
SS: H-V4 David L. Todd, 20, who is serving

a five-year theft of property~sen-
tence from Hot Spring County.

‘Correction’ news’ release*said:~-- The weapons were two short

“stabbed in the. back “and side -

Inmate James RE Camp, 18, was

: about 6 a.m. Tuesday at the De-...
_ partment of Correction ‘Varner, _
> Unit, the news release said,

The news release said--Camp,

_who is serving a two-year. arson

sentence from Pulaski County, was

. » allegedly stabbed in the back by -

»
© pes

inmate Bryan Baker, 18, who is
serving: a*'three-year attempted ;

: aggravated robbery. sentence from™

Polk County. Camp was allegedly
stabbed’ in the side by inmate

Cae Foy Coty ee D ats
r ¢

4 Tuesday,” 9) 99

-pieces of wire, the news release
“said.

Camp was treated at the unit’s
infirmary before being taker to
Delta Memorial Hospitai at
Dumas, where he underwent sur-
gery, the news release said:

Camp ‘remained overnight

Tuesday at the. hospital, the news ..:

release. said.
‘In a separate incident, inmate
Jerome Williams, 35, was stabbed

“three times about:7:p.m. Monday
at;the Maximum Security Unit at _

Tucker. * + rare

and seek another Stay for Piakens,
iy night’s action ‘by the
10-judge 8th U.S. Circuit
Court of Appeals at St. Louis
reversed a decision on Monday by

-Judge panel of the court
had granted a stay for

Tuesda
full,

e

t Lifts Stay of Execution for

(AP). — "A gdnmate, Jonas Whitmore. Earlier
in the: day, ‘a three-judge panel of
the same appeals court had denied
Whitmore a stay of execution.
Pickens’ attorney, Jeff Rose-
nzweig, said Tuesday night that he
would appeal the 8th Circuit’s
Tuling to the U.S. Supreme Court,

Gov.

_—

The Arkansas attorney general’
Office had asked the fuil aoe pa
Tuesday to reconsider the decision
the day before by the three-judge
panel. Monday’s decision had said
a federal judge should consider
( _Jim Guy. Tucker’s
impartiality in’ rejecting Pickens’

clemency request.

conflict of interest.

court vacated the
panel’s ruling.

Pickens

Rosenzweig had argued that -
Tucker shouldn’t decide Pickens’
clemency request because of a

Tuesday’s 6-4 ruling by the full

rah nu Taree wee om

Ler

antasy.”
{Whitmore .
nded down

1 45 more.
ing, Whit-

| confessed

nton set at
ion dates
Whitmore
» state and.

‘d national -
‘then he de-
r Ronald
ition. Whit-
hur Allen,
}. Supreme
waiver of
affected a
conviction
2me Court.
urt found
not have
Simmons

2>xhausted
st month
urt Judge
it lifted a
er the 8th
ils and the
2d to hear

ath

"- heek, Whitmore also took about

‘onas Whitmore,
al that Incluucl vu.
3reribs, a box of Vel
2ese, vanilla ice cream
ge bottle of soft drink.
Pickens’ last meal inc

‘loin steak, French frie

an

d a soft drink.

-



1 i
this week, a
said.

prison

Jonas Whitmore and Edward
‘Charles Pickens are scheduled to
die by lethal injection Wednesday.

il! , .

ba 4

Arkansas Democrat 7 Gazette

spokesman

arranging,” said) state Correction
Department spokesman Alan
Ables.

Whitmore, who turns 50 on

Monday, was sentenced to death

Resin

rickens, SY, of Detroit, got the
death penalty in the Oct. 20, 1975,
shooting death of Wesley Noble,
76, during a robbery of Cloud’s
grocery store in Casscoe. One
other person was killed and

17

maximum security unit at Pucker
and arrived at the Cummins Unit
near Varner about 7 a.m. Sunday.
They were placed in separate
“death watch cells,” adjacent to
the death chamber, he said.

Arkansas’ death row last stop for wanderer

/ BY ADAM BIEGEL
- ', Democrat-Gazette Staff Writer

‘Before knocking on a
woman’s front door in Mount Ida
one afternoon in August 1986,
Jonas Whitmore had rarely
stayed in the same place for
more than 12 months.

Born in Canada, Whitmore
spent the first 40 years of his life
wandering from California to
Texas. He survived by collect-
ing disability benefits because
of an amputated right leg and
by committing petty theft.

__. But Whitmore has spent the
‘last eight years in Arkansas
prisons for brutally stabbing

. Essie Mae Black, the 62-year-old
woman who answered the door.
And, barring further delays,
Whitmore will end his wander-

- ing in the criminal justice sys-

tem when he is eanemiss
Wednesday night.
, His death will close a sad

- chapter in the history of quiet
Mount Ida. Black had been a fix-
ture in Montgomery County pol-
itics for three decades. For
years, she had aided her hus-
‘band, who was county sheriff,
judge and clerk. In 1974, she be-
came the first woman office-

19 years after a killing, Pickens faces death’

BY KAREN MCALLISTER
Democrat-Gazette Staff Writer

Holding a .22-caliber pistol,
Charles Pickens told nine peo-
ple at a Casscoe grocery store,
‘We're not here to kill anyone.”
«! But, according to witnesses,
in'the next second the 21-year-
.old man fired his gun at Wesley
Noble, who had pleaded with
‘three robbers to spare his life on

. that. October 1975 afternoon.

» In 1976, a Prairie County Cir-
cuit Court jury convicted Pick-
ens in the murder of Noble, a
76-year-old retired farmer from
Stuttgart. Also killed in the gro-

.cery store shooting was James
E. Scherm Jr., 31, a father of two
from Stuttgart. Five others were

- shot, a woman was raped and

. all nine were robbed of jewelry

“and money.

Pickens’ two companions also
were convicted of capital mur-

. der after the shooting spree. All

, three were Detroit residents.

‘ Antonio Clark, now 39, was sen-
tenced to death and is serving
a life term in Michigan for an-

2

‘other crime. Sherwood Vincent ©

Gooch, now 42, pleaded guilty

and was sentenced to life with- .

out parole.
-¥ Testimony during trials over
ithe Jast 18 years revealed a
gruesome 20 minutes in the gro-
-cery store, 15 miles east of
Stuttgart.

y; According to ‘testimony,
Clark, Gooch and Pickens
forced the store manager and

_eight customers to lie face down
-on the store’s carpet while the
three hunted for money and

holder in the county when she
was elected county clerk.

Black retired in 1982, though
she still had
plenty of ties to
county govern-
ment. One of
her six sons,
Charles, was a
deputy county }&
prosecutor.

News of her
death struck
fear into the
community.
For her kind-
ness — offering a stranger ad-
vice on moving to western
Arkansas as well as milk and
cookies — Black was stabbed 10
times, her throat cut and an “X”
sliced into her right cheek.
Whitmore also stole $250 from
the house — enabling prosecu-
tors to charge him with capital
felony murder.

“It’s a fright,” then-clérk Jo
Neil Morphew told the Arkansas
Gazette. “The whole county is
upset.”

Arkansas police, aided by the
FBI, identified Whitmore as a
suspect after finding a suit coat
and a bloodied deboning knife

took billfolds. The men appar-
ently tried to lock the customers
in the store, then fired shots
when they re-
alized the
front door
wouldn’t lock.

Pickens’
1976 death sen- |
tence has been
overturned
twice. But last
September,
the 8th U.S.
Circuit Court

Pickens

of Appeals at St. Louis affirmed ‘*:

a US. district judge’s ruling and
upheld Pickens’ murder con-
viction and death sentence. He
is scheduled to be executed
Wednesday.

The ruling stemmed from a.

1991 appeal by Pickens’ Little
Rock attorney, Jeff Rosenzweig,
who asked for a new trial.
Rosenzweig argued that Pick-
ens didn’t receive a fair trial
because a key witness gave
false testimony at the direction

of Jack Lassiter, the case’s spe- |

cial prosecutor. Rosenzweig
also said Pickens’ confession
had been coerced.

The witness accused of giv-
ing false testimony during the
1984 trial was Harold Goacher,
the Casscoe grocery store man-
ager. Goacher told prosecuting
attorney Chris Raff of Searcy
that he hadn’t told the truth at
the 1976 trial and said another
person had fired the fatal shot
at Noble.

In a 1985 deposition, Goach-
er quoted Lassiter as saying on

’ father. ‘

in woods a few miles from
Black’s home. Whitmore had re-
moved the coat’s labels except
for a tailor’s tag that led inves-
tigators to an Alabama charity,
where workers described Whit-
more.

Authorities contacted law en-
forcement agencies across
North America and Whitmore
was arrested in Roundup, Mont.,
six weeks after the murder.

He was extradited to
Arkansas, and his trial was

* moved to Scott County because

of Black’s prominence. Before
his trial began in February 1987,
both the original prosecuting at-
torney and court-appointed de-
fense attorney had to withdraw
from the case because of their
ties to the Black family. Her son
never participated in the pro-
ceedings.

- Whitmore took the stand as
the only defense witness, un-
successfully arguing that he
“may have” killed Black. He
claimed he experienced a flash-
back of childhood sexual abuse
when Black asked him to re-
trieve a newspaper from her
bedroom. The prosecuting at-
torney, W.H. “Dub” Arnold, la-

the day he testified that what
he was doing was not wrong be-
cause all three robbers were
guilty.

“For God’s sake, don’t ruin it
now,” Goacher quoted Lassiter
as saying “We’ve got him burnt.

‘Just keep still.”

In 1988, an Arkansas County

; jury imposed the death penal-
ty on Pickens for the third time.

The year before, the state
Supreme Court had reversed

’ the second death sentence be-

cause Pickens wasn’t allowed
to present his good behavior
status on death row as evi-
dence.

During the 1988 trial, Pick-
ens’ attorney, his family and
counselors portrayed him as a
man with an abusive, troubled
childhood who had reformed
his ways during his years in
prison. Dr. Brad Fisher, a North
Carolina psychologist, testified
that Pickens grew up in a dis-
ruptive, chaotic household. He
said Pickens was abused by his

' Pickens’ mother, brother and
sister testified that his early
home life was unstable and
filled with abuse. Pickens ran
away from home repeatedly
and spent time in reform
schools until his mother took
him from Louisiana to Detroit.
There, his mother said, he en-
tered a world of gang violence
and crime that eventually led
to his involvement in the Cass-

_ coe murders.

However, the image of an

‘abused child was disputed by

beled his account “fantasy.”

The jury convicted Whitmore
in 20 minutes and handed down
a death sentence in 45 more.
During his sentencing, Whit-
more apologized and confessed
to the murder.

Then-Gov. Bill Clinton set at
least four execution dates
through 1992 as Whitmore
bounced through the state and
federal courts. 4

Whitmore achieved ndihenad
prominence in 1989 when he de-
layed mass murder Ronald
Gene Simmons’ execution. Whit-
more’s attorney, Arthur Allen,
argued before the U.S. Supreme
Court that Simmons’ waiver of
all appeals unfairly affected a
review of Whitmore’s conviction
by the Arkansas Supreme Court.

The Supreme Court found
that Whitmore did not have
standing to sue, and Simmons
was executed in 1990.

Whitmore finally exhausted
his own appeals last month
when U.S. District Court Judge
Susan Webber Wright lifted a
stay of execution after the 8th
Circuit Court of Appeals and the
Supreme Court refused to hear

ome appeals.
ce

tig!

testimony from a Arkansas’
Gazette reporter who had inter-
viewed Pickens. The reporter, ;'
William Green, testified that °°
Pickens said his father was “full
of love,” and that if he had lis-
tened to him, “I would have
been a better person than I
was.” ’

Pickens’ original death sen-
tence was overturned in 1983 by
the 8th Circuit, which upheld
the conviction but ordered a re-
hearing on the sentence. In
1984, the Arkansas Supreme
Court remanded the case to
Prairie County Circuit Court for
the first resentencing trial ever
held in Arkansas.

He received the death sen-
tence again at a 1985 hearing.

In 1977, a dozen reporters in-
terviewed Pickens and anoth-
er death-row inmate during a
press conference at the Cum-
mins Unit after the execution
of Gary Gilmore. The reporters
asked each inmate basic ques-
tions about a life awaiting

f: “death — what each thought

about their victims, what a
death-row inmate talked about

’- and how each felt.

Pickens said he thought
about dying “all the time,” but
added, “Thinking won’t do noth-
ing about it.”

An Arkansas Democrat re-
porter described Pickens as be-
ing at ease talking about his
life. “I feel if I'd taken a job, I’d
have made it,” Pickens said.

Pickens said the imminent
execution didn’t scare him, but
made him “uncomfortable.”


220

hearing was terminated at the outset by a
mistrial. The Arkansas Supreme Court re-
versed the second on an evidentiary ques-
tion, but affirmed the last penalty trial.
This last trial is before me on a habeas
petition.
peals in the state and federal courts, nearly
every conceivable issue has been raised and
addressed judicially. Three juries have
condemned Mr. Pickens to death, in spite of
the excellent representation afforded him
after remand by the Court of Appeals.
Nothing in the conduct of the latest penalty
hearing justifies granting of the federal
habeas corpus petition. Nor do I find any
reason to reopen the long-settled question
of petitioner’s guilt.

ATTACHMENT
In the United States District Court
Eastern District of Arkansas
Pine Bluff Division _
Edward Charles Pickens, Petitioner,
ve

A.L. Lockhart, Director of the Arkansas
Department of Correction,
Respondent.

No. PB-C-91-331

May 22, 1992.
- ORDER

INTRODUCTION. Edward Charles
Pickens has filed a petition for writ of
habeas corpus. Respondent acknowledges
that Pickens has exhausted his available
state remedies but maintains that his first
two claims should be dismissed as an abuse
of the writ because “{he] cannot show
cause and prejudice for his failure to raise
them in his prior habeas corpus petition.”
Response at 14. Respondent also alleges
that the due process prong of Pickens’
Ross v. Oklahoma claim is barred from
federal review because of his failure to
raise the claim in an Arkansas state court.

1.. The state Supreme Court gave the following
account: “After voir dire of the jury panel had
begun, one of the State’s witnesses at the origi-

nal trial, Harold Goacher, informed the prose- »

autor that what he had said petitioner had done

In the course of the many ap-"

802 FEDERAL SUPPLEMENT

For the reasons that follow, the Court finds
that his first claim and the due process
prong of his Ross v. Oklahoma claim are
subject to federal review and will be ad-
dressed at a later time. His second claim,
however, is barred from federal review and
will not be addressed.

RECANTATION CLAIM. Pickens’ first
claim challenges his 1976 conviction of capi-
tal murder because a prosecution witness,
Harold Goacher, recanted his trial testimo-
ny in 1984. Whether Pickens can litigate
this claim in this proceeding requires the
Court to review the chronology of this
case.

On October 20, 1975, Wes Noble was
murdered during a robbery of Cloud’s Gro-
cery Store in Casscoe, Arkansas. In March
of 1976, Pickens was convicted of the mur-
der and sentenced to death. His conviction
was affirmed by the state Supreme Court
in June of 1977. Pickens v. State, 261 Ark.
756, 551 S.W.2d 212 (1977), cert. denied,
435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500
(1978). He petitioned the state Supreme
Court for post-conviction relief in 1979, but
his request was denied. Pickens v. State,
266 Ark. 486, 586 S.W.2d 1 (1979), cert.
denied, 451 U.S. 964, 101 S.Ct. 2036, 68
L.Ed.2d 342 (1981).

In 1981, Pickens filed his first petition
for writ of habeas corpus. The petition
was denied in June of 1982. Pickens v.
Lockhart, 542 F.Supp. 585 (E.D.Ark.1982).
The following year, the Court of Appeals
vacated his sentence of death and remand-
ed the case to state court for re-sentencing
or reduction of the sentence to life in pris-
on without parole. Pickens v. Lockhart,
714 F.2d 1455 (8th Cir.1983).

In November of 1984, the state trial
court began selecting a jury for Pickens’
re-sentencing. During this process, Mr.
Goacher allegedly reported for the first
time that he had not told the truth during
Pickens’ trial.1 A mistrial was declared,
and Pickens requested permission to place

during the crime, Antonio Clark [an accom-
plice] did, and what he said Clark did, petitioner
had done.” Pickens v. State, 284 Ark. 506, 683
S.W.2d 614, 615 (1985).

PI(
Cite a

ATTACHMENT—Continue

» Mr. Goacher under oath and ex

= statement. The request was deni

é.

ae
i
.
.
fe
iss,
ae
fsa

ens filed petitions for writs of m
eo certiorari, and error coram nobis
state Supreme Court in an attem

gate this issue. In February of
state Supreme Court denied the -
made the following findings:
Petitioner seeks a writ of mar
compel the trial court to condu
ing on Mr. Goacher’s testimony
mus is an extraordinary writ
require an inferior court to ac
‘has improperly failed or decli
so. It is never applied to a
discretion of a trial court, nor
used to correct an erroneous e
discretion. [Citation omitted]
tioner concludes that the res
procedure has been rendered
the failure to hold a hearing, I
is on appeal, not a mandam
Citing our recent holding i
| State [228 Ark. 571, 670 S
(1984) ] ... wherein we discu
coram nobis as a remedy whe
newly discovered evidence, pe
gues that he is entitled to an«
hearing to determine if Goa
nouncements warrant. the ‘gra
’ new trial. Penn, however, co
dence discovered between th
filing a motion for new trial I
and the time the case is &
appeal. In petitioner’s case.
phase of his trial has beer
The Eighth Circuit Court of .
dered no new trial on that j
made it clear in Penn such i
was not a basis for a new tri
ing to our decision, such i
must be presented in a clemen
ing. ar
Furthermore, even if the.;
writ of error coram nobis: ¥
the record does not indicate
would be any difference in t
of the guilt phase. Mr. Goacl
that both of the men (Clark 8
did the shooting, although
separate their specific acti
Clark was also found guilty «

Bree.

1446 4 FEDERAL REPORTER, 3d SERIES

As indicated, the judgment of the district
court denying Bannister’s petition for relief
under 28 U.S.C. § 2254 should be, and here-
by is, affirmed.

BRIGHT, Senior Circuit Judge,
concurring.

I concur in the result.

Ww
° § KEY NUMBER SYSTEM

Edward Charles PICKENS, Appellant,
Vv

A.L. LOCKHART, Director,
ADC, Appellee.

No, 92-3135.

United States Court of Appeals,
Eighth Circuit.
Submitted April 12, 1993.
Decided Sept. 24, 1993.

Rehearing and Suggestion for
Rehearing En Bane Denied Oct. 29, 1993.

After his murder conviction was_af-
firmed on appeal, 261 Ark. 756, 551 S.W.2d
212, defendant filed petition for habeas cor-
pus. The District Court, 542 F.Supp. 585,
denied relief. On defendant’s appeal, the
Court of Appeals, 714 F.2d 1455, vacated
death sentence and remanded with instruc-
tions. After resentencing, defendant was
sentenced to death, and he appealed. The
Supreme Court, 292 Ark. 362, 730 S.W.2d
230, reversed. On resentencing, defendant
was again sentenced to death, and he appeal-
ed. The Supreme Court, 301 Ark. 244, 783
S.W.2d 341, affirmed. Defendant filed sec-
ond petition for habeas corpus. The United
States District Court for the Eastern District
of Arkansas, Henry Woods, J., 802 F.Supp.
208, denied petition, and defendant appealed.
The Court of Appeals, McMillian, Circuit
Judge, held that: (1) defendant’s claim of
coerced confession was procedurally barred
as successive petition; (2) defendant was not
denied due process in having to use his per-

emptory challenges to remove prospective
jurors who, he alleges, should have been
excused for cause; (8) excusing juror for
cause based on her views regarding death
penalty did not violate defendant’s due pro-
cess rights; (4) there was no basis for setting
aside defendant’s conviction on ground that it
was obtained on perjured testimony; (5) use
of resentencing procedure after death penal-
ty was vacated based statute that was not in
effect at time of offense did not violate ex
post facto clause; (6) prosecutor’s references
to races of victims in resentencing proceed-
ing did not deprive defendant of fair trial;
and (7) evidence did not require finding of
other mitigating circumstances besides de-
prived childhood.

Affirmed.

1. Habeas Corpus ¢897

Habeas corpus review of petitioner’s
coerced confession claim was procedurally
barred as successive, though petitioner pre-
sented affidavit of special prosecutor that
police officer admitted coercing petitioner’s
confession, where earlier petition alleged that
confession was not voluntary, and petitioner
knew factual basis for claim when it arose as
person threatened. U.S.C.A. Const.Amends.
5, 6; Rules Governing § 2254 Cases, Rule
9(b), 28 ULS.C.A. foll. § 2254. 7

2. Habeas Corpus 894.1

Successive claim in petition for writ of
habeas corpus may be relitigated if ends of
justice require. 28 U.S.C.A. § 2254,

3. Constitutional Law ¢=267
Jury 136(4)

Petitioner was not denied due process
by having to use peremptory strikes to re-
move prospective jurors whom state trial
court refused to excuse for cause; petitioner
received all that Arkansas law allowed,
though he retained fewer peremptory chal-
lenges to use as he wished. U.S.C.A. Const.
Amend. 5.

4. Habeas Corpus ¢=496
Jury 108
Excusing prospective juror for cause
based on indications in her voir dire testimo-


ATTACHMENT—Continued

» Mr. Goacher under oath and explore his
M ztatement. The request was denied. Pick-
ens ‘filed petitions for writs of mandamus,
certiorari, and error coram nobis with the
atate Supreme Court in an attempt to liti-
gate this issue. In February of 1985, the
state Supreme Court denied the writs and
made the following findings:
Petitioner seeks a writ of mandamus to
- compel the trial court to conduct a hear-
ing on Mr. Goacher’s testimony. Manda-
mus is an extraordinary writ issued to
require an inferior court to act when it
has improperly failed or declined to do
© 80. It is never applied to control the
“ diseretion of a trial court, nor can it be
- ysed to correct an erroneous exercise of
discretion. [Citation omitted]. If peti-
tioner concludes that the resentencing
- procedure has been rendered unfair by
the failure to hold a hearing, his remedy
is on appeal, not a mandamus action.
f °° Citing our recent holding in Penn ¥.
© State [228 Ark. 571, 670 S.W.2d 426
e (1984) ] .-. wherein we discussed error
=. ° coram nobis as a remedy where there is
=~ newly discovered evidence, petitioner ar
° gues that he is entitled to an evidentiary
2 hearing to determine if Goacher’s pro-
nouncements warrant the granting of a
new trial. Penn, however, concerns evi-
dence discovered between the time for
filing a motion for new trial has expired
-and the time the case is affirmed on
appeal. In petitioner's case, the guilt
phase of his trial has been affirmed.
The Eighth Circuit Court of Appeals or-
dered no new trial on that phase. We
made it clear in Penn such information
was not a basis for a new trial. Accord-
ing to our decision, such information
must be presented in a clemency proceed-
¢ ing. |
.. Furthermore, even if the petition for
Siewrit of error coram nobis were timely,
fa:the record does not indicate that there
Et would be any difference in the outcome
ees of the guilt phase. Mr. Goacher testified
ie that both of the men (Clark and Pickens)
| Oe did the shooting, although he did not
eat separate their specific actions. Since
ee: Clark was also found guilty and received

PICKENS v. LOCKHART
Cite as 802 F.Supp. 208

221
it cannot be said that

guilt phase would have
been different. If Goacher’s testimony
would go to mitigation, it may be heard
in the sentencing proceeding now in
progress. ,
Pickens v. State, 984 Ark. 506, 683 §.W.2d
614, 615-16 (1985). A second sentencing
proceeding was conducted, and Pickens
was again sentenced to death. The state
Supreme Court reversed and ordered an-
other re-sentencing proceeding. Pickens v.
State, 292 Ark. 362, 730 §.W.2d 280 (1987),
cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98
L.Ed.2d 226. A third sentencing was held
in 1988, and he again received the death
penalty. This gentence was affirmed on
appeal. Pickens v. State, 301 Ark. 244,
.W. cert. denied, 497
U.S. ——, 110 S.Ct. 3257, 111 L.Ed.2d 766.
He next requested post-conviction relief
and raised the recantation issue. The state
Supreme Court denied relief, finding:

The petitioner argues that he is enti-
tled to a new trial because of a statement
made by @ prosecuting witness, Harold
Goacher, to the prosecuting attorney.
Goacher told the prosecuting attorney
that his testimony at the petitioner’s
original trial was erroneous. This allega-
tion was decided adversely to the peti-
tioner in Pickens v. State, 284 Ark. 506,
683 S.W.2d 614 (1985). There, this court
found that Goacher’s claim would not
change the outcome of the finding of
guilt. A petitioner may not use a Rule
37 petition to reargue issues that have

(E.D.Ark. 1992)
the death penalty,
the result of the

been decided against him. [Citations
omitted].
Respondent's Exhibit E at 2. The applica-

tion at bar soon followed.

As the Court has noted, ‘respondent takes
the position that Pickens’ attempt to liti-

claim could have
raised, in Pickens’ first petition, a sgubmis-
sion filed in 1981.

not occur until
three years after Pickens’ first petition was
filed. The Court cannot agree with respon-
dent that this claim could have been discov-


re BR REMAIN pee RT A ae gD sero beac

ee

PICKENS v. LOCKHART
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

grocery store in Casscoe. Nine people
who were in the store at the time were
crowded into a small room while the rob-
bery took place. When Pickens and the
others determined that there was no
room in which they could lock up their
victims, they opened fire on them and
shot them repeatedly as they.lay help-
lessly on the floor. Two people were
killed and five others were seriously in-
jured.

At the sentencing hearing, one of the
victims, Jerry Lockridge, testified that
Pickens fired first, shooting Wes Noble
at point blank range. Other shots, fired
by Pickens or the others, then followed
in rapid succession until the gun was
emptied. The gun was then reloaded and
at least one more shot was fired. Lock-
ridge said, “during the entire time I was
there, ... Mr. Pickens was the individual
doing the talking ... he’s the one that
told me to lay on the floor ... he was the
one that did the talking to Mr. Goacher
‘when they found the money.” Lockridge

' “said he perceived Pickens as the one in

‘control of the situation. Another victim,
James Weatherly, said Pickens was not
acting on the instructions of anyone.
-From this evidence, the jury could rea-
sonably have concluded that the mitigat-
ing circumstances of youth and domina-
tion by another person did not exist.

Pickens also presented evidence that he
had corresponded with various young

-people since his imprisonment. Howev-

er, the state’s evidence showed that Pick-

ens had once enclosed a pamphlet in a

- letter to one student soliciting funds for

his defense. The jury could well have

.- found that these efforts by Pickens were
insincere and self-serving.

Pickens v. State, 783 S.W.2d at 345.

[15] The credibility of the witnesses
sand the weighing of the testimony were

matters for the jury. It is presumed that
mthey took this responsibility seriously.
BMcGautha v. California, 402 U.S. 183, 208,

1 S.Ct. 1454, 1467, 28 L.Ed.2d 711 (1971).
= Lhis is the third jury which has sentenced
mpetitioner to death. Such a result is hardly

fA surprise in view of the factual setting of

Rthis particular crime.

XII

COMPARATIVE REVIEW

[16] Petitioner claims that the Supreme
Court of Arkansas did not make a compara-
tive review of other death sentences. Col-
lins v. State, 261 Ark. 195, 548 S.W.2d 106,
122 (1977), cert. denied, 484 U.S. 878, 98
S.Ct. 231, 54 L.Ed.2d 158 (1977). He men-
tions three cases in which death sentences
have been vacated. The facts of those
cases are far different from those in the
instant case. Such a comparative review is
not required. Pulley v. Harris, 465 U.S.
37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In
his Rule 37 petition, he claimed that his
sentence was disproportionate to those of
his fellow perpetrators. The Supreme
Court of Arkansas answered this conten-
tion and the comparative review argument
as follows:

There was testimony that both the peti-
tioner and Antonio Clark shot the vic-
tims. Antonio Clark received a sentence
of death but was returned to Michigan to
serve a term of years for a crime com-
mitted there. Although this court may
not have specifically stated that it has
compared the petitioner’s sentence, such
a review has been made a part of our
appellate review process. Ruiz v. State,
280 Ark. 190, 655 S.W.2d 441 (1983). In
view of the severity of the crime, the
extensive review that the petitioner has
been afforded, and Antonio Clark’s sen-
tence, we find as stated in the petition-
er’s original appeal that there is “no ba-
sis in the record to hold that the sentence
of death was wantonly or freakishly im-
posed against the appellant.” Pickens v.
State, 261 Ark. 756, 551 S.W.2d 212
(1977), cert. denied, 485 U.S. 909, 98
S.Ct. 1459, 55 L.Ed.2d 500 (1978).

Pickens v. State, CR-89-94 decided Decem-
ber 17, 1990, 1990 WL 210641.

CONCLUSION

The litigation on Pickens’ guilt was ter-
minated almost a decade ago. For almost
another decade the litigation on the penalty
phase has continued. The first penalty


Not on Srybla's (34 — [Kang]

Na¥han Kamey creeuved at Helena Arkansas
on |-(9-/873. Accomplice of Semue/ White
Who had been execuved on 7-3f- F/.

N.0. Pie. /-A0-1873 7:3

Wren ne ig

~

SECREIBSERVER
AND THEIBER UIE

By Wade Hitson

UNLIGHT flooded the Arkansas
S countryside that bright Sunday

morning in June and the farmer
whistled cheerfully as he went about his
chores. He was on his way to the pasture
to round up the cows when he passed the
small, two-room cottage where pretty
Winfred Frazier lived alone.

1 Sight of the isolated cabin where the
lovely young woman had spent the last
few years of a strange retirement, brought
to his mind ah incident of the evening be-
fore.

It had been after midnight when he
heard her singing as her saddle pony
trotted by. He knew that she was re-
turning from an evening at the village.
Despite the lateness of the hour, he had
thought little of it. Winfred Frazier was
self-reliant. By her own choosing she
lived the life of a hermit.

All was quiet now at the cabin. But
he noticed a strange thing.

The young woman’s pony stood in the
corral. But the horse was acting queerly.
Instead of standing quietly, he threw up
his head with a snort, trotted the length
of the corral and blew through his nostrils
in terror. ,

The farmer frowned. That horse was
getting to be as eccentric as his mistress,

An hour later, the man passed the
cottage again. Once more he noted the
strange antics of the pony. “There’s
something wrong there,” the farmer ob-
served. “Must be a snake in the corral.”

H E LEFT the cows to find their way
home alone and strode over to his
neighbor’s property.

The horse reared and snorted as he
approached. The farmer examiried the
barn lot carefully but he could find noth- .
ing. to cause the animal’s terror. With -
growing perplexity, he turned and walked
to the cottage.

Repeated calls and knocks at the door

‘ brought no response. He tried the lock.
It was fastened tight. He went to a
window and peared in.

Winfred Frazier lay on the floor of
her bedroom! Her white nightgown was
bloodstained. It was obvious the young
bachelor git] was dead.

Cold sweat broke out on him and his
limbs shook. He backed slowly away.

wile amet

DARING DETECTIVE, February, 1942


RATLIFF, Amos, white, 2h, electrdécuted Arkansas (Carroll County) on Oct. ll, 1921.

Amos Ratcliff Pays Death Penalty

As surmised in the Star last week Amos Ratcliff paid the extreme
penalty in the electric chair in the walls of the penitentiary at 7:04
o'clock last Friday morning. He went to his doom with something
of the courage he has maintained since commission of the crime. ©
After the death warrant was read to him, which he heard in
apparently little concern, he walked to the electric chair unaided,
and he was pronounced dead one minute after the electric current
was sent through his body. His remains were brought back to

his house near Eureka Springs for burial.

This is the first legal execution Carroll County has ever furnished
the executioner. There was a man hung by common consent out
on the Henry Ross farm during the civil war for horse stealing,
outraged citizens performing the execution without aid of the law.
PINS TE TE COUTRIMIYINNG a ee Will be the last one. Surely
the fate of this young man who deliberately chose the downward
course in life will have some effect on the young men who perhaps
unconsciously are headed in that direction.

from The Arkansas Star Fridgay, Oct 21, 1921
Berryville, Carroll County, Ark
Vol XVII No 34 p4

We have this on microfilm in Heritage Center. All I could do
was make you this copy. E Phillips

I

THERM

LOCATION OF THIS CASE IS NEAR EUREKA SPRINGS, ARK.


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Fetes Calitornian
(USPS 040-380)
Vol. 106, No. 25

The Bakersfield Californian is published
daily and Sunday by The Bakersfield
aenernan, 1707 Eye St., Bakersfield, CA

| Governor
returns for
execution

_ Brain-damaged slayer

Clinton ad upsets legislators / A8

LITTLE ROCK, Ark. (AP) — Gov. Bill
Clinton left the Democratic presidential °
campaign trail Friday to be in Arkansas for
the scheduled execution of a brain-damaged
cop killer.

Rickey Ray Rector, 40, was to be
executed by injection at 7 p.m. PST Friday.

trouble finding a vein in which to inject the
solution, and the execution hadn’t been
carried out by 7:45 p.m., prison spokesman
David White said.

Earlier, the U.S. Supreme Court without
dissent denied a last-ditch appeals filed on
Rector’s behalf in state and federal courts.

Clinton denied clemency to Rector on
Thursday.

Rector would be the first black executed
‘ in Arkansas since 1960.

The execution could help Clinton dis-
tance himself from his party’s soft-on-crime
‘ liberal image, said some political observers
in New Hampshire, site of the nation’s first
primary, on Feb. 18.

“T think the death penalty is a trump
card for being tough on crime,” said
Kimberly Cook, president of New Hamp-
shire Citizens Against the Death Penalty.

to receive lethal dose

However, medical personnel were having |

SATURDAY, JANUARY 25, 1992

Dick Bennett of the American Research
Group, a New Hampshire-based polling
company, said he believes voters are more
concerned about the economy, but, “‘My gut
reaction is he’s (Clinton) portraying himself
as a moderate-to-conservative and the exe-
cution of the death sentence might be
attractive.” ~

Clinton has refused to talk about politi-
cal implications of the execution. He was |
unavailable for comment Friday; his office -

and campaign staff said he wouldn’t give

any interviews.

The five-term governor has scheduled 68

executions during his 11 years in office.

Only two inmates have been put to death
during his administration, both in 1990.

Rector was sentenced to death for
killing Patrolman Bob Martin of Conway in
1981.

After shooting the policeman, Rector
shot himself in the head. The wound and
emergency surgery that followed caused
brain damage that officials: say had the
effect of a frontal lobotomy.

Defense attorneys say the brain damage.

made Rector incompetent to be executed.
State and federal courts have repeatedly
ruled that Rector meets the federal stan-
dard for competency: He understands what
he did wrong and the extent of his punish-
ment.

In the appeal to the U.S. Supreme

| Court, Rector’s attorneys said Arkansas

case law provides a higher standard for
competency: that the inmate be able to help

- in his defense.

Government doctors, who found Rector
competent under the federal standard years
after his conviction, have said he could not
now help in his defense if he had the
opportunity to do so.

Rector’s attorneys also said Arkansas’
competency law improperly denied Rector
the right to have government doctors cross-
examined. .


BY BILL MILLER

or those opposed to capital punish-
ment, it seemed an especially grue-
some spectacle; three Virginia cor-

prisoner. front his ‘cell and into the
death chamber. at. the ‘Greensville

where they placed him in the élec-
«tric chair at 11 p.miJan19,
'.'» There, Charles Sylvester Stamp-

! er, who killed three people in a res-
taurant robbery, became the first _person-in a wheel-
chair to be put to death since the Supreme Court ruling
in 1976 that reinstated capital punishment: Because of
his disabilities, which resulted. from. a-prison fight, his

case generated national ‘attention and debate about ex- _”

ecuting the infirm. .

Whether for. or against capital punishment, those .

who follow death penalty cases said Stamper’s death

forced people to examine the underlying ‘philosophies :.
behind executions: that the condemned are killed in-
retribution for terrible crimes that take. away life; to ™

eliminate the potential for future danger; and to serve

Suffered a severe spinal

injury that left-him unable to: walk, except with the aid of ’
leg braces and a walker, and: then. only for a few shuffling «-..:
steps. He was unable-to’ stand without support and lost ©

most of the movement in his right hand.

“Where does it stop?” asked Kica Matos, research”
director for the NAACP Legal: Defense and Educational: .’
Fund’s capital punishment project; “Does he have to be ag
a quadriplegic? Does he have'to have both legs ampu-'

tated? How much more inhumane can we get?”
Many death penalty supporters, however, argued that

Stamper’s medical condition’ was:irrelevant, especially in

light of the circumstances surrounding the injury.
“He's not being executed for being disabled. He’s

being executed for killing three. people .and damaging .

the lives of the families of all the.victims,”:said James S.

Gilmore, .the commonwealth’s. attorney: of Henrico.

County, where Stamper’s case was tried.“I take no joy
or glee in executions. I don’t. But you have;to hold the
line. It’s the absolute reaffirmation .of civilized behav-
ior, of civilized standards in our. society. Otherwise,
anything goes.” aes

Had Stamper been given clemency, he said, it would
ave been an invitation to others on death row to at-
tempt to disable themselves to avoid execution.

Other prosecutors shared Gilmore’s. view. “One of

rections officers carried a disabled -

. Correctional Center in Jarrett, .

the reasons for the death penalty is so that society ai sponsibility to cancel the execution because of Stamp-

doesn’t ‘have ‘to maintain these people for the rest of

their lives,” said-Paul B. Ebert, commonwealth’s attor- . ”
aney-of Prince William County. “A physical malady, to.

My way of thinking, favors the death penalty.”.

"The families of the three people Stamper killed also

Were united in calling for Stamper’s death:

Treating the Condemned ©

:5., Executions tended to be state concerns until the late

:1950s,: when ‘the “federal courts began intervening. A .

: series of Supreme Court ‘rulings in’ the 1960s and

“1970s limited their: use, and. in 1972. the high court. _
“barred.the.death-penalty. But in 1976.it ruled in favor:

fore.

+ dards set in ‘past Supreme Court rulings.

“According to: experts who track executions, the last
“physically disabled person to be put to death was Frank. :
| Wojculewicz,: who: was-wheeled to the electric chair in -

+ Connecticut 'im:1959::Wojculewicz, 41; was paralyzed

hte

foerearer

of TieW'state'laws that had beep, written to. meet stan-

by police after he had killed two peo-. |.
< “ medical assistance. “There were so many of these people

| Since the restoration of |

| the death penalty 17.
“years ago, the physical.

] and mental health of

M condemned prisoners.

has been a key issue ~~
inthe debate over

executions. ©

“ple ina 1951 robbery. News accounts
lost an appeal based on his physical condition. °°":

Since the restoration of the death-penalty 17 years ago,

: the physical and mental health of condemned prisoners has

_ been a key issue in the debate aver executions,” °°"
_». The.U.S. Supreme Court has'barred

has not barred the-execution of the mentally retarded,

-although it ruled that retardation should be considered
at sentencing: as:a mitigating factor.  - ve Sd

= Dennis ‘W: Dohnal, Stamper’s attorney, said he found
-no. legal basis to argue“against executing the physically
disabled.: But he believes the state had an ethical re-

“It doesn’t happen that frequently,” said Watt’ Espy,”:
-.who keeps files’ of ‘thousands of: executions, dating ‘to’
. 1608, as director ‘of the Capital’ Punishment Research
~ - Project, in Headland, Ala. “But it’s not unprecedented.”::

Tt upres red the execution of | *"*
the Veal dna ¢ it: violates the’ Eighth -Amend-,
- .Ment’s prohibition‘of‘cruél-and “punishment:. It: §
hae tine 6 in ne ed ager tr egaae dt panvear ie _ the-victim’s house in Harlingen, Tex.

:> er’s physical health and because his injuries were sus-

tained while in prison.

“If ever there was a situation for mercy, surely this
was the premier example,” Dohnal said last month.
“The idea that, ‘Well, they shoot horses with broken
legs, don’t they?’—I thought we were beyond that.”

Stamper’s is not the only recent case with unique
medical circumstances. As their appeals work their way
through the process, condemned prisoners grow old
and can become ill. As a result, a significant number
become mentally or physically disabled while in prison.
Stamper was the 190th prisoner executed in the United
States since 1976. But 61 others died of natural causes
while awaiting their execution or killed themselves,
‘according to Matos of the NAACP Legal Defense and

* Educational Fund.

But the health issue can put states in the awkward

| “position of rehabilitating prisoners so that they can be

killed. For instance, Stamper was bedridden for nearly
a year after his injury and went through therapy to
"learn to walk again.
In an interview last fall, Stamper said he appreciated the

who had worked with me’ on the medical staff since my
operation, when I could move nothing below my neck,” he

said. “They shared in the battles I overcame. I thought that |

some of these people on the medical staff were as happy as

T was when I was able to first sit up in a chair. My cast was

taken off. My brace was taken off my neck. I was able to

function with my left hand and do a few things on my own.

The less I had'to call on: them, the more I felt I had some

reason to continue on. At first there didn’t seem to be any
‘purpose to it”.

. "Eventually he was able:to light.a pipe, play comput-

“-.,erized:chess games and attain:a small degree of inde-

“” pendence—factors that he ‘believed ultimately were

“used against him when the state decided he was healthy
* enough to kill, - 7.

me wc Tm having a very difficult time accepting what has

happened to me,” Stamper said last fall; “and-I’m pretty

“s.“dlose-minded about the fact that ‘I've exceeded what
,4,could be termed punishment by'death.”s = -

said his Jawyers ” Hard Cases

_.'. According to Espy and.other experts on the death

> . penalty, .Stamper ‘was ‘one ‘of: four disabled prisoners

. Whose cases have recently’ generated controversy. The

-vothers are:

“w Jerry Joe Bird, -54, who was ‘put to-.death by lethal
jection: in::Texas in June..1991,"eight-days after suf-
ering a stroke ‘in his prison cell. He was denied a com-
jutation,or postponement because‘ of his health. Bird
had been on death row in Texas for 17 years, convicted
of killing an.antique-gun collector. during a burglary at

Eden Harrington, ‘a lawyer who handled Bird's case,
said the stroke left Bird’s right arm and right leg partially
-paralyzed, caused his speech to be slurred and affected
his ability to think clearly. She argued that Bird was no

See EXECUTE, Page 12

a Al ili

NCCLS BURA OY ora oN ate

: ”

EET RERS

, Rickey Ray Rector

BY KEN BENNETT FOR THE WASHINGTON post
Charles S. Stamper at Virginia's Greensville Correctional Center, three months before his execution.

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122

pine-plank frame—was brought into the
prison’s chapel and filled with water
from a hose. In a Polaroid snapshot
taken of the service, Rector sits humped
slightly forward, with water up to his
bare midriff, like a kind of enormous,
bearded Buddha, looking a little dazed
and uncertain but grinning proudly
straight into the camera.

N the final Sunday of Rector’s life,
Clinton, in a debate with his four
Democratic competitors in New Hamp-
shire, resonantly defended his commit-
ment to the death penalty by declaring
that Democrats “should no
longer feel guilty about pro-
tecting the innocent.” Back in ;
Conway, Lieutenant Pearson,
for his part, told the Log Cabin
Democrat that he was con-
fident that Clinton “will allow
the execution because there is a
pro-tough attitude against crime in
this nation,” and “he needs to project
that image.” Throughout the commu-
nity, in fact, anticipation was quicken-
ing. One policeman told the Log Cabin
Democrat, “I think he deserves to die
and it’s time. I think it'll be the conclu-
sion of something that started back in
1981.” Martin’s daughter said that
Rector’s execution would release “a lot of
relief,” and that “I feel like Daddy will
finally be put to rest.” Her mother pro-
fessed, “I’m not vengeful, but I feel it’s
scriptural.”

O* January 21st, around six in the

morning, Rector was transported
through the winter darkness from
Tucker prison back to Cummins, where
the death chamber itself was still situ-
ated, and installed in a holding cell, just
around a corner from the room where he
was to be executed, by lethal injection.
He would pass his last four days in a
windowless concrete cubicle seven and a
half feet square, painted a dull cream,
dingily lit, like a perpetual late dusk, and
containing, behind its barricades of bars
and heavy metal mesh, only a steel com-
mode and sink and a concrete platform
with a mattress on it, where Rector
sometimes used his rolled-up pants for a
pillow. Pencilled on the cell’s otherwise
blank walls were a few whimsies from
prior brief tenants: “Death Lives” and
“Helter-Skelter” and a drawing of a
devil’s head.

From the moment of Rector’s arrival,
a prison guard, sitting outside Rector’s
cell at a tiny table just beyond a televi-
sion set mounted on a shelf, began keep-
ing what the prison termed a “death
watch log,” assiduously transcribing, on
the ruled legal-size pages of a ledger,
a record of virtually every movement
and utterance of Rector’s through the
last days of his life. The first day began
“6:40 AM—Inmate Rector received
Breakfast... Pancakes, toast, Hot dogs,
syrup, butter, and 1 cup of coffee and 1
cup of orange juice... . 6:46 AM—In-
mate Rector . . . began howling. . . . 6:59
AM—Inmate Rector began
dancing in his cell,” and again,
eight minutes later, “Inmate
Rector began Howling and
dancing in his cell.” Such en-
tries recur throughout the day:
», “Howling and barking while
* sitting on his bunk. . . walking
back and forth in the Quiet Cell snap-
ping his fingers on his right hand and
began noice’s with his voice like a dog.”
At one point during the first morning,
Rector notified the guard, “I’m going to
lay down now,” and did so, drawing a
blanket over him, and beginning to
snore. This nap was interrupted when a
prison official arrived and, the log notes,
“checked both arms of the inmate.”
Shortly thereafter, “Inmate Rector layed
down on his bunk and started howling.”

At 1:56 P.M., the warden, Willis
Sargent, appeared, “to get Inmate Rector
to sign a Form saying that he want to
die by legal injection.” Rector had earlier
announced to the guard, “I’m going to
let them do it Friday because I don’t
want to be shot,” and over the next three
days there are other such entries as “In-
mate Rector stated that he was going to
let them do it Friday before they hurt
him.” Just seven hours before his execu-
tion, the log has him declaring, “I don’t
want to die, but I’m going to go on and
take it because I don’t want to get gased
and shocked,” as if, somehow, a canny
choice of lethal injection to avoid other
violences threatening him were all that
his situation amounted to—a choice es-
pecially crafty because, he once assured
the guard outside his cell, “if you eat
grass lethal injection won’t kill you.”

At 2:53 P.M. on that first day, Rector
received what was recorded in the log as
“his evening meal”—turnips, brown
beans, and chicken noodle soup, with

THE NEW YORKER, FEBRUARY 22, 1993

two small cartons of milk and four slices
of bread. When he finished it, he pro-
nounced, “That was a good meal.” A
little later, the log reads “inmate Rector
asked for a cigarette and a light, while
barking.” After a while, when he was
brought a helping of black-walnut ice
cream, “he said they is my good ice
cream,” the log records, and notes that
he sat on his bunk smacking it down
with lavish appreciation, “saying how
cold that Ice Cream fell going down.”
At five, he was “standing beside his bunk
watching Channel 4 News about him-
self,” and a few minutes later he was
pacing about “in his underwear, shirt,
and socks, dancing,” then “sitting on his
bunk making holling noise.” He ended
his day by watching the movie “Born on
the Fourth of July” and “walking around
cell barking, laughing, and howling.” By
ten, he had asked his guard if he knew
what they would be bringing him for
breakfast, and he had lain down on his
concrete bunk and “grabbed his blanket

and covered himself.”

NCE during the four days, while
John Jewell was trying to explain
to him the legal recourses still being pur-
sued on his behalf, Rector abruptly
brought up the Gennifer Flowers allega-
tions, and said to Jewell, “S’pose that’s
true, about him and all them women?
Don’t matter to me, though, I’m for him
anyway.”

Just a day after the publication of a
poll that showed Clinton leading all his
Democratic rivals in New Hampshire,
he found himself—through that week,
as Rector’s last court appeals were being
denied one after another—in an uproar
that could end his campaign, with an
ever-expanding melee of reporters tum-
bling after him in a storm of shouted
questions. He was “fighting for his po-
litical life,” the Wall Street Journal said.

Meanwhile, in Cummins, Rector was
awakened at 2:40 A.M. on Wednesday to
receive a breakfast of eggs and biscuits
and hot dogs, grits with gravy, and+ two
cups of orange juice and two of coffee.
About four that morning, standing at
the bars of his cell, he began bellowing
“Cold Duck! Cold Duck!”—the nick-
name, apparently, of some old acquain-
tance long lost in the wilds of his past.
Rector later claimed to his guards that
Cold Duck had been a “hit man,” twelve

times in prison, and “that he used to run

CLINTOS

with |
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stated, th:
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troubled

124

Dressing for Sucress
1558~ 1603

particular—he remained, through the
great moral campaigns of the civil-rights
movement in the fifties and sixties, an
implacable segregationist. To a number
of his dismayed admirers it seemed a
kind of ghastly tax of expediency on his
honor, which he had deemed unavoid-
able for any senator from Arkansas at
that time if he was to continue his larger
work of conscience in the Senate;
Rosenzweig suggests that this sort of
moral computation was not lost on his
acolyte Clinton. “I think in his heart of
hearts Clinton would not have wanted
to go through with Rickey’s execution,”
he says, but, to protect his larger Presi-
dential mission, “he figured he had to,
applying the Fulbright rationale.”
During the week of the Gennifer
Flowers furor, one of the questions be-

ing heard about Clinton’s political valid-

ity was, as Time posed it, “Suppose
Clinton does sew up the nomination by
mid-March and the Republicans dis-
cover a Willie Horton... in his back-
ground?” And the director of the Uni-
versity of Arkansas’s governmental-
studies institute commented to the New
York Times, “The death penalty is about
as good a way to get Willie~-Hortoned as
there is.” Rosenzweig asserts, “Clinton
was then coming very much from the
right, if you remember that time, and no
way—no way—was he going to hand
them an issue that might be used against
him.” Stella’s pastor, the Reverend Kelan
Motton, recalls, “Almost up to the very
end, in back of everybody’s mind was,
They really won't do it—given Rickey’s
condition, surely they aren't finally going
to do this. But, because it was an elec-
tion year, what we forgot was that he

THE NEW YORKER, FEBRUARY 22, 1993

would go ahead and do it to prove a
point, saying, ‘We fight crime.’ ” In fact,
Clinton’s two previous executions were
both held in an election year.

Clinton was not statutorily obliged to
be in the state at all on the day of an ex-
ecution; when an Arkansas governor is
absent from the state, his authority, in-
cluding that for commutation or ap-
proval of an execution, devolves upon
the lieutenant governor, and in this case
Lieutenant Governor Jim Guy Tucker
had announced that he would not inter-
vene in Rector’s execution. For that mat-
ter, a spokesman in Little Rock for both
Clinton and Tucker had already indi-
cated that Rector would not be granted a
commutation. Obviously, then, the execu-
tion would have taken place even if
Clinton had remained in New Hamp-
shire, but, according to Rosenzweig,
who had now joined Jewell in pressing
Rector’s last appeals, Clinton returned
anyway, because “he wanted to make the
point that he did it.” The Houston
Chronicle later remarked, “Never—or at
least not in the recent history of presi-
dential campaigns—has a contender for
the nation’s highest elective office
stepped off the campaign trail-to ensure
the killing of a prisoner.”

Soon after Clinton arrived in Little
Rock, he received a call from Jesse
Jackson, who urged him—saying, “Now,
Bill, just on a moral, humanitarian ba-
sis”—to stay Rector’s execution. Clin-
ton’s response, Jackson relates, was that
“he’d been researching various ways to
get around it, but it just couldn’t be
done, there were doctors who'd said he
was competent. Said he’d be praying
about it, though.”

T three in the morning on the
‘Thursday that Clinton was to re-

turn to Arkansas—the last full day of
Rickey Ray Rector’s life—the prisoner
was awakened and given a breakfast of
pancakes with syrup and butter, hot
dogs, and oatmeal with coffee and juice,
and soon thereafter he was “walking
around in his cell howling.” A while
later, he requested, as he had once on
Tuesday, that a phone call be placed,
collect, to some long-ago consort of his,
telling the guard, “I want her to have a
baby,” but, as before, word was brought
to him that she “would not except a col-
lect call from the inmate.” Soon after
that, Rector was brought a strawberry

RETURN TO !

soda and aj
and then he
and the pris
the log r
the lethal
done.” The :
cal supervis:
would go to
sible,” and h.
arms.” Sho:
Rector was: +
cell “yelling
Early tha.
out of his cc
irons, with |
around his \\
a spacious t!
hut, for a |:
two of his «
wanted a pu’
hold it up '
to lift his D
time he wa:
first time we
about seven
ablé to touc
told her, uw
sion that it:
headed for, “
She said to
when you c!
be with peo;
this is not th
know. After
see us again,
When he
after four, |
meal,” t
sisting «
bage, four
local evenii
when it mc
tion the nc
had reacte
telecast de:
by compla:
but he w
grumbled,
kill those 1
again if an\
from me.”
the event
ecuted wit!
throughou
much agit
his belong:
He pas:
watching,
and socks
Stories,”

\RY 22, 1993

to prove a
ic.” In fact,
utlons were

iy obliged to
vay of an ex-
governor is
thority, in-
.uon or ap-
volves upon
iin this case
suy Tucker
id not inter-
or that mat-
ock for both
iready indi-
ve granted a
1, the execu-
ace even if
New Hamp-
\osenzweig,
| in pressing
‘on returned
to make the
Houston
rer—or at
ry of presi-
»ntender for
ctive office
“ul to ensure

ed in Little
trom Jesse
ing, “Now,
irarian ba-
stion. Clin-
‘s, Was that
US Ways to
couldn’t be
ho’d said he

' be praying

ing on the
n was to re-
t full day of
the prisoner
. breakfast of
1 butter, hot
ee and juice,
vas “walking
ig.” A while
had once on
ll be nlaced,
onsort of his,
acr to have a
was brought
cept a col-
soon after

.. strawberry

RETURN TO LITTLE ROCK

soda and a package of coconut cookies,
and then he was visited by the warden
and the prison medical supervisor, who,
the log records, “told the inmate how
the lethal injection procedure would be
done.” The log continues that the medi-
cal supervisor “told the inmate how he
would go to sleep with little pain as pos-
sible,” and he, too, “checked the inmate’s
arms.” Shortly after their departure,
Rector was once more standing in his
cell “yelling ‘Cold Duck.’”

Early that afternoon, he was taken
out of his cell and led, shuffling in leg
irons, with his wrists cuffed to a chain
around his waist, to the visitation center,
a spacious tin shed resembling a quonset
hut, for a last meeting with Stella and
two of his other sisters. “Every time he
wanted a puff of his cigarette, I had to
hold it up to his lips,” Stella says. “Had
to lift his Dr Pepper up to his lips every
time he wanted a swallow. It was the
first time we could really touch him after
about seven or eight years of only being
able to touch him through glass.” He
told her, under the momentary impres-
sion that it was the electric chair he was
headed for, “I know they gonna fry me.”
She said to him then, “But, Rickey,
when you close your eyes, you're gonna
be with people who care about you. And
this is not the last time you'll see us, you
know. After tomorrow night, you wi//
see us again, too, in Heaven.”

When he returned to his cell, a little

after four, he was given his “evening

_ meal,” the death-watch log notes, “con-

sisting of one pork patty, turnups, cab-
bage, four slices of bread and milk.” The
local evening news came on at five, and
when it mentioned his scheduled execu-
tion the next day Rector—though he
had reacted the day before to a news
telecast describing him as a “cop-killer”
by complaining that “he didn’t kill a cop
but he wished he did’—morosely
grumbled, according to the log, “I did
kill those two people and I would do it
again if anybody trying to take anything
from me.” Apparently, he was muddling
the event for which he was to be ex-
ecuted with what he had been claiming
throughout his imprisonment, with
much agitation, were persistent thefts of
his belongings.

He passed the rest of his last evening
watching, in T-shirt and boxer shorts
and socks, “Top Cops,” then “Street
Stories,” and then “Knots Landing,”

while, the log observes, variously “howl-
ing and barking . . . singing & laughing.”
He paused once to ask, about his last
meal, “when will he get his dinner to-
morrow,” the log says. “I told him
around 3:00 pm.” Finally, after watching
“Cheers,” he announced to the guard,
‘Tm going to sleep now and get ready
for tomorrow,” and, lying down on his
right side, facing away from the guard’s
scrutiny, he immediately fell asleep.

By then, Clinton had settled into the
Governor’s Mansion in Little Rock for
the next day’s business.

HE January 24th issue of the
Conway Log Cabin Democrat
informed the community—under the
banner headline “CLOCK TICKING ON
RECTOR’S EXECUTION”—that at three-
thirty that afternoon a local radio station
would begin carrying hourly reports on
Rector’s progress toward the death
chamber, ending with a live broadcast
from the prison when the execution was
scheduled to take place, at nine o’clock.
Down at Cummins, Rector had been
awakened at three that morning with
the delivery of a tray holding his last
breakfast—eggs, a hot dog, biscuits and
gravy. He ate only the hot dog, and went
back to sleep, waking up shortly before
dawn. He then watched a local telecast
about his imminent death and “stated
that they were going to get him today,”
the log says. “Inmate Rector then started
dancing and clapping his hands,” and, a
moment later, “hollering Cold Duck.”
But then he told the guard “that he
probably would not see me anymore af-
ter I went home,” the log noted. “He
then stated ‘that it was good meeting
you.’” With that, he lay back down on
his bunk and napped, was awakened
again and asked if he wanted anything,
and replied that he’d like a shower. Con-

UL
OT
itataib

a
ae

“Pani

125

ducted from his cell in handcuffs, he was
allowed to take one, then returned to his
cell and, having been supplied with fresh
underwear and bed linen, quickly sub-
sided into a deep sleep, snoring. But he
awoke after only a few minutes, to notify
his guard, “They are going to get me,
I’m going to die tonight but I'll be asleep
when I die.” A little later, again he
asked the guard about the last meal he
had selected: “What time will get that
steak & chicken, around 3:00 o’clock.”
At 10:44 A.M., he was brought his next-
to-last meal—two pork chops with
sweet potatoes and greens, two cups of
jello, and milk. At 11:26 A.M., the log
records, “he said I’m going to take a
knapp,” but only some eight minutes
later, “Inmate got up off his bunk and
stretched and said to me ‘I will get that
steak and chicken about 3 pm o'clock, I
can’t wait. I love that steak and
chicken.’” A few minutes after that, he
was pacing about his cell, “snipping his
fingers on both hands, stomping his feet
howling, and barking like a dog,” and
then, still swinging and dodging about
his cell, he began to wail out, according
to the log, “No mom. No Mom.”

N Little Rock, both Jewell and
Rosenzweig had now begun trying to
reach Clinton by phone. “After all,”
Rosenzweig says, “he'd said he was com-
ing back only for this case.” Jewell,
meeting only with politely firm deflec-
tions from members of the Governor's
staff, began “calling people I knew who
might know how to get through to
him,” in a last, desperate effort to simply
have it conveyed to Clinton somehow
that “Rector was a totally different per-
son” from the one who had shot Martin,
that the case would “be easy enough to
distinguish from other capital cases,” and
that “if ever there was a valid cause for
clemency and the opportunity to dem-
onstrate that he could show mercy, this
was it.” But finally, in a conference call,
Clinton’s counsel and his acting chief of
staff collectively informed Jewell that, he
says, “the Governor wasn’t available to
me, but they would pass my message
on.” He remarks, “It was pretty clear
that was as far as I was getting.”
Rosenzweig himself had begun at
eight that morning to place a call every
half hour, struggling to get through to
Clinton, beseeching his secretary and
chief counsel, “Look, the Governor has


AY 22,1993

i four slices
it, he pro-
d meal.” A
nate Rector
light, while
hen he was
<-walnut ice
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1 notes that
ng it down
saying how
ing down.”
‘de his bunk
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‘ter he was
wear, shirt,
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’ He ended
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wling.” By
‘f he knew
him for

n on his

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.ays, while
, to explain
being pur-
r abruptly
vers allega-
pose that’s
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“m for him

cation of a
ding all his
iampshire,
that week,
were being
| an uproar
1, with an
ters tum-
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‘or his po-
nal said.
vector was
{nesday to
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. of coffee.
randing at
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atds that
n,” twelve
sed to run

his hands together and

CLINTON'S WORST WEEK

with him on the streets and that he sure
would like to see him again.” Through-
out his last three remaining days, he kept
bellowing “Cold Duck! Cold Duck!”

A little after seven that morning, the
log notes, “Inmate Rector watched a Ch. 7
news report concerning himself and
started laughing and dancing in his cell.”
Shortly before one that afternoon, “he
stated, their going to kill me Friday,” but
then, only five minutes later, “Inmate
Rector getting excited talking about an-
other,” meaning Cold Duck. “He is
stomping his feet and barking.” After a
while, he told the guard, as the guard
noted it, “I’m gone to Lay down so I can
watch my show ‘Santa Barbara.’” At
2:53 P.M., the log records, “Chow Time
for Inmate Rector he had 2 cup milk 4,
slick Bread, sour kurpt, and Brown
bean.” After the meal, he “asked for a
cigarette and light” and “laid back down
on his bunk and continued to smoke his
cigarette and watched ‘People’s Court.’ ”
Five minutes later, he was “making
barking and howling noises.” On the
six-o’clock local-news telecast, the
log continues, “Inmate
Rector saw the news
story about himself and
when it was over, he
stated to me, ‘They are
going to get me Fri-
day at 9:00 oclock,’ and
then started clapping

laughing about it.”

But at seven that
evening there is the en-
try “Inmate Rector laid
down on his bunk .on
his back and started
making what sounded
like crying.”

| Es Thursday after-
noon, Clinton left
New Hampshire for
Arkansas, to be on
hand to respond imme-
diately to final appeals
and arguments on Fri-
day. Before leaving,
though, he took time to
profess that one ambi-
tion of his candidacy
had always been to in-
spire children and oth-
ers trapped in grimly
troubled circumstances,

as he, the stepson of a violent alcoholic
father, once was, to make the most of
their lives anyway, as he had managed to
do. “I know some of the most difficult
struggles in life are those that are closest
to you,” he said to a group of school-
children.

As a matter of fact, Clinton had
never been insensitive to the human cost
of his decisions in capital cases. Little
Rock’s city attorney, Tom Carpenter,
who has been a friend of Clinton’s since
the early seventies, remembers that be-
fore Clinton’s first two executions, in
1990, he had called the Governor to ex-
plain his own reservations about one of
them: “I told him, ‘You know that I’m
opposed to the death penalty. But the
question is whether you feel it’s the right
thing in this particular case.’ He let me
know that he'd already heard some of
the things I was telling him, that it
would be very difficult. I told him, ‘This
one’s just not right.’ When he tried to
reply, his voice broke. It was very
difficult for him to finish the conversa-
tion. Later on, he thanked me for the

eee

di ‘ i

123

call, and his voice broke again.” Indeed,
during his New Hampshire campaign he
evidenced uncounterfeited moments of
feeling. At a senior-citizens’ center, a
woman told him, weeping, that she and
her husband “don’t have enough for
drugs and food,” and Clinton, leaning
down, enfolded her for a long while in
his arms, murmuring, “I’m so sorry, I’m
so sorry,” and tears welled in his eyes.
One of Arkansas’s most distinguished
writers, who has known Clinton for
some years, said, “Bill Clinton doesn’t
have a monstrous streak in him—but he
does have other kinds of streaks.” Jeff
Rosenzweig says, “One thing that’s not
been generally recognized about Clinton
is the extent to which he came into the
thrall of William Fulbright,” in whose
Senate office Clinton had served as an
interne while he was a student at
Georgetown. The Arkansas senator was
a consummately civilized man, yet, for
all his liberal apostleship over the
years—most memorably concerning the
nation’s “arrogance of power” in the
Cold War, and its Vietnam exploit in

‘An apple! You must have read my mind!”


U.S. SUPREME COURT REPORTS
(1972). Unavoidably, then, the. ques-'

tion whether. such persons. can: be
put to death once the deterioration
of their faculties has rendered them
unable even to appeal to the law or
the compassion of the society that
has condemned them is central to
the administration of the death pen-
alty in this Nation. I would ‘there-
fore grant the petition for certiorari
in order to resolve now the questions
left unanswered by our decision in
Ford v Wainwright.

II

Adhering to my view that the
death penalty is in all circumstances
cruel and unusual punishment pro-
hibited by the Eighth and Four-
teenth Amendments, Gregg v Geor-
gia, 428 US 153, 231, 49 L Ed 2d
859, 96 S Ct 2909 (1976) (Marshall,
J., dissenting), I would grant the

- petition and vacate the death sen-
tence even if I did not view the issue
in this. case as being independently
worthy of. this Court’s plenary. re-
view. aot

No. 90-7861: David Ben-Moshe, Pe-
titioner v Bob Martinez, Former
Governor of Florida, et al.

June 24, 1991. The petition for a

No. 90-1647. : In’ Re Louisiana, ex
rel. William J. Guste, Jr., Attor-
ney General, Petitioner

June 24, 1991. The petition. for
writ of mandamus is denied. .

No. 90-7645. In Re Delbert Reidt,
Petitioner

June 24, 1991. The petition for
writ of mandamus is denied.

No. 90-7899. In Re Wilmer B. Gay,
Petitioner

r

June 24, 1991. The petition for
writ of mandamus is denied.

t

No. 90-7901. In Re William Duane

Elledge, Petitioner |
June 24, 1991. The motion of Na-

115 L Ed 2d

writ of certiorari to the United
States Court of Appeals for the Elev-

enth Circuit before judgment is de-
nied.

1042

tional Legal Aid and Defender Asso-
ciation for leave to file a brief as
amicus curiae is granted. The mo-
tion of National Association of Crim-
inal Defense Lawyers for leave to
file a brief as amicus curiae is

granted. The petition for writ of

mandamus is denied.

SE EE CN A RT I
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Porte

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Ae CTCK, biske, hi

RECTOR v. LOCKHART

1285

Cite as 727 F.Supp. 1285 (E.D.Ark. 1990)

judge in Cleveland. It points to the CAP
complaint on July 1, 1988, that “the subject
at 1328 South 85th Street has involvement
with handguns,” as testified to by Sergeant
Porter. Unfortunately for the govern-
ment, this is not the sort of particularized
circumstances that justifies an unan-
nounced, forced entry into the home of a
citizen.
In Cleveland, the court did note,

[t]he state argues that because drug
dealers are often armed, the officers rea-
sonably believed that their safety would
be endangered if they announced their
presence. The fact that a person is a
member of a class of persons more likely
to resist search is not sufficient to justify
unannounced entry. The officer must
have knowledge of specific facts that
indicate that this particular person
will conduct himself or herself in this
manner when confronted by police.

118 Wis.2d at 631 n. 16, 348 N.W.2d 512
(emphasis added).

In this case, the only information that
the officers had about weapons was infor-
mation of an exceedingly general nature
~ given by an anonymous telephone tipster
six months prior to the execution of the
warrant. This stale and general informa-

tion is of little value. The only recent
information that the officers had was that
which stemmed from two “garbage”
searches and a “controlled buy” a few days
before the warrant was applied for. There
was nothing in the garbage which would in
any way have suggested the presence of
firearms in the home to be searched, much
less that anyone in the home would use any
weapons to resist the officers. Further-
more, there was nothing in the testimony
presented by the officers to Judge Callan
that in any way suggested weapons were
involved in any way with the controlled
buy.

I find that the forcible entry under the
circumstances of this case was not justi-
fied. Mr. Singer’s rights were violated (not
to mention the rights of his wife and chil-
dren) by the unconstitutional no-knock en-
try into and search of his home. The very
facts presented in the reports concerning

the application for and execution of the
warrant demonstrate beyond doubt that
there was insufficient basis for the no-
knock warrant to be issued and, further,
that no new information was obtained prior
to the search itself to permit it to be exe-
cuted in a no-knock fashion.

I also conclude that no “good faith” ex-
ception is present here that would save the
search.

Lastly, I ADOPT the reasoning of Magis-
trate Bittner in his June 19, 1989, recom-
mendation and find that the statements
made by Mr. Singer during the search of
his home are inadmissible in the govern-_
ment’s case-in-chief.

Accordingly, the motions of Mr. Singer
to suppress, consistent with this opinion,
are GRANTED. Further proceedings in
the case will be held on January 17, 1990,
at 8:30 a.m.

SO ORDERED.

oO EKEY NUMBER SYSTEM

ey
——

a —

te
( Ricky Ray RECTOR, Petitioner, >

a

en

Vv.

ALL. “Art” LOCKHART, Director Arkan-
sas Department of Corrections, and
Steve Clark, Attorney General of the
State of Arkansas, Respondents.

No. PB-C-84—287.

: United States District Court,

E.D. Arkansas, /
Pine Bluff Division.

Jan. 3, 1990.

After defendant’s capital murder con-
viction was affirmed on appeal, 280 Ark.
385, 659 S.W.2d 168, defendant petitioned
for writ of habeas corpus. ~The District
Court, Henry Woods, J., held that: (1) evi-
dence was sufficient to: establish that de-'
fendant was competent to stand trial for


1286 727 FEDERAL SUPPLEMENT

first-degree murder, and (2) evidence con-
cerning defendant’s. mental condition was
sufficient to establish that he had mental
capacity to be executed.

Petition denied.

1. Criminal Law 625.15

Evidence at state pretrial competency
hearing concerning defendant’s mental
ability was sufficient to establish that de-
fendant was competent to stand trial for
first-degree murder, despite evidence that
defendant had undergone personality
change and suffered from amnesia as re-
sult of self-inflicted gunshot wound. US.
C.A. Const.Amend. 6.

2. Habeas Corpus ¢718

Evidence in habeas proceeding con-
cerning mental condition of petitioner on
death row was sufficient to establish that
petitioner had mental capacity to be exe-
cuted. U.S.C.A. Const.Amend. 8.

3. Criminal Law ¢1213.8(8)

Under Eighth Amendment, state is
prohibited from carrying out sentence of
death upon prisoner who is insane. U.S.
C.A. Const.Amend. 8.

4. Habeas Corpus 748

When issue of mental capacity of pris-
oner sentenced to death is raised in habeas
corpus petition, district court must hold
plenary hearing if there has not been state
procedure which accorded petitioner due
process and gave him or her fair and a full
opportunity to establish lack of competen-

Arkansas restaurant. For two days the
police searched for Ricky Ray Rector since
he was known to be the assailant. A. uni-
formed Conway police officer, Bob Martin,
on March 24, 1981 went to the home of
Rector’s mother. As set forth by the Su-
preme Court of Arkansas, the following
events then occurred:
While the officer was talking to Rector’s
mother, sister, and nephew, Rector en-
tered the back of the house and came
into the living room. Rector and the
officer knew each other and may have
exchanged a few words of greeting.
Within a few minutes Rector, who had
not joined in the conversation, drew a
pistol and shot Officer Martin twice.
Rector left by the back door and said to
his nephew’s wife, whom he met crossing
the yard: “I just shot that cop.”. A: few
moments later Rector attempted suicide
by shooting himself in the forehead, the
bullet entering the front part of . his
brain. That evening the wound was sur-
gically cleaned and closed. apse
Rector v. State, 280 Ark. 385, 388), 659
S.W.2d 168 (1983). .
Rector was first tried for the murder. of
Arthur Criswell. Prior to that trial, a hear...
ing was held on September 28, 1981 in,
response to a motion by Rector’s counsel ,
Suggesting that Rector was mentally , in-.
competent. On evidence which the Arkan-,,
SaS Supreme court characterized as being.
in “hopeless conflict,” the trial judge found,
that Rector was competent to stand trial.,,

cy. U.S.C.A. Const.Amends. 5, 8, 14.

John M. Jewell, Little Rock, Ark., for
petitioner.

Jack Gillean, Asst. Atty. Gen., Little
Rock, Ark., for respondents.

ORDER

HENRY WOODS, District Judge.

On March 22, 1981. the petitioner, pres-
ently a death row inmate at the Arkansas
penitentiary, shot and killed Arthur Cris-
well and wounded two others at a Conway,

The jury convicted him of first degree mur-,
der, and he was sentenced to life imprison-;;
ment. The Supreme Court of Arkansas, j
affirmed the conviction. Rector v. State, ,
277 Ark. 17, 688 S.W.2d 672 (1972).

After this affirmance on September 18,
1982, Rector was tried for the capital mur-
der of. Officer Martin. Defense counsel:

again on October 7, 1982 moved for a sec-f

ond hearing to determine Rector’s compen-
tency. Such a hearing was held on October.
25, 1982. Two .psychologists, Dr. Douglas»
Brown and Dr. Douglas A. Stevens, testi- .
fied on. behalf of Rector. Brown had also,
testified at the competency hearing on Sep- |
tember 28, 1981 prior to the trial for the:

murder of
ney for Re
testified in
three of tl
habeas hea
Stripling, h
trial, ‘and |
At the ¢
25, 1982, tl
two psychi
and Dr. Sa
gists, Dr.
Alford. T!
es is trans
The testim
Exhibit 2.
the trial j:
tent to st
guilty, an:
November

The cor
issues ra.
death sen
Arkansas.
conviction
wrote for

A sec
the tria
incompt
death |
compet

Rector

convict

well. .
S.W.2d
cases }
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Recto

(8% “*sMEMORANDUM CASES’ |

Pleas of the Crown 35 (1736), and by
numerous early American decisions,
. see State v Helm, 69 Ark 167, 171-
173, 61 SW 915, 916-917 (1901); Peo-

ple v Geary, 298 Ill 236, 245, 131.

NW 645,. 655-656 (1921); Barker v
State, 75 Neb 289, 292-293, 106 NW
450, 451 (1905); In re Smith, 25 NM
48, 59-60, 176 P 823 (1918); Freeman
v People, 4 Denio (NY) 9, 20, 47 Am
Dec 216, 219-220 (1847). See gener-
ally Solesbee v Balkcom, 339 US 9,
20, n 3, 94 L Ed 604, 70 S Ct 457
(1950) (Frankfurter, J., dissenting); 1
J. Chitty, The Criminal: Law *761
(Sth ed 1847); 1 W. Russell, Crimes
and Misdemeanors 14 (8th ed 1857);
L. Shelford, .The Law Concerning
Lunatics, Idiots and Persons of Un-
sound Mind 295 (1833); Annot., 3
ALR 94, 97-99 (1919). Objective indi-
cia of contemporary mores likewise
condemn execution of a prisoner af-
flicted with a “mental disease or
defect [depriving him of the] capac-
ity to understand ... matters in
extenuation, arguments for -execu-
tive clemency or reasons why the
sentence should not be carried out.”

Mo:Ann Stat . § 552.060.1 (Supp
1991); accord, Miss Code Ann § 99-
19-57(2Xb) (Supp 1990); NC Gen Stat
Ann § 15A-1001 (1990); ABA Crimi-
nal Justice Mental Health Standards
7-5.6(b) (1989). .

The issue in this case is not only
unsettled, but is also recurring and
important. The stark realities. are
that many death row inmates were
afflicted with serious mental impair-
ments before they committed their
crimes and that many more develop
such impairments during the excru-
ciating interval between sentencing’
and execution. See Lewis, Pincus,

Feldman, Jackson & Bard, Psychiat:

ric, Neurological, and Psychoeduca-
tional Characteristics of 15 Death
Row Inmates in the United States, -
143 Am J Psychiatry 838, 840-841

(1986); Johnson, Under Sentence of

Death: The Psychology of Death Row
Confinement, 5 Law & Psychology
Rev 141, 176-181 (1979); Gallemore
& Panton,’ Inmate Response to
Lengthy Death Row Confinement,
129 Am J Psychiatry 167, 168, 169

2. Justice Powell did not dispute the estab-
lished status of this definition of incompe-
tence at common law. See Ford v Wainwright,

477 US 399, 419, 91 L Ed 2d 335, 106 S Ct

2595 (1986) (concurring in part and concur-
ring in the judgment). Instead, he reasoned
that the advent of increased opportunities for
direct and collateral review of criminal con-
victions had so reduced the possibility of un-
discovered error as to render this conception
obsolete. See id., at 420-421, 91 L Ed 2d 335,
106 S Ct 2595. This view strikes me not only
as inconsistent with the established principle
“that the Eighth Amendment’s ban on cruel
and unusual punishment embraces, at a mini-
mum, those modes or acts of punishment that
had been considered cruel and unusual at the
time that the Bill of Rights was adopted,” id.,
at 405, 91 L Ed 2d 335, 106 S Ct 2595 (empha-

sis added); accord, Penry v Lynaugh, 492 US.

302, 330, 106 L Ed 2d 256, 109 S Ct 2934
(1989), but also as somewhat question begging.
For if a prisoner is incapable of recognizing or

communicating facts that would facilitate col-
lateral review, there is no reason to assume
that collateral review in- his case has rooted
out all trial errors. In addition, Justice Pow-
ell’s argument seems to miss at least half the
point of the common law conception of incom-
petence. This definition focuses not only on
the prisoner’s capacity to recognize and com-
municate facts showing that his sentence is
unlawful, but also on his capacity to recognize
and communicate facts showing that his sen-
tence is unjust. Absent this capacity, the pris-
oner is unable to participate in efforts to seek
executive clemency, see, e. g., Mo Ann Stat.
§ 552.060.1 (Supp 1991), the appropriateness
of which will not necessarily be disclosed ‘in
the course of direct or collateral review of the
prisoner’s conviction. Ultimately, then, the
common law conception of incompetence em-

. bodies the principle that it is inhumane to

put a man to death when he has been ren-
dered incapable of appealing to the mercy of
the society that has condemned him.

1041

in Arkansas
Governor denies

clemency to both

|... BY PEGGY HARRIS
Associated Preas Writer

Two state prisoners were
moved closer to the death
chamber Sunday in prepara-
tion for their executions this
week, a prison spokesman
said, bee vet. +f soees

Jonas Whitmore and Ed-
ward Charles —“\—————
Pickens are @ Alook back at
scheduled to Aes balled
die by injec- : re
tion Wednes- 8"4 harles.
day, oe Pickens.» 3B

A

lso Sun- hi

day, Gov. Jim Guy Tucker de-
nied clemency to both in-
mates, a spokesman for his of-
fice said. ae ae

The state Post Prison
Transfer Board had recom-
mended by a vote of 6-0 on
April 28 that the governor
deny the clemency requests
from Whitmore and Pickens.

Max Parker, the governor’s
spokesman, said Tucker care-
fully reviewed the requests,
from both inmates before mak-
ing a decision. He also asked
Lt. Gov. Mike Huckabee to re-
view Pickens’ request and
Huckabee came to the same
decision last week, she said.

She said Tucker asked
Huckabee to review Pickens’
request because Pickens’ at-
torney, Jeff Rosenzweig, had
said it would be a conflict of
interest for Tucker to decide
the request since lawyers on
his staff when he wasstate at-
torney general helped prose-
cute the Pickens’ case at the
trial level. .

_. Whitmore’s execution is set
for 8 p.m. Pickens is to die “as
soon as possible thereafter,”
‘| State Correction Department

spokesman Alan Ables said.
“There’ll be some minor
cleaning up and arranging.”

Ables said the double exe-
cution Would be the first for
the state since 1990, when
.Arkansas begah carrying out
the death penalty again after a
break. “a

Whitmore, who turns 50 to-

day, was sentented to death
for the 1986 slaying of Essie
Mae Black, earduring a roh-
bery at her Mount Ida home.
\ |-. Pickens, 39,.of Detroit re-
\ | ceived the death penalty for
t tthe Oct. 20, 1975, shooting
: | death of Wesley Noble, 76,
during a robbery of Cloud’s
grocery store in Casscoe. One
other person was killed and
several others were wounded
during the robbery.

Ables said Whitmore and
Pickens were moved from the
maximum security unit at
Tucker and arrived at the
Cummins Unit near Varner
about 7 a.m. Sunday. They
were placed in separate
“death watch cells,” adjacent
to the déath chamber, he said.

“They seemed to be in rel-
atively good spirits,” Ables
said. et, Me saadlet
The two cells are close to
‘| each other, but Whitmore and
Pickens cannot see each oth-
er, Ables said. A prison em-
ployee.posted near them will
keep a log of everything they
do and ask for.

l
d


“eer By RAY PIERCE
't!’ AND PATRICIA MANSO
as : Democrat-Gazette Staff Writers
OVARNER — Jonas Hoten
Whitmore and Ed
Pickens died
by injection a
ment of Corr
Unit, despite last-
te spare their |
“wWhitmore W
dead at 8:08 p.
9:08 p.m., said
. prison spokesman.
~-The double exe
first in Arkansa
Moore and John
electrocuted Oct. 28, 1960
The U.S. Supreme
clined Wednes
of execution for
Ables sai
a

prison offici
fied that the

ao ee

ward Charles

t the state Depart-
ection’s Cummins
minute efforts

as pronounced

d Pickens at

Alan Ables, the justices had voted to
ca for Pickens — Harry

grant a stay
th Bader Ginsburg

Blackmun, Rw
and John Paul Step

Pickens’ attorney,
zweig of Li
the petition
day: Rosenz
-full 8th U.S.
peals in St.

cution was the

Bracy were Jeff Rosen-
for a stay Wednes-
eig acted after the.
Circuit Court of Ap-
uis voted Tuesday
a three-judge panel
and let the exec
1 vote, a panel
8th Circuit
a stay Monda

day to grant stays

d at 8 p.m. that .
Is had been noti-
Supreme Court re-
jected Pickens’ request fora
stay. In Washington, a Supreme
Court spokesman, Toni House,

rected a lower court to consider
whether Gov. Jim Guy Tucker
should have been barred from
considering Pickens’ clemency
request because Tucker, as state
_attorney general, had partici-
pated indirectly in Pickens’ pros-

ecution.

Members of the panel were
U.S. Circuit Judges Theodore
MeMillian of St. Louis; C. Arlen
Beam of Lincoln, Neb.; and Mor-
ris Arnold of Little Rock. Beam
dissented from the panel’s ac-
tion, saying it had no authority

to grant a stay.

‘The full court reinstated Pick-
ens’ execution by voting 6-4 to

reverse the panel’s decision.

Voting to uphold the panel —
and thus bar the execution —
were McMillian; Arnold; U.S. Cir-
cuit Judge Roger L. Wollman of

derer

and U.S. Circuit Judges George
G. Fagg of Des Moines, Iowa; Pas-
co M. Bowman II of Kansas City,
Mo.; Frank J. Magill of Fargo,
N.D.; James B. Loken of St. Paul,
Minn.; and David R. Hansen of

Cedar Rapids, lowa.

The majority adopted U.S.
District Judge Henry Woods’ rea-

soning in reversing the panel.

Woods said May 4 that Tuck-
er and the attorney general’s
staff hadn’t been involved in the
third resentencing trial in 1989

that led to Pickens’ death sen-

tence.

Even if Tucker would have
otherwise been disqualified,
Woods said, he wouldn’t have
been required to step aside dur-
‘ing the clemency process be-
: cause the state constitution vests
clemency power solely in the

ee THURSDAY, MAY 12, 1994 THEDETROITNEWS 11A

ution go forward. Sioux Fails, $.D.; and Chief Judge governor. That means if Tucker
’ Richard Arnold of Little Rock. doesn’t exercise his power to
had granted Pickens Voting to clear the way for grant or deny clemency, no one
y. The panel di- Pickens’ execution were Beam could, Woods said. -
— — rrremore |
cpas: RSA ‘state and .

hat Pickens’ right $250 from the house.
s hadn’t been vio- A Prairie County jury con-
the Arkansas Con- victed Pickens, 39, for the Octo-
‘t set standards ber 1975 killing of Wesley Noble,
ercising the clemency pow- 76, aretired farmer, at a grocery
his right to equal pro-__ store in Casscoe. Two other men
’t been violated be- also were convicted in that
overnors who crime. Antonio Clark received
eneralhad the death penalty and is serving
exercised the clemency power, 4 life sentence for another crime
in Michigan. Sherwood Gooch
day, the 8th Circuit pleaded guilty and received a
e’s request for a life sentence without parole.
is motion for a Pickens was the second-longest
serving inmate on death row. -.
had denied his The two men received their
last meal shortly before 4 p.m.,
victed Ables said. Whitmore also re-
50, for killing 62-year- ceived last rites from a priest.
e Black in her Whitmore had a large last
meal that included barbecue
spareribs, a box of Velveeta
he let cheese, vanilla ice cream anda
He stabbedthe large bottle of soft drink.
t her throat Pickens’ last meal included
herright _ sirloin steak, French fries, fruit
tmore also took about and a soft drink. ‘

He added t
to due proces
lated because
stitution doesn

tection hadn
‘cause previous g
had been attorneys &

Woods said.
On Wednes
denied Whitmor
rehearing on h
stay of execution.
panel of the court
request Tuesday.
A Scott County jury con

A three-judge

old Essie Ma
Mount Ida home.
Black had given
milk and cookie
‘him in her home.
woman 10 times, cu
and carve

Whitmore

wy i

J: Arkansas. ~

rt

'

ae f ae ae Pacer Tah, * ge
. Ex-Detroiter execute

* By Oralandar Bran
‘THE DETROIT NEWS

Former ,; Detroiter

* Charles Pickens was executed b
' lethal injection Wec

d-Willlams since the death pe
- stored in 1976.) @ > # *:

rd:
Both men lost last-minute ap- °

+. Pickens, 3, bgt
_ywas = pro-'; f
:;mounced dead
> Ryat 9:08 p.mt.,°,
exactly: one §&
yy hour after fel-.. pe
*< low death row.:.
“inmate Jonas: FF
, Whitmore, 50, © ="
; thal” injection. : Pickens
: It was the first -- in

{ time a state ex-*. -

75 robbery." 41 -c

d in Ar kansas x

* ecuted two people on the same day got a life sentence. Antonio Clark,
as Te > 39, the third gunman, is serving a
-. 24,2 life sentence plus 46 years in Michi-

gan for murder and assault commit-

_«peala,to:the U.S.Supreme Court,.nyted i 4
eC A HONE iprem rt. din Detroit .
: Detroit = ore convicted. fo fo Ae sonny tle lee rites
; Detroit were convic or the: pj : a!
“shooting deaths of Wesley Noble, Fe OD a read by
"76, and James Sherm Jr.,31, during °% , 7
*“@ grocery story robbery in Casacoe,
Ark;'on Oct. 20, 1975. ‘

“There were three of us charged
with this crime. But I was given a

“death sentence for a killing I per-

ng the. without doubt, participate in the
Fi: robbery, but didnot kill Mr, Noble,”’ -
ss the statement said. > eto

ye also way all the ministers’.
owvisited death row. 26 °°" aoe .
“He said he’ visite *! m@ The Associated Press contributed }
"He sai che loved them all, to.’ tothisreport.. - rae

keep up the good work, keep up the
struggle,” prison spokesman Alan
Ables said.

The 8th Circuit Court of Appeals -

in St. Louis had issued a stay
Monday, after Pickens filed an
appeal arguing that Arkansas Gov.

- Guy Tucker should remove himself:

from a decision on whether to grant
clemency. The appeal argued Tuck-
er has 4 conflict of interest because

“he prosecuted Pickens when he was
. the;state’s attorney general. t

Pickens has been on Arkansas’

death row 18 years. His death

penalty:was overturned three times

by various courts, but reinstated

each time.

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ae

ys

sl a oe oa oy é
: vara A OE le FT Os te

was “full

Picken

ne ~ pee i

@ © THURSDAY, MAY 12, 1994 e 3B


-

"Tr TTC “ 2
PICKENS, Edward Charles, black, LI AR® (Arkansas) May 11, 1994

| (reneas, Armd Aa e+

ARKANSAS DEMOCRAT @ TUESDAY, JULY 16,1991 @ 3A

Death row inmate
seeks new trial

-

in 197 6 murder

BY LARRY AULT .

Democrat Staff Writer --

An attorney for death-row
inmate Edward: Charles Pick-
ens has asked a federal judge

to grant him a new trial for the |

1975 slaying of a 72-year-old
Stuttgart man.
Pickens, 36, of Detroit, was

convicted of capital murder in ©

1976 in the shooting death of
Wesley Noble at a grocery
store in Casscoe (Arkansas
County).

Gov. Bill Clinton had set
Pickens’ execution for today.
However, Jeff Rosenzweig, a
Little Rock attorney represent-
ing Pickens, filed a request in
federal court asking for a stay

of execution while the case is |

on appeal. U.S. District Judge
Henry Woods granted that stay
last week.

Rosenzweig said recently
that setting an execution date
was premature because Pick-
ens hasn’t used all his appeals

and can appeal to the 8th U.S.

Circuit Court of Appeals at St.
Louis and the U.S. Supreme
Court.

The latest challenge to Pick-
ens’ conviction was filed July
5, but wasn’t publicized until
Monday.

Rosenzweig said Pickens is
entitled to another trial be-

cause of new evidence casting .

doubt on the reliability of the

1976 guilty verdict.
Rosenzweig said Harold

Goacher, manager of the gro-

. Noble.

‘overturned twice. He origi+

cery store and a leading wit»
ness in the case, didn’t tell thre!
truth in Pickens’ first trial in)
1976. :, fe"
Rosenzweig said Goacher

‘testified that Pickens-was the

person who shot Noble. During
a resentencing trial held in
November 1984, in which a
mistrial was declared
Goacher told Prosecuting Aft
torney Chris Raff of Searcy he:
hadn’t told the truth at the:
1976 trial and another persof|
had fired the fatal shot at!

Pickens tried to take a states!
ment from Goacher, but that!
was denied, Rosenzweig said.

Pickens’ sentence has beet¥

nally received the death ser-
tence in 1976 for killing Nobl®&
during a robbery Oct. 20, 1975.' |

James E. Scherm Jr., 31, of!
Stuttgart was also killed in the,
robbery. Five other: people:
were shot and a woman was.’
raped. :

The 8th Circuit overturned
Pickens’ death sentence in

, 1983, ordering another trial,

He received the death_scx.
tence again in 1985.

The state Supreme Court ré-
versed the second death sen,
tence in 1987 because Pickens.
wasn’t allowed to present his’
good behavior on death row as
evidence.

In- 1988, an Arkansas County
jury handed down a third,
death sentence for Pickens.

Riba Adi ichasik

INMATE STATE SEX RACE.
PETERKIN, OTIS PA M B
PETERSON, CHRISTOPHER _ IN M B
PETERSON, DERICK VA 8-22-91
PETROCELLI, TRACY NV M Ww

In 1982, Tracy Petrocelli
63-year-old Reno, Nev.,
Petrocelli, a native of

Chicago, remains on
Nevada's Death Row.

Samuel Pettit was convict-
ed and sentenced to die
for the August 1988 ab-
duction and murder of
Assistant State Attorney
Norman Langston. Pettit
approached Langston and

an assistant state attorney, at gunpoint as they
were leaving a Howard Johnson's lounge. He
forced them to drive to a remote area, where he
shot each of the attorneys twice after robbing
them. Langston, 27, died from head wounds two
days later; Finnegan made a general recovery.
Pettit has not appealed case, but the Florida
Supreme Court has filed his appeals for him
anyway. Pettit has Huntington’s disease—a de-
generative brain disorder that eventually leads
to death—and has said he would rather die
than spend life in prison. : ae

PHILLIPS, CLIFFORD X. TX M B
PHILLIPS, HARRY F. FL M B
PHILLIPS, JOHN PAUL IL M W
PHILLIPS, RICHARD CA M W

killed James Wilson Sr., a

man, during a robbery.

FL Me we

Kathleen Finnegan, also

INMATE

In Oct. 1989, 53-year-old

PHILLIPS, SHIRLEY JO MO F We

Phillips dismembered the
victim and dumped her
body parts along the side of
the road. Phillips forged and cashed checks to-
talling approximately $4,050 before she was
caught.

On April 6, 1992, Phillips was sentenced to
death for the murder.

PICKENS, CHARLES AR M B

| Charles Pickens was sen-
tenced to die in February
1976 for the 1975 slaying
of Wesley Noble, 76, dur-
1 ing a grocery store rob-
| bery. Witnesses said
| Pickens, one of three men
who robbed the store plus
several customers, fired the shots that killed
Noble. During the robbery, another man was
killed, five others were shot and one woman
was raped.

PICKENS, DARRIN LYNN OK M B

PIERCE, ANDY D. AL M WwW

In 1988, Annie Ruth
Brooks was bludgeoned to
death by Andy Dwight
Pierce. Pierce was hired
by the 68-year-old
Brooks, a prominent

yard work at her home
the day she was murdered. Brooks was found
slain on her bed, bound and gagged with her
bed linens. Her body was found by a woman
who called herself Pierce’s common-law wife.

Shirley Jo Phillips robbed ~
and murdered 66-year-old —
Wilma Plaster in Hollister, —
Mo.. After the murder

4
4
4
4
4
|
}
4

Geneva, Ala., widow, to do

STATE SEX RACE

DEATH ROW IV

INMATE

Pierce was con
tenced to die i
a white man, s
new trial becat
as jurors in his

PIERCE, ANTH¢
PIERCE, MICH?
PIETRI, NOBER

PINCH, MICH/

\f

Carolina’s De

PINHOLSTER.

1/\_ PINKERTON.

PINKNEY, BO!
RINNELL, MA!
PIRELA, SAI
PITSONBAR -
PITTMAN, DA’
PITTS, JAMES

PIZZUTO, GI

flawed bec:
considerat
beaten as
epilepsy, a
his brain tl

DEATH ROW IV

1448

Jeff Rosenzweig, Little Rock, AR, argued,
for appellant.

Olan W. Reeves, Little Rock, AR, argued,
for appellee.

Before MecMILLIAN and BEAM, Circuit
Judges, and HAMILTON," District Judge.

McMILLIAN, Circuit Judge.

Petitioner Edward Charles Pickens ap-
peals from a final judgment entered in the
United States District Court for the East-
ern District of Arkansas denying his second
petition of writ of habeas corpus. Pickens v,
Lockhart, 802 F.Supp. 208 (E.D.Ark.1992).
For reversal petitioner argues the district
court erred in (1) holding that habeas review
of his coerced confession claim was procedur-
ally barred, (2) denying his due process claim
that he was improperly denied his perempto-
ry challenges, (8) denying his claim that a
prospective juror was improperly excluded
because of her views against the death penal-
ty, (4) denying his claim that one of the
prosecutors told a key state witness to com-
mit perjury, (5) holding the verdict forms did
not require unanimity on mitigating circum-
stances, (6) holding that the state resentenc-
ing statute did not violate the ex post facto
clause, (7) denying his due process claim that
the prosecutor made improper statements
during the opening and closing arguments,
(8) denying his due process claim that a
witness was improperly impeached, and (9)
denying his claim that the jury improperly
ignored evidence of certain mitigating cir-
cumstances and that his death sentence was
disproportionate to other death sentences.
For the reasons discussed below, we affirm
the judgment of the district court.

BACKGROUND FACTS

Petitioner was convicted of capital felony
murder in 1976 and has been on death row
for almost 18 years. This is his second fed-
eral habeas corpus petition. The underlying
facts are not disputed. The following state-

*The Honorable Jean C. Hamilton, United States
District Judge for the Eastern District of Mis-
souri, sitting by designation.

1, The Honorable Henry Woods, United States
District Judge for the Eastern District of Arkan-
sas.

4 FEDERAL REPORTER, 3d SERIES

ment of facts is taken from this court’s earli-
er opinion. Pickens v. Lockhart, 714 F.2d
1455, 1459 (8th Cir.1988) (Lay, C.J.).?

On October 20, 1975, in the afternoon,
petitioner, Antonio Clark and Sherwood
Gooch entered a rural grocery store in Cas-
scoe, Arkansas, armed with a sawed-off shot-
gun and a .22 caliber pistol. During the
robbery of the store owner, the female store
clerk and seven customers, two of the rob-
bers sexually assaulted the female store
clerk. After the robbers made all of the
victims lie face down on the floor, they shot
them. Seven of the victims were shot in the
back of the head with the pistol; several of
the victims were shot a second time after the
shooter reloaded the pistol. Two of the vic-
tims died, including Wesley Noble, who had
been shot a second time. Petitioner and
Clark were dark-complexioned black men;
however, Gooch was a light-complexioned,
“Spanish-appearing” man. The store owner
implicated petitioner and Clark in the shoot-
ings. He testified that the dark-complex-
ioned men did the shooting, not the light-
complexioned man. Another witness testi-
fied, however, that petitioner had the shot-
gun during the robbery. The female store
clerk testified that petitioner had the pistol;
however, she did not know whether he fired
the shots.

Later that day Memphis police, acting on a
tip, chased and stopped a stolen vehicle car-
rying petitioner, Clark and Gooch. Although
the occupants of the car fled, petitioner and
Gooch were quickly apprehended. The car
contained items taken during the grocery
store robbery. Petitioner was found wearing
the female store clerk’s wedding ring when
he was arrested. When petitioner was inter-
rogated by Memphis and Arkansas police
officers, he admitted to participating in the
grocery store robbery, but he identified
Clark as the shooter and denied that he fired
any of the shots. Petitioner was convicted of
capital felony murder and sentenced to

2. See also Pickens v. State, 261 Ark. 756, 551
S.W.2d 212 (1977) (original conviction and sen-
tence), cert. denied, 435 U.S. 909, 98 S.Ct. 1459,
55 L.Ed.2d 500 (1978).


PICKENS v. LOCKHART 1449
Cite as 4 F.3d 1446 (8th Cir. 1993)

death. Proceedings on direct appeal and for
state and federal post-conviction relief fol-
lowed.

LITIGATION HISTORY

The following litigation history is taken
from the district court’s memorandum opin-
ion. Pickens v. Lockhart, 802 F.Supp. at
210. On direct appeal the state supreme
court affirmed the conviction and sentence.
Pickens v. State, 261 Ark. 756, 551 S.W.2d
212 (1977), cert. denied, 485 U.S. 909, 98
S.Ct. 1459, 55 L.Ed.2d 500 (1978). Post-
conviction relief was also denied. Pickens v.
State, 266 Ark. 486, 586 S.W.2d 1 (1979), cert.
denied, 451 U.S. 964, 101 S.Ct. 2086, 68
L.Ed.2d 342 (1981). Afterwards petitioner
filed his first habeas corpus petition in feder-
al district court, alleging some twenty claims
for relief. The district court denied this
petition. Pickens v. Lockhart, 542 F.Supp.
585 (E.D.Ark.1982) (first habeas petition).
On appeal this court refused to set aside the
conviction but ordered a new penalty phase
proceeding because trial counsel was ineffec-
tive for failing to present evidence of mitigat-
ing circumstances and for failing to object to
an erroneous instruction. Pickens v. Lock-
hart, 714 F.2d at 1465-69.

The first resentencing proceeding ended in
a mistrial because, after the voir dire exami-
nation had begun, one of the key state’s
witnesses at the original trial, Harold Goach-
er, the store owner, informed special prose-
cutor Jack Lassiter that everything that he
had testified petitioner had done during the
robbery, Clark did, and everything that he
had testified Clark had done, petitioner did.
Petitioner moved for a hearing to place
Goacher under oath to explore the matter,
but the state trial court refused. Petitioner
then filed applications for writs of manda-
mus, certiorari and error coram nobis in the
state supreme court. All these writs were
denied. Pickens v. State, 284 Ark. 506, 683
S.W.2d 614 (1985). In 1985 the resentencing
jury sentenced petitioner to death. The
state supreme court reversed because the
state trial court had erroneously limited the
proof of mitigating circumstances to a time
period before the murder was committed.
Pickens v. State, 292 Ark. 362, 730 S.W.2d

230, 232, cert. denied, 484 U.S. 917, 108 S.Ct.
269, 98 L.Ed.2d 226 (1987).

In 1988 a second resentencing jury again
imposed the death penalty. The state su-
preme court affirmed. Pickens v. State, 301
Ark. 244, 783 S.W.2d 341, cert. denied, 497
U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766
(1990). Post-conviction relief was denied.
Pickens v. State, No. CR 89-94, 1999 WL
210641 (Ark.Sup.Ct. Dec. 17, 1990) (per cu-
riam), cert. denied, — U.S. —, 111 S.Ct.
2044, 114 L.Ed.2d 128 (1991). Thereafter,
petitioner filed his second habeas corpus pe-
tition. The district court held an evidentiary
hearing and denied habeas relief. Pickens v.
Lockhart, 802 F.Supp. at 211-19. This ap-
peal followed.

COERCED CONFESSION

[1] Petitioner first argues that the dis-
trict court erred in holding that habeas re-
view of his coerced confession claim was pro-
cedurally barred. He argues that his confes-
sion, which was admitted against him, was
coerced by certain racial threats made by

_ one of the interrogating police officers, R.D.

Oliver, now deceased. Petitioner argues that
his claim of coercion is supported by the 1984
affidavit of special prosecutor Lassiter in
which Lassiter stated that R.D. Oliver had
admitted coercing petitioner’s confession.
The district court did not reach the merits of
petitioner’s coerced confession claim and held
that habeas review of petitioner’s coerced
confession claim was procedurally barred ei-
ther because it was a successive claim, id. at
224 (order of May 22, 1992), or, in the alter-
native, an abuse of the writ, id. at. 225 (order |
of May 22, 1992). Petitioner argues the Las-
siter affidavit is newly discovered evidence
which excused his failure to raise this claim
in his first habeas petition in 1981. We
disagree.

We agree with the district court that habe-
as review of petitioner’s coerced confession
claim is procedurally barred. Rule 9(b) of
the Rules Governing § 2254 Cases permits
dismissal of a successive petition either if it
fails to allege a new claim and the prior
determination was on the merits or if the
second petition alleges a new claim which
was available at the time of the first petition.
We agree with the district court that peti-

1450 4 FEDERAL REPORTER, 3d SERIES

tioner’s coerced confession claim was a suc-
cessive claim and not a “new” claim. In his
first petition petitioner alleged that his con-
fession was not voluntary because his fifth
amendment right against self-incrimination
and his sixth amendment right to counsel
were violated when an interrogating officer
failed “to scrupulously adhere to [his] asser-
tion of his right under Miranda to talk to an
attorney.” Jd. at 223 (order of May 22,
1992), citing Respondent’s Exhibit G at 14-
15. This claim was resolved on the merits.
In the present petition, which is petitioner’s
second petition, petitioner alleged that his
confession was not voluntary because one of
the interrogating officers threatened him.
Even though the underlying facts were dif-
ferent, the legal basis for both coerced con-
fession claims was the same—violation of the
fifth amendment by an interrogating officer.
Id. at 224 (order of May 22, 1992).

[2] A successive claim may be relitigated
if the “ends of justice,” such as new facts, so
require. Sanders v. United States, 373 U.S.

1, 15-17, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d ©

148 (1963). Petitioner argues the Lassiter
affidavit is newly discovered evidence which
excused his failure to raise his claim that his
confession was coerced by police threats in
his first habeas petition. We agree with the
district court that the Lassiter affidavit was
not newly discovered evidence because peti-
tioner knew of the factual basis for the claim
at least by 1981, the year he filed his first
habeas petition. “In fact, [petitioner] knew
of the basis for the claim the day it arose
because he was the person to whom the
[threatening] remark by the interrogating
officer was made.” 802 F.Supp. at 224 (or-
der of May 22, 1992).

The district court also held in the alterna-
tive that, even assuming petitioner’s coerced
confession claim was not successive but new,
petitioner’s failure to raise the claim in his
first petition was an abuse of the writ. Jd. at
225 (order of May 22, 1992), citing McCles-
key v. Zant, 499 U.S. 467, ~ ; :
111 S.Ct. 1454, 1457-58, 1470, 118 L.Ed.2d
517 (1991) (analysis of abuse of writ). Peti-
tioner argues the fact that the Lassiter affi-
davit was not available at the time he filed
his first habeas petition constituted cause

which excused his failure to raise his coerced
confession claim in his first habeas petition.
We disagree. We think the district court
correctly held that the Lassiter affidavit is
not newly discovered evidence because peti-
tioner already knew of the factual basis for
the claim when he filed his first habeas peti-
tion. Although petitioner could not have
known about the Lassiter affidavit in 1981,
petitioner “knew of the basis for the claim
the day it arose because he was the person to
whom the [threatening] remark by the inter-
rogating officer was made.” 802 F.Supp. at
225 (order of May 22, 1992).

PEREMPTORY CHALLENGES

{3] Petitioner next argues that he was
denied due process because he was denied
the full complement of twelve peremptory
challenges allowed under Arkansas law. Pe-
titioner used nine peremptory challenges to
remove prospective jurors whom, he alleges,
the state trial court should have excused for
cause during the 1988 resentencing proceed-
ing. He argues that, if he had not been
forced to exhaust his peremptory challenges
in order to remove these prospective jurors,
he would have peremptorily challenged two
other jurors. Petitioner does not argue that
any of the persons who ultimately sat on the
jury should have been excused for cause; he
complains only that he .was forced to use
peremptory challenges to cure what he ar-
gues were erroneous refusals by the state
trial court to excuse jurors for cause.

We agree with the district court that peti-

tioner was not denied due process because he

was forced to use peremptory strikes to re-
move several prospective jurors whom the
state trial court refused to excuse for cause.
802 F.Supp. at 215. The Supreme Court
rejected this argument in Ross v. Oklahoma,
487 U.S. 81, 89-91, 108 S.Ct. 2273, 2278-80,
101 L.Ed.2d 80 (1988). In that case the
defendant used one of his peremptory chal-
lenges to remove a juror whom the state trial
court erroneously refused to excuse for cause
under Witherspoon v. Illinois, 391 U.S. 510,
88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (Wither-
spoon). The defendant would have used
that peremptory challenge to remove another
juror. The Supreme Court rejected the de-
fendant’s arguments that the loss of a per-


PICKENS v. LOCKHART 1451
Cite as 4 F.3d 1446 (8th Cir. 1993)

emptory challenge violated his sixth amend-
ment right to an impartial jury® and his
fourteenth amendment right to due process.
487 U.S. at 85, 108 S.Ct. at 2276. The Court
acknowledged that “the right to exercise per-
emptory challenges is ‘one of the most impor-
tant of the rights secured to the accused.’”
Id, at 89, 108 S.Ct. at 2278, citing Swain v.
Alabama, 380 U.S. 202, 219, 85 S.Ct. 824,
835, 138 L.Ed.2d 759 (1965) (further internal
citation omitted). The Court noted, however,
that

[blecause peremptory challenges are a
creature of statute and are not required by
the Constitution, it is for the State to
determine the number of peremptory chal-
lenges allowed and to define their purpose
and the manner of their exercise. As such,
the “right” to peremptory challenges is
“denied or impaired” only if the defendant
does not receive that which state law pro-
vides.
487 U.S. at 89, 108 S.Ct. at 2279 (citations
omitted). Oklahoma law granted a capital
defendant nine peremptory challenges, but
the Supreme Court noted that grant was
“qualified by the requirement that the defen-
dant must use those challenges to cure erro-
neous refusals by the trial court to excuse
jurors for cause.” Jd. at 90, 108 S.Ct. at
2279. The Court held that there was no
violation of due process because there was
“nothing arbitrary or irrational about such a
requirement, which subordinates the absolute
freedom to use a peremptory challenge as
one wishes to the goal of empaneling an
impartial jury.” Jd. The Court did not de-
cide “the broader question whether, in the
absence of Oklahoma’s limitation on the
‘right’ to exercise peremptory challenges, a
‘denial or impairment’ of the exercise of per-
emptory challenges occurs if the defendant
uses one or more challenges to remove jurors
who should have been excused for cause.”
Id, at 91 n. 4, 108 S.Ct. at 2280 n. 4. The
Court also noted that no claim had been
made that the trial court “repeatedly and

3. The Supreme Court rejected the argument that
“the loss of a peremptory challenge constitutes a
violation of the constitutional right to an impar-
tial jury” and emphasized that “[s]o long as the
jury that sits is impartial, the fact that the defen-
dant had to use a peremptory challenge to

deliberately misapplied the law in order to
force [the defendant] to use his peremptory
challenges to correct these errors.” Jd. at 91
n. 5, 108 S.Ct. at 2280 n. 5.

Petitioner argues that his due process
claim is the one reserved by the Supreme
Court in footnote 4 in Ross v. Oklahoma
because Arkansas does not limit the “right”
to exercise peremptory challenges like Okla-
homa does. We disagree. Like Oklahoma,
Arkansas law requires the defendant to use
peremptory challenges to cure erroneous re-
fusals by the trial court to excuse jurors for
cause. See, e.g. Gardner v. State, 296 Ark.
41, 60-61,. 754 S.W.2d 518, 527-28 (1988) (in
order to establish trial court erred in failing
to excuse jurors for cause, defendant must
show that, after exhausting all peremptory
challenges, he was forced to accept a juror
against his wishes). As required by Arkan-
sas law, petitioner used his peremptory chal-
lenges to cure.the state trial court’s errors
and consequently he retained fewer peremp-
tory challenges to use as he wished. None-
theless, petitioner received all that Arkansas
law allowed him and, like the defendant in
Ross v. Oklahoma, his due process claim
must fail.

Petitioner also argues that his due process
claim is the one reserved by the Supreme
Court in footnote 5 in Ross v. Oklahoma
because the state trial court systematically
refused his valid challenges for cause and
thus repeatedly and deliberately misapplied
the law in order to force him to use his
peremptory challenges to correct these er-
rors. We have independently examined the
voir dire testimony of the prospective jurors
challenged for cause by petitioner. Even
assuming some degree of difference of opin-
ion on the merits of each challenge for cause,
the record does not support petitioner’s claim
that the state trial court repeatedly and de-
liberately misapplied the law in order to
force him to use his peremptory challenges
to correct these errors.

achieve that result does not mean the Sixth
Amendment was violated.’’ Ross v. Oklahoma,
487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101
L.Ed.2d 80 (1988); see also United States v. Cruz,
993 F.2d 164, 168-69 (8th Cir.1993).


mit

ll give me
who saw

want but’
ses,” Mc-}

checking’
e secured
ibited in

weapon
ins. The!
\oroughly
lane was
ories but
e.
more de-
the mys-

cene and
“he shoes
with the
ken win-
nt there.
cance in
ht easily
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he better

stions in
seen the
d late on
e farmers
e murder
was dis-

Then ab-
urprising
t in that
mer said,

* Carroll
At bot-
’s home.

“was that young fellow, Amos Ratliff.”
McShane stiffened. He recalled that the
blacksmith had mentioned Ratliff as the
man who had been talking with Isham.
“I saw Amos out that way real late,”
the farmer went on. “I spoke to him and
he said he’d been hunting.”

“What time was that?” McShane asked.

“It must have been around midnight.
I’m not sure.”

The sheriff leaped into his car and drove
hurriedly to a neighboring farm where
Ratliff was employed. He already knew
something about Ratliff, though he had
never met the man.

Ratliff had been involved with the local
police on several occasions for minor
charges. Nothing, McShane reasoned, to
brand a man a major criminal. But he
had to be sure.

Ratliff’s employer was aghast at the ac-
cusation. ‘“Amos couldn’t have been mixed
up in that crime,” he said. “He was at
home when the murder was committed.”

“Are you sure about that?” McShane
probed.

“Why, yes. He went into town early
to get some blacksmith work done for
me,” the farmer answered. “Then I loaned
him my shotgun to go hunting. Some
of his friends went along and he was back
at home around midnight.”

McShane decided to question the farm-
hand. He found Ratliff at the barns,
busily feeding the stock. As the man
turned to face him the sheriff experienced
a shock. Ratliff was the man who had
walked away from the murder scene dur-
ing the investigation.

Ratliff repeated the farmer’s story of
the hunting trip, and related that he had
gone to town earlier.

“What were you and Isham talking
about in the blacksmith shop?” McShane
asked.

Ratliff scuffed the sand with his shoe
and thought silently for a second. “I
don’t remember that we talked about any-
thing in particular,” he said.

“Who went hunting with you?”

“Why—why, Isham did. Didn’t he tell
you that?”

“No, he didn’t,” McShane rapped.
“Where did you go?” Ratliff outlined the
hunting trip. He made no effort to con-
ceal the fact that he had passed near the
isolated cottage of Winfred Frazier.

“What was your hurry to get away
from the murder scene on the morning
the body was found?” McShane asked
abruptly.

Ratliff looked up in surprise. “I just
happened to be passing,” he said. “I’d
been looking for some stock. When I

. saw the crowd, I stopped to see what was

up. But I had to get back to work.”

McShane asked to see the weapon used
on the hunting trip. It proved to be a
double-barreled shotgun. There was noth-
ing suspicious in the appearance of the
weapon.

”
The sheriff drove thoughtfully back to

town. He had a hunch that he was on
the verge of a solution but the facts eluded
him. If Ratliff’s story was straight—
and the farmer verified it—then he could
not have committed the murder. The
timing was wrong.

The one thing that stood out in the
sheriff’s mind was the fact that Isham had
lied. “If Isham is mixed up in this, that
knife is the mutder weapon,’ McShane
muttered aloud. “But I’m beginning to
think there’s something wrong with our
figuring.”

His thoughts went briefly to Nielson.

He had been unable to verify Nielson’s
story but he had also been unable to se-
cure any definite: evidence against the
erstwhile lover. .

That night McShane madé a strange
decision. :

The body of the murdered woman had
been taken to Garden City for burial.
McShane decided, before he went to
sleep, to make a trip to Kansas the next
day.

At the Kansas town, he went into con-
ference with the murdered girl’s family.
“T’m not satisfied about the investigation,”
McShane explained. “I want your consent
to have the body exhumed and a more
thorough examination made.”

The relatives agreed to the sheriff’s re-
quest. The next day, the orders were
carried out.

When the report on the autopsy came
to him, McShane’s lips tightened grimly.
‘The death wounds, the autopsy surgeon
reported, had been caused by buckshot,
fired from a gun at close range.

“The heavy slugs struck with such an
impact that the wounds looked like knife

cuts,” the doctor explained. “The killer.

must have been standing close because
the shots bunched. There were no powder
burns but I’m sure if the shots had come
from a distance, there would have been
scattered wounds on the arms and body.”

McSiane drove furiously back to
_ Eureka Springs. He took no time
for rest, but immediately went to the
jail and confronted Isham.

“You might as well talk,” he gritted.
“You went hunting with Amos Ratliff
and lied to me about it. You didn’t want
me to know you had a gun that night,
because Winfred Frazier was murdered
with a double charge of buckshot. You
even bragged beforehand that you knew
where you could get money.”

“You’ve got me wrong,” the prisoner
quavered. “I didn’t go hunting with Rat-
liff. If he told you that, he lied. He asked
me to go, but I refused.”

“Why did you refuse?”

“I—I can’t say,” the man stammered.

“Maybe you’d rather I filed murder
charges against you,” McShane said
evenly.

“All right, I’ll talk,” Isham blurted.
“Amos wanted me to help rob that
woman. He said he believed she kept
money out there. She was in town and he
said we could slip in before she got home.
When I refused he threatened to kill me.”

McShane’s eyes glinted into the shift-
ing gaze of his prisoner. “Then where
were you when you were supposed to be
out hunting? And why didn’t you talk?”

“Because,” the prisoner said, “I spent
the evening in a gambling house. That’s
where I got the money. I knew I’d catch
it at home, if my folks found out. And I
knew Amos would kill me if I told on
him.’

McShane sighed. Isham was a minor.
It was possible that fear of parental cor-
rection had tied his tongue, as well as his
fear of Ratliff.

Before checking the prisoner’s story,
McShane drove to the farm to confront
Ratliff. The farmer met him at the door
with an excited rush.

“Sheriff, I’ve got something to tell
you,” he said. “I didn’t know it when you

were here before. But my little girl just °

told me that she saw Amos the morning
after the murder, washing his shirt in the
spring. She thought the shirt was bloody.”

Ratliff protested his arrest and rode
sullenly into town, handcuffed beside the
sheriff. Hours of grilling failed to bring
the story from his lips. Hé steadfastly
swore that he knew nothing of the murder
and refused to say more.

Sheriff McShane soon knew better, He

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Secret Slayer and the Beautiful Hermit

[Continued from page 36]

Isham gave an account of his activities
on Saturday night. But as the interview
progressed, the sheriff noted a growing
nervousness in the suspect’s manner.
Isham hesitated over telling where he had
spent the entire evening.

“You'll have to come along to jail, until
your memory improves,” McShane said
at last.

Further questioning in jail brought
only confused replies and McShane real-
ized his efforts were getting nowhere,

Meanwhile, Rogers officers had located
Nielson. They arrived with the prisoner
while McShane was questioning Isham.

Nielson was visibly frightened but he
answered questions promptly. “Every-
thing you’ve heard about me_ being
friendly with Winfred is right,” he ad-
mitted. “But I didn’t murder her. It’s a
horrible thing. I wish I knew who did
it.

McShane ignored the man’s agitation.
“You were seen riding out that Way late
Saturday night,” he said. “She was still
in town. You didn’t plan to hide in her
house and murder her when she got home,
did you?”

| “No,” Nielson’ said. “I—well, I did ride
out there. But I thought she was at home.
I hadn’t seen her in town. We’d had a
little quarrel and I wanted to patch it up.”

“You'd had a quarrel, so you went out
to make up. When she wouldn’t make up
with you, you murdered her. Is that it?”
McShane cut in.

Cold sweat broke out on the man’s face.
“T’ll swear that’s not what happened,” he
stammered, “She wasn’t there, so I turned

In the shack, below, the girl recluse met
violent death. At bottom is the spring
where the killer washed his shirt.

around and came back. If you'll give me
time, maybe I can find, sorheone who saw
me coming back to town.”

“You'll have all the time you want but’
I'll do the digging up of witnesses,” Mc-}
Shane snapped.

McShane worked doggedly at checking’
the alibis of his two prisoners. He secured
the knife which Isham had exhibited in,
the blacksmith shop but the weapon,
showed no trace of bloodstains. The|
pas of both suspects were thoroughly

arched without result. McShane was
able to prove parts of their stories but
there was a discrepancy in time.

The sheriff was puzzled but more de-
termined than ever to unravel the mys-
tery.

He returned to the murder scene and
went over the house carefully. The shoes
of both suspects were matched with the
telltale tracks beneath the broken win-
dow. Neither fitted the imprint there.
But McShane put little significance in

- that fact. The murderer might easily

have changed shoes, wearing a larger
size on the night of the murder the better
to hide his trail.

McShane asked endless questions in
the neighborhood. Had anyone seen the

.strange man walking on the road late on

the murder night? Did any of the farmers
remember seeing a man leave the murder
scene on the morning the crime was dis-
covered?

The answers were negative. Then ab-
ruptly McShane ran into a surprising
lead. “The only man I saw out in that
vicinity on Saturday night,” a farmer said,

Sheriff Ed McShane, below, of Carroll
county, Ark., handled the case. At bot-
tom is weapon found at killer’s home.

“was that
McShan
blacksmith
man who
“I saw .
the farmer
he said he
“What t
“It mus
I’m not su
The she:
hurriedly
Ratliff wa
something
never met
Ratliff h
police on
charges. *
brand a n
had to be
Ratliff’s
cusation. “
up in that
home whe
“Are y¢
probed.
“Why,
to get so
me,” the f:
him my
of his frie:
at home a
McSha:
hand. H
busily fe«
turned to
a shock.
walked av
ing the ir
Ratliff
the hunti:
gone to ti
“What
about int
asked.
Ratliff
and thou
don’t rem
thing in |
“Who
“Why
you that?
“No. |
“Where «
hunting t
ceal the i
isolated c
“What
from the
the body
abruptly.
Ratliff
happened
been lool
saw the c
up. But
McSha
on the h
double-b:
ing suspi
weapon.
The sh
town. H:
the verge
him. If
. and the f
not have
timing w
The o1
sheriff's 1
lied. “If
knife is °
muttered
think the
figuring.’
His th
He had |
story but
cure any
erstwhile


r RATLIBE, Amos, wh, MAWKE elec. ARP (Carroll) October 14, 1921.

surrounding the death of the woman

jthe singular life she had chosen to live

‘

BY G. H. PIPES

ers stared down McShane turned toward Spencer Hammond, a farmer, . ie her gard

Frazier. They and voiced a question. The farmer said, ‘I’m her closest her 40-ac

and shook their neighbor. I came by here looking for a stray cow about an McSha
riddle of her hour ago. I noticed Miss Frazier’s two cows standing by the hinged o:

een unfathom- barn and saw they had not been milked. I thought this knowing

ck her down, — strange, for Miss Frazier always does her milking early. Arkansas
miles south of “The front door to her cabin was open. I called, thinking had lived
A something was wrong. When she didn’t answer I looked in. é “| associates

examining the And there she was, Vise on the floor by her bed, just as i plies. She
was no doubt you see her now.” Girard, }

Bad caused them The room was in great disorder. The bed-clothing was nothing

rumpled and disarranged. A pillow lay in the middle of life.

path,” McShane the liner, along with articles that evidently belonged on Now u
adegikniteor an ice-pick.” an old-fashioned dresser against a wall. A terrific struggle her past
epi her H. E. Britten - had ensued before the girl died, McShane thought. broken |:
e crime, along He questioned the other mountaineers but they knew her to es
ore.Itwasnow nothing. They could only agree that the motive had not followed

ftones from the been robbery, for the murdered woman had lived very 7 On the

the Ozark hills. modestly; eking out a meager living from her two cows, be a loca

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‘ January, 1952


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found. where Ratliff had purchased buck-
shot in town on the afternoon before the
crime. Final proof came when he matched
the guilty man’s shoes to the tracks found
beneath Winfred Frazier’s window. Even
then, Ratliff refused to admit his guilt.

The sheriff found that Isham’s story
was true. He had spent the night, as
he at last admitted, in a gambling group.
Both he and Nielson were released and
absolved of any participation in the crime,
when evidence against Ratliff was com-
plete.

Ratliff went on trial in the criminal
court of Carroll county on Aug. 4, 1921.
He pleaded not guilty, but later changed
his plea to guilty. But he refused to tell
how the crime was committed. He was
found guilty and sentenced to die for his
crime.

On the day before his execution, Rat-

liff finally confessed the brutal murder,

wis | thought she had a lot of money,” he
said, “so I broke the: window, climbed
into the house and started to look for it.
But there wasn’t any. She came home
from town before I got aut, so I hid be-
hind the dresser till'She got to sleep.
When I started to slip out she woke up.”

He described the scene, The girl turned
up the lamp and looked apprehensively
about for the source of the noise which
had awakened her. Deliberately he had
raised his gun and fired.

There was no appeal from the sentence
and no reprieve. On Sept. 30, 1921, Ratliff
as executed in the stafe’s electric chair
t Little Rock.

(To protect the identities of innocent persons, the
names, Tom Isham and Bob Nielson, as used in this
story are not real but fictitious.—Ed.)

Ohio’s Murderous Train Wrecker

[Continued from page 41]

the conversation up to this point, came
forward and said that her son had been
home all evening. Again Monte stared
at the youth.

“Just the same,” he said, “we want to
talk to you in the sheriff’s office. We're
questioning everybody around here, I'll
have to ask you to come along.”

Thompson, to the officer’s surprise, of-
fered no resistance. Without so much as
bidding his mother goodbye, he silently
accompanied the deputy back to the lat-
ter’s car and thence to the county. jail.

Meanwhile Deputy Brammer had not
been idle. Soon after leaving the murder
scene he was questioning Caleb and Bud
Devonshire, farmer brothers both in
their early 20's.

Both youths seemed sincerely as-
tounded at the ghastly crime and readily
offered to cooperate in tracking down the
killer, or killers, but could offer not a sin-
gle clue. Then ‘suddenly the deputy, with

fascinated gaze, watched Caleb reach in -

his pocket and pull out a small tobacco
sack and cigaret papers.

The label which dangled from the tiny
sack bore the head of a buffalo!

“You roll your own, I see,” Brammer
said, barely able to hide his increasing ex-
citement. “Do you always use that brand
.of tobacco?”

Caleb nodded. “Yep,” he said. “Can’t
afford tailor made cigarets.”

“Where were you bovs last night?” the
deputy asked, trying to speak casually.

Caleb said he had gone over to Ironton
after eating his supper early jn the eve-
ning. He had stood around the streets
for awhile, watched some youths play pool
in a downtown billiard parlor and finally
had come home shortly before midnight.

Bud declared he had spent the whole
evening after supper hunting for coon
with his dog.

“Anybody with you?” Brammer asked.

“No, I was all alone—just me and the

: dog.”

Both youths eyed the officer nervously.
“Certainly you don’t think we did it, do
you?” demanded Caleb.

Brammer ignored the question. “We’re
questioning everybody who knew Callie
Rogers,” he announced briefly. “I’ll have
to ask you to come along.”

At the county jail, with the aid of other
officers, the deputy made.the two youths
repeat their alibi story several times.
This they did without variance. Then,
after locking them in separate cells, Bram-
mer started out to check Caleb’s story.

As to Bud's tale of coon hunting, there
was no possibility whatever of verifying
this. Bud admitted he met no one during
the hunt.

Sheriff E. W. Bennett was away on a
trip, but hastened back to Ironton. He
had barely reached his office to hastily
review the known facts with Monte,
Shuttuck and Brammer when a close
friend called him on the telephone.

“Sheriff,” said the voice on the wire, .

“there’s an old guy nobody knows much
about who’s been loafing around Hanging
Rock village here. On the night of the
murder he was missing, but next morn-
ing he started talking about it before
hardly anybody in Hanging Rock knew
it happened.”

The sheriff thanked his informant, who
requested that his name be withheld, and
dispatched a deputy to the tiny village.
Soon the latter returned with a tall, wil-
lowy man of about 60. His patched cloth-
ing hung over his ill-nourished body like
burlap sacks. His deep brown furrowed
skin was parched dry like that of a desert
“rat” and clung to bones which protruded
grotesquely. Deep set in his face were
small, beady dark eyes which burned like
coals of fire

As the strange sient was led into the
sheriff’s office, the latter watched him
cast furtive glances in all directions, like
a hungry hunted coyote. If ever, thought
the sheriff, there was a perfect model of
what a cruel murder suspect should be
like, here he was right in the office.

The gaunt man still shifted those beady
eyes as Sheriff Bennett demanded his
name. At length he said it was Tom Ans-
ley. As to why he was in Hanging Rock
village, he stammered out an unconvinc-
ing tale that he was looking for work as
a farmhand.

When he finally gained some semblance
of composure he declared he had been a
laborer in Huntington, W. Va., for some
time and named a few recent employers
and their addresses, which the sheriff
noted down. Work was scarce, he said,
so he had decided to go back to farming.

As to his whereabouts the night of
Callie Rogers’ death, he was hazy. Finally
he blurted, “I have-been drunk close on
to a week, drinking this ‘mountain dew.’
No use trying to pin me down, Sheriff. I-

_ don’t know where I was.’

Asked where he had been sleeping
nights, Ansley said, “Anywhere I happen
to be. when I get sleepy—in barns, hay-
stacks and such.” -

“How do yor
about this Cal!
sheriff demand

Again the
though looking
“T just heard
else,” Ansley s
in a cell for fu
sheriff and his
their review oi

“This is the
to crack in thi
“There are no
Callie Rogers
must have scr
have got to g&
walking towa!
nine p.m.”

Locked in
Jimmy Thom
who recently
robbery; Cal
farmer boy w
very slim anc
now Tom An

“First,” be
you make of

Brammer s
pretty bad fc
“T checked ou
around Iron
there, not e\
he said he hu

“Not only
nificantly, “b:
borrowed so!
a couple of \
was pretty
would lend h

she would fe

Also, he smo

the killer doc

HE sher
anything
son?”

“T would
plied. “But
lady had b«
Sometimes
do and he hx
a bad one, S'
only the wor
home the !
doesn’t amc
this.”

Monte op
to a farmer
the deputy
walking ove
lady’s cotta

At the sh
man was le
cell where
ing. Then i
onshire bo
Ansley.

“Recogni
anxiously.

The farn
too dark,” |
a tall man.”
witness Was
fallen office

* Monte tu
to-one-shot
the killer 1
one is he?
as if a sud
the deputy

“What al

’ .
he cried ex
itarium for
he has delu
just to get
away and «

Sheriff I
call to the
name of w’


werent ee

Rector, 40, executed.
for officer’s slaying

BY JOE FARMER

Democrat-Gazette Pine Bluff Bureau

VARNER - Rickey Ray
Rector died by lethal injection
at the Cummins Unit at 10:09
p.m. Friday in an execution
that took medical staff more
than 50 minutes to find veins
in his arms.

Witnesses said they heard
as many as eight moans coming
from the chamber as _ they
waited fora set of curtains
separating them from Rector
to be opened.

John Byus, administrator of
medical and dental programs
for the state Department of
Correction, said the moans did
come as a team of two medical
people that had grown to five
worked on both sides of his
body to find a vein.

“That may have contributed
to his occasional outbursts,”
Byus said.

The execution, scheduled to

~ Unit for execution

@ List of witnesses 8A

-@ Rector tells son “‘to stay out of
- trouble” 8A

e Six people wait outside Varner
10A

begin at 9 p.m., didn’t start
until 9:50 p.m.

Asked if he wished to make
a final statement, Rector said,
“Yes. I got baptized and
saved.”

Rector, 40, of Conway was
sentenced to die for the March
24, 1981, slaying of Conway po-
lice officer Robert W. Martin.
He also was serving a life sen-
tence for first-degree murder
and two counts of first-degree
battery in a shooting at a re-
_taurant two days before Martin
died.

After killing Martin, Rector

~ shot himself in the head. The

combined with sur-
See RECTOR, Page 9A

wound,

Pt gma,
Lo eve!
ret LE.

a

_— . 5 aurea _
TULL oe en ek ha

«<
7

wart peer)

‘Fatih. AEE
ay

Teg Ree ts

Arkansas Democrat-Gazette David Gottschalk

Mansion. Friday evening, the U.S. Supreme Court
refused to grant a stay to Rector, who was convicted

of killing a police officer.

RECTOR PROTEST — Diane Hamley (left) partici-
pates in a protest of the execution of Rickey Ray Rec-
tor. The protest took place in front of the Governor's

ARKANSAS. Se
| GAZETTE

SAT:
I-25°92


ayer ey

‘more ofa straitjacket. ‘There are knotty — rent, making a down payment on a watch and
-issues. Punishment is supposed to be a mor- ~ visiting a local automobile dealer.
-al act, rather than just an act of coercion. The crime was not Stamper’s first. He was
That does require a certain status on the _ paroled in 1976 after serving time for shooting
part of-the offender. We want him to’have a gas station attendant in the-head during a
1971 robbery in Richmond. According to court
records, the injury permanently impaired the
victim's walk, speech, hearing and sight, leav-
ing the man unable to work.
‘Hugo Adam Bedau, a philosophy professor
~ at Tufts University, has written extensively
about capital punishment. He said Stamper’s
condition was worthy of consideration since
his “capacity to endanger others was either
. Zero or very slight” and because the State had
a serious moral obligation to Staniper be-
cause he was injured while in custody.
"He also argued that Stamper might de-
serve clemency because of sheer pity. “Be-
fore we took the politically correct view
toward the physically impaired, it used to be
- correct-to pity people who were in this con-
__, +Wilder ‘postponed Stamper’s execution, _ dition,” Bedau said. “It seems tome that
_ which was scheduled for October, and or-  we're-a little less than human if we don’t
- dered’ an’ investigation. After: an-unusual even consider that argument.”
_, 12-week medical investigation, Wilder :con-.. ©; But among those who disagreed is Peggy
: Cluded last month that: he ‘could: not over-.  Bendrick, 68, from Richmond, who frequent-
:.Jook Stamper’s crimes. -; - “a =. ly lobbies state legislators on issues concern-
ing rights of the’ disabled. In this case, she

_-- A spokeswoman for Wilder said his office.
. had ‘received .1,847 ‘calls and letters sup- called Wilder’s office ‘to say Stamper de-
porting clemency for Stamper and 47 from served no special consideration. Bendrick,

those Ieee ee cae : Who has been a paraplegic ‘since an autoro-

" was mentally. competent. “come into’ play when defendants are

WASHINGTON POST HEALTH/FEBRUARY 2, 1993

bile accident 28: years ago,. contended that

- Stamper’s pleas were nothing but “baloney.”
‘Tm willing to fight. like heck for anyone
who deserves it,” Bendrick said. “He annoyed
« me. He was using this disability without jus-
..” tification, He-was judged before he. got. hurt,
--And even if he had been in a wheelchair-at' the
time of the killing, I would still sayzt go for-
ward, It's irrelevant to the issue.” *&*
;; Russ Ford, the prison chaplain Who’ coun-
seled Stamper and hugged him just’ before
his execution, said Stamper. wanted ‘to walk
“to the death chamber ‘with the“aid of his
walker and braces, ‘but prison officials’ de-
‘bus, “in nied the request. Wayne Brown’ the pris-
ined a;danger, . on’s operations officer, said that officials did
Stamper ‘had been ordered executed after not believe Stamper had enough strength to
lis conviction for’killing three coworkers in make it to the electric chair, and they

*1978 robbery at a Shoney's restaurant in feared that his legs would go into spasms.

Richmond. A’ cook there, Stamper was ac- He tried to walk anyway. Three corrections
cused of killing: the assistant manager and officers surrounded him, one at each side and
= Michael Owen Perry, 37, who has so far _ tenced to prison terms. Prisoners who be: “two “other employees: shortly before. the one directly behind him, and they attempted to
avoided Louisiana’s death penalty because he come ill, he said, can be moved to hospitals, .-,,. business was to open for breakfast.- About keep his feet to the floor as they half-dragged,
was found to be insane and incompetent to be © have their sentences shortened, or get oth- | $4,000 was taken from a safe. half-walked him into the chamber. But they

EXECUTE, From Page 10

longer a danger to society. In a recent inter-
View, she contended that executing disabled
criminals “refutes all the ideas of people be-
ing so afraid of these guys and their futur

dangerousness.” * “Bey
m Rickey Ray: Rector,’ 40, who was exe.
cuted by lethal injection in Arkansas in Jan-'*:.
uary 1992, despite claims ‘by his attorneys ~ j
that he was mentally unfit. After killing a
police officer in 1981, Rector had tured
the gun on himself, destroying parts of his : ‘

brain. As governor of Arkansas, Bill Clinton Robert Johnson, ‘a ‘justice’ professor
denied a request for clemency after review- American University. who has written books
ing the case. Courts ruled that Rector was about executions, said’ that ‘the death: pen-
able to understand what was happening and alty raises a host of ‘dilemmas, that‘:don’t

ity and

iced to “Noone is disputing

| executed. Perry, a schizophrenic, was con- er accomodations. Less so the condemned, Testimony at. his trial showed that Stamper abandoned the idea after Stamper’s legs went
«.Victed of murdering his mother, father, neph- “Death is death,” Johnson says. “There is ° went on a spending spree after the killings, into spasms. They lifted him up and carried
“"eWw"and'two cousins in 1983. Although Perry no sort of variation in the death penalty. It’s... . payitig an outstanding. jewelry bill, paying his . him into the chamber...........2.


. Ile said it took from 9:50
until 10:09 p.m. for Rector to
die. He was pronounced dead
by Lineoln County Coroner
Jimmy Hawkins.

“The blood vessels col-
lapsed, and we couldn't find
them” Byus said. “There was
blood on the side of the gur-
ney.”

“['m getting dizzy,” Rector
said two minutes after the exe-
cution commenced. Prison offi-
cials said he lost conscious-
ness a minute later.

Herb Rule, president of the
Arkansas Coalition to_Abolish
the Death Penalty, said the
lengthy execution makes it
even more tragic.

“IT feel sad about it,” Rule
said. “It’s another one of the
cruelties of executions that
they are so often, as 1 under-
stand it, not at all painless or
quick.”

The last hope for Rector in
the judicial system was the
U.S. Supreme Court. But the
high court announced at 5:50
p.m. Friday that it had, without
comment, denied a stay.

Gov. Bill Clinton took time
off from the presidential cam-
paign trail to be in Arkansas
for the execution. Under state
law, only the governor had the
authority to stop the execu-
tion.

That was unlikely. Clinton,
in a joint statement with Lt.
Gov. Jim Guy Tucker, on
Thursday announced he de-
nied Rector’s request for exee-
ulive clemency.

“Lexplained various aspects
of the case he might not be fa-
miliar with,” Rosenzweig said.
“We thanked me. I got the im-
pression he was listening.”

IIe said he believed Rector
was too brain damaged to un-
derstand what was going on.

From 6:34 to 6:40 p.m., Ree-
tor showered. “Ile’s still talka-
tive,” While said. “He is cogni-
zant of the fact he is to be exe-

cuted.”

Jewell visited with Rector
between 7:24 and 8:07 p.m. Ie
and Rosenzweig together vis-
ited Rector just before the ex-
ecution, which they both
watched. i a

The last black men exe-
cuted in Arkansas died the
same day: Oct. 28, 1960. They
were John Bracey, 26, con-
victed in Chicot County for
first-degree murder and Law-
rence Gene Moore, 21, con-
victed in Crittenden County for
first-degree murder.

To cnsure there were no
problems with the population
at the 1,850-inmate Cummins
Unit, the Arkansas State Po-
lice and the prison system pro-
vided extra officers.

Martin was looking for Rec-
tor because he was a suspect
in the March 22, 1981, murder
of Author Criswell of Morril-
ton and the wounding of two’
other men at a Conway restau-
rant.

Martin went to the home of
Rector's mother, Clyde Lee
Rector, to question her about
her son’s whereabouts. Martin
was silting in the living room
when Rector entered and shot
him. Rector then went outside
and shot himself.

gery, in effect caused a lobo-
tomy. His attorneys vainly ar-
gued that Rector was mentally
incompetent and couldn't be
killed.

He became the third inmate
at the Correction Department
to be executed since Arkansas
resumed the death penalty in
1990. Ile was the first black in-
mate to die since 1960 and the
second person to die by Iethal

_injection.

The medical problem of
finding a vein turned a 20-min-
ute process into more than an
hour of waiting.

“We heard a number of
moans, very audible.” said Jeff
Rosenzweig, one of his Little
Rock lawyers, who witnessed
the execution. “It seemed to
come as they were trying to
find avein.” |

IIe said the curtains weren't
opened until the intravenous
needles were in place. Rector
was wearing a_ short-sleeved
prison white uniform to ac-
commodate the two IVs that
sent a mixture of three Iethal

chemicals into the blood-

stream. Rector had a choice

-between§ electrocution and

Iethal injection.

~ Ron Fournier, who was a
witness for The Associated
Press, said he saw only one
needle and it was in Rector’s
hand.

That, Byus said, was the
only place the medical staff
could get an IV started.

“He'd say, ‘Oh, I can feel it
there,’ ” Byus said of Rector.
“We was talkative. He was
trying to help us find a vein.”

Byus refused to discuss the
qualifications of the medical
people, but did say they were
above the level of licensed
practical nurse. They were
qualified to handle the proce-
dure under the circumstances,
he said, and he felt they per-
formed well. Ile said they had
anticipated the problem but
would not say if they were
state employees.

“I’m just not going to dis-
cuss the process or these peo-
ple,” he told the 29 or so media
representatives in a_ large
meeting room adjacent to the
chamber at the department's
Cummins Unit here.

_ TV, Channel 4,

Rickey Ray Rectory. 5-92

Rector’s last mental exam,
in December 1991, found him
competent. One of his attor-
neys, John Jewell of Little
Rock, had requested the exam
under an Arkansas law that re-
quires the state to ensure in-
mates are fil for execution.

Jewell and Rosenzweig
later challenged the constitu-
tionality of the law in the state
and federal courts, with both
lawsuils being appealed all
the way to the U.S. Supreme
Court.

The inmate began eating his
last meal in his holding cell at
2:57 p.m. His meal consisted of
a well-done fried steak, baked
chicken with gravy, pecan pie,
brown beans and cherry Kool-
Aid. He finished the meal at
3:15 p.m., but didn’t eat the
gravy or the beans.

Rector was visited by the
Rev. Kelan Motton between
3:30 p.m. and 4:05 p.m., David
While, a prison spokesman,
said. He later watched KARK-

Ile was visited about 6 p.m.
by Rosenzweig, who gave Rec-
tor the news about the Su-
preme Court's decision.

Rosenzweig said he had ear-
lier called Clinton from a pay
telephone at Pine Bluff.


--~ decide
aton that
without
ached on to
rst of these

tor himself

A DEATH-ROW BAPTISM

and others arguing for
clemency, was convened in
the Maximum Security
Unit. Rector, his by now
mammoth bulk shackled in
wrist cuffs and in chains
wrapped around his back,
was slumped in a metal
folding chair at a table be-
side Jewell. He told the
board, “I don’t want to die.
Til take life without if I can
get it’—a statement that
Jewell had labored for two
days to draw out from him.
Otherwise, he evinced
hardly more interest in the
proceedings than to “play
like a little kid with the
guards, joking and making
cracks,” Stella relates. Aside
from asking Jewell twice
if he could smoke, he
merely stared flatly straight
ahead during the discus-
sion around him of his
mental capacity. The sec-
ond session was held the

121

next day in Little Rock, for  “T was sad because I had no on-board fax until I saw a man who had no mobile phone.”

those opposed to diminu-
tion of his sentence to any-
thing less than death. The
turnout was so large—it included the
families of both of Rector’s victims,
Lieutenant Rodney Pearson, and three

. other Conway police officers—that the

meeting had to be moved to bigger
quarters. One of Martin’s daughters told
the board, with tears in her eyes, “People
claim he’s not the same person. But at
that time”—when he killed her father—
“he was the same person and knew ex-
actly what he was doing.” It took the
board thirty-five minutes to receive such
observations and then to vote, unani-
mously, against recommending that
Clinton choose anything less than
Rector’s death.

Se seven years after Rector was

sentenced to die for killing Martin,
Dr. Reuterfors, the staff psychologist
who had examined him at the federal
medical center in Missouri, was asked by
John Jewell, in a deposition, whether
Rector might be able to understand “the
Christian concept of forgiveness,” and
Reuterfors responded, “IIe probably
would be. That’s not really a particularly
high concept. Little children, four, five,
six years of age, are able to understand

the notion of seeking forgiveness and
gaining forgiveness from parents for
wrongs and so forth, so in many respects
that’s analogous to Mr. Rector’s situa-
tion.” Not quite a month before he was
scheduled to be put to death, Chaplain
Pigman was conducting for Rector one
of the solitary devotional services in
the prison’s small chapel. “When we
finished praying, he wanted to start talk-
ing about Swindler again,” Pigman says.
Rector seemed especially curious about
him now. “At first, it was the usual
‘Chaplain, who’s John gonna kill next?’
and ‘John gonna kill me, Chaplain?’ ”
but then, in one of his odd little mo-
mentary shuttlings into a dimly sensed
reality conveyed to him by others, he
began asking Pigman, “Did John
cry when he died? Was John ever sorry
for the people he killed? Did God for-
give John?” Suddenly, he said, “Chap-
lain, I’m really sorry I shot that man they
say I shot. Do you think God will
forgive me, too?” Pigman proceeded
to tell him the story of the two con-
demned criminals crucified with Jesus,
one taunting him but the other, after
rebuking the first, imploring him, “Lord,

remember me when you come into your
kingdom,” and Jesus assuring him from
the Cross, “This day shall you be with
me in paradise.” Pigman then told Rec-
tor that the same could apply to him
“if he would give his life and heart to
Jesus,” he recounts. “And I'm happy to say
he did.” Pigman took Rector’s huge,
clumsy hands, and after another prayesy—
the two of them sitting alone in the
glum little chapel room—they sang to-
gether “Amazing Grace,” Pigman says,
“and then Rickey’s favorite of all, ‘Jesus
Loves the Little Children.’ ” A couple of
weeks later, on Stella’s last visit, Rector
jubilantly informed her that he had “got
saved” after Pigman told him that what
Jesus had promised the criminal on the
cross would happen with him, too. He then
asked her, “You think that’s true, Stella?
Would Jesus do that? Is Jesus really
gonna take me with him into paradise?”
Pigman had arranged a baptismal
service for Rector, whose only misgiving,
once he’d been reassured that there
would be only one or two other chap-
lains there, was “How long you gonna
hold me under, Chaplain?” A portable

baptistry-—a lirge fibreglass tub set ina


18

polls‘were showing a nearly eighty-
per-cent popular approval of capital
punishment; it had “become a virtually
one-sided issue” with the public, the
Democratic pollster Geoffrey Garin de-
clared. It was “real clear,” the leader of
one anti-execution coalition pointed out,
that “the Willie Horton incident gave
Republicans and Democrats an example
of the ultimate political manipulation of
the crime issue.” And one commentator
declared flatly, “There is no way the
Democrats can nominate somebody
against the death penalty and... be
viable.” o

Early in 1992, two of the four other
Democratic candidates, Paul Tsongas
and Senator Bob Kerrey, had also
avowed support for the death penalty,
but only Clinton was in a position to
demonstrate his support by actually ap-
plying the penalty. In 1990, he had pre-
sided over his first two executions, both
of white prisoners—Gene Simmons, by
lethal injection, for the murder of four-
teen family members one Christmas,
and John Swindler, by electrocution, for
the killing of a policeman. (The state
had begun sentencing condemned pris-
oners to lethal injection; those sentenced
earlier, like Rector, were given a choice.)
And by the time Clinton had begun
putting his campaign together to surge
into New Hampshire, a decision on
Rickey Ray Rector was drawing closer.

In June of 1991, Rector’s situation
had made its way, for the second time,
to the Supreme Court. In its first pre-
sentation there, in 1984, the Court had
refused to review his conviction and
death sentence in the lower courts, and
it now refused again. There was, how-
ever, a dissent from Justice Thurgood

Marshall:

In Ford v. Wainwright . . . this Court rec-
ognized that “the Eighth Amendment pro-
hibits a State from carrying out a sentence
of death upon a prisoner who is in-
sane.”... This petition presents the ques-
tion whether a prisoner whose mental ca-
pacity renders him unable to recognize or
communicate facts that would make his
sentence unlawful or unjust is nonetheless
competent to be executed.... The lower
courts clearly erred in viewing Ford as set-
tling the issue whether a prisoner can be
deemed competent to be executed notwith-
standing his inability to recognize or com-
municate facts showing his sentence to be
unlawful or unjust.

Marshall referred to the Court’s own
citation, in its Ford decision, of a pas-

ee

—

-

120

sage from Blackstone’s “Commentaries,”
which stated that if the condemned “af-
ter judgment becomes of nonsane
memory, execution shall be stayed: for
peradventure, says the humanity of the
English law, had the prisoner been of
sound memory, he might have alleged
something in stay of judgment or execu-
tion.” Marshall went on:

The Eighth Amendment prohibits any
punishment considered cruel and unusual at
common law as well as any punishment
contrary to “the ‘evolving standards of de-
cency that mark the HP ress of a maturing
society.’ ”... Unavoidably, then, the ques-
tion whether such persons can be put to
death once the deterioration of their facul-
ties has rendered them unable even to ap-
peal to the law or the compassion of the so-
ciety that has condemned them is central to
the administration of the death penalty in
this Nation.

Rector was now in the Maximum Se-
curity Unit at Tucker prison, some thirty
miles north of Cummins, to which he
had been transferred in 1986, when the
Arkansas death row was relocated there.
At Tucker, he continued to talk in the
present tense of his two former fellow-
inmates Swindler and Simmons, who
had been executed. His attorney Jeff
Rosenzweig recalls, “It would be
‘Simmons doesn’t like this or that,’
‘Swindler is gonna do this or that.’ They
were still quite alive to him. He just
couldn’t finally make the connection.
For Rickey, ‘I’m going to die’ was some-
thing a little frightening he was going
to have to go through, but it had about
the same meaning for him as Tm going
to the dentist.” Frank Parker, the
death-row prisoner who testified for
Rector in some of his last hearings,
declared, “He thinks that they don’t
really execute you, they just make
everybody think you're executed. He
thinks Swindler is somewhere picking
cotton. ... Somewhere in his twisted
mind, he thinks the state tricked every-
body, that these people weren't executed,
and they were off somewhere work-
ing. ...1 don’t know, he just has no
concept of death. He thinks when he
dies, he’s coming back.”

(@) December 15, 1991, Clinton won
the Florida straw poll, and he
soon headed for New Hampshire, a fa-
mously conservative state, to begin
mounting his campaign in earnest for
the primary there. Just over a week later,
two days before Christmas, Rector was
handed a letter from Clinton’s office in

THE HOUSE ON THE BORDERLAND

You couldn’t have foreseen

how people in a story, quietly
talking among themselves

about their lives, or the weather,
might float away from their concerns
into yours. There they are

on the grounds of a vast estate

at the edge of some northern sea.
Lavish celebration: the great house
burning with lights, the guests
gathered on the lawn, indifferent
to the cold, the dew

which is so heavy it stains

the hems of the women’s dresses,
weighs them down. How late

can it be? The yellow lanterns
begin to flicker. A man. arrives
with a message, and soon

everyone is following him

along the narrow untended paths
which at any moment threaten

to close entirely,

down to the rocky beach

where something’s been discovered,
something all of them must scc.
So many have assembled, speaking
softly, or in another language,
while men in long coats

dripping with saltwater

pull at the corners

of a tarpaulin, dragging

it over what’s lying there,

swept in, cast up,

and you can tell how difficult

this is, how intent they are

to complete their work.

Sweat runs down their foreheads.
Several fall from exhaustion.

More ropes are handed over, lashed
in place. But you find yourself
farther away, and unwilling

to press forward, uncertain you want
to see what the others see.

You think you've understood

the tone of their sentences—disbelief
or wonder, then resignation,

as if all of this had been predicted

or some day would be.

—LAWRENCE RAAB

Little Rock apprising him that he was
scheduled for execution on January 24th.

There followed two clemency hear-
ings before a panel of the state’s Pa-
role and Community Rehabilitation
Board—all of whose members had been

appointed by Clinton—to decide
whether to recommend to Clinton that
Rector be imprisoned for life without
possibility of parole or dispatched on to
the death chamber. The first of these
sessions, to hear from Rector himself

A DEATH ROS

and others
clemency, \
the Max‘>
Unit. Rec
mammoth
wrist cuffs «
wrapped ar
was slump
folding chai:
side Jewell.
board, “| ran
Tl take life
get it”—a
Jewell had |.
days to drav
Otherwise,
hardly morc
proceedings
like a little
guards, jokin
cracks,” Steli:
from askin;
if he coul
merely stare:
ahead duri:
sion aroun
mental cap:
ond session
next day in |
those oppo:
tion of his s:
thing less t!
turnout wa
families of
Lieutenant
other Conv
meeting
quarters

the boara, '
claim he’s °
that time’”-
“he was th«
actly what |
board thirty
observatio:
mously, a;
Clinton c!
Rector’s de:

oe se\
senter
Dr. Reute:
who had ¢
medical ce1
John Jewe:
Rector mig
Christian
Reuterfor.
would be.
high conc

six years

_ARY 22,1993

he came to
. recalls. In
1 stay at the
prisoners in
“erred to his
the present
it “she has a
mentioning
rted that he
voice of his
‘ also that of
another of
recalls that,
‘ some three
n several of
uld ask me
come to see
y, like I told
‘he'd go over
his head.”
continued to
vere the same
Tuesday in
: had just
that after-
tella declares,
me, what day,
actually was.”
kansas’s death
at the federal
‘issourl, Stella
.ow long he’d
“and he told
een there two

id been trans-
> Missouri fa-
direction of a
rict judge in
or further ex-
rior to an ap-
“on his sen-
rime, his LQ.
d at seventy,
rmed as ab-
other tests .as
viously. The
ologist who
mn, Dr. David
‘ater described
‘c functioning
‘ow level...
imitive type of
cor had told
wel that as-
.¢ were peering
low at night
the guard

ts lights on
jots sent them

RECTOR’S PANIC

fleeing. The staffs notes read,
“Smiles continuously. . .. Occa-
sionally noted to scream and yell
without apparent reason....
Laughing without apparent rea-
son.” The federal center reported
to the judge that, while in at least
the minimal, technical sense
Rector could be considered to
satisfy the Ford v. Wainwright
requirement of knowing about
his death sentence and the rea-
son for it, he “would have con-
siderable difficulty due to his
organic deficits in being able
to work in a collaborative,
coéperative effort with an attor-
ney” and “he would not be able
to recognize or understand facts
which might be related to his
case which might make his pun-
ishment unjust or unlawful’—a
direct contradiction of Judge
Hartje’s ruling seven years earlier.

ESPITE that report, the
hearing became yet an-
other appeal denied. By now, in
fact, the hearings on Rector’s
death sentence, though they had pro-
gressively moved up to a judicial altitude
beyond those popular considerations
which prevailed at the local, elective level
where his competency was originally de-
cided, had become largely a question not
of the substance of Rector’s case but of
the legal correctness of the earlier pro-
ceedings. In denying an appeal in federal
district court, a judge concurred with an
Arkansas supreme-court ruling that
since “the expert proof is in sharp
conflict,” Hartje’s ruling, by the proto-
cols of legal procedure, could not be held
“clearly erroneous,” and therefore his de-
cision that Rector was competent to be
tried and executed was “entitled to a pre-
sumption of correctness,” in accordance
with a Supreme Court instruction in
1981 that factual determinations by
lower courts are due a “high measure of
deference.” Thus the matter of Rector’s
actual competence for execution was
progressively abstracted into merely a
paper matter of the competence of the
process and of which standards should
be applied to his case.

In 1983, however, one judge of the
state supreme court did put forward the
proposition that circumstances “arising
after the crime,” such as Rector’s mental

17

“Mom, Dad, this is Barry—the man I've come to grips with.”

condition, did “affect the matter of
clemency and should properly be ad-
dressed to the Governor, who has the fa-
cilities for investigating all the facts.”
That mention, one of Rector’s attorneys
now believes, constituted an implicit ap-
peal to Clinton from the members of the
judiciary; inescapably embarrassed and
uncomfortable, for all their legal formu-
lations, about their position, given
Rector’s pathetic state, he avers, “it was
as if they were begging the Governor to
step in at that point.”

HROUGH those years, as Rector’s

death-sentence appeals filtered

on through the courts, Clinton was

reélected governor a total of three times,

and compiled a respectably diligent

record of sensibly proportioned reform,
especially in education.

In 1984, I happened to interview him
on his education initiatives in Arkansas
for a television documentary—the two
of us sitting through a long, warm spring
afternoon, in shirtsleeves, under a tree
on the back lawn of the Governor’s
Mansion. It clearly seemed then that a
renaissance of Arkansas’s schools was an
authentic passion with him, but within
his eager carnestness one also sensed an

instinct for close pragmatic computa-
tions, and a ferocious ambition already
larger than his native state could contain.
But he was instantly, expansively lik-
able—engaging, a sort of Twain charac-
ter (Tom, not Huck) grown into a con-
scientious young political prince of the
South, with unexpected cosmopolitan
flair. Bobbing his head urgently, he
spoke with an open, affable sincerity that
still hinted of the small-town youth.
According to press accounts, Clinton,
even before announcing in 1991 his en-

' try into the Presidential competition, had

already determined that the modification
of his liberal enthusiasms which had re-
gained him the governorship in 1982
was also what was essential for any
Democratic Presidential candidate.
Having scrupulously studied the course
of every Democratic Presidential candi-
dacy since Woodrow Wilson’s, he seems
to have divined in the candidacies that
had miscarried, like Adlai Stevenson’s
and George McGovern’s and, most re-
cently, Michael Dukakis’s, the same
miscalculation that brought about his
1980 defeat—that of ranging too far be-
yond the apparent popular mentality.
And it cannot have escaped his attention
as he prepared for his campaign that


at his capital murder in 1982 was So dimin-
ished that he was unable to receive the
requisite assistance of counsel so as to
satisfy the Sixth Amendment.

I will discuss these contentions in reverse
order and initially take up the matter of

whether the state court judge erred in hold-

ing that Rector was competent to stand
trial in November of 1982 and able to ren-
der the requisite assistance to his counsel.
Petitioner has thrust a heavy burden upon
this court in asking that a determination be
made of his mental condition seven years
ago.

[1]. It must be remembered that Rector
does not now contend that he had mental
problems at the time he shot Officer Mar-
tin, but that problems arose thereafter as a
result of a: self-inflicted gunshot wound.

Six expert witnesses testified in the com-
petency hearing on October 25, 1982 before
Circuit Judge George F. Hartje. Two psy-
chiatrists and two psychologists testified
for the State. Two psychologists testified
for the defense. Dr. Douglas A. Brown for
the defense testified: that in his opinion
“Ricky is not competent to assist meaning-
fully in his defense of his own life in a
capital case.” On cross-examination he tes-
tified as follows:

Q. He still understands the hature, seri-

-ousness and consequences of his ac-
tions?

A. Yes, I believe he does.

Q. He understands the punishment?

A

He understands it in an intellectual
level, yes.

PX 9, pp. 115-16.

Dr. Stevens, the other psychologist who
testified for the defense, was present dur-
ing the testimony of Dr. Brown. He
agreed with Dr. Brown that Rector was not
able to assist in his defense because of
diminished mental abillity. He testified
that “I think the critical thing is that he
has no seeming memory. for the events
associated with this trial, and the report
that he gives me is bizarre.” (PX 9, p.
125). . |

The testimony that Rector was not able
to ‘assist in his own defense was flatly

1288 727 FEDERAL SUPPLEMENT

contradicted by the State’s experts.; Dr
John Anthony Hall, a psychologist,.. testi
fied as follows: :

A. I think he’s capable of assisting ini;

his defense. Again, he seems tobe {
able to express himself quite openly:2

>

His defense seems to be fairly clear-.y

ly stated to us that he doesn’t jfe-
member anything. He was able: to
express that quite clearly...” Oh,

er Wr hat

interference with his defense—with

his assisting in his defense;

PX 9, ‘p. 187. wae eet ae ;
Dr. Gregory Kaczewski, a psychiatrist/? c
gave his opinion as follows: © © didi

Q. ... Doctor, do you have an. op
about whether or not Mr. Recto
capable of assisting his couns
his defense of the charges now {
ing against ‘him that carry withilit:
the potential death penalty? + .2« aak

A. I believe that Mr. Rector is ‘compe?
tent and is capable of assisting “his
defense attorney in his own defense?

I did not see him as apathetic “and? _
unemotional as. some of the Other

4h
6 fh

people have seen him. SAS:

PX 9, p. 151. Dr. Kaczewski was of the
opinion that Rector was faking in some of |
the interviews and tests. (PX 9, pp. 156-
57). He further testified as follows: “~'

Q. Do you feel that he understands the
nature of the charges and the pro-
ceedings that he’s involved in right
now?
A. Yes.
Q. And the seriousness of it?
A. Yes, sir.

And the consequences that could po-
tentially flow from it?

. Yes, I do.
PX 9, pp. 161-62.

.Dr. Joe Alford, ‘a psychologist, testified

as follows for the State: _ a

Q. Let me ask you, when you were do-

ing that, did you have occasion to

discuss with him the nature of the

charges that. are pending against
him now? .,

PrP £;

believe that there ‘is no emotional Pe

kibe 3 yee: s
OUR
* ae a Rep

A. Yes
tery
test
diffe
the:
thin

Q. Did

A. It 4
goo
the
wha
of t
goo
did,
tern
wha

PX 9, -p.:

Dr. Saye
last exper
the princiy

Arkansas

been refei

is summa)

direct exa
My opin
derstan¢
and the
and is
attorney)
aration

PX 9, p.

On the
judge fow
al. I agr
preme Co
with respe
In my opt
25, 1982
ponderate
trial judg:
kansas ol
judge wa
ruling wa
the trial j
It was af
Arkansas
Court of
judge’s fi.
issue fall

U.S.C. §
sumption

rick, 766

RECTOR v. LOCKHART

1287

Cite as 727 F.Supp. 1285 (E.D.Ark. 1990)

murder of Criswell. Ron Heller, an attor-
ney for Rector in the Criswell case, also
testified in his behalf at both hearings. All
three of these individuals testified in the
habeas hearing before me, along with Dan
Stripling, his attorney in the capital murder
trial, and Rector’s sister.

At the competency hearing on October
25, 1982, the State adduced testimony from
two psychiatrists, Dr. Gregory Kaczewski
and Dr. Sayel K. Hamed, and two psycholo-
gists, Dr. John Anthony Hall and Dr. Joe
Alford. The testimony of all these witness-
es is transcribed in Petitioner’s Exhibit 9.
The testimony is abstracted in Defendant’s
Exhibit 2. After hearing this testimony,
the trial judge again found Rector compe-
tent to stand trial. The jury found him
guilty, and he was sentenced to death on
November. 11,. 1982.

The competency ruling was one of the
issues raised on the appeal of Rector’s
death sentence to the Supreme Court of
Arkansas. In affirming his capital murder
conviction, Justice George Rose Smith
wrote for a unanimous court:

A second argument for reversal is that
the trial judge should have found Rector
incompetent to stand trial against the
death penalty. A parallel question of
competency was decided adversely to
Rector.on his earlier appeal from his
conviction for the murder of Arthur Cris-
well. Rector v. State, 277 Ark. 17, 638
S.W.2d 672 (1982). The proof in the two
cases is quite similar, although in this
case a witness for the State, Dr. Hamed,
thought that Rector’s condition was
much improved as compared to the time
Dr. Hamed saw Rector soon after his
surgery.

The expert proof is in sharp conflict, as
it was on the other appeal. It is argued,
however, that it takes a higher degree of
competency to defend against the death
penalty; so the two appeals are distin-
guishable. No doubt the issues may be
more extensive in a death case, in which
aggravating and mitigating circumstanc-
es are involved,’ but we’ do not discern
any basis in the testimony for relating
Rector’s mental condition to’ the defense

of a capital charge in particular. We
must conclude, as we did on the earlier
appeal, that the trial judge’s decision is
not clearly erroneous.

Rector v. State, 280 Ark. 385, 397, 659
S.W.2d 168 (1983). The Supreme Court of
the United States denied certiorari. Rector
v. Arkansas, 466 U.S. 988, 104 S.Ct. 2370,
80 L.Ed.2d 842 (1984).

In his original habeas corpus petition,
Rector raised a number of issues later
abandoned. He then filed an amended peti-
tion in which the lone contention’ was an
absence of the requisite mental capacity to
be put to death by the State of Arkansas,
citing ACA § 5-2-302: .

No person who, as a result of mental
disease or defect, lacks capacity to un-
derstand the proceedings against him or
to assist effectively in his own defense
shall be tried, convicted, or sentenced for
the commission of an offense so long as
such incapacity endures.

Amended Petition for Writ of Habeas Cor-
pus at 13. Rector also claims that his
Kighth Amendment rights would be violat-
ed by his execution.

Since the habeas petition requested that
he be given a mental examination, I sent
him to the federal correction facility at
Springfield, Missouri for a complete psychi-
atric evaluation. The reports concerning
Rector’s evaluation are contained in Peti-
tioner’s Exhibits 1-7, received by agree-
ment.

A hearing on Mr. Rector’s habeas peti-
tion was noticed on October 10, 1989 and
scheduled for December 7, 1989. On De-
cember 4, 1989 without objection Rector
was permitted to amend his habeas peti-
tion. In his amended petition Rector
claims as an additional ground that he was
not competent to stand trial for capital
murder. He further asserts that his men-
tal capacity at the trial was so diminished
as to deny him the effective assistance of
counsel as guaranteed by the Sixth Amend-
ment. ud “+

There are thus only two’ contentions in
this habeas proceeding: (1) Rector’s
present mental ability should prevent his
execution;’and (2) Rector’s mental ability


RECTOR v. LOCKHART

1289

Cite as 727 F.Supp. 1285 (E.D.Ark. 1990)

A. Yes.

That was part of the—the bat-
tery was a competency screening
test where I asked him about, uh,
different things about the nature of
the proceeding, roles people take and
things like that.

Q. Did he understand?

A. It was my opinion that he had a
good understanding of the nature of
the charges, the consequences of
what could happen to him as a result
of those charges, and that he had a
good understanding of what people
did, you know, in fairly general
terms not in really specific terms, of
what people do in court.

PX 9, p. 168.

Dr. Sayed Hamed, a psychiatrist, was the
last expert witness for the State. He was
the principal examining psychiatrist at the
Arkansas State Hospital where Rector had
been referred for evaluation. His opinion
is summarized in the following answer on
direct examination:

_ My opinion is that Mr. Ricky Rector un-
derstands well the nature of the-charges
and the proceedings taken against him
and is capable .of cooperating with an
attorney in a rational manner in the. prep-
aration of his defense....

PX 9, p. 181.

On the basis of this testimony, the trial
judge found Rector competent to stand tri-
al. I agree with the comments of the Su-
preme Court of Arkansas set out supra,
with respect to the ruling of the trial judge.
In my opinion the testimony at the October
25, 1982 competency hearing clearly pre-
ponderated in favor of the ruling of the
trial judge. As the Supreme Court of Ar-
kansas observed, the ruling of the trial
judge was not “clearly erroneous.” The
ruling was made on a factual-dispute after
the trial judge heard conflicting testimony.
It was affirmed by the Supreme Court of
Arkansas and reviewed by the Supreme
Court of the United States. The trial
judge’s factual finding on the competency
issue falls clearly within the ambit of. 28
U.S.C. § 2254(d) and is entitled to a pre-
sumption of correctness. See Davis v. Wy-
rick, 766 F.2d 1197, 1201 (8th Cir.1986).

None of the exceptions noted in this sub-
section are applicable. Therefore, the bur-
den rests upon the petitioner “to establish
by convincing evidence that the factual de-
termination by the state court was errone-
ous.” This subsection was interpreted by
the Supreme Court in Sumner v. Mata, 449

U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 .

(1981):

Section 2254(d) by its terms thus applies
to factual determinations made by state
courts, whether the court be a trial court
or an appellate court....
plicability of 2254(d), it is apparent that
the Court of appeals did not apply the
“presumption of correctness” which is
mandated by the statute to the actual
determination made by the California
state courts. |

Id. at 547, 101 S.Ct. at 769. Two years
later the Supreme Court in Marshall v.
Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74
L.Ed.2d 646 (1983) was again called upon to
interpret 28 U.S.C. § 2254):
In its treatment of the state courts’ fac-
tual findings, the Court of Appeals failed
in at least one major respect to accord
those determinations the “high measure
of deference,” Sumner v. Mata, supra,
to which. they are entitled. This defer-
ence requires that a federal habeas court
more than simply disgree with the state
court before rejecting its factual determi-
nations. Instead, it must conclude that
the state court’s findings lacked even
“fair support” in the record. The Court
of Appeals’ treatment of the issue of
respondent’s credibility failed. to satisfy
this standard....

... Title 28 U.S.C. § 2254(d) gives feder-
al habeas courts no license to redeter-
mine credibility of witnesses whose de-
meanor has been observed by the state
trial court, but not by them.

Id. at 432, 434, 103 S.Ct. at 849, 851.

Was any evidence introduced in the hear-
ing before me on December 7, 1989 that
would impair the finding of competency
made by the state trial judge? The testi-
mony of Drs. Stevens and Brown given
before me was simply a reiteration of their

Given the ap-_


1290 727 FEDERAL SUPPLEMENT

previous testimony at the competency hear-
ing on October 25, 1982. N either had seen
the petitioner since that time. The only
new material called to their attention con-
sisted of the reports from the examiner at
the Springfield facility and the deposition
of Dr. David Reuterfors, the principal ex-

amining psychologist, At Springfield the

examination team consisted of Dr. David
Reuterfors, a psychologist, Dr. James R.
Leach, a psychiatrist, and a nurse. .The
report to me as a result of my referral of
the petitioner to Springfield was signed by
Reuterfors and Leach and was sent to me
by the Psychiatrie Service Coordinator un-
der date of August 23, 1989. At that time
the only issue being raised was whether
petitioner’s mental] capacity was such that
he. could be legally executed. No issue had
been raised concerning’ his competency in
the 1982 trial. This issue was first intro-
duced on December 4, 1989, three days
before the plenary habeas hearing in my
court. The contents of this report will be
discussed, infra. ‘It did not deal with the
issue now being addressed—Rector’s com-
petency at the trial. This was made plain
in the deposition of Dr. Reuterfors taken
on November 21, 1989, wherein he’ stated:
So the focus of subsequent interviews
became his present mental function, be-
cause that is really what is most relevant
to our ultimate formulation anyway, as
of what is his condition now and not five
years ago or ten years ago and that
that’s what we centered on in the subse-
quent interviews and that’s what the psy-
‘chological testing was all about, his cur-
rent mental functioning.

PX 11, p. 36. On cross-examination the
psychologist further clarified his answer:
Q. ... The first thing that I do want to
go to is this: The reference ques-
tions that you have presented by
Judge Woods, the two standards

that you were asked to evaluate Mr.
Rector under, you compared the sec-

- ond test, the ABA test, as being

. Somewhat analogous to competency

‘to stand trial; .that is, the. defen-
dant’s ability to consult with his at-
_torneys’ in preparing the defense.
That was not the Specific question,

idl bo gs 2

though, competency . to stand trial,
per Se, was not the issue before you *
in this evaluation?

That’s correct. That was just an_
analogy. :

So you’re not making any kind of.
comment or making ‘a ‘suggestion .
about whether or not he was compe-

Co ere we a 2 cd .

tent to stand tria] when he was tried

in 1982?
A. No, not at all.
PX 11, p. 106.

He further testified on redirect: Pi

Q. You previously testified. that you
had evaluated maybe hundreds of.
individuals on the issue of competen-7

cy to stand trial. Could you tell 7 ®

what the standard was that you used
in these evaluations? ., Rees

A. ‘In terms of competency to stand tri

- “al? Well, it’s the basic competency
Standards. It’s the ‘ques i

the legal proceedings against. -him

and is able to assist an attorney: in

preparing a rational defense. So. it

‘a two-pronged standard, basically

Q. Okay. In your opinion today would

Rector be competent to stand trial?

A. I didn’t evaluate Mr. Rector on that .

question and I don’t feel it’s appro

priate for me to speculate in retro:s
spect on that. HG

PX 11, pp. 133-84.

The other witnesses who testified before

Dineen ean
me were two former attorneys for Rector, ae
Ron Heller and Dan Stripling, and his sis,}

ter. Heller represented Rector in the first.
trial. His testimony was essentially the ;
Same as that given at the two competency...
hearings on September 28, 1981 and Octo-.
ber 25, 1982. This testimony is abstracted ;
in petitioner’s appellate brief in the Arkan-;
SaS Supreme court at pages 48-51, which},
was introduced in evidence by agreement in;
the hearing before me. At the competency, _
hearing directly involved herein (October;
25, 1982), Heller did not testify in person, ,
but it was stipulated that he would testify;

... [Tk
ticularly
tal aspe
the issu
and mit
to devel:
were pr
was une
185).

That in
underst:
cumstan
have the
and mit:

RX 2A, p.

Heller’s
state trial
his testim«
ings and i
cember 7;

The oth:
sented Re
under scert
timony, Ii
toward R:
time of th
pling has
him. He
habeas pr

The pri
Heller anc
competent
and unen
amnesia.
inadequate
incompete!
56, 562 S.1
States v.
1972). “WV
that amne
an otherw
320. See
1202. The
that since
he had un
was now
testimony
posed aga
highly qu
prior to R
impressed.

Arkansas becomes Ist state since

1976 to execute 2 on same ay

Associated Press

VARNER, Ark. — Two convicted
murderers were executed Wednes-
day.

It was the first time a state exe-.

cuted two people on the same day
since the US. Supreme Court al-
lowed states to restore the death
penalty in 1976. :

Jonas Whitmore and Edward
Charles Pickens were the fifth and
sixth people executed in Arkansas
since 1976.

Mr. Whitmore, a drifter convict-

_ ed of killing a woman who fed him
- milk and cookies, was pronounced
dead at 8:08 p.m., prison spokesman

Alan Ables said. Mr. Pickens, con-

_ victed in the death of a man slain |

during an armed robbery, died
from an injection ey an hour
later. ~

Mr. Whitmore, 50, was convicted
of killing Essie Mae Black, who let
him into her home in Mount Ida in

August 1986 even though he was a
stranger.

- ‘The 62-year-old woman gave him
milk and cookies, before she was

stabbed 10 times, her throat was cut |

and an “X” was sliced into her right

- cheek. The killer also stole $250 _

from the house.
Mr. Whitmore had no last words.

.Mr. Pickens, however, issued a.

statement that was read to report-

ers by Monsignor John O'Donnell. *

“There were three of us charged
with this crime. But I was given a
death sentence for a killing I per-
sonally did not do. Oh yes, I did,
without doubt, participate in the
robbery, but did not kill Mr. Noble,”
the statement said.

He was convicted of the October
1975 shooting death of 76-year-old
retired farmer Wesley Noble during
the armed robbery of a grocery

store in Casscoe. Another man also

was killed by three robbers,

DALLAS

_ MORNING
yews

THURS,
MAY (2, 1994

ATTACHMENT F

STATE HISTORIC PRESERVATION OFFICE LETTER

Pea

oe eer EF

114th oooe Lis 25

Edward Pickens

‘By Joel William’ * jae
ASSOCIATED PRESS afer
Pca

- “GRADY — Last-minute efforts
“Wednesday failed ‘to block ‘the
“executions of a drifter convicted of
killing a woman who fed him milk

“and ‘cookies and’ a man ‘who

ignored a plea for mercy during ; an
armed robbery.” { ger

“Jonas “Whitmore “was pro-' -
nounced dead at 8:08 p.m.
Wednesday, according to prison
spokesman Alan: Ables.: Exactly

Pickens was * also pronomiest
dead, Ables said. :
-Ables ° said a had no

one hour later; Edward: Charles ‘©

ta come ,

“Everything went without a
hitch, ” Ables said.

. Pickens, however, offered some
final words to state Prison Direc-
tor: Larry Norris when asked,
..Ables said. The prison spokesman
said Pickens thanked all the mini-
sters. who visited death row, in

wR ‘particular Frank King. « »

““He said good-bye to inmate
Darrel Hill,” Ables said. “He said
“he loved them all, to keep up the
“ good work, keep up the struggle.”
‘An appeal seeking a stay of
‘execution for Pickens was filed
Wednesday with the U.S. Supreme
Court after a stay was lifted the

Thursday, May 1 2;

ixecutes wo

‘From Page 1A =

: Death _

~ wileira: 50, was convicted of
killing Essie Mae Black, who let
“him into her home in Mount Ida
‘in. August 1986 even a he

was a strangers: -steeq eee te

The .62-year-old woman gave

him milk and cookies, before she witénced to death and is serving a |
“> -was stabbed 10“times,+her*thiroat.-

twas cut and. an “X”. was sliced *-,
into her right cheek. The killer
_also stole $250 from the house.

- Pickens was convicted for the
-October 1975 shooting death of

76-year-old: retired farmer ‘eben ek

‘Noble. © Huh ov

31: Witnesses ® said ‘Noble pleaded
‘for his life just before he .was
killed during the armed robbery of

a

‘a grocery store in  Casscoe. As”
other man also was killed by three
robbers from Detroit, five others
were wounded, a woman was:
raped. All were robbed of jewelry
and money. Pickens was 21 at the
time. |

Pickens’ two companions also
were convicted of capital murder,
Antonio lark, now 39,. was sen-—

fife term in; /Michigaii~for” another °
*erime:, Vincent Gooch, : “now: 42,
pleaded guilty and was. sentenced
to life without parole. _

~ Investigators identified |
Whitmore as a suspect in Mrs.

Black's murder after finding a suit :

"coat and a bloody knife in woods
a few miles from her: ‘home and =
tracing the coat to him. -

f

1994

previous day by the 8th US.
Circuit Court of Appeals. at St.
Louis, _ said ,. lawyer, Jeff /Rose-
nzweig.

Ables said at 8 p. m. that prison
officials had been notified that the
Supreme Court | had
Pickens’ request for a stay.

At Washington, Supreme Court
spokeswoman Toni House - said
three justices voted to grant a stay
for Pickens — Harry Blackmun,
Ruth Bader Ginsburg and John
Paul Stevens.

Wednesday afternoon, the full
8th U.S. Circuit of Appeals in St.
Louis denied Whitmore’s petition
for rehearing of a stay denial the

O’t Nave
tide dur-
2ess be-
ion vests
y in the
f Tucker
sower to
7, no one

tritmore

rejected ©)
7 Beek for a stay was denied

previous day by a three-judge
panel of the court. Wednesday’s
ruling on Whitmore was also
appealed to the Supreme Court by

the Arkansas Death Penalty Re-
wae Center.

-House said Whitmore’s
Wednesday evening, with only
Justice: Harry Blackmun
dissenting.

Al Schay of the Arkansas Death -|

Penalty Resource Center said the
Supreme Court denial exhausted
Whitmore’s appeals, and prison
officials would be free to execute ,

See DEATH on Page 2A

oe enaweseve wy UV) SUS BESSE1E VE yeas”

old Essie Mae Black in her
Mount Ida home.

Black had given Whitmore
milk and cookies when she let
him in her home. He stabbed the
woman 10 times, cut her throat
and carved an X in her right
cheek. Whitmore also took about

state and

p up the
an Alan '

‘Appeals j

t

a stay i

filed an |:

sas Gov, | -

: himself-
to grant
1d Tuck-
because

‘ n he was | |

lL.
rkarisas’
s death |

ee times
instated |

tributed

vas “full.
had lis-

ld have ©

Jonas Whitmore

eesveu saoeiircsd 1vulud pl icer.
Whitmore had a large.last
meal that included barbecue
spareribs, a box of Velveeta
cheese, vanilla ice cream anda
large bottle ofsoftdrink. ‘“*
Pickens’ last meal included
sirloin steak, French fries, fruit
and a soft drink. ee
ere: ee

— ~~

HO6L SLL SEW eta AV IT *yoeTq S*G seTreup “snmyord

FRIDAY,
MAY 13, 994

DALLAS

— MORNING NEWS

| A

Arkansas considering more multiple executions

Associated Press

VARNER, Ark. — After putting
two people to death on the same day
for the first time since capital pun-
ishment resumed in 1977, officials
here are considering more multiple

executions to save money and re-

duce stress for state workers.
On Wednesday, Jonas Whitmore

‘and Edward Charles Pickens were

executed by injection about an
hour apart in the same chamber,
Mr. Whitmore for killing a woman

‘who had invited him into her home

for milk and cookies and Mr. Pick-
ens for killing a man in a holdup.
“The attorney general is talking

to us now about the next multiple
execution,” Arkansas Department
of Correction. spokesman Alan
Ables said Thursday.

The next execution of two or

‘three men could come as early as

July or August,‘ he said. Arkansas
has 41 inmates on death row. _

Scheduling more than one exe-
cution on the same day saves money
spent on preparations and on over-
time for prison officers and state
police troopers, Mr. Ables said. He
also said executions are stressful
for prison workers. _

“Basically on top of that nobody
wants to get up in the morning and

go kill somebody,” he said.
Thirty-two extra state police
were on duty Wednesday night at
the prison in Varner, 75 miles south
of Little Rock, along with 45 prison
employees, a coroner and some oth-
er officials who wouldn't normally
bethere. ~~ ’
Dennis Martin, executive direc-
tor of the National Association of
Chiefs of Police, approved of the
plan. es
But Leigh Dingerson, director of
the Washington-based National Co-
alition to Abolish the Death Penal-
ty, said any savings would be negli-

gible compared to the millions of.

dollars a death row inmate costs a
state in legal expenses from convic-
tion through appeals. .

Multiple executions used to be
fairly common in the United States.

Arkansas executed two people on
four separate dates in 1960. And
Texas sent five convicted killers to
the electric chair on Feb. 8, 1924.

But until Wednesday, no two in-
mates had been put to death in the
same state on the same day since
the U.S. Supreme Court reinstated
the death penalty in 1976. Execu-
tions resumed the next year, and
some have taken place on.the same
day in different states.


ATTACHMENT—Continued

sentation to the jury was concerned, by
his prosecutor’s decision not to attempt

to introduce the confession in that pro-
edieg

Petition at 8-9. Respondent maintains,
mm however, that Pickens should not be per-
Me mitted to litigate this claim because he
Mt knew of the basis for the claim at least by
$1981, the year he filed his first. petition.

E Respondent takes the position that Pickens
wat knew of the basis for the claim because “he
was the person to whom the remarks by
e police officer were allegedly made.”
Wm-Response at 8. Respondent advances the
me following in support of his position:

js [Petitioner] did not raise this [claim] at
‘™ his 1976 trial even though there was a
me suppression hearing on his confession
held prior to trial. He has not alleged

counsel on this ground. It is also impor-
tant to note that his 1976 trial testimony
matches the confession that he alleges
} was coerced and thus he cannot show
F any prejudice by its admission at his tri-
i al. .
m@Brief at 8. For these reasons, respondent
Masks the Court to refuse to address the
m because it constitutes an abuse of the
4 rt as provided in Rule 9(b) of the Rules
:} Governing § 2254 Cases.”

| Rule 9(b) addresses successive petitions.
git permits the Court to dismiss a successive
petition if it fails to allege a new claim and

ae eee,

, however, a new claim is alleged in the
econd petition, the Court may dismiss it if
he failure to assert the new claim consti-
utes an abuse of the writ.

: The initial consideration in this Rule 9(b)
Mquiry is whether a new claim is being
sserted. By “claim” or “ground,” the Su-
mreme Court typically means a sufficient
egal basis for granting the relief sought.
Sanders v. United States, 373 U.S. 1, 16,
ms S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1968).

As a preliminary matter, the Court finds that
although this petition is his first challenge to his
1988 sentencing, it is his second challenge to his
1976 conviction. It is thus successive in the

PICKENS v. LOCKHART 223
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

| any ineffective assistance of his trial.

e prior determination was on the merits. °

For example, the contention that an in-
voluntary confession was admitted in evi-
dence against him is a distinct ground
for federal collateral relief. But a claim
of involuntary confession predicated on
alleged psychological coercion does not
raise a different “ground” than does one
predicated on alleged physical coercion.
In other words, identical grounds may
often be proved by different factual alle-
gations. So also, identical grounds may
often be supported by different legal ar-
guments, [citation omitted], or be
couched in different language, [citation
omitted], or vary in immaterial respects,
[citation omitted]. Should doubts arise
in particular cases as to whether two
grounds are different or the same, they

should be resolved in favor of the appli-

cant.
Id. .

The resolution of this issue requires the
Court to review the petitions filed by Pick-
ens. The record establishes that he filed
his first petition in 1981 and challenged his
1976 conviction and sentence. In that peti-
tion, he alleged that his confession was not
voluntary. Specifically, he alleged that his
Fifth Amendment right against self-incrim-
ination and his Sixth Amendment right. to
counsel were violated when an interrogat-
ing officer failed to “scrupulously adhere
to [his] assertion of his right under Mi-
randa to talk to an attorney.” Respon-
dent’s Exhibit G at 14-15. The Court of
Appeals granted this petition in part when
it upheld his conviction but overturned his
sentence.

In 1988, Pickens was again sentenbéd to
death. He has now filed a petition in which

he again challenges his 1976 conviction and .

his 1988 sentencing. One of the claims
raised in this petition is an assertion that
his confession was not voluntary because
of a threat made by an interrogating offi-
cer.

This review persuades the Court that the

legal, basis for the 1981 confession claim

sense that it-is a second challenge to the 1976

conviction and appropriate for Rule 9(b) consid- |:

eration.

#

‘i
‘
aoe
a

&

i


224 802 FEDERAL SUPPLEMENT

ATTACHMENT—Continued

and the present confession claim are the
same. They are both predicated upon the
assertion that the Fifth Amendment was
violated by the actions of the interrogating
officer. It is obvious, however, that the
underlying facts are different, i.e., the in-
terrogating officer was initially alleged to
have ignored Pickens’ request for an attor-
ney but is now alleged to have made a
threat. Are these factual differences evi-
dence of a new claim? The clear teaching
of Sanders is that the claim is not new but
merely couched in a different manner.
Thus, the present claim is essentially the
game claim he alleged in his first petition.

A federal court may dismiss as succes-
sive a claim raised in a prior petition and
denied on the merits. Sanders v. United
States, 373 U.S. at 15-17, 83 S.Ct. at 107T7-
78. Such a claim, however, may be ad-
dressed if the “ends of justice” so require.
Id.

For instance, reconsideration is appropri-
ate if the petitioner has shown “change
in the law or some other justification for
having failed to raise a crucial point or
argument in the prior application,” [cita-
tion omitted], or if there are “new facts
or legal developments warranting relit-
igation of the claim.” [Citation omitted.]

In addition, at least one panel of this
Circuit has held that in order to relitigate
repetitive claims, a petitioner must also
make “a colorable showing of factual
innocence.” [Citations omitted]. A re-
quirement of “factual innocence” supple-
ments rather than supplants the “new
factual/legal issues” development. [Ci-
tation omitted].

Byrd v. Delo, 917 F.2d 1087, 1039-40 (8th
Cir.1990).

The record establishes that the confes-
sion claim asserted in the first petition was
resolved on the merits. Pickens has now
made a second confession claim. He repre-
sents that he has obtained newly discover-

ed evidence and therefore has a justifica-

tion for having failed to present these facts
in his first petition. The newly discovered
evidence is the Jack Lassiter affidavit in

which he recounts a statement made to him
by the interrogating officer.

The short answer to the position ad-
vanced by Pickens is that this evidence is
not newly discovered. The Court agrees
with respondent that Pickens knew of the
basis for the claim at least by 1981, the
year he filed his first petition. In fact, he
knew of the basis for the claim the day it
arose because he was the person to whom
the remark by the interrogating officer
was made. The claim is therefore deemed
successive, and it is barred from federal
review in accordance with Rule 9(b).

Assuming, arguendo, that the claim is
not successive but new, and given the cau-
tion in Sanders that any doubt should be
resolved in favor of Pickens, the Court
finds that the claim should also -be ad-
dressed pursuant to Rule 9(b) as if it were
new.

“The doctrine of abuse of the writ de-
fines the circumstances in which federal
courts decline to entertain a claim present-
ed for the first time in a second ... petition
for ... writ of habeas corpus.” McCleskey
v. Zant, 499 U.S. —, 111 S.Ct. 1454, 1457,
118 L.Ed.2d 517 (1991). The doctrine is
typically invoked when a new claim is as-
serted in a second petition but the claim
was available at the time of the first peti-
tion. Gilmore v. Delo, 908 F.2d 385, 387
(8th Cir.), cert. denied, — U.S. —, 111
S.Ct. 20, 111 L.Ed.2d 833 (1990). See also
Cornman v. Armontrout, 959 F.2d 727,
(8th Cir.1992); Olds v. Armontrout, 919
F.2d 1331, 1382 (8th Cir.1990), cert. de-
nied, — US. —-, 111 S.Ct. 1692, 114
L.Ed.2d 86 (1991). When abuse of the writ
is alleged, McCleskey, requires the follow-
ing analysis: /

[T]he government bears the burden of

pleading abusé of the writ. The govern-

ment satisfies this burden if, with clarity
and particularity, it notes petitioner's pri-
or writ history, identifies the claims that
appear for the first time, and alleges.that
prisoner has abused the writ. The. bur-
den to disprove abuse then becomes peti-
tioner’s. To excuse his failure to raise
the claim earlier, he must show cause for
failing to raise it and prejudice therefrom

ATTACHMENT—Con

as those concepts have be
our procedural default di
‘'petitioner’s opportunity to
den of cause and prejudi
clude an evidentiary hear
trict court determines as &
that petitioner cannot sa!
+ dard. If petitioner cann¢
= tthe failure to raise the cla
* petition may nonetheless t
| or she can show that a fu
carriage of justice would
» failure to entertain the ¢
fi McCleskey v. Zant, 499 U.
® S.Ct. at 1470.
4 Respondent has outlined
| writ history with clarity a
# Respondent has also iden
4% appearing for the first time
| # that Pickens has abused t
4 allegations having been m
@ & burden to disprove that he
# | He shoulders this. burden
« cause and prejudice or the
§ | miscarriage of justice W
= claim is not considered. ..
_ The cause apparently. &
&& ens is that he only now
|=. discovered evidence tendil
| claim of an involuntary ¢
B® affidavit of Jack Lassiter
@= threat made by the inte:
= As the Court has noted, h
@ answer to this assertion
B dence is not newly dist
® knew of the factual basi
B least by 1981, the year
, petition. In fact, he kne
E~ the claim the day it arot
# the person to whom th
HB , interrogating officer wa
= @6©Having failed to show
©. left to establish that the
Be this claim will result in |
carriage of justice.
= This exception applies
nary instances when !
lation probably has cé
of one innocent of the

it) sah aan aston

cme Tee tee

ee as

&

sie

\ 4 3. Respondent also appare
confession claim“is barr

ATTACHMENT—Continued

as those concepts have been defined in
our procedural default decisions. The
.  petitioner’s opportunity to meet the bur-
den of cause and prejudice will not in-
clude an evidentiary hearing if-the dis-
trict court determines as a matter of law
that petitioner cannot satisfy the stan-
dard. If petitioner cannot show cause,
the failure to raise the claim in an earlier
petition may nonetheless be excused if he
or she can show that a fundamental mis-
carriage of justice would result from a
® failure to entertain the claim.
ae McCleskey v. Zant, 499 US. at —, lll
S.Ct. at 1470. .
# Respondent has outlined Pickens’ prior
& writ history with clarity and particularity.
1& Respondent has also identified the claim
$®. appearing for the first time and has alleged
that Pickens has abused the writ. These
@¥ allegations having been made, he has the
@® burden to disprove that he abused the writ.
i He shoulders this. burden by establishing
| cause and prejudice or that a fundamental
Me miscarriage of justice will occur if the
BG claim is not considered. | |
& The cause apparently. advanced by Pick-
@feens is that he only now obtained newly
& discovered evidence tending to support his
&. claim of an involuntary confession, i.e., the
Be affidavit of Jack Lassiter attesting to the
me threat made by the interrogating officer.
@ As the Court has noted, however, the short
* answer to this assertion is that the evi-
e dence is not newly discovered. Pickens
# knew of the factual basis for the claim at
@ least by 1981, the year he filed his first
@ petition. In fact, he knew of the basis for
Bthe claim the day it arose because he was
B the person to whom the remark by the
p interrogating officer was made.
q Having failed to show cause, Pickens is
Bleft to establish that the failure to consider
gthis claim will result in a fundamental mis-
kearriage of justice.

aes

3"

hirer eet cempne sim sy gtee Mprharnenarh Ranier tyson se pe MOG

peta neem petit aga NRE TSS: ee hrnean rive

f. nary instances when a constitutional vio-
fs, lation probably has caused the conviction
f, of one innocent of the crime.” [Citations

[3. Respondent also apparently maintains that the
mc confession claim is barred by a procedural de-

PICKENS v. LOCKHART . 225
Cite as 802 F.Supp. 208 (E.D.Ark. 1992)

4 This exception applies only in “extraordi-

omitted]. To make such a showing, &
petitioner must do more than merely
“call into question the reliability of an
adjudication of legal guilt.” (Citation
omitted]. The petitioner also must
“show a fair probability that, in light of
all the evidence, including that alleged to
have been illegally admitted (but with
due regard to any unreliability of it) and
evidence tenably claimed to have been
wrongly excluded or to have become
available only after the trial, the trier of
the facts. would have entertained a rea-
sonable doubt of his guilty.”

Cornman v. Armontrout, at 730-81 [quot-
ing Kuhlmann v. Wilson, 477 U.S. 486,
455 n. 17, 106 S.Ct. 2616, 2627 n. 17, 91
L.Ed.2d 364 (1986) (plurality) ] [emphasis
added by Cornman court] [other citations
omitted].

Pickens has failed to meet this stringent
requirement. As the Court has previously
noted, the evidence of his guilt is over-
whelming. It is overwhelming even with-
out his allegedly involuntary confession.

On the basis of the foregoing, the Court
finds the assertion of this claim to be an
abuse of the writ. The claim is therefore
barred from federal review in accordance
with Rule 9(b).° ee

ROSS v. OKLAHOMA CLAIM. The
third claim advanced by Pickens challenges
the manner in which the jury was selected
during his 1988 re-sentencing. Respondent
takes the position that the due process
prong of this claim is barred by a procedur-
al default, i.e., he failed to present the
claim to an Arkansas state court. For the
reasons outlined in Pickens’ reply, the
Court disagrees. This claim will be ad-
dressed on the merits at a later time. —

CONCLUSION. On the basis of the
foregoing, the Court finds that Pickens’
recantation claim and the due process
prong of his Ross v. Oklahoma claim are
subject to federal review and will be ad-
dressed at a later time. His second claim,
the claim alleging an involuntary confes-
sion, is barred from federal review pursu-
ant to Rule 9(b) and will not be addressed.

fault. The Court agrees but declines to develop
an analysis of the matter.

date RAs: + 2

iia i AR RS Hea

222 802 FEDERAL SUPPLEMENT

ATTACHMENT—Continued

ered prior to the submission of the first
petition. For this reason, Pickens cannot
be faulted for failing to raise the claim in
his first petition.

Respondent also apparently maintains
that Pickens has procedurally defaulted in
litigating the recantation claim in state
court. The Court understands respondent
to take the position that Pickens should
have raised this claim in the appeals of his
1985 and 1988 re-sentencings. The Court
disagrees.

First, the Court agrees with Pickens that
respondent’s contention is misleading. The
appeals of his.1985 and 1988 re-sentencings
did not deal with issues arising from the
guilt phase of the proceeding. “They were
merely re-sentencing trials ordered by the
Court of Appeals for the Eighth Circuit.
The trial court had absolutely no jurisdic-
tion in either 1985 or 1988 re-sentencing to
deal with guilt issues.” Reply at 2. Thus,
he cannot be faulted for failing to raise the
recantation claim in those appeals.

Second, the Court notes as a general
proposition that a federal court is preclud-
ed from addressing the merits of a claim if
a state court did not address the merits
because of a procedural default. Wain-
wright v. Sykes, 483 U.S. 72, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977). This bar arises
when the state court disposition rests on a
procedural ground that is independent of
federal law and adequate to support the
judgment of the state court. Coleman v.
Thompson, US. , 111 S.Ct. 2546,
2553-54, 115 L.Ed.2d 640 (1991); Grubbs v.
Delo, 948 F.2d 1459, 1462 (8th Cir.1991).
As noted in Grubbs, “{t]he difficulty in
applying this doctrine ... lies in determin-
ing what constitutes an adequate and inde-
pendent state law ground.” Id.

In the case at bar, Pickens gave the state
Supreme Court two opportunities to pass
on the recantation claim: (1) the 1985 peti-
tion for writs of mandamus, certiorari, and
error coram nobis, and (2) the 1990 Rule 37
motion. In the 1985 proceeding, the court
found that his petition for writ of error
coram nobis was not timely. Pickens v.
State, 284 Ark. 506, 683 S.W.2d 614, 615-16

(1985). It alternatively concluded, howey-
er, that the recantation claim had no merit
because the recanted testimony would not
have changed the outcome of the trial. Jd.
In the 1990 proceeding, the court re.
adopted its earlier findings, sans the find-
ing that the claim was not timely. Respon-
dent’s Exhibit E at 2. In a case involving a
somewhat similar situation, the Court of
Appeals has stated:
If the state court relies upon both the
substantive merits and a procedural de-
fault in rejecting a petitioner’s claim, fed-
eral habeas review of the claim is pre-
cluded “only if the last state court ren-
dering a judgment in the case rests its
judgment on the procedural default.”
Harris v. Reed, [489] U.S. [255], 109
S.Ct. 1038, 1048, 108 L.Ed.2d 308 (1989).
Therefore, only if the state court issues a
“plain statement” that it is rejecting peti-
tioner’s federal claim on state procedural
grounds will federal habeas courts be
precluded from reaching the merits of
the claim. Jd. [489 U.S. at 262, 263] 109
§.Ct. at 1043, 1044.

Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th
Cir.1989).. Having closely reviewed the dis-
position made of this claim by the state
Supreme Court, the Court cannot conclude
that the appellate court made a “plain
statement” that it was rejecting Pickens’
claim on a state procedural ground. For
these reasons, the Court finds that Pickens

did not procedurally default in litigating ~

the recantation claim in state court and is
not now barred from litigating the claim in
this forum.

CONFESSION CLAIM. The _ second
claim advanced by Pickens challenges the
voluntariness of his confession. In support
of this claim, he makes the following repre-
sentations:

Before the re-sentencing hearing, the
original special prosecutor on the case,

Jack Lassiter, revealed in an affidavit

that R.D. Oliver, now deceased, one of

the officers who took a ‘confession’ from

Pickens, admitted to Lassiter that he had

coerced the confession from Pickens.

Lassiter testified in camera in this mat-
ter in the 1985 re-sentencing trial, but his
testimony was made moot, as far as pre

ATTACHMENT—Co

sentation to the jury was

the prosecutor’s decision

& to introduce the confessic
a ' ceeding.

; Petition at 8-9. Respond

© however, that Pickens shou

: f mitted to litigate this clai

: knew of the basis for the cl:

@ 1981, the year he filed his

,- Respondent takes the positic

&. knew of the basis for the cla:

was the person to whom tl

the police officer were all:

» Response at 8. Respondent

i following in support of his

[Petitioner] did not raise
his 1976 trial even thoug.
» , Suppression hearing on.
held prior to trial. He h
any ineffective assistana
# counsel on this ground. Ii
| tant to note that his 1976:
& matches the confession tl
Le was coerced and thus he
f any prejudice by its admis
al. |

e
ae:
Wag
: a ‘

E Brief at.8. For these reaso.

'@ asks the Court to refuse t

4 claim because it constitutes a

@ = writ as provided in Rule 9%b
® Governing § 2254 Cases.?

| Rule 9(b) addresses succes
« It permits the Court to dismi:
& petition if it fails to allege a:
& the prior determination was
If, however, a new claim is
‘second petition, the Court ms
the failure to assert the new

tes an abuse of the writ.

ee ee oe

The initial consideration in
a f inquiry is whether a new ¢
ie asserted. By “claim” or “gn

im preme Court typically mean
i legal basis for granting the
fag. Sanders v. United States, 3

i 83 S.Ct. 1068, 1077, 10 L.Ed.

4 2. Asa preliminary matter, the
although this petition is his first
1988 sentencing, it is his second

1976 conviction. It is thus s

an hour previous to the fire.
» fire around the emises,
ght to have been the work
ry. .othing wae saved, and
th estimates his loss at
vith $4000 insurance.

IFFHEVILLE.
joing Damage to Gare
dens, Etc.

Misa., July 1.—(Spectal.
re for the past four 8
edingly hot. The hot grave
ace Thursday, June 28, and

witnessed a rise in the
f from 2 to 4 degrees. The
o-day shows a temperature
in the shade. The heat is
at work in the fields has
tirely suspended. Men and
been prostrated by It, and
es have been reported. The
ost intense that the people
sinee 1882. Vegetatl T)
injured, and espeQ@a is
gardens and truck m8;
and withered after t#& bot
ed down upon them @urmpg
om indications, the presemy
continue some timegand 1
eat suffering to bogh man
d it is more than probable
nany suustrokes wt occur.

FICKSBURG.
Democrats Cgll Dis-
ict Meetings. |

Miss., July 1.—@Special.)—

yatistied Democrgts of this
called wagd agd district
July 4 and a qgunty con-

1e following day, claiming

eeting and conyention were
ntute requires that

.. READY, PART 17.
.,  WHARTONS = §
PIGTURESQUE AMERICA -

1OCENTS 2

,f| Orleans Picay ane, when presenteg ;
at Wharton’s, 5 Carendelet St, Hae
entitle the holder to one part of fae
Picturesque America, bet

By mail 20 extra.

Seventeen Parts Now Ready.; :

wind and sand storm, which played hé
with the fags and bunting with whie i
city was decorated. Neerly a hundil
tents were blown down at the «&
The storm soon passed ahd a Hitle sim
fell, Put it laid the dust, and fin®\wes#
er Zs promised during the festi¥atie
wich begin to-morrow. The other {yiiee
te troops will arrive to-morrow. “jae

FORT SMITH.
An Appeal to the Supreme (
Did Not Save the Men. |

Fort Smith, Ark., July 1,.—In the Un
States court John Poynter, Mar
Tucker and Alexander Allen were req
tenced to hang Sept. 30, 1804, having
an appeal to the United ‘States sup
court. :

John Poynter, aged 1¥,: murdered .
Ham Bolding and Ed Vonderver on Ch
mas eve, In 1891, In the Indian goun

Alexander Allen, aged’ 17,;—‘shot &
killed Philip Hanson, south of Coffee
Kan., May 12, 1892. "

Marshal Tucker, aged 42, while ¢
ki:led a lewd woman at South McAle
I. f., Oct. 15, 1883. 7!

Sane seeneeanel

FLORIDA.

PENSACOLA,
The Captain of a Norwegian 8

Dies of Heat. — ‘

Pensacom, Fla. July, 1.—(Spectial.}a

Captain Gullichsen, of the Norwegtag
bark Alette, now in port, was-a victim:
to the oppressive heat which has prevatl ©
ed for the past three days. He had :
slightly ill in his cabin and came up og”
the deck of his vessel. After walking -*

around for a short time he suddenly fel. -
to the deck and expired. In a short time

an autopsy was held and the physictang’. ge

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85 SOUTHWESTERN 781, : " | : ‘3
POWELL, Elias, black, hanged at Texarkana, Arkansas, on April 6, ety

"Texarkana, Arke, April 6, 1905 = Special to the GAZETTE - Elias Powell, a negro convicted
of the murder of James Gardiner, a white man, was hanged in the jail here shortly after
2 o'clock this afternoon, He displayed remarkable nerve throughout, refusing all
offers of stimulants and said he was ‘going straight home to heaven,' Two negro Baptist
MXKAXERERXHEKEXHAKX prechers were with him during his last hours, On the gallows, when
asked if he had any statement to make, he said he wanted to pray, and, kneeling there,
he offered up a last fervent prayer asking God to bless those that had sworn falsely
at his trial and also to bless the cold-blooded murderer, referring, presumably, to
himself, The drop was 8 feet and his neck was broken, Two of his sisters took charge of
the remains and will bury the body by the side of his mother near Jordan's Ferry on
Red River, a few miles below Garland City. Only the 25 witnesses allowed by law were
present at the hanging though a crowd of more than one thousand, principally negroes,
were gathered in the vicinity of the jail,

"POQBELL'S CRIME.
"The crime for which Powell was hanged was the murder of James Gardner, a white over-
seer on a Red River plantation about 20 miles east of here. Powell was a cropper on
the place, and became angered at Gardner because the latter had refused to advance him
any more supplies on his growing crop, On June 16, 1900, Gardner hitched up his wagon to
make a trip to Texarkana and Powell handed him a slip of paper containing a list of
articles which he said he must have, Some words passed between the men and Powell
told Gardner that if ms as not b Beane the asia on h return from town he would kill him,
When Gardner did Hai Exe B 7 MSXBMEXARA did return the next day,
Powell came out and eaited if Se had brought | nis seut as ordered, and receiving a
negative reply, raised a shotgun and fired two charges of buckshot into the body of
the overseer, killing him almost instantly. Powell then escaped and was not heard
of again until his arrest last summer at Augusta, Ark. He was convicted at the November
term of the court and sentenced to death, but afterward secured a stay of execution
pending an appeal to the supreme court. That tribunal a little more than a month ago
affirmed the judgment of the court below and Governor Davis a few days later set
April 6 as the day for theexecution," ARKANSAS GAZETTE, Bittle Rock, AR, l-7-1905 (1:7.)


“4

San Fore CA) Menewn, News

p AP

San dag

Candidates woo

Rainbow Coalition

New York Times

WASHINGTON — Five Demo-
cratic presidential candidates

_|~ met with the Rev. Jesse Jack-
“|< son’s Rainbow Coalition on Satur-
“day, hoping to tap the grass roots

support that fueled Jackson’s own

1988 bid for the nomination.

_- But if any of the candidates
hoped to capture the whole rain-

bow, he was disappointed, as sup-
port was fragmented. All the can-

- didates had a similar message
» but spent considerable time try-

ing to demonstrate their differ-

- ences, and that led to some prick-

ly responses.

Gov. Bill Clinton of Arkansas

was booed when he spoke in sup-

port of right-to-work Jaws. Jerry

Brown, former governor of Cali-

_ fornia, swiped at Clinton by call-

ing for a moment of silent for: a.
man whom the governor. ‘allowed 2.
to be executed in Arkansas on a
Friday night. Sen. Bob ‘Kerrey of —
Nebraska got enthusiastic ap-
plause for his national health--

care plan.

Former Sen. Paul Tsongas of
Massachusetts gave his economic
bootstrapping message, some-
thing that appealed. to. Christine
Welch, a representative’ of the «:
American’ Federation of Govern,
ment Employees. =

“He’s truthful,” she said. ‘He’ Ss
upfront. I like his attitude.” She.
. Said she was torn between Tson-

gas and Brown.

made up her mind. es

Associated Press

A FEW: WORDS _ Candidate Bill Clinton meets the Rev.
Be ie Jackson: before a Rainbow Coalition forum Saturday.

- Among. the. ‘roughly. 500 dele-

gates? there were those who said
they liked Brown’s. message but
- did not think. Brown could get
elected. Others said they thought ©,
Clinton looked and sounded presi-
.», dential but wondered if questions

Annette Rainwater of Detroit
said she was leaning toward Sen.
-Tom Harkin of lows but had not

about his personal life could

harm him in voters’ eyes.

- Still others said they thought

that Kerrey, wit He aes on

health care and his personal at- =f

tractiveness, looked like a win-

ner.

. Jackson pointed out that im-
mediate support was not the rea-
son for the forum. The coalition
will not endorse any particular

candidate, though Jackson said he

would endorse a candidate even-
tually.


|-2
|
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|
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At THURSDAY, JaNuaRY 23,1992...

THE WASHINGTON POST

CAMPAIGN ’92

*

3 Democrats Now Willing

att}

To

ig

nA

pace By Thine B. Edsall -

Washington Post Staff Writer -

a The contrast could not be more stark.

©. Asked four years ago in a nationally tele- -

idee debate if he would favor the death

> pefialty if his wife were raped and mur-

. dered, Michael S. Dukakis, the Democratic
» presidential candidate, replied, “I don’t see

~any evidence [the death penalty] is a
» deterrent... There are better and more
“effective ways to deal with violent crime.”

- Friday, the Democratic presidential can-

“didate widely viewed as leading the 1992
~ field, Arkansas Gov. Bill Clinton, will briefly

. bandon the campaign trail to return to Lit-

Brown Jr.,

le “Rock to oversee the execution by lethal
_ Injection of Ricky Ray Rector, a 40-year-old
* black man convicted of killing a white police
" officer. Rector suffered brain damage when

“ he’shot'himself in the head after killing the
* police officer, but was tried anyway. ~~"

’ Clinton is expected to allow the execution

to take place over the strong objections of .
“such groups as the National Coalition to

Abolish.the Death Penalty and the NAACP
Legal Defense Fund. “Do we want for pres-

-» ident a person who would execute a lobo-

tomized prisoner who would otherwise

serve a life sentence with no possiblity of

parole?” the coalition said in a statement.
Clinton, however, is not the only Dem-

ocratic candidate who supports the death |
penalty—Nebraska Sen. Bob Kerrey and °

former. Massachusetts senator Paul E.
Tsongas are on record as willing to use cap-
ital punishment. The other two leading can-

_ didates, Iowa Sen. Tom Harkin and former

California governor Edmund G. “Jerry”
follow the pattern of recent
Democrats and firmly oppose use of the

ultimate government sanction.

But support for the death penalty is part

of a growing willingness by Democratic can-
didates to abandon traditional liberal ortho- ~
xy on a wide range of issues, from eco-
mic policy to abortion, after defeat in five
of the last six presidential elections.

Tsongas’s call for an austere economic

| policy to rebuild international competitive

-

Support | Death Penalty —

Candidates Abandon Traditional Liberal Tenets

| faitenath is perhaps the most exireiie ex-

ample of this, but there are a host of others.

. Kerrey said he would index capital gains tax.
‘rates to inflation despite charges that such
reductions would disproportionately help.

the rich and, borrowing some anti-Washing-
ton rhetoric, has said he would cut the num-
ber of Cabinet-level departments from 14 to

oat 6

Clinton, in turn, would change welfare
law to limit eligibility to two years for any-
one able to work, would restore a version of
the investment tax credit and would back
some form of parental notification in the
case of juveniles seeking abortions.

One specific factor opening the range of
ideological terrain accessible to Democratic
candidates is the downgrading to near-ir-
relevance of the Iowa caucuses. To do well
in the caucuses, candidates in the past have
had to mobilize groups and _ individuals,

“‘many:-of whom hold more-liberal attitudes

than the general public; and have been a

powerful force pushing the Democratic.

presidential nomination process to the left.

Hugh Winebrenner of Drake University,
author of “The Iowa Precinct Caucuses:
The Making of a Media Event,” said the
pro-capital punishment stands of Clinton,
Tsongas and Kerrey “would not sell very
well [in the Iowa caucuses]. The Iowa Dem-
ocratic activists, like activists around the
country, are more liberal than the rank-and-
file voter and would not view that positive-
ly.”.

This year, however, the caucuses have
effectively disappeared from the political
landscape because Harkin is universally

- conceded to be the sure winner in his home

state, New Hampshire, which holds its pri-
mary Feb. 18, is generally more hospitable
to conservative views.

University of Colorado political scientist
Walter J. Stone, who has extensively stud-
ied Iowa caucus participants, said there
probably is “overwhelming opposition” to
the. death penalty among Iowa Democratic

- activists. In contrast, public support for the
y death penalty has risen cramatically over
ue past generation. © :

RICKY RAY RECTOR
.. Clinton to go home to oversee his execution

For a brief period in the mid-1960s, a
plurality of survey respondents opposed the
death penalty for those convicted of mur-
der. By the end of the 1980s, however, the
public supported capital punishment of con-
victed murderers by a margin of better than

~4tol.

In the current battle for the Democratic
nomination, Clinton is unique among the
candidates in that he must put it into actual
practice his stand on the death penalty.
There have been two previous executions
during Clinton’s administration, but neither

“received as much attention as the one

scheduled Friday.

In Rector’s case, Clinton authorized the
execution in December, as required by law.
According to aides, he will spend Friday in
Arkansas to deal with any last-minute ap-
peals or other efforts to delay or prevent
imposition of the death sentence. Just be-
fore prison officials start the process of in-
jecting. Rector with poison, they will call
Clinton to receive final clearance.

There appears to be little dispute over
the charge that Rector killed the police of-
ficer. His appeals have been based in part
on the claim that in treating Rector’s self-
inflicted shot in the forehead, doctors were

-forced to effectively lobotomize him, mak-

ing Rector legally incompetent to stand tri-

“altahes

ee |

Death, Life and the Presidency

It’s no surprise that three of five Democratic tute an infinitesimal element of ‘criminal justice.
candidates for President now say they support the © * $mall wonder, then, that researchers have nev-
death penalty as heartily as any Jaw-and-order. © er been able to detect any statistically defensible
Republican. Their positions are misguided, and. deterrent effect. Promoters of capital punishment
there is good reason to wonder if they have spoken. play their strongest card when they point to anoma-
too soon. ad RL ee 5. 2 LOUS Cases like that of Willie Horton, or seek to

With large popular majorities angry about — exploit a public.taste for vengeance.
crime and perceiving execution as an appropriate . © “A recent Gallup Poll confirms the political
response, Bill Clinton, Bob Kerrey and Paul Tson- advantage of such posturing. Three of every four
gas find it easy to embrace the death penalty. Mr. Americans now support capital punishment for
Clinton goes out of his way to point out that, as murder. But only 13 percent of the supporters say
Governor of Arkansas, he has presided over two _ they believe it deters crime, while 69 percent say
executions. He has just denied clemency toathird,a _ they favor execution for reasons of revenge or
man convicted of murdering a police officer, even because it “keeps them from killing again.”
though brain damage suffered during the man’s
capture raised questions about his competence to ey ; id
stand trial. " Another question in the same poll cuts the other

However Democratic support for capital pun- way. When asked about the death penalty if the
ishment might pre-empt Republican attacks on the murderer might also be sentenced to life with no
crime issue, political dynamics don’t change the possibility of parole, support for execution falls to 53
moral debate. There, opponents of capital punish- percent — and that figure has dropped steadily for
ment continue to hold the stronger ground for two _ the past three years.
powerful reasons: State-sanctioned murder deval- © Arguing for life without parole, rather than
ues life, and there’s no way to correct executions death, as the ultimate sanction affirms a commit-
that occur by mistake, as many have. er? ment to both public safety and the sanctity of

The argument that capital punishment deters ~ human life. Gov. Mario Cuomo of New York has
or prevents crime remains shaky. In 1990, the latest — taken that position for-years without suffering much
year for which complete figures have been ‘com-, political damage as a result. A Presidential candi-
piled, states executed only 23 murderers. These _ date could do as well. .
constituted less than .001 percent of all murderers . - Candidates who stand up for life without parole
that year, and were only .000004 percent of. all . instead of death show rational leadership on an i
violent criminals. Even if U.S. executions were issue that engages strong emotions. There may be =

multiplied by a factor of 10 they would still consti-

no more important Presidential quality.

elm pan
THE NEW YORK TIMES EDITORIALS/ LETTERS SATURDAY, JANUARY 25, 1992

Death Penalty

Arkansas Case Raises Questions About Politics of Executions

By PETER APPLEBOME
Special to The New York Times

LITTLE ROCK, Ark., Jan. 24 — The
issue was a man’s life: the execution
tonight of the convicted murderer
Rickey Ray Rector.

But also at issue today was what the
execution said about the Democratic
Presidential candidate, Bill Clinton,
who as Arkansas Governor refused to
issue an order of executive clemency

| this week to halt it.

Mr. Clinton is among three of the five
Democratic Presidential candidates
who say they support the death pen-
alty, a position that could help pre-
empt Republican attacks on the crime
issue. Senator Bob Kerrey of Nebraska
and Paul E. Tsongas, a former Massa-
chusetts Senator, have also embraced
the death penalty.

“T think any intelligent politician has

to make judgments on when he gets out
in front of popular opinion and when
you follow the community intent,” said
Roby Robertson, director of the Arkan-
sas Institute of Government at the Uni-
versity of Arkansas at Little Rock. ‘‘I
think this is one where Bill Clinton feels
the people of Arkansas support the
death penalty and he’s not going to go
against it.”
Part of Brain Destroyed

Stil, the case of Mr. Rector — the
third execution to go forward during
Mr. Clinton's tenure — raises knotty
issues that go beyond general support

‘or disapproval of the death penalty.

NEw yok TIMES

SAT.

[~2S-92.

Mr. Rector, 40 years old, was con-
victed in November 1982 and sentenced
to die for the 1981 shooting death of
Police Officer Bob Martin in Conway,
Ark. He was also convicted of another
murder that occurred two days earlier.

After shooting Officer Martin, Mr.
Rector turned the gun on himself, de-
Stroying part of his brain. His lawyers
say that even though he can speak, his
mental capacities are so impaired that
he does not know what death is or
understand, for example, that the peo-
ple he shot and killed or his mother,
who died in 1983, are not still alive.

“He is, in the vernacular, a zombie,”
said Jeff Rosenzweig, a lawyer for Mr.
Rector. ‘His execution would be re-
membered as a disgrace to the state.”

Little Discussion of Issue

Mr. Rosenzweig said Mr. Clinton was
harshly criticized as being soft on
crime in 1980, when he was defeated by
Frank White, his Republican opponent,
in his first re-election bid. Mr, Clinton
defeated Mr. White two years later and
has been re-elected three more times.

““My personal opinion is that in his
heart of hearts he’s against the death
penalty,’ Mr. Rosenzweig said of Mr.
Clinton. ‘In my opinion, this is a very
easy way to show you’re tough on
crime.”

A spokesman for Mr. Clinton, Mike

Gauldin, said the Governor had indeed
changed some of his policies toward
prison inmates since he returned to
office in 1983. In his first term, he
commuted the sentences of 70 inmates
convicted of a wide variety of crimes;
Mr. Gauldin said. Since 1983, he has
commuted seven.

In the case of Mr. Rector, Mr. Gaul-
din said, the courts have not agreed
with the contentions of defense lawyers
about the extent of his impairment.
“‘No one who has considered this claim
and applied the prevailing legal stand-
ard has concluded that he is incompe-
tent to be executed,”’ Federal District
Judge Henry Woods ruled Wednesday
in turning down Mr. Rector’s appeal
for a stay.

Both state and Federal law forbid
execution of a prisoner who has severe
mental impairment.

Litmus Test in South

Mr. Gauldin said that many people
who admire Mr. Clinton have assumed
he opposes the death penalty, but that
their conclusions do not reflect any-
thing the Governor has said on the
issue. He said Mr. Clinton had so far set
execution dates for about 25 death row
inmates.

“‘He’s never wanted to get drawn
into long drawn-out discussions on the
death penalty,” Mr. Gauldin said.
“‘He’s never given any interviews on
whether he sleeps the night of execu-
tions or how it makes him feel. He
believes it’s a serious responsibility
that should be treated seriously and is
not the kind of thing that should be
discussed in terms of politics.”

Still, few dispute that there is an
undeniable politics of death, particular-
ly in the South, where the vast majority
of executions have occurred since the
Supreme Court reinstated the death
penalty in 1976.

“It’s used a lot of times as a litmus
test for executive leadership in South-
ern States,” said Merle Black, a profes-

Associated Press

Gov. Bill Clinton of Arkansas, a Democratic Presidential candidate,
refused to issue an order of executive clemency this week to halt the
execution of a convicted murderer, Rickey Ray Rector.

sor of politics and government at
Emory University in Atlanta, “and J
can’t think of an example of a politician
elected to a governorship in the South
in recent years who has not been in
favor of the death penalty.”

, Similarly, it is clear that many politi-
cal experts feel a record of favoring the
death penalty is a major plus for a
Democratic Presidential candidate.

Mr. Rosenzweig contends that the
issue is not whether Mr. Clinton is for

or against the death penalty but wheth-
er this case deserves it. “‘Purely and
simply, this is a measure of how civi-
lized we are,”’ he said. “At what level of
disability do you kill people?”

But Professor Robertson said that in
the current climate most politicians
are likely to err on the side of an
execution rather than the side of call-
ing one off. ‘‘The death penalty is about
as good a way to get Willie-Horioned as
there is,’”’ he said.


ARY 22,1993

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cold her that
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assured him,
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for me. And
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rough several
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: the edge of
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ail. Just don’t
vou. And they

A DANCE-HALL KILLING

Around two-forty that afternoon, a
call came into Conway’s police head-
quarters—from one of Rickey’s sisters, it
later developed—asking specifically that
Patrolman Robert W. Martin be sent to
the address of Rickey’s mother. As later
testimony disclosed, Rickey had finally
consented to his family’s pleas that he
give himself up, but with the under-
standing that Martin, who had known
the Rector family since Rickey was a
child, would be the one who came for him.

Bob Martin, a seasoned regular with
the Conway police, was a quiet and de-
liberate man of unimposing, slightly
slack build, with, at thirty-eight, a sheaf
of gray hair over a plain face that wore
an almost unvariable bland and unasser-
tive expression—a surpassingly mild and
amiable soul, in all. He lived, with his
wife and three children, in a country
community outside Conway, named
Wooster, where he absorbed himself in
his single noticeable enthusiasm, ranch-
ing—working cattle and trading in
horses. According to old acquaintances,
what he’d really wanted to be was
a cowboy. He was a “gentle fa-
ther,” one of his daughters recalled
years later, “always easy with us.”
Her most cherished memory of
him is of the two of them riding
horses together over the fields
around Wooster. Whenever he
was off duty, he was always found
wearing a cowboy hat.

It was in something of a free
and leisurely cowboy manner,
actually, that he operated as a po-
liceman—in a “one-on-one, lone-
wolf style,” according to Lieuten-
ant Rodney Pearson, one of the
few current members of the

Pearson calls “that cloak of anonymity in
the black community.” His easy and fa-
miliar amicability with the Rector
household had not been disturbed by the
circumstance of his having arrested
Rickey at least once before, and he had
already assured Mrs. Rector, she later re-
ported, that “he wasn’t going to try to
force Rickey to come in.” Even after
what happened that afternoon, Rickey’s
mother declared that Martin “was the
only one on the force he would trust,”
and she added, “I really did like Mr.
Martin. He was the nicest one on the
force.” Earlier that Tuesday afternoon,
Pearson recalls, he had asked Martin
while the two of them were sitting in the
squad room, “What should I do if I see
Rector?” and Martin told him, “You
don’t do nothing. You call me. Because
he'll kill you. But he won’t kill me.”
Shortly before three o'clock, after the
call from Rector’s sister was relayed by
the department to Martin, in his patrol
car, he pulled up in front of Mrs.
Rector’s house—a small, tidy bungalow

Conway police force who worked
with Martin. He patrolled the
town as what was called a rover, in
“an old-style approach now being

rediscovered—community polic-
ing,” Pearson says. “He would
make it a point to stop and talk, to
connect personally, to the whole
community.” As a result, “he took
great pride in the fact he could ac-
complish in hours what would
take detectives weeks.” Martin at-
tended with a particularly patient
diligence to his complex of per-
sonal contacts within Conway’s
black neighborhoods, and conse-
quently had penetrated what

109

with white metal awnings and pale-avo-
cado-green aluminum siding, its half
porch covered with Astro-Turf and
nestled in tall, thick shrubbery just a few
feet back from the street. Eleven years
later, Pearson—a lean, sturdy man with
a mustache, brush-cut hair, and a mea-
sured and narrow-eyed soberness—
drove me out to the house, and we
walked for a while around its grounds.
Set in a quiet scatter of similarly simple
dwellings in the black section of
Conway, called Old Town, the house
was now vacant and had gone a bit
shabby over the years: there was a bro-
ken window behind a tattered screen,
and an old white stove had been depos-
ited under a slumping carport. In the
back, an aluminum-frame door was sag-
ging—the door through which Rector
had entered and, a few moments later,
left the house that afternoon.

When Martin got out of his patrol
car, wearing the Conway police uniform
of nickel-gray shirt with navy trousers,
his patrolman’s cap on his head, he was

“And Mort Zuckerman will be dropping by after lunch. Just kidding.”


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met outside the house by the sister of
Rector’s who had called him, Josie
Gilkey, and was informed that Rickey
was at his place, only a short stroll across
the back yard from his mother’s house,
but would be coming over at any mo-
ment. Martin was admitted into Mrs.
Rector’s tiny parlor, a room meticulously
decorated with tasselled lampshades and
candles in curlicued fixtures, with a small
crystal chandelier and gold shag carpet-
ing. Martin settled himself in a Queen
Anne chair and began, in his genial and
unhurried way, to chat with Mrs. Rec-
tor, a solidly heavy woman, and with
Rickey’s sister Josie and her son,
Michael, who lived, with his wife, in a
trailer in the back yard.

Suddenly, almost noiselessly, Rickey
materialized from the rear of the house.
Wearing only a half-sleeve baseball shirt
hanging loose over cotton work pants,
he leaned casually against the side of the
wide door to the bedroom behind the
parlor. He was right beside Martin’s
chair, and Martin, glancing up at him,
said, “Hi, Rickey, how you doin’?” Rec-
tor replied, “Hi, Mr. Bob.” Pearson now
says that he is certain that “if Rickey had
told him, ‘No, I’m not going with you,
come back in an hour,’ Bob Martin
would have just got up and left.” But
then, as Martin turned back to continue
talking with Mrs. Rector, Rickey with-
drew from the small of his back under
his baseball shirt the .38 pistol—“The
biggest surprise Bob ever got in his life
was when Rickey pulled out that pistol,”
Pearson says—and he fired two shots,
hitting Martin in the jaw and neck.
Rickey’s mother and sister screamed,
and floundered to get out of the room,
as Martin, blood running down his
body, slowly slumped from the chair
onto the floor, where, though his carotid
artery and neck vertebrae were shattered,
he seemed to make a last, vague effort to
utter something.

Rector then turned, saying nothing,
and walked slowly out of the house into
the back yard, under the sheltering ex-
panse of a silver maple tree, where
Michael Gilkey’s wife, rushing out of
the house trailer there, saw him pass
with an odd, drowsy shuffle. “He didn’t
appear to recognize me, because he just
looked at me,” she said later. “He just
looked over at me and said, ‘I just shot
that damn cop,’ and walked on away... .
I’ve never seen that look on him before.”

THE NEW YORKER, FEBRUARY 22, 1993

He proceeded across the yard—passing
under the chinaberry tree where, as a
boy, he had played alone with sticks—
and wandered on past a flimsy little wire
fence and a neighbor’s small vegetable
garden, past a mound of yard trash, his
shoes scuffing through drifts of leaves ly-
ing over the grass. In those few mo-
ments, his sister Stella now surmises, “I
think he realized what he had done, and
he’d done it in front of our mother.” One
of his attorneys eventually speculated, “If
he was going to try to get away, I don’t
think he would have gone into the house
in the first place,” and his mother could
only suggest afterward, “Something
must have just snapped inside him.” No
one can ever really know, because Rector
halted beside a berry bush near a pecan
tree, lifted the pistol to his left temple,
and pulled the trigger.

Barely a moment later, police cars, re-
sponding to a call from Michael Gilkey,
came sweeping in from all over town,
and then from the county, slewing to a
stop around the house and soon filling
the length of the street. Pearson, one of
the first to arrive, saw a small group of
neighbors in the yard standing around
Rector’s body. He was stretched out full
length on his back, his thinly tapered
arms lying straight along his sides, and
Pearson says that after he glanced at the
wound to his forehead “my opinion was,
this man was dead.” Someone then
yelled, “The house!” and Pearson, with
another officer, went in through the
back door. “The house was completely
still,” Pearson recalls, “but, right away,
we saw Bob.” Back then, Pearson was
not quite twenty-four and had been on
the force only about two years. “You
think you’re almost invincible,” he re-
calls. “But when you see a fellow-officer
you've had coffee with in the squad
room only an hour or so before, in a pool
of blood dying, it dispels a lot of illu-
sions. He was lying on his back with his
head toward us, one leg with a bent
knee. He looked to have been shot
at close range with a shotgun.” Lying
near him on the gold shag rug was his
police hat.

Martin was the first Conway police-
man ever shot, much less killed, in the
line of duty. Other officers piled into
the house; one of them quickly came
back out, sobbing, reeled over to the
cluster of people around Rector’s body,
and began to bellow at them. “I remem-

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manded, “Y.
ambulance
relieved.”
Pearson fc
the way into '
Rock’s Uni«
a gown anc
stool immed
right above !
watched, the
back skin fror
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I had about
gery,” Pearso:
tually”), ard
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peering ni
recognized t!
he could see,
sue, sears of g
arteries just s!
surgeon cautc
amid wisps 0i
having passec
front of Rec
under the ski,
when the surg:
up in a pair of i
drop into a smi
to Pearson. At
the surgeon’s
[dead] brain
frontal lobes \
tion” and “fro
moved approxi:
noid ridges bil
able brain was
three inches o
taken from k:
agonal line f:

RY 22,1993

* d—passing
vhere, as a
th sticks—
v little wire
. vegetable
i trash, his
it leaves ly-
' few mo-
urmises, “I

done, and
cher.” One
culated, “If
ray, I don’t
) the house
ther could
something
e him.” No
ause Rector
ear a pecan
eft temple,

lice cars, re-
rael Gilkey,
over town,
‘'~wing to a
on filling
__n, one of
all group of
ling around
hed out full
‘nly tapered
's sides, and
unced at the
)pinion was,
.cone then
sarson, with
hrough the
completely
right away,
earson was
ad been on
vears. “You
ole,” he re-
ilow-officer
the squad
xe, in a pool
lot of illu-
ack with his
vith a bent
been shot
sun.” Lying

rug was his

iway police-
silled, in the
rs piled into
‘uickly came
over to the

-or’s body,

“T remem-

NOTHING LEFT TO LOSE

ber that policeman that wanted to
shoot Rickey when he was lying down
on the ground,” Rector’s sister Josie later
testified. “He was a big guy.... That
guy said, ‘Let the dirty son of a bitch
die!” Another policeman then “ran
and grabbed him,” she said, “to make
him keep his gun in his holster,” and
led him, still weeping, away from her
brother.

Martin and Rector were taken, in
separate ambulances, to Conway’s hos-
pital. In the emergency room there,
Pearson encountered Faulkner County’s
prosecutor, William C. Brazil, who
confirmed that Martin was dead. But,
Brazil told Pearson, Rector was still alive
and was to be taken to a Little Rock
medical center for brain surgery. Brazil
then clutched Pearson’s arm and de-
manded, “You go with him in that
ambulance and stay with him until
relieved.”

Pearson followed Rector, in fact, all
the way into the operating room at Little
Rock’s University Hospital, donning
a gown and perching himself on a
stool immediately behind the surgeon,
right above Rector’s head. As Pearson
watched, the surgeon sliced and peeled
back skin from Rector’s forehead, sawed
through bone (“It dispelled a lot of ideas
I had about the delicacy of brain sur-
gery,” Pearson says. “Rather coarse, ac-
tually”), and finally lifted away mem-
brane to expose Rector’s brain. Pearson,
peering now into Rector’s open skull,
recognized that “the injury was severe”;

‘he could see, in the mangled brain tis-

sue, sears of gunpowder burns, and “tiny
arteries just shooting blood,” which the
surgeon cauterized with quick singes,
amid wisps of smoke. The bullet itself,
having passed completely through the
front of Rector’s skull, had lodged
under the skin above the right ear, and
when the surgeon extracted it he held it
up in a pair of tweezers and daintily let it
drop into a small cup, which was handed
to Pearson. At one point, according to
the surgeon’s report, “soft necrotic
[dead] brain in the right and left
frontal lobes was removed using suc-
tion” and “frontal lobe tissue was re-
moved approximately back to the sphe-
noid ridges bilaterally before normal vi-
able brain was identified”; that is, about
three inches of frontal brain tissue was
taken from Rector’s head, back to a di-
agonal line from his left temple to his

right ear, before the wound was closed.

The damage, though, extended even
beyond that. A clinical neuropsycho-
logist at the hospital later testified that
“fragments of bullet and bone have been
noted in the right temporal lobe portion
of the brain, which means that it was
more than just frontal lobe damage.”
Moreover, he pointed out, damage to
the frontal lobe itself disrupts the com-
plex of fibrous connections embracing
the rest of the brain, with an effect
something like shorting out parts of an
electrical circuit. A psychologist at a fed-
eral medical center for prisoners in Mis-
souri, who evaluated Rector’s condition
some time later, attested, “His brain im-
pairment is not precisely localized to just
one aspect of the brain. I think there’s
diffuse impairment involving both hemi-
spheres.”

The clinical effect of such a substan-
tial destruction of frontal brain tissue is
that Rector, as it was presented in testi-
mony over ensuing months, would suffer
from “gross memory loss,” and particu-
larly that when dealing with “content
and meaning” he was “severely im-
paired,” and would have a near-total in-
ability to conceptualize beyond a re-
sponse to immediate sensations or
provocations; in fact, he “seemed unable
to grasp either the concept of past or fu-
ture.” A state psychologist also noted
that he had “difficulty maintaining con-
centration and attention to a task.” In
addition, although Rector did “demon-
strate ...some abilities to handle his
day-to-day life in terms of actions which
are repetitive,” he also demonstrated
what is known as a flat affect, meaning
that “when it comes down to the issues
of emotion .. . Rickey has absolutely no
involvement in any of the dire circum-

a

p =
MZ
Naan) GE

stances of his life.” In fact, the Little
Rock clinical neuropsychologist found
him to be “lacking a will or an under-
standing of a way to fight his present di-
lemma.” Someone who had suffered the
sort of brain damage sustained by Rector
could still present, at first encounter, an
appearance of normality, but within that
appearance of “a mature adult,” as one
study of frontal-lobotomy patients was
quoted in later hearings, there still exists
“a very young child.” Indeed, what
would prove treacherous in later at-
tempts to appraise Rector’s state was .
that he could seem to pass in and out of
a certain minimal awareness, coming
briefly into a vague focus on the life
around him but then shortly reced-
ing into the shadowy void he mostly
inhabited.

The day after Rector’s surgery, the
doctor who had performed the operation
informed Stella and an attorney that
it had been “a classic prefrontal lo-
botomy” and had left Rector “totally in-
competent” to assist any attorney who
took his case. “I just immediately as-
sumed that he would be placed in an
institution, and that would be that,”
Stella says.

Nevertheless, after observing the
operation on Rector, Pearson returned
to Conway with assurances to his
fellow-officers and to local officials that
Bob Martin’s slayer had survived sur-
gery, and should recover suitably
enough.

N the first weeks after the operation,
Rector declared to a number of
people that he had been hospitalized for
a wound in his leg. One of his attorneys
later testified, “When I asked Rickey di-
rectly about the surgery or anything
about the scar, he will flatly deny that he
had surgery on his head at all, and will
instead state that he went to the hospital
so that his leg could be operated on.”
Even after “people have confronted him
with the fact that ‘you do have a scar on
your head,’” the attorney said, “he can’t
seem to explain or even acknowledge
that occurred.” Eventually, he came to
believe intermittently that he himself
had been the victim of the violence that
afternoon, informing psychological ex-
aminers and his own attorneys that,
as one reported, “the police had killed
the policeman and then shot him in
the head.” At other times, he declared


112

that “a scuffle ensued at which point
Mr. Rector struck the police officer,”
one medical evaluator said. “The patient
indicated ‘I knocked him out.’ Mr. Rec-
tor said he then ran from the house and
came upon another police officer who
wished to arrest him, but, because he
was concerned about being beaten in the
local jail facility,” he then did, as every-
one had been saying, shoot himself in
the head.

His sisters, in their visits, now found
that he had “slurred speech,” Stella later
reported. “He fumbles, he has trouble
picking up coins.” While once almost fa-
natically fastidious about what he ate,
she said, “now he just shovels his food
in, whatever is presented to him. He
never asks about anyone or anything in
the past. He seems content to just sit
and stare. Nothing seems to bother
him.”

HE popular and legal disposition to-
ward Rector after the killing of
Bob Martin was, one of Rector’s early
attorneys says, “They’d take his body
if they couldn’t have his mind.”
So formidable was the sentiment in the
community about what had happened
to Martin that the chore of defending
Rector in court was a role that “abso-
lutely none of the attorneys in Conway
wanted,” according to one lawyer finally
appointed to his case. Also because of
this popular mood, it became almost
obligatory for both the prosecutor and
the judge—their offices elective, at that
initial level of the justice system where
Rector’s fate would first be decided—to
see that he was pursued to the law’s last
possible measure of punishment. The
prosecutor, Brazil, later explained to the
Conway Log Cabin Democrat that he had
refused all offers of a plea bargain for a
life sentence without possibility of pa-
role, because he was urged by the com-
munity, including Martin’s family, to
settle for nothing less than Rector’s
death.

Since it was never disputed that Rec-
tor had committed both the Criswell
and the Martin murders, the progression
of his case over the next ten years—
through a protracted cycle of lawyers,
most appointed by the court—depended
on two intermingling principles of fun-
damental law about the competency of
an accused to stand trial and, ultimately,
to be executed. One principle, contained

MARCH 7TH

In the bakeshop, at one of the tables,

there is a man about to eat his morning slice,

who sits, hands folded, eyes closed,

above the loaf still entire, and speaks inwardly

huge strange thoughts of thanks.

The knife, a felled birch left overnight

for tomorrow's work, on which the moonlight,

in the eyes of no one, plays, gleaming, the knife

sits awaiting the emptiness it will make appear

where all along there had been emptiness

implicd. Round him the room hums

slightly. No. Round him

infinite spaces gnaw at his face.

His hands are thick from work. The small hairs .

glow, the fresh-washed skin, freckled a bit

with age, ripples where his fingers

lace. His weight is on his elbows, and carries through

onto the imitation-woodgrain tabletop.

Nothing distracts. The loaf is a crucial landmark

in the small landscape which is his place—

a way to find the road back to the felled

tree, even in moonlight, even if strong rains intervene

and no moon or sunshine can get through. For days

he hunted for the tree. Found it. Now

mist makes the most familiar turns implausible,

and notches in skyline, timberline—tfriends,

guides—suddenly silt in. Silence of a place

known forever then not known at all—never at all.

Habit gone, yesterday and yesterday and yesterday...
Beauty

is the notch restored,

the clump of evergreens—beneath it—recognized!—

three bluebirds in them and then two now, up and out, chasing the
third,

bursting the air all round like water when the monster's

surfacing. All this is true. All this is huge and empty

spaces, tapping his lids, his hands,

legend, small whirling motes

or sparks or seed, in the hollows—ears, palms—inside the skull,

hands to his lips so briefly as he finishes—a kiss.

Oh glance, now that the eyes that own you open again,

hand, moving out to lift the knife—what

are you doing? Corridor, stairway, front door—

—JORIE GRAHAM

in the Sixth Amendment, was that the
accused, to be tried at all, must at least
be capable of meaningfully assisting his
counsel in his defense—a requirement
that had special import, the defense
maintained, when the accused faced ex-
ecution. The other measure of compe-
tency, a less stringent federal standard
that came into play only in 1986, with

the Supreme Court’s decision in Ford v.
Wainwright, stipulated that the accused,
to be subject to execution, must first
comprehend that he has been sentenced
to death and, second, comprehend why.
Essential in that measure of competency,
one of Rector’s attorneys argued, is
“more than just being able to say, ‘Yes, I
know I am going to be executed’; it in-

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SECRETARY OF LABOR v. TONY & SUSAN ALAMO FOUND.

405

Cite as 783 F.Supp. 405 (W.D.Ark. 1991)

Lockhart apparently chose not to. The
evaluation could have been conducted, and
was in fact conducted, at the institution.
Lockhart was not obligated to use officials
at the State Hospital to conduct the evalua-
tion, but he chose to do so. The State
Hospital officials were not obligated to con-
duct an evaluation of any particular length;
they were only required to conduct the
evaluation within thirty days after Rector’s
arrival at the State Hospital. However,
Rector was never sent to the State Hospital
so the officials were not obligated to con-
duct the evaluation within any particular
period. If Rector was found sane, which
he was, the State Hospital officials were
required to turn him over to Lockhart.
However, the officials never had custody of
Rector. The Governor was obviously noti-
fied of the evaluation and, in accordance
with the statute, the execution was or-
dered. As this analysis demonstrates, Rec-
tor received all the benefits conferred by
the statute. His claim is therefore without
merit.

CONCLUSION. Rector faces a rapidly-
approaching execution.
hour, his petition, when pared to its es-
sence, challenges his competency to be exe-
cuted. No one who has considered this
claim and applied the prevailing legal stan-
dard has concluded that he is incompetent
to be executed.

The first claim made by Rector is that
§ 16-90-506 is unconstitutional. The
Court finds that he has abused the writ by
attempting to litigate the claim in this peti-
tion. For this reason, the claim is dis-
missed pursuant Rule 9(b). The Court is
not convinced that his second claim—the
statute is unconstitutional in light of the
manner it was applied—creates a liberty

interest. Assuming, arguendo, that such

an interest is created, no due process viola-
tion occurred because the requirements of
the statute were followed. His petition
and his application to stay his execution are
therefore denied.

IT IS SO ORDERED.

w
° E KEY NUMBER SYSTEM
T

In this eleventh .

SECRETARY OF LABOR, UNITED
STATES DEPARTMENT OF
LABOR, Plaintiff,

Vv.

TONY AND SUSAN ALAMO
FOUNDATION, et al.,
Defendants.

Civ. No. 77-2183.

United States District Court,
W.D. Arkansas,
Fort Smith Division.

Oct. 3, 1991.

In a dispute under the Fair Labor Stan-
dards Act, the District Court, H. Franklin
Waters, Chief Judge, held that employer
failed to show plainly and unmistakably
that he was unable to pay judgments
against him for violations of Act, as was
required to avoid finding of civil contempt.

Ordered accordingly.

1. Labor Relations ¢=734

Self-proclaimed church leader who was
found to owe back wages under Fair Labor
Standards Act failed to make plain and
unmistakable showing that he could not
pay judgment rendered against him, as was
required to avoid finding of civil contempt.
Fair Labor Standards Act of 1938, § 1 et
seq., 29 U.S.C.A. § 201 et seq.

2. Labor Relations <=734

Although employer failed to show
plainly and unmistakably that it could not
pay judgments rendered against him for
violation of Fair Labor Standards Act,
court would, in effort to strike intermediate
ground, allow employer to be released from
civil contempt incarceration upon posting
appropriate bond. Fair Labor Standards
Act of 1938, § 1 et seq., 29 U.S.C.A. § 201
et seq.

Robert A. Fitz, U.S. Dept. of Labor, Dal-
las, Tex., for plaintiff. ©


RECTOR v. LOCKHART 403
Cite as 783 F.Supp. 398 (E.D.Ark. 1992)

our procedural default decisions. The
petitioner’s opportunity to meet the bur-
den of cause and prejudice will not in-
clude an evidentiary hearing if the dis-
trict court determines as a matter of law
that petitioner cannot satisfy the stan-
dard. If petitioner cannot show cause,
the failure to raise the claim in an earlier
petition may nonetheless be excused if he
or she can show that a fundamental mis-
carriage of justice would result from a
failure to entertain the claim.

McCleskey v. Zant, 111 S.Ct. at 1470.
Thus, the federal courts will not entertain
the new claim if it had previously been
deliberately abandoned or not asserted in
the first petition as a result of inexcusable
neglect. See Jd. 111 S.Ct. at 1467-70. Ne-
glect is excusable if a showing of cause and
prejudice is made or a fundamental miscar-
riage of justice based on actual innocence
will occur. See Id.

Rector has filed a second petition. The
State has pleaded abuse of the writ and has
outlined his prior writ history. This histo-
ry recounts the claims asserted in his first
petition, those being, he was incompetent
to be executed and his mental capacity at
trial was so diminished as to deny him the
effective assistance of counsel. See State’s
Exhibit B. The State has also identified
the claim appearing for the first time in
this petition, that being, a challenge to the
constitutionality of § 16-90-506. Thus, in
accordance with McCleskey, the burden to
disprove abuse of the writ shifts to Rector.
He must offer an excuse for his failure to

' raise this claim in his first petition.

As his excuse, Rector maintains that this
claim could not have been raised before
because it did not arise until after the
dismissal of his first petition. Although
the Court is not prepared to find that he
deliberately withheld the claim, the Court
is not convinced that he has shouldered his
burden by demonstrating excusable ne-
glect.

First, Rector has no cause for his failure
to raise the claim in his first petition. It is
true that the evaluation did not occur until
after the dismissal of his first petition.
However, nothing prevented him from

seeking an earlier evaluation. The Court
cannot discern how he was required to wait
until the eleventh hour to seek the evalua-
tion. Although the statute does not re-
quire the State to act upon a request, the
request Rector eventually made could have
been made at anytime after his sentence
was imposed. His competency to be exe-
cuted has long been at the forefront of his
campaign for collateral relief, and he could
have certainly foreseen his present chal-
lenge to the statute. A reasonable investi-
gation aimed at including all relevant
claims in his first petition would have re-
vealed this claim and allowed him to devel-
op it. See Jd. 111 S.Ct. at 1472 (require-
ment of cause is based on principle that
litigant must conduct a reasonable and dili-
gent investigation aimed at including all
relevant claims in his first petition).

Second, Rector can demonstrate no actu-
al prejudice. He complains that the statute
does not comply with the standard outlined
in Ford v. Wainwright, yet he has already
received the very examination he now de-
mands. Once his competency was placed in
question, the Court sent him to the federal
correction facility in Springfield, Missouri
for a complete psychiatric evaluation. Rec-
tor does not suggest that the report com-
piled by the facility was prepared in viola-
tion of some constitutional right or was in .
error. Because he does not suggest that
his competency has changed since his ex-
amination, the Court has considerable diffi-
culty in ascertaining how a second exami-
nation might be required.

Last, Rector has not demonstrated that a
fundamental miscarriage of justice will re-
sult from a failure to entertain this claim.
Because the evidence of his guilt is simply
overwhelming, this case is not one of the
extraordinary instances in which a constitu-
tional violation has probably caused the
conviction of one innocent of the crime.
More in the context of this case, the Court
is not prepared to find, given the evidence
of his competency, that he is not competent
to be executed.

On the basis of the foregoing, the Court
finds that the first claim advanced by Rec-
tor was not raised in his first petition, and

404

he has failed to shoulder his burden of
showing excusable neglect. He has abused
the writ by attempting to litigate this claim
in his second petition. It is therefore dis-
missed as such pursuant to Rule 9(b).

[5] As his second claim, Rector main-
tains that § 16-90-506 is-unconstitutional
in light of the manner it was applied. The
Court acknowledges some difficulty in giv-
ing this claim its proper construction. The
State understands Rector to be challenging
the procedure employed for evaluating his

competency to be executed, 7.e., which stan- ©

dard of competency should be applied. The
State takes the position that the Court pre-
viously resolved this question in the first
petition, specifically, the prevailing legal
standard is Ford v. Wainwright. The
Court is not convinced, however, that this
construction is entirely correct. Rather,
he apparently alleges that the statute cre-
ates a liberty interest and the State’s fail-
ure to comply with the statute violated his
due process rights.

Assuming, arguendo, that Rector has
not abused the writ by attempting to liti-
gate this claim in his second petition,‘ the
statute he challenges establishes a proce-
dure for determining whether a condemned
_ is insane. It provides, in part:

(d)(1) When the superintendent of the
state penitentiary is satisfied that there
are reasonable grounds for believing that
a convict under sentence of death is in-
sane, he may transfer. the convict to the
Arkansas State Hospital and thereupon
notify the Governor of this action. The
state hospital officials shall cause an in-
quiry to be made into the mental condi-
tion of the convict within thirty (30) days
from his arrival at the state hospital and
report thereon to the superintendent of
the state penitentiary and to the Gover-
nor.

3. If the State’s construction of the claim is cor-
rect, the claim would clearly be successive. The
Court previously found Ford v. Wainwright to
be the prevailing legal standard, and this find-
ing was affirmed by the Court of Appeals.

4. The Court notes that Rector did not raise this
claim in his first petition. He has cause for
failing to do so because the claim was not avail-
able at the time he filed the first petition. It
would have been impossible for him to raise the

783 FEDERAL SUPPLEMENT

(A) If the convict is found to be
sane, the superintendent of the state
hospital shall turn him over to the su-
perintendent of the state penitentiary
and the Governor shall order the exe-
cution to be carried out according to
law.

(B) 4.3

Ark.Code Ann. § 16-90-506(d)(1).

[6] In determining whether the statute
creates a liberty interest, the Court applies
a two-part test: (1) “ ‘does [the] statute ...
contain particularized substantive stan-
dards or criteria that significantly guide
the decision makers’ ” and (2) “ ‘does the
statute ... use mandatory language re-
quiring the decision makers to act in a
certain way.’” Williams v. Armontrout,
852 F.2d 377, 379 (8th Cir.1988) [quoting
Nash v. Black, 781 F.2d 665, 668 (8th Cir.
1986) ] [emphasis in original].

The Court is not convinced that the stat-
ute creates a liberty interest. The statute
does contain some standards. As will be
demonstrated, though, it does not contain
the particularized substantive standards to
significantly guide the decision makers.
Moreover, the statute’s mandatory lan-
guage is not such that the decision makers
are required to act in a certain way.

Assuming, arguendo, that the statute
creates a liberty interest, no due process
violation occurred because its requirements
were followed. Rector made a request to
respondent Lockhart for an evaluation.
See Rector’s Exhibit A. As Rector notes,
Lockhart was under no obligation to order
the evaluation. See Response at 10. Lock-
hart apparently held the opinion that rea-
sonable grounds existed for believing Rec-
tor was insane because Lockhart ordered
the evaluation. Lockhart was not obligat-
ed to send Rector to the State Hospital for
the evaluation or notify the Governor, and

claim earlier because he could not have antici-
pated how the statute would be applied. Never-
theless, it would appear that Rector can demon-
strate no prejudice. He has already received an
evaluation in accordance with the prevailing
legal standard, Ford v. Wainwright. In addi-
tion, he cannot show that a fundamental mis-
carriage of justice based on his mental condi-
tion will occur. Thus, this claim appears to be
subject to dismissal pursuant to Rule 9(b).

402

ined Rector at the Tucker Maximum Securi-
ty Unit for approximately one hour on De-
cember 10, 1991. Their evaluation was re-
leased the following day, although his at-
torney did not receive a copy for several
days. It was the conclusion of the team
that Rector was competent to be executed.
See Rector’s Exhibit B. The Governor of
the State of Arkansas then scheduled Rec-
tor’s execution for January 24, 1992.

PB-C-92-02. On January 6, 1992, Rec-
tor filed a second petition for writ of habe-
as corpus. See 727 F.Supp. 1285. The
petition contains two claims. First, Ark.
Code Ann. § 16-90-506 is unconstitutional
“in light of the total absence of procedures
to provide [his] due process rights ...”
Memorandum at.3. He maintains that the
statute fails to comply with the standard
outlined in Ford v. Wainwright. Second,
the statute is unconstitutional “in light of
the manner in which [it] was applied by the
[State] ...”” Memorandum at 3. He there-
fore asks the Court to stay his execution
until he is accorded his due process rights.

[1] The State has filed a rather lengthy,
four-fold motion to dismiss. It initially
maintains that Rector has procedurally de-
faulted in litigating the claims raised in his
petition. Thus, it alleges that federal habe-
as corpus review of the claims is barred
unless he can demonstrate cause for the
default and actual prejudice as a result of
the alleged violation of federal law or dem-
onstrate that the failure to consider the
claims will result in a fundamental miscar-
riage of justice. See Coleman v. Thomp-
son, — U.S. ——, 111 S.Ct. 2546, 2565,
115 L.Ed.2d 640 (1991). |

The record reflects that Rector has been
litigating at least one of these claims in
state court. The state trial court denied
relief, see Respondent’s Exhibit 1, and the
state Supreme Court has now affirmed, see
Respondent’s Exhibit 2. The Court finds,
for purposes of this Memorandum Opinion
and Order, that he has not procedurally
defaulted in raising either claim.

2. Rule 9(b) provides, in relevant part, that a
second petition may be dismissed if new or
different grounds are alleged and the judge

783 FEDERAL SUPPLEMENT

{2] As his first claim, Rector challenges
the constitutionality of § 16-90-506. He
specifically alleges that the statute con-
tains numerous constitutional defects and
thus fails to comply with the standard out-
lined in Ford v. Wainwright. It cannot be
seriously disputed that this claim was not
raised in his first petition. For this reason,
the State alleges that this claim should be
dismissed as an abuse of the writ pursuant
to Rule 9(b) of the Rules Governing Section
2254 Cases in the United States District
Courts.”

“The doctrine of abuse of the writ de-
fines the circumstances in which federal
courts decline to entertain a claim present-
ed for the first time in a second ... petition
for ... writ of habeas corpus.” McCleskey
v. Zant, US. , 111 S.Ct. 1454, 1457,
118 L.Ed.2d 517 (1991). The rationale for
the doctrine is governed by equitable prin-
ciples, including the principle that “a suit-
or’s conduct in relation to the matter at
hand may disentitle him to the relief he
seeks.” Sanders v. United States, 373
U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d
148 (1963).

[3,4] An abuse of the writ occurs when
a new claim is asserted in a second petition
but the claim was available at the time of
the first petition. See Gilmore v. Delo,
908 F.2d 385, 387 (8th Cir.), cert. de-
nied, — US. ——, 111 S.Ct. 20, 111
L.Ed.2d 833 (1990). When abuse of the
writ is raised by the State, McCleskey in-
structs the lower courts to engage in the
following’ examination:
[T]he government bears the burden of
pleading abuse of the writ. The govern-
ment satisfies this burden if, with clarity
and particularity, it notes petitioner’s pri-
or writ history, identifies the claims that
appear for the first time, and alleges that
prisoner has abused the writ. The bur-
den to disprove abuse then becomes peti-
tioner’s. To excuse his failure to raise
the claim earlier, he must show cause for
failing to raise it and prejudice therefrom
as those concepts have been defined in

finds that the failure to assert the grounds in the
prior petition constitutes an abuse of the writ.