Oklahoma, O-P, 1940-1992, Undated

Online content

OLIVER, Claude and George, whites, electrocuted Oklahoma (Murray) on August 25, 1933.

"McAlester, Oklae, Auge 26. An 18-year-old boy, the youngest of the 1 criminal s who have
died in Oklahoma's eclectric chair, was executed today with his uncle for the murder of

the latter's 15-year-old bride, The boy, George Oliver, preceded his kinsman, Claude XXX##¥-
Oliver, 28, in death, The two Southern Oklahoma farmers paid the extreme penalty for
killing Della, Calude's bride of three months, in an effort to collect the $5,000

insurance policy they had obtained on her life, 'This is bad,' said George, as he was
strapped in the chair. Just previously he had told the crowds: 'I did a crime and now I must
die for it. I feel like I am going to heaven, Young men = crime doesn't pay. The Olivers,
who admitted to officers that they had KaX% plotted the crime even before Claude was
married, beat the girl to death with the tools and pushed the automobile containing her body
ice ( a) near Davis, Oklae, last November 3," DAILY NEWS, Jackson, Miss., August 26,
1933 (2236

OLIVE

a age os

By EVAN: MORROW —

Delia didn’t make it. The whole thing

happened quicker than you could wink

”

your eye. : .
The sheriff turned to Atkins. “And

"you saw the. accident?”

OZE JOHNSON, Sheriff of Mur-
‘pay County, Oklahoma, gazed at
the horribly mangled corpse of
the young. woman on the slab. "You
say this happened in an automobile
accident?" he. prvi casually.
Dee Ramsey, Chief of Police in the
little town of Davis, inclined his head.
"Yes. She's crushed badly. Three wit-
nesses saw the accident.”
Johnson said: "Who is she? Where
are-the witnesses?”
Ramsey rose. As he walked to the
mortuary. door he said, over his
shoulder, “The: girl is Delia Oliver,
wife of a Murray County farmer. |
called you because the accident hap-
pened outside the city limits, out of
my jurisdiction.” He paused at the
door and called into another room:
“Come in here boys. Sheriff Johnson
wants to ask you some questions.”

A moment later, two sad-faced Okla-
homa farmers and a Negro entered the
door, a oe ea

‘Ramsey introduced them as Claude
Oliver, husband of the victim, George

" Oliver, his nephew, and Blair Atkins,

a motorist who witnessed the accident
and brought: the Olivers to Davis.

Johnson glanced at the men. “You
fellows don’t seem to be hurt much,
but the young woman—”: ‘

“She was sitting in the middle, Sher-
iff,” George Oliver replied. “When the -
car ran off the, bridge Claude and I
jumped. I yelled for Delia to jump, but
she couldn’t.” ‘ Sis eae

“You say the car ran off a bridge?”
the sheriff queried,

George Oliver nodded his head.
“Claude was driving. As we approached
the bridge, the car started veering to-
ward the gully. Claude tried to pull it

! over, but he couldn’t. The steering wheel

jerked out of his hand, the car started
over the side. Claude and I jumped. -

The burly Negro nodded. “It’s just
like Mr. George says, Sir. I saw the
whole thing. When the car went off

the side, I pulled up at the bridge and
brought Mr. George’and Mr. Claude
into town .for help.”

Johnson deliberated over these facts
a moment. He could see that Claude
Oliver -was so badly shaken over his
wife’s death that questioning him «at

this time would be useless. He turned ©

Detect ive

SEPTEMBER

Cases

CONTENTS © oe
"THE SIGN OF THE SPLINTERED BOARD - - - -

By EVAN MORROW,

_ THE FIRE SLAYER AND HIS SIX HUMAN TORCHES -- 6

By RICHARD CONWAY

HIS NUMBER PAID OFF DEATH - - - - - = - - 10

By HAL EVANS

_ GHASTLY MURDER IN THE HAUNTED HOUSE - - - 12

By District Attorney FARRELL M. KANE, Staten Island, N.Y. |.
as told to CHARLES L. BURGESS ****'!-

THE CASE OF THE REVEALING RABBIT . - - - == 16> |
* " < By Cireuit-Criminal Court Judge L. D. MILLER

CLUE OF THE TELLTALE DIARY - - -'- - - + - 20

But such material must be

fe submitted at the author's risk. ~

By REESE HART

COVER BY PAT LAMAR .

‘again to Claude’s nephew, George.
“Have any idea what caused the car
to go out of control?”

Oliver shook his head. “I don’t un-
derstand that part of it, Sheriff. The
car was running okay. when we left the
farm.” :

“You didn’t hit a boulder or a deep
rut just before you started across the
bridge?” %

“If we-did, I didn’t notice ‘itf’. was
Oliver’s reply. pies Seay

Claude’ Oliver nodded weakly in cor-

‘ roboration of his nephew's statement.

Johnson strode up and down the room. -

- as he mused over the facts. It was his

duty to make a thorough investigation
of the accident. If there was any in-.
surance involved, the agencies , would
demand a full report. Then, too, it was
entirely. possible that the acci t
been the result of sabotage.

He resumed: “You niention the steer-

ing wheel jerking out of your hands,
Claude. What do you think | caused
that?” og eee .
’ ‘The farmer, evidently in his thirties,
blinked. “I don’t know, Sheriff. I’m not
very handy about cars. There could
hav been something wrong with the
whell I guess.”

“Maybe someone tampered with 2.
bolt. Maybe the bolt gradually worked .
out as you drove down the road,”, John-
son suggested.

The dazed expression on Claude Oli-
ver’s face turned to one of astonishment.
“I never thought of that, Sheriff.”

“It’s been done before,” replied the
sheriff dryly. “I’m .going to have an

‘expert mechanic examine that car right

away. But before we leave here -we
might as well clean up a ‘point or two.
‘Do you know of anyone who might
want to get revenge on you by wrecking
your car?” ; et ;
-- Oliver stared hard at the mortuary
wall as he turned the matter over in his
mind. Finally, he shook his head slowly’
in the negative. “I can’t answer that,
Sheriff.”

“How about a disgruntled farm
hand?” : : :

Oliver mused over this question, then

- glanced up. “Always plenty of those,

‘-

Glaude

& George, elec. Okla. (Murray) 8-25-19

Not, 1986 Pad

HE year 1932 was a big one for Della

Ring Oliver. In March, and before she

added the Oliver to her name, she
reached her 18th birthday. Her parents gave her a
big party in their home at Wynnewood, Okla., and
everybody who came to it agreed she was the pret-
tiest girl in Murray County. Few who knew her
would have disputed the judgment.

At 18, Della had emerged from adolescence with
a full, firm figure, sparkling health, features that
are usually described as “classic” and round, liquid,
brown eyes that were as eloquent as her personality
was appealing. Della, in short, was a knockout.

Naturally, and inevitably, the young bucks of the
territory flocked around Della, and often the Ring
front porch and parlor were crowded with well-
scrubbed but ill-at-ease youths attempting to outsit
each other. Judging from their awkward behavior,
the test often seemed to be not only of patience, but
of their remarkable capacity for gaucherie.

Among those who paid court to Della that sum-
mer was George Oliver, a slightly built, lean-jawed.
dark-haired, youth of 18, who lived in the nearby
town of Davis. George had no car and frequently
he was driven to the Ring house by his uncle, Claude,

ten years older than George and perhaps even far-

ther removed from the younger man by experience
and temperament.

Claude didn’t seem to mind acting as chauffeur
for his nephew, nor hanging around the Ring house
until it was time to drive George back to Davis.
Then, in mid-August, Della let it be known that
she and Claude were to be married.

The announcement caused a considerable shock
to those who had been making figurative book on
Della’s marital sweepstakes, but they alibied them-
selves with the observation that the elder Oliver’s
richer experience in such matters had been no match
for the callow competition.

7 rhe

eo 2
6 a. af

eK:

| “BY LEWIS THOMPSON

Sarr

Shortly thereafter, the radiant Della and the slim, sandy-
haired, thin-faced groom said their marriage lines in a
quiet ceremony at the Ring house, and then took their leave
of it to go to Davis, where Claude had a modest home and
ferty acres. The ceremony also broke the hearts, temporarily
at least, of some score of hopeful aspirants for her hand.

With the passing of weeks, life appeared to go smoothly,
if somewhat dully, with the newlyweds. Della took easily
to her duties as a farmer's wife, while Claude, helped by
his nephew George, concerned himself with the cultivation
of his acres, which were planted in cotton.

Those who even bothered to notice, remarked how fortu-
nate it was George seemed to bear no grudge toward his
uncle for cutting him out with Della, and at the same time
recalled that the two men had always gotten along well
together.

N SUNDAYS, more often than not, Claude and Della

piled into their old-model Ford touring car and drove
over to Wynnewood for dinner with Della’s parents, in the
manner of families everywhere. On these occasions, the
Rings noted with satisfaction that their daughter and new
son-in-law seemed to be making a good thing of their
niarriage.

On November 3, however, the Oliver union was dis-
solved when Della came to a violent death. Shortly before
noon on that morning, a Davis resident, in his car, screeched
into the yard at Oliver’s farm, jolted to a stop, and ran out
to Claude and George, who were working in a field in a far
corner of the property. “Claude!” the neighbor shouted.
“You'd better come right away! Della’s been hurt bad. Her
car went over the high bank on Price’s Falls Road. City
Marshal Ramsay is there now. He asked me to ride over
and get you.”

Both the Olivers piled into the car. The scene of the mis-
hap, it soon became apparent, was about three-and-a-half
miles from the farm via a meandering dirt road. They
reached the site in short order and pulled up at the edge
of a railless wooden bridge that spanned a dry gully some
six feet below the steep mountain road.

At the bottom of the gulley was Oliver’s Ford car, tilted

at a sharp angle. On catching sight of Claude Oliver, three
men detached themselves from the small group around the
wreck and clambered up to the road. The trio, all known
to Claude and his nephew, were Dr. William Robberson, a
Davis physician; Davis City Marshal Dee Ramsay, and
Chester Brown, a farmer who had a place not far from
Claude’s.

Dr. Robberson spoke first. “I’m sorry, Claude,” he said,
pointing to a blanket-swathed form which lay, eloquently
silent, not far from the Ford. “Della’s dead. Skull fracture.
She didn’t have a chance.”

“But ... but what happened?” Claude asked, his face
drained of color.

“Brown, here, can tell you the start of it,” Marshal Ram-
say put it. “Tell him what you saw, Chet.”

“Well, Claude,” the farmer explained. “I was down the
road a piece, walking along, when I saw the Ford coming
in my direction. It was too far away for me to notice who

-was driving, but it was traveling at a good clip. When it
got to the bridge here, the right front wheel just seemed to
lose the road, and over she went. It took me a few minutes to
rush up, but when I did, I saw that Della was sort of hanging
out the front seat, and that she needed help. I started to hot-
foot it into town—you know how few cars travel this road—
but I was lucky, because pretty soon I got a lift to the
marshal's office.”

Here Ramsay took up the story. “From what Brown
said,” he explained, “I knew we needed a doctor, so | picked
up Doc here, and sent someone to fetch you. It’s too bad,
Claude, but there was nothing atiyone could do. Della died
a few minutes after we reached her.”

While George Oliver placed a consoling hand on his
uncle’s shoulder, Claude wrestled with his distress. “Thanks,
marshal,” he murmured. ‘But it’s so hard to believe. All
this for just a few chickens.”

George explained the reference. ‘Della started out this
morning to get some chickens from Eberle’s place, up the
road here. We waved her goodbye, and the last thing she
said was how we'd have some nice fried chicken for supper.
Poor Della!”

At Claude’s instruction, the shattered body of his wife
was removed to the undertaking parlor of C. F. Coonrod,
in Davis. Then the bereaved husband and his nephew went
about the doleful business of notifying Della’s parents and
other relatives of the tragedy and of making arrangements
for the funeral.

‘The last rites for Della were held two days later, on No-
vember 5. After a simple burial serviee, she was lowered
into a plot in the family cemetery at Wynnewood. There

Lovely Della was worth more dead than alive to these two
men. The one at the right lost the tous that decided their
roles in the plot that they nearly got away with.

pe
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CONFIDENTIAL’ DETECTIVE CASES

into the car, rolled it forward and
steered it over the culvert. It land-

ed just right. But Pettit saw. us .

just then, and I guess you know
the rest.” ="

The whole state of Oklahoma was
aghast at the crime when the con-
fessions were printed. Mutterings
of mob violence grew daily louder.

On December 10, the 29-year-old

‘farmer and“his— youthful nephew

came before’ District Judge C. G.

“Long, who sentenced them to the

electric chair. An. appeal delayed
the execution, but was rejected.
On the following August 25 they
walked into the death chamber at

(RICHMOND DAILY DIS-
PATCH)
Richmond, Va., April 4, 1873
George Smith, drunk and unable
to take care of himself, was sent
to jail for five days.
meen oO —
DEAD DOG .
(BALTIMORE SUN)
Baltimore, Feb. 14, 1853
For three days there has been
a dead dog lying.in Granby Street,
near Exeter, a location not the
best for such:a deposit. Those
whose duty it is should see it re-
moved.

— OoO--—

(SAN FRANCISCO BULLETIN)
Oakland, Cal. Dec. 28, 1875
The county jail contains fifteen

prisoners.

—_— Oo-,

BEHAVE ‘YOURSELF
(BALTIMORE SUN)
Baltimore, May 6, 1853
William Fox, on charge of dis-

turbing the peace, was arrested by

officer Lee, and was released by
Justice Ringold on producing se-
curity to keep quiet for six months.

sae ens Rae a cs SS

CRIME IN THE
~ GOOD OLD pays © (3

ever to be executed in the state.
“George <Pettit was brought to

trial on May 8, 1933, as an acces- ~
sory after-the fact. While he ad- . %

mitted he had accepted money to

protect the cold-blooded Olivers, Bet

the jury considered that he had

acted more from fright than from -. *

avarice and was satisfied he had
no part in’ the actual plot, so he
was acquitted.

Note: George Pettit is a fictitious
name to protect an innocent per-
son from: embarrassment.

SEX
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VAGRANT WOMAN
(SAN FRANCISCO BULLETIN)

San Francisco, Dec. 29, 1875
A new departure was taken this

-morning by the convictions for va-
. grancy of about a dozen unfor-

tunate and noted women, who
roam about the streets at ali hours
of the night. Heretofore only male
vagrants have been found guilty
of this particular misdemeanor.
The Big Sunflower, Jenny Engles,
Kate Kennery and others were
among the lot. Six were white,
four black and the others of in-
termediate shades and tints.

— Oo—

SUICIDE NEAR
PETERSBURG, VIRGINIA

(NEW ORLEANS WEEKLY
DELTA) -

New Orleans, June 29, 1856
Patrick © Connelly,

self i in the auacuanates River, late-.

aks Oe: Fe vay

alias John , |
Burke, a native of Galway, Ireland, ~
is supposed to-have drowned him-~

them im the ;

Above are

Wwe receive »

- : ’ Fat Sie! ame ewes eae
spate Sn i a til a ntti a Rn ee

It was Deputy Samples who figured
out that there were two men involved.

the matter undoubtedly would have ended—except for the
routine report of the accident that reached Murray County
Sheriff Boze Johnson a few days later at his office in Sul-
phur, eight miles east of Davis.

Johnson studied the report and wondered if the bridge
spanning the gully, where Della had died, might not be a
hazard to other drivers. Maybe the county road people
should do something about it. At the very least, it would
bear an inspection.

He turned over the assignment to Deputy Sheriff J. H.

Samples, a lean, laconic and shrewd veteran of his staff,

and Deputy Sheriff Earl Rowe, a stocky, more jovial officer,
with a full complement of investigative know-how.

On the morning of November 10, the two deputies drove
over to Davis, picked up Marshal Ramsay, and with him
as a guide, proceeded to the scene of the tragic accident
on Price’s Falls Road. En route, Ramsey briefed the county
men fully on what he knew of the accident.

When the trio alighted at the bridge, Samples gave the
structure a thorough scrutiny. What he saw and pointed
out to the others set them all to thinking hard. For one
thing, the wooden beams which comprised the bridge.floor-
ing formed an apron which was considerable wider than
the dirt road it joined. “This is no highway hazard,” Sam-
ples observed. “For a car, driving along the road, to go over
the bridge, the driver would have to lose complete control.
Of course if the steering post went...”

“6 R,” DEPUTY ROWE conjectured aloud, “if the
car were deliberately headed that way...”

Ramsay looked at the county men sharply. “What are
you getting at?” he asked.

“I’m not sure, Dee,” Rowe replied. “I’m not sure. But
let’s take a look down in the gully.”

At the spot where the car had been found, the only re-
minders of the fatal crash were the footprints of those who
had gathered at the time and a small quantity of blood on
the matted grass. “Strange,” Samples remarked to Ram-
say. “From what you said about the girl’s wounds, I would
expect much more blood than that.”

“Yes,” the marshal agreed. “She seemed to have lost a
lot of it. Maybe we ought to look around some more.”

The officers climbed out of the gully and fanned out on
both sides of the bridge, searching the tall grass off the

clinched the mounting suspic

Finding these bloodstained wergent Deputy Rowe uncovered a_ solid
ons

looking lead at a service station.

road shoulder. Presently, a shout from Ramsay, who had
reached a point about twenty feet north of the bridge
brought Samples and Rowe hurrying up the road to his side.

“Look at this!” the marshal said with excitement. “It
was right here in the grass.” He held out a segment of an
auto-spring leaf, which obviously had been fashioned into
a tire tool. A good portion of its surface was covered with
dried blood, to which adhered, at some points, strands of
brown hair, ‘That hair,” the marshal ejaculated, “is just
like Della Oliver’s!”

Now the officers had the wind up in earnest, and began
an inch by inch scrutiny of the terrain. Their efforts were
not in vain, for five feet from where the spring leaf had
been found, Samples turned up a bloodied stone and a big
heavy file to which clung strands of the same brown hair.
And ten feet beyond this point, close to the road shoulder,
Rowé came upon three sets of footprints net distinct enough
to yield satisfactory casts, but of character sufficient to
suggest a provocative story.

One set was of a woman’s high heels, while the others
were of different men, one of whom apparently had worn
leather heels, and the second, rubber ones. The pattern of
footprints told the officers that the woman had been standing
near one man, had run from him to the second man and
had been followed by the first.

Moreover, at both extremes of the area affected, and be-

tween these points, the ground and grass were stippled with
spots of dried blood.
‘ “It’s not a hard picture to fill in,” Samples commented.
“Two men and a woman with high heels stoad here. One
or both men attacked her with a spring leaf, a stone and
a large file. They tossed the weapons in the high grass. But
then what? Did they put her body in the car and drive it
over the bridge into the gully?”

“T know one thing,” Ramsay asserted solemnly. “Della
Oliver was wearing high heels when we found her.”

“But what about this fellow Chester Brown, who says
he saw the car go over?” Rowe wanted to know. “From
what you told us, I gather he didn’t mention any men heing
on the scene,”

“That’s right,” Ramsay replied. ‘He gave me the distinct
impression Della was alone in the car. He didn’t say a word
about anybody else being around.”

On the basis of what the officers had so far observed, there
[Continued on page 65]

€ attending phy-
a skull fracture,
00d, the home of
‘ad happened to

ftown. He was

ud, getting into
n to know what
heavy iron file,
this in his pas-
ver, car turned
< stains on the

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of fine brown
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‘ho found the
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tit was kind

ETECTIVE

VE TRAP

“Have you said anything to Claude yet?”
Ramsay frowned. “Not yet. He’s broken up over losing his wife.
I didn’t want to upset him if I could help it, especially if this doesn’t
amount to anything.”

Samples pulled up at the scene of the accident, a concrete culvert
spanning a dry creek bed on the Price’s Falls road. Ramsay stood
on the culvert and explained the general accepted theory of the ac-
cident.

“Somehow, Della missed the right side of the culvert with one
wheel and the car turned over,” he said, pointing. “She lay there in
the creek bed with the car on top of her until some folks came along.
Somebody drove over to where Claude was working ina field. I was
notified about the same time. Claude was at the bridge when I got
there. Someone had already gone up the road to call Dr. Robberson
and the ambulance from Wynnewood.”

HE marshal’s strong face clouded suddenly. “It wasn’t any use,
though. Della’s skull was crushed. She died shortly after they
pulled the car from her body.”

The men were silent for a moment, thinking of the untimely end
of the comely young wife, one of the prettiest girls in the entire
countryside. Della had been in her ’teens, but unusually mature for
her age. She and Claude, who was 28, had been married in August.
She’d been hardly more than a bride.

Rowe dropped into the dry creek bed, eyeing the ground closely.

“Nothing down here,” he said presently. “Just some oil stains
and broken glass from the wreck.” He climbed out and stamped the
red sand from his shoes. “Fat chance we'll have of finding anything
nine days after the accident.” .

“Tm afraid you're right,” Samples said soberly.

ADVENTURES

Comely Della nine Oliver, below, a recent bride,
was found dying beneath an overturned car at
spot indicated by arrow, left.

something
t off with a
e ten-year

t Teller ac-
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‘ads an ac-
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yronounced,
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at a writer
entered his
ig, detailed
uoted par-

t I do not
ired. “It is
prison the
hat bothers
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{ man, and
peat that I
tion to kill

tterly.”
late in the
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—you were
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and were

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it’s human
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The driver
wants

of the

iral he
10w things

conds. Go

be ati, ,

easy until you’re sure you've got a case.
Tl help all I can.”

The discolored gravel found in the
road was sent to the state crime labora-
tory for analysis. .

Johnson and Ramsey went out to the
ramshackle Oliver place the next day.
They talked with Claude and George
for a while, telling them how sorry they
were this had all happened and asking
them what they intended to do about
the wrecked car. ~

“We pulled it up out of the water,”
the sheriff said. “You can tow it away
any time you want to.”

Claude Oliver managed to smile. “Do
you think it’s worth moving, Sheriff?”
he asked.

Johnson said he’d wondered about
that. “I think you boys are too smart
to drive it again,” he said. “But may-
be you can bring it here and salvage
some of the parts.”

George Oliver said he didn’t ever
want to see the jalopy. “I’ve learned
my lesson,” he told the officers. “From
now on I ride in better cars or walk.”

Chief Ramsey said he’d have some-
body from Davis go out and bring the
wreck into that town if the Oliver boys
didn’t intend to do anything about it.
George and Claude told him to go
ahead.

“We've had too much of it already,”
the older man said. “Besides, I’m get-
ting a brand new car.”

On the way back to Davis both John-
son and Ramsey commented on how
cool and collected the Oliver boys ap-
peared to be.

“They’re tricky customers if they’ve
done anything wrong,” the sheriff said.

“Probably think they’ve committed
the perfect crime,” Chief Ramsey said.
“Anybody who’s been in this business
as long as we have knows there is no
such thing. They all make at least one
mistake somewhere along the line.”

m THE VISIT to the Oliver farm had
taken place on Friday. The wrecked
auto was brought into Davis the next
day. A report from the state crime
laboratory came in Saturday, too. That
was the day Delia Oliver was buried.
But not before a sample of her blood
had been taken. |

The state crime laboratory report
confirmed Johnson and Ramsey’s be-
lief that the spots in the road were hu-
man bood and they were of the same
type as the dead girl’s.

The officers had another talk with
County Attorney Fagan.

“Still not enough to go on,” the pros-
ecutor told them. “You have no motive.
They’ve got a witness who claims he
saw the whole thing. You’ve got to
have more than you men have turned
up to make a murder charge stick.”

Almost a week passed with no further

;

developments. Folks in Murray Coun-
ty had accepted the tragedy as a freak
accident. Sheriff Johnson and Chief
Ramsey kept-what work they did strict-
ly under cover. a

Then, on Thursday, November 10, a
man came into Chief Ramsey’s office in
Davis who identified himself as an in-
vestigator for a large life insurance
company. He wanted information~on
Delia Oliver’s death. ‘

“Our company wrote a policy on Mrs.
Oliver’s life right after she was mar-
ried,” the investigator told Ramsey.
“We'd like to see the accident report so
we can straighten out our records-’

The chief talked guardedly, despite
the fact that he believed this was per-
haps the break he and Johnson had
been hoping for. He brought out the
accident report and told the insurance
man the same story the Olivers and
Sam Mason had told him.

After this information had been giv-
en and the investigator was ready to
leave, Chief Ramsey asked him how
much insurance Claude had on his
wife’s life.

“Five thousand dollars,’ the man
said. “With double indemnity in case
of accidental death. Our main office
questioned the claim because the policy
is less than three months old.” |

Chief Ramsey asked the insurance
man to sit down again. “I take it
Claude Oliver is the sole beneficiary?”

“That’s correct. We wondered how
a cotton farmer could manage the heavy
premiums on a policy as large as that.”

Chief Ramsey made no comment. He
waited for the insurance man to con-
tinue.

“We also know Claude Oliver was the
beneficiary of a smaller policy with an-
other company. Three hundred dollars
to be exact,” the investigator added.

The chief of police knew that no big
insurance company would pay out $10,-
000 under such circumstances without
making a complete investigation first.
He was also thinking of the new car
Claude Oliver was buying. He decided
to tell this man about his and Sheriff
Johnson’s suspicions.

After outlining the facts as he saw
them, Ramsey ended by saying, “Both
Sheriff Johnson and myself think the
whole thing was a frame-up. If you
ask me that car was standing still when
it was pushed off the bridge. All the
evidence points that way. Somebody
killed Delia Oliver 50 feet from the
bridge. All we needed was a motive.
Now we've got that.” *

= THE INSURANCE investigator
promised to work along with the local
officers. After he left Chief Ramsey
called Sheriff Johnson and told him
what had happened.

“Tll see you at the county attorney’s

”

office,” Johnson said. “I think he'll
agree we've got enough evidence to
make an arrest.”

County Attorney Fagan did agree.
“Bring the Oliver boys in,” he said.
“They’re going to have some tall ex-
plaining to do this time.”

The two officers went to the Oliver
farm and told Claude and George some-
thing new had developed on the case
and the county attorney wanted to talk
with them.

The four men drove to the court-
house in Sulphur. Nothing was said en
route about the insurance angle. Neith-
er Claude nor George Oliver appeared
to be worried.

Brought into County Attorney Fa-
gan’s office they were told about the
insurance investigator’s visit to Chief
Ramsey.

“You boys are pretty good cotton
farmers,” the county officer began. “But
you don’t make the kind of money to
keep up a $5,000 double indemnity and
a $300 policy on a girl’s life.”

Claude Oliver admitted it was a lot
of money. “I did bite off a big order,”
he said. “But I was determined to keep
up those payments no matter what hap-
pened. I never had anything except the
farm. It’s mortgaged up to the hilt.
Delia was the only bright spot in my
life. I made up my mind that if I lost
her I'd have something to take her
place.”

Sheriff Johnson told him that was a
right pretty speech. “But we know a
lot of things you don’t know we know.
Let’s go back over what happened out
there on Price Falls Road. You boys
claim the car went out of control and
crashed through the bridge railing at
high speed. You say the steering gear
went flooey. You were supposed to
have jumped out.”
~ Claude Oliver told him that was
exactly the way it happened. “Sam
Mason saw the whole thing,’ he re-
minded.

“We're aware of that,” the sheriff
said. “Now tell us. You know Earl
Rowe, don’t you?”

The boys said they did.

“He’s a good mechanic, isn’t he?”

- Johnson asked. “As good a man with

a car as anybody in these parts?”

Both Claude and George Oliver
agreed Rowe was.

“Rowe examined that car,” the sher-
iff said. “He doesn’t think there was
anything wrong with the steering gear.
Here’s something else. Your car fell
almost straight down from the spot
where it left the bridge. That’s not
reasonable. If it had been going at the
clip you claim it would have zoomed
forward more.”

George Oliver hadn’t said a word
since the questioning began. He looked
at his uncle. Claude turned the other
way.

“That’s far from all,” County Attor-
ney Fagan interjected. “Blood was
found 50 feet from the bridge. Human
blood. The same type as Delia Oliv-
er’s,”

Claude Oliver jumped to his feet.
“What are you trying to prove?” he ex-
claimed. “Are you trying to say we
killed Delia? You're all crazy. We’ve
got a witness.”

Sheriff Johnson said, “We'll get to
that.” :

County Attorney Fagan continued.
“These officers came to me days ago,”
he said. “They had a lot of evidence
then. But they didn’t have the motive.
Now we know about the insurance poli-
cies.”

@ CHIEF RAMSEY told the Oliver
boys about the blood found on the
floorboards. “If Delia had been killed
when the car leaped the bridge her
body would have landed on top inside
the car. It did, all right. But most of
the blood was on the floorboards. Only
a. little on top. That means she was
bleeding before the car went over. One
more thing. There were no bad scars
on her arms or hands. There were
plenty on her face, Any woman real-
izing she was being thrown forward
would lift her arms and hands instinc-
tively. She'd try to protect her face.
Delia Oliver didn’t do that because she
was either dead or dying.”

The interrogators paused to let the
facts soak in. Neither Claude Oliver
nor his nephew George said anything.
This deluge of evidence had come asa
complete surprise to both men.

County Attorney Fagan said, ‘“We’re
holding you on suspicion of murder.”

Sheriff Johnson and Chief Ramsey
combined forces to comb the area
around the bridge on Price Falls Road
for additional evidence. The murder
weapon was still missing.

A thorough search uncovered a
bloodstained tire iron with human hair
adhering to it buried in the soft earth
beside a culvert not far from the bridge.
Also a rock in the shallow water that
bore similar discolorations. The ab-
sence of moss on the rock showed it
hadn’t been in the water long.

County Attorney Fagan was con-
vinced the evidence against Claude and
George Oliver was sufficient to take the
case to court. One final question re-
mained to be answered. Why had Sam
Mason said he’d seen the “accident”
and corroborated the fabricated story
told by the Oliver boys?

The “witness” was really nervous
when informed Claude and George
were under arrest for murder.

“I didn’t have anything to do with
Miss Delia’s death,” the scared Negro
told Ramsey and Johnson. “I just said
what Mister Claude and Mister George

told me to.”

Confronted with the conclusive evi-
dence against the Olivers ‘and told that
he could get in trouble, too, if he didn’t
tell the truth, Sam Mason admitted the
men had promised him $25 to be a wit-
ness.

“They said they wanted to collect in-
surance on that old car,” he told the of-
ficers. “I didn’t know they were going
to-kill Miss Delia. I was one surprised
man when I saw them beating that poor
girl.” :

‘. MASON’S STORY of what actually

happened out there on Price Falls Road
Thursday, November 3, was substan-
tially the same as the officers had re-
constructed the crime.

Delia Oliver had been beaten to
death with the rock and tire iron 50
feet from the bridge. The car had then
been taken to the railing and pushed
over to make it look like an accident.
The Olivers hadn’t even given Mason
the promised $25.

As news of the arrest of the Oliver
boys spread through Murray County
ugly murmurs of possible mob action
arose. Sheriff Johnson took’no chances.
He moved the prisoners to Carter
County jail in Ardmore for safekeep-
ing.

Despite the overwhelming evidence
against Claude and George Oliver the
men insisted they were innocent: Claude
even tried to throw Suspicion on
Seth Wheeler, Delia’s first beau. But
the police took no stock in that story.

County Attorney Fagan hammered
away at George Oliver because he was
the younger. The prisoner finally be-
came so confused in his tangle of lies
that he blurted out the truth. ;

“Claude came to me six months ago,”
the nephew said. “We'd been work-
ing in the field all day and hating it.
He told me he knew how we could
make a lot of easy money. I asked him
how we could do that. He said one of
us could marry a girl, take out insur-
ance on her life and then kill her.

“I didn’t go for it at first. But Claude
finally persuaded me. We decided on
Delia Ringer as the victim. She was
pretty. We flipped a coin to see who
would marry her. The other one was
supposed to kill her. Claude lost. He
had to marry her.”

George Oliver went on to tell about
the marriage and how all three of them
had worked hard picking cotton so
Claude could take out the insurance.

“Delia didn’t know what it was all
about,” he said. “But she turned every
cent she made over to Claude. He
waited on her like she was a queen,
She thought he loved her that much.
He didn’t want anything to happen to
her until he got that insurance policy.”

The younger Oliver said they picked

Price Falls Road because it was con-
venient for the witness, Sam Mason.
“He didn’t know what it was all about
either,’ the nephew said. “He thought
we wanted to collect insurance on that
old jalopy. ‘Don’t blame him. I was
driving and I stopped the car before we
got to the bridge. We’d planned it that
way. I got out to see if a tire was low.
Delia and Claude got out, too. I hit
her with the tire iron. Claude picked

‘up a rock and let’ her have it. She

screamed. Nobody saw us except Sam
Mason when we took the car to the
bridge with Delia’s body in it and
pushed the thing over.”

Claude Oliver put on quite an act
when he was told about his nephew’s
confession. He tried to place all the
blame on the younger man. County
Attorney Fagan knew he was lying.
All the evidence pointed to Claude as
the one who'd engineered the plot.

™ THE ACCUSED MEN went to trial
before Judge W. G. Long in Circuit
Court on December 12, 1932. Whereas
the murderous pair had pleaded inno-
cent at the hearing, they announced
they wanted to change the plea to
guilty,

The judge asked if any promises had
been made regarding leniency. Told
no such promises had been made, Judge
Long explained that in such cases Ok-
lahoma law makes the death penalty
mandatory.

The Oliver boys had out-smarted
themselves again! Someone had told
them the county was without funds and
that if they entered a plea of guilty
they would not be tried for three years.

Claude and George Oliver were
brought before Judge Long again on
December 18. He sentenced both men
to die in the electric chair.

The defense attorneys filed a motion
for a new trial, claiming the defendants
had been mis-advised. The motion was
denied.

No charges were ever brought against
Sam Mason, the witness. Authorities
were convinced he had been duped into
playing his part in the tragic drama.
Once involved, Mason hadn’t known
how to get out.

The two men who had tossed a coin
to see which one would marry Delia
Ringer and which one would kill her for
the insurance money died in the elec-
tric chair at McAlester Prison shortly
after midnight on August 23, 1933.
George Oliver went first. -Dr. J. A.
Munn, prison physician, pronounced
the younger man dead at exactly 10
minutes after 12 o’clock that morning.
Claude Oliver followed 10 minutes later.

Eprror’s Nore: The names Seth
Wheeler and Sam Mason, as used in
this narrative, are fictitious.

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By ELIOT CRAIG

phone in its cradle in the county sheriff’s office at
Sulphur, Okla. He frowned thoughtfully as he swung
about in his swivel chair and faced Deputy Sheriff Earl Rowe.
. “That was City Marshal Dee Ramsay of Davis,” Samples said
slowly. “He wants us to check into the automobile accident in
which a woman was killed a few days ago. He’s asked us to
meet him at the edge of town and to keep our movements under
cover.” ;
Rowe shrugged His burly shoulders and reached for his hat.
ounds like movie cop stuff,” he grunted, “Why all the
mystery ?”

The undersheriff grinned as he finished writing a note to his
absent chief, Sheriff Johnson, informing him where they were
going.

“We'll soon find out. Let’s roll.”

The officers climbed into Samples’ car and headed toward
Davis, a small town on U. S. 77, eight miles west of the county
seat. As they drove through the crisp morning, Nov. 12, 1932,
they reviewed what was known about the fatal accident.

The victim was Della Ring Oliver, young wife of Claude
Oliver, a county farmer. At 9:30 the morning of Nov. 3, Della
started out in the family Model T to a farm, four miles southeast
of Davis, to buy some chickens. About noon the car was found
overturned in a dry creek bed, half a mile from her destination.
Della was unconscious and died before help could arrive.

U NDERSHERIFF J. H. SAMPLES replaced the tele-

“ac

City Marshal Ramsay of Davis questioned the attending phy-
sician and undertaker. Death was attributed to a skull fracture.
Three days later Della was buried in Wynnewood, the home of
her parents. Now it seemed that something had happened to
reopen the case.

Marshal Ramsay met the officers at the edge of town. He was
carrying an object wrapped in newspaper. '

“There’s probably nothing to this,” Ramsay said, getting into
the car. “That’s why I don’t want anyone in town to know what
‘we're doing.” He opened the paper and held up a heavy iron file.

“The man who owns that chicken farm found this in his pas-
ture last night close to the culvert where the Oliver car turned
over,” he explained. He pointed to several dark stains on the
iron. “What do you think of these marks ?”

Rowe whistled softly. “Looks like dried blood. And there
appears to be some hair mixed in with that stuff.”

Samples eyed it keenly. There were tiny wisps of fine brown
hair clinging to the dark stains. Abruptly, the undersheriff
kicked the starter and headed for the chicken farm. A heavy
iron file apparently smeared with blood and hair certainly called
for an investigation.

“What do you make of it, Dee ?” Samples asked.

“I don’t know,” Ramsay replied. “The man who found the
file said it wasn’t his. You'll notice it isn’t rusted much; it
probably hadn’t been lying out very long. I thought it was kind
of suspicious, being so close to the wreck,”

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ADVE:

Parks Denied Clemency

Condemned Man Still Maintains Innocence

By Wayne Greene
World Capitol Bureau

McALESTER — With some hesi-
tation, the state parole board Mon-
day opened the door to the execution
chamber for killer Robyn Leroy
Parks. .

After a four-hour hearing, the
state’s first for a death row inmate
in more than a quarter-century, the
board voted 4-1 to refuse'a clemen-
cy recommendation.

Only Tulsan Carolyn Crump voted for
clemency, although member Farrell
Hatch said his vote against mercy was
made “very, very reluctantly.”

Immediately after the hearing, one of
Parks’ altorneys said he would be back
for reconsideration.

“We will be in court and we will be in
front of this board,” attorney Dick Burr
said.

Parks was convicted of the 1977 mur-
der of Oklahoma City service station at-
tendant Abdullah Ibrahim, a native of
Bangladesh. Prosecutors alleged the

FAST TAKE

mem groundicss, but Oklahoma rere Dis-
n the:

The state parole board will not
stop the execution of killer Robyn
Parks, The board made that deci-
sion Monday after a four-hour
hearing. More Fast. Takes are on
A-4.

killing was to cover up Parks’ use of a
stolen credit card at the station.

During the vorgher 9 the board heard
Parks described both as a role model
for children and as a heinous cold-
blooded murderer.

They also heard a tape-recorded con-
fession made by Parks to a police infor-
mant and saw artworks Parks made in
prison for his nieces and nephews.

“Abdullah Ibrahim came to this coun-
try looking for the American Dream,"
Assistant Attorney General Robert
Nance told the board, “What he got here
was the American Nightmare, Robyn
Leroy Parks.”

Talk of bringing Ibrahim’s relatives
to Oklahoma for the hearing proved

trict Attorney Bob Macy spoke
name of the victim's family.

Parks’ altorneys spoke of him as a
man who was not bitter and was able to
laugh, provoking Macy to Indignation.

“IT wonder, ladies bo peonengy oe ifhe
laughed when he walked away from the
a> dying body of that man,” Macy
said.

To counter the confession and a long .

list of court decisions upholding the
Parks conviction, his attorneys at-
cl gy to bring doubts about evidence

to convict him and present Parks -

as a decent individual worthy of
mercy,

“Robyn Parks deserves clemency be-
cause he is a good and decent man sen-
tenced to death for a relatively unag-
gravated case for which we cannot be
certain he is guilty,” Burr told the
board.

Burr described the killing as ‘“unag-
gravated™ because the Parks jury found

that only one of the several aggravating |

circumstances legally required for a
death sentence existed in the case. Most
Death Row inmates have multiple ag-
gravating circumstances pegged
See Parks on A-4

\s0

yw
ail

.. .Parks

Continued from A-1
against them.

At the hearing’s climax, Parks
was brought in, chained and under
armed guard, to speak to the
board. ”

Parks said he sympathized with
the Ibrahim family, but insisted
he was not guilty.

“I understand their loss be-
cause I myself have gone through
the loss,” Parks said, adding that
he has lost the past 13 years of his
life {or a crime he didn't com-
mit.

Board member Marzee Doug-
Jass asked Parks directly whether
he was golly.

“No, sir, I'm not,” Parks re
plied.

Douglass asked Parks why he
had confessed,

“It seemed like the reasonable
ely as do to try to help my fami-
ly,” Parks said.

Parks’ attorneys maintain he
knowingly lied to pores infor-
mant James Clegg that he killed
Ibrahim to bees his girlfriend.

Hatch and board Chairman Jari
Askins indicated that Parks’ ap-
pearance nailed down their votes
against clemency because he
failed to show remorse.

“For God's sake tell us some-
thing and give us reason to grant
clemency or recommend it,”
Hatch had said to Parks attorney
Mandy Welch earlier in the pro-
ceedings. “What I'm missing ‘s a
factor of remorse.”

“He can’t apologize for some-
thing that he says he didn’t do,”
Welch said.

But the board can read Parks’
work with the children of his fam-
ily and his counseling with other
Death Row inmates as evidence
that he is a better nian than the
“street kid” sent to prison, she
said.

“There will not be a case where
a person has done more, has
Sahl more. has given more,”
Velch suid. “If this case does not
call out for mercy, for clemency,
then I don’t know what that
means.”

Hatch said he realized during
the hearing that clemency is an.
essential part of the criminal jus-

lice sysicm, but could not vote for |

Parks.
“That's easily the hardest cuse

I've ever heard,” Hatch, the sen-
jor member of the board, said
after the hearing.

In a brief statement, Crump
said she cast her vote because of
her belief In the U.S. Constitution
and her oath of office.

Board member Carl Hamm
said he didn’t have a doubt in his |
mind about Parks’ guilt or his
deserving the death penalty.

“I'm now firmer than ever in
my convictions,” Hamm said.
“I'm not acting as his executioner.
Mr. Parks made the decision him-
self many years ago.”

No execution date has been set
for Parks, although the U.S. Su-
preme Court Is expected to deny a
petition for a hearing for Parks
any day. :

All normal appeals for Parks
would have been exhausted,
meaning an execution date could
be set as early as 60 days after the
Supreme Court decision.

Askins was reluctant to respond.
to Burr’s suggestion of a second
clemency hearing.

“Just based on what I know
right now, I know of no reason the .
board would grant a rehearing,”
Askins said.

Oklahoma has executed only
one person, Charies Troy Cole-
man in 1990, since the death pen- .
alty was reinstated in 1976.

(OVER)

\o i

Capital punishment debate continues

BY MARION FEATHERSTONE

7 * poorhewrih 16 days remaining until the

scheduled execution of convicted killer
Robyn Leroy Parks, the state Court of Criminal of
Appeals granted Parks an unexpected stay of
execution Jast week.

After more than a dozen appeals, 13 years on
Death Row and a final clemency hearing in the
works, Parks was told everything had been put
on hold until the U.S. Supreme Court could
process his last petition for a rehearing. Now the
scheduled execution will stand only if the Pardon
and Parole Board and the high court reject all his
appeals.

Meanwhile, Park's team of attorneys has
indicated it can produce evidence placing another
person at the scene of the murder of a
convenience store clerk.

Many see Parks’ situation as typical of the
efforts of most Death Row inmates, who often
work to have their sentences reduced lo life
without parole. Others view it as the Oklahoma
test case to have the death penalty for the state
revoked once and for ail.

“Let's face it,” says Raymond Phillips, who is

ing to organize a victims’ support group that
would lobby for a stronger death penalty as well
as Iimiling the number of appeals applicable to

“someone on Death Row.

“This has nothing to do with this one guy. He
is just going to serve as an example of what will
be in the future.

"This guy is going to get to sit there for
another billion days. I think it's time this state
fot serious about taking care of the killers it's got
just sitting around watching the Playboy Channel
at Big Mac.”

Phillips’ only daughter was raped and
murdered in 1984 in Florida, where her convicted
killer is awaiting death.

“The whole point fs not who Mr. Parks is, the
whole point is this killer thing and this idea of a
death penalty,” he said.

“This is not fust for my daughter. We have to
know. Is there going to be a death penalty or
nat?

Supporters and opponents alike agree.

“This is no longer an issue of death. by lethal
injection,” says Susan Wood, who has lobbied
against the Oklahoma death penalty for more
than 10 years.

“They used to tell us that the death penalty
was O.K. because when you just slick a needle in
their arms you can pretend that it’s a hospital
procedure and that it doesn't hurt at all. But it's
no longer a question of poison or rope or gas or
electricity, it's a question of are we going to keep
around an archaic practice that’s pretty much
only used in countries like Iran and Iraq.

“Lately, we have just gotten around to
figuring out what humanity is. We recycle
everything from McDonald's boxes to Coke
bottles. Are we really going to allow ourselves to
be a party to something as permanent as
murder? To the death penalty?”

According to Phillips, probably not. He
believes Oklahoma purposely drags out final
proceedings for criminals on death row, hoping to
come to a day when the U.S. Supreme Court will
once again rule against capital punishment.
ee En Re

“The state ts fust giving lip service to the law. I
don't believe that they could possibly be
proponents of capital punishment when they've
got kooks like Roger Dale Stafford still sitting
there eating away the taxpayers’ money and
everything ese tn sight. It's fust a matter of time
when they'll be turning them all loose and letting
them kill again.”

Sharon Glasgon, whose only daughter was
also murdered, said she cannot agree with
Phillips’ statements.

“I know he lost a daughter,” she said.

"I lost mine, too. But I'd like to think that she
served a purpose when she died and that was to
provoke me to join with those who want to get rid
of the death penalty. It's a cliche, but nothing's
going to bring her back. I'd like to justify that old
eye for an eye thing, but what am I going to do

as convicted killerParks gets reprieve

with another death on my hands?”
Since her daughter's murder, Glasgon has
something of a scrapbook of lore on capital
punishment through the ages. She has devoted
16 pages to the book trimmed In black to the
concentration camps in Germany during World
War Il, hoping that readers will.make the
connection she perceives between Nazi war
crimes and the death penalty in United States.
She hopes she will be able to publish portions of
it, which she believes will shock enough
influential people into crafting legislation to
abolish Jethal injection.

Her own daughter's murderer was never
found.

“I know that I want fustice,” she said.

“But do you know that I pray that whoever did
this won't be found by the authorities because if
they lock him away and then kill him, that's not
the justice that I am looking for. Of course, I want
to know who did this and why, but not if it
means he has to go through what Parks and
Robison are going through.” .

Olan Randle Robison is another prisoner on
Death Row who is currently working his way
through the appeals process. His attorneys argue
that the jury that convicted him should have had
access to the knowledge that the victim's family ts
adamantly opposed to the death penalty.

The U.S. Supreme Court did not agree. It
refused to grant his plea for a rehearing.

Tad Fields, who has been commissioned by
Phillips to poll Oklahomans’ views on the death
penalty, says according to his findings, Phillips is
not going to earn that much support.

“Not only do people not want to sce these guys
put to death, but they seem to want to fund more
government agencies to actually try to get these
people reformed,” Fields says.

“People used to have this misconception that
it was cheaper fo put people to death rather than
have them sit in a cell doing life without parole.
Now they are catching onto the idea that with the
number of appeals that seem to go on forever, it's
really costing the taxpayers much, much more.

= Photo by Merk Hancock

Terry J. Hull, left, deputy appellate public defender, and Dick Burr, director of the Capital Punishment
Project for the NAACP Legal Defense Fund, meet with reporters last week after an appeals court granted
Robyn Leroy Parks a reprieve from his scheduled Dec. 6 execution.

And you know how OkKiahoma feels about taxes.”

He further agrees with Wood. According to his
sampling of 20,000 registered voters, indications
are that individuals are becoming more aware of
their own part !: a worldwide community.

“| had this one woman tell me that she could
never support the death penalty after a
documentary she had seen on Iran,” he says.

“She said that if that was the type of country
that killed prisoners then she certainly didn’t
want to become a part of that. I guess she didn’t
realize that she already is a part of it.”

Phillips has no qualms about what other
countries may think of the United States for
permilting state death penalties, Furthermore, he
does not worry about the prisoner sitting on
death row who may be innocent.

“They say Parks is innocent, but who's buying
it?” he says. ;

“He's not another Clarence (Brandley, a
former Death Row inmate who was released after
his conviction was overtumed), and even if he
was, you can't always be certain. You don't have
to be.” cee ’

“Once you get the death penalty going like it's
supposed to, it serves-as a deterrent against
getting more peopie on it. In the end you don't
need it at all, and that should make everybody
happy. No crime, no punishment.”

In the meantime, Fields says that it appears
no one is satisfied.

“They say that not only is it bad in principle
and doesn't work as it stands, but It's morally
incorrect. The only way to get this thing worked
out is to put It to a vole. Maybe we can do this
before anyone else gocs to the death chamber.”

Meanwhile, Parks must wait for word from the
Supreme Court. Should the justices refuse to
hear his petition he once again will be scheduled
to die. te :

“That'll serve him right.” Phillips says.

“Every time we get one of them, I can feel a
little better that no one will have to die like my
baby died.” *

| 12 __Tuesday, May 1, 1990 THE DAILY OKLAHOMAN
: 4 sacplte © ns oe ; . = ne
WASHINGTON (AP)... viction .but threw out - but was put on hold ecution date until all 10th U.S. Circuit Court date. truction given to his’ termining whether life an execution to be set Iw

Catch ; =e , awe |
ourt:Denies Inmate’s Bid for Rehearing on Death Penalty

“\

— The U.S. Supreme. the death sentence -be- while Parks applied appeals are exhausted, of Appeals in Denver The appellate court sentencing j in pri i

rohamnye 3 . ] fh J ury under- in prison or death is 60 days after th t
Court — Monda fue of “anti-sympa-. for a rehearing. said Parks’ attorney, to reconsider a part of apy Fp threw out mined its consider- the appropriate san- pj ober \
sa ancorprde- Kishan toy instruction given; cq, The State must con- Mandy Welch. She the appeal that has Parks’ death penalty. ation of “mitigating tence 29 ou, Attorney General Bob
death row inmate for ” Parketose cantieid tinue to wait for an ex- said she will ask the not been ruled on to in 1988, saying the ins- evidence,” factors de. State law requires Nance: -
a ens, = the. of killing Abdullah
eckbaprogeren Ri per Ape WHO'S ON DEATH ROW IN OKLAHOMA? \
alty. “"- ~ "After the Supreme

Robyn Leroy Parks-Court reinstated the 113

is the nearest.to exe. death penalty, the Plc

fom teet 0 _than® ar maetsen tor tey OPLE

100 ‘Oklahoma death * general's office
w inmates, but -his--for an execution date, Of those, there are:

attorney indicated
‘that “another appeal

‘would be forthcoming. Asian 1
| The Supreme Court oe a
in

Parks’ death 4 American Indian 10
reversing a federal ap- White 73

People who were abused and/or
neglected as children . Many

* People who were victims of institutional racism Many
. . People who did not receive a fair trial Many 22S
~ People who did not have adequate legal
. representation Many
People who have brain damage, neurological disorders
such as fetal alcohol syndrome,and/or mental ilinesses Many
People who grew up poor Many

People who are not guilty of the crime they were for which
they were convicted Some

‘

People who should be killed by the State of Oklahoma None

TUESDAY, DECEMBER 3,

1991

Court's |

_N.Y. TiMés

Denial of Death-Row Appeal.

_ Prompts Unusual Action by 3 Justices

- By LINDA GREENHOUSE
; Special to The New York Times

' WASHINGTON, Dec. 2 — The Su-
preme Court’s refusal today to hear an _
appeal by a convicted murderer on
Virginia’s death row prompted an un- .
usual statement by three Justices urg- .
ing the Federal courts in Virginia to.
give ‘‘careful consideration’’ to the in-
mate’s challenge to the constitutional-
ity of his sentence when he files one.
There is often dissension within the
Court over the death penalty. or over
the ability of death-row inmates to file
Federal habeas corpus petitions to re-
quest review of their sentences or con-
victions. What was striking about to-
day’s action was that one of the.Jus-
tices urging the Federal courts to
duct an inquiry into the case was Jus
tice Sandra Day O’Connor.

Last June, Justice O’Connor wrote
an. important opinion, Coleman v.
Thompson, that cut back sharply on the
availability of Federal habeas corpus
review for inmates in circumstances
much like those confronting the Virgin-
ia inmate,, Joseph R. O’Dell.

Justice O’Connor did not. write an
opinion today. She and Justice John
Paul Stevens joined a five-page state-
ment by Justice Harry A. Blackmun,
who wrote that ‘serious questions’’
remained about whether Mr..O’Dell’s
constitutional. rights were violated in
his 1985 murder trial and about. wheth-
er he had been wrongly convicted...

Something Other Than Routine: .

Justice O’Connor’s alliance today
with Justices Blackmun and Stevens,
who both dissented in Coleman v.
Thompson, does not necessarily mean
that she now has second thoughts about
that decision. But she may be con-
cerned that the lower courts, in their
effort to follow the Supreme Court’s
dictates, may go even farther than the
Court itself intended in shutting the
Federal courts’ doors to review of staté
death sentences.

The Court typically offers no com-

ment or explanation when it turns /

down an appeal, and there was no
statement from the majority today.
But there were indications that Ahe
Court had treated this case as some-
thing other than routine. of |

The case had been under active con- |
sideration since early October, shortly |
after the term began, an unusually long |
time for a petition for review to linger’
without being acted on. While it is not!
unusual for Justices to dissent when’
the Court turns down a case, the kind of |
statement the three Justices issued to- |
day is rare. / |

Rather than a dissent, it was labeled |
“statement respecting the denial of the |
petition.” Thus, the three justices were
not saying that the Court should have
agrecd to hear the case; rather, they
were trying to instruct the lower courts
on how to handle the next phase.

Mr. O'Dell was appealing the refusal
of the Virginia Supreme Court last
April to hear his state petition for a
writ of habeas corpus. Inmates must
avail themselves of state-court habeas
corpus before they can file petitions in:
Federal court, under the principle that’
a state’s courts should have the first
opportunity to correct any constitution-
al defects in the state’s criminal justice
system. fi ae

\, Jose R. Lopez/The New York Times.’

Justice Sandra Day O’Connor

In Justice O’Sonnor’s opinion last
June, the Supre Court ruled that
state inmates would ordinarily forfeit
the right to. seek relief in the Federal
courts if, through a failure to follow the
state court’s procedural rules, they had
failed to obtain a ruling on their state
habeas corpus petitions. \,

In Coleman v. Thompson, the lawyer
for the death-row.inmate had filed the

state habeas coppus petition three days
after a 30-day time limit, leading to
dismissal ofhe petition. The Supreme
Court ned 6 to 3, that the lawyér’s
“nroceduyal default’ meant that the
inmate gould not seek habeas corpus
review/in the Federal courts. =.‘

The case today, while not identical to
Coleman v. Thompson, was strikingly
sitnilar. Mr. O’Dell’s lawyers had filed
A habeas corpus petition with the Vir-
ginia Supreme Court within the three-
month period permitted’ by Virginia
faw. But they filed the wrong docu-

DALLAS
MORNING

TUES.

circumstantial, based largely on a

*/*his clothes matched the victim’s blood.

|review was necessary to prevent a

ment. As a result, the Virginia Su-
preme Court refused to hear the case.
According to the State of Virginia,

which filed a brief urging the Court to =
turn down Mr. O’Dell’s appeal, the de--

cision last June in Coleman v. Thomp-
son “clearly controls this case, and all.

of O’Dell’s claims are barred from
Federal review by his failure to perfect
‘a timely state habeas appeal.’”’ ‘

It was to this assertion, that Justice |
Blackmun’s statement appeared chief-
ly to be addressed. “Because of the
gross injustice that would result if an |
innocent man were sentenced to:
death,” he said, ‘‘@’Dell’s substantial |
Federal claims gan, and should, re-
ceive careful consideration from the

risdiction ovef the case.”
Mr. O’Dell was convicted of murder- /

. Federal over the habeas corpus ju-

Sing a woman in Virginia Beach. Both)
“had spent part of the evening at the|
’ same bar,, although there was no evi-|

dence that they had been there togeth-|
er or that they knew each other. The
evidence that led to his conviction was

chemical test indicating that blood on

After his conviction, a new type of
blood analysis came into use. Using.
this more sophisticated test, based on
DNA, the two blood samples did not
match, but the state courts did not
permit him to introduce the new evi-
dence. Mr. O’Dell’s lawyers: are also
challenging the trial court’s ruling that
permitted him to represent himself,

(over)

despite a previous diagnosis of para
noid schizophrenia. oe

The Coleman v. Thompson decision |
left open the possibility that an inmate
whose state habeas corpus case was
lost through default could still appeal
to the Federal courts if Federal court

‘fundamental miscarriage of justice.”’
Justice O’Connor’s opinion did not de-
fine that term, however, and the lower
courts appear to be confused about how

AROUND
TEXAS
& SOUTHWEST |

From Wire Reports
Brandley’s lawyer takes

to apply it.

The case today was O’Dell v. Thomp-

son, Na, 91-5655.

News

—>

Dec. 3, 199

Kerry Max Cook case

“™Houston defense lawyer Paul
Nugent, who fought an eight-.
year battle to prove the inno-
cence of Texas death row inmate |
Clarence Brandley, said Monday |
that he would represent Kerry |
Max Cook. Mr. Cook, 35, is wait-!
ing for Smith County prosecutors
to decide whether to try him a
second time for the 1977 mutila-
tion slaying of a Tyler woman, a
crime he says he didn’t commit.
In September, the Texas Court!
of Criminal Appeals ordered a
new trial after ruling that Mr.
Cook’s rights were violated at
the first one. Mr. Nugent said he!
hasn’t spoken to Mr. Cook. Cen-:
turion Ministries Inc., a New Jer-.

sey organization that .
C=:
nt

gates claims of wrongful
about representing Mr. Cook. |

tions, approached Mr.

1508

VI. Ineffective Assistance of Counsel In
the Penalty Phase Proceeding

In the federal habeas corpus proceeding,
counsel concedes that defense counsel in
the state trial court competently and vigor-
ously represented Parks in the guilt phase
of Parks’ first-degree murder trial. How-
ever, it is argued here that Parks’ counsel
thereafter, in effect, “threw in the towel”
and that his representation of Parks in the
penalty-phase proceeding was constitution-
ally deficient and that such prejudiced
Parks and conceivably tipped the scales for
the death penalty, instead of life imprison-
ment. The record does not support this
argument.

" returned its verdict of guilty at about five
o’clock on a Friday afternoon. Hood and
the prosecutor were both of a view to com-
mence the penalty phase of the case imme-
diately. The judge, however, thought the
jury was perhaps “tired” and set the penal-
ty phase hearing for eight o’clock a.m. on

. the next day. In the penalty phase hear-
ing, all of the evidence adduced at the trial,
which included all of the testimony of the
defendant, Parks, was reintroduced. Hood
then called as his only witness Parks’ fa-
ther. Parks’ father testified at some
length concerning his ‘son, his home envi-
ronment, his education and personal traits.
The State had earlier indicated that it
might not call any witnesses at the penalty-
phase hearing, but after the father testi-
fied about his son’s robbery conviction, the

1374 (1982). In Peek, the Eleventh Circuit held
that the constitution requires only that there be
“no reasonable possibility” that a juror will fail
to understand “the meaning and function of
mitigating circumstances.” 784 F.2d, at 1494.
In Andrews v, Shulsen, 802 F.2d 1256 (10th
Cir.1986), we recently stated that sentencing in-
structions need only instruct the jury that “the
law recognizes circumstances which may. be
considered as extenuating or otherwise reducing
a defendant's culpability and hence his punish-

840 FEDERAL REPORTER, 2d SERIES

State did call as a rebuttal witness the
victim of the fracas in the schoolyard. The
victim’s father also testified, and it would
appear from his testimony that it was the
father’s insistence which resulted in the
filing of charges against Parks,

After closing argument, which was vig-
orous, the jury received the case around
noon. After lunch, the jury commenced
their deliberations around 1:30 p.m. and
returned the death penalty around 4:45
p.m. At the request of Hood, who was of
course present with Parks when the verdict
was received, the jury was polled and all
jurors indicated that they had voted for the
death penalty.

In the hearing in federal district court,
the judge initially denied all of Parks’
claims for relief except the one claim of
ineffective assistance of counsel. Rather
than hold a full-scale evidentiary hearing
into the ineffectiveness of counsel argu-
ment, the district court decided to first
submit written interrogatories to Parks,
which interrogatories Parks, in time, an-
swered and thereafter filed supplemental
answers thereto. Parks at this point in
time was represented by local Oklahoma
counsel who presumably assisted Parks in
his answers to the interrogatories. Fur-
ther, no objection was made at that time to
using interrogatories as opposed to a full
scale evidentiary hearing.

In any event, the answers indicated quite
clearly that the sole basis for the claim of
ineffectiveness of counsel was that Hood
didn’t call more witnesses to testify con-
cerning Parks’ personal history. In this
court, Park’s counsel states that there
were “at least 25 of Parks’ friends, rela-
tives and associates who would have testi-
fied in his behalf,” and who “would have
painted a more complete picture of him as a

ment.” 802 F.2d, at 1264. In the instant case,
the state trial judge’s instructions on mitigating
circumstances were lengthy and thorough. The
jury's attention was clearly focused on the possi-
ble existence of mitigating circumstances, and,
in Instruction No. 7, the jury was instructed as
to its role in the sentencing decision. There is
no reasonable possibility that Parks’ jury failed
to comprehend the nature and function of miti-
gating circumstances ‘in reaching its decision.

PARKS v.

BROWN 1509

Cite as 840 F.2d 1496 (10th Cir. 1987)

human being, i.e., church attendance, good
performance in school subjects, his non-vio-
lent nature as a youth,” and the like. It
should be noted that by the time a claim of
ineffective trial counsel was first made,
David Hood, who was Parks’ trial counsel,
was deceased, having died a short time
after the trial. Be that as it may, based on
Parks’ answers to the interrogatories, and
upon a review of the record before him,
which included -a transcript of the state
trial proceedings, the federal district judge
rejected the claim of ineffective counsel.
Under the circumstances, we are dis-
inclined to disturb his ruling on the matter.

In Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
the Supreme Court held that in order to
prevail on a claim of ineffective assistance
of counsel, a defendant must demonstrate
that “counsel’s representation fell below an
objective standard of reasonableness,” id,,
at 688, 104 S.Ct. at 2064, and that “there is
a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of
the proceeding would have been different.”
Id., at 694, 104 S.Ct. at 2068. Thus, in
order to grant relief, a reviewing court
must find that both parts of the Strickland
test are met. The reviewing court must
“indulge a strong presumption” that coun-
sel’s assistance was effective, and it is the

_ defendant’s burden to overcome the pre-

sumption that “the challenged action
‘might. be considered sound trial strate-
gy.” Id., at 689, 104 S.Ct. at 2065, quot-
ing Michael v. Louisiana, 350 US. 91, 101,
76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). In
applying Strickland, we bear in mind that
the “essence of an ineffective assistance
claim is that counsel’s unprofessional er-
rors so upset the adversarial balance be-
tween defense and prosecution that the tri-
al was rendered unfair and the verdict ren-
dered suspect.” Kimmelman v. Morrison,
477 U.S. 365, 106 S.Ct. 2574, 2583, 91
L.Ed.2d 305 (1986).

[6] Applying these principles to the in-
stant case, we agree with the federal dis-
trict court that Parks cannot prevail on his
claim of ineffective counsel. The fact that
counsel did not call a succession of witness-

es who would presumably testify concern-
ing Parks’ boyhood years and testify gen-
erally as to his character does not show
deficient performance by defense counsel.
See Dutton v. Brown, 812 F.2d. 593 (10th
Cir.1987). Under the circumstances, decid-
ing not to call character witnesses was
perhaps a wise tactical move. Such wit-
nesses would have been subject to cross-ex-
amination and rebuttal. Though Parks
may have had an innocent boyhood, his
more recent past was not so spotless. In
addition to his plea of guilty to the robbery
charge, Parks had also been convicted of
burglary for which he had served time.
Further, as mentioned above, Parks at the
time of the homicide was apparently in the
drug business. At least that was Parks’
own testimony at trial where he explained .
his presence in California at the time of his
arrest by stating that he was in California
on a “buying trip.” This aspect of the
case, of course, was not fully explored in
the guilt-phase proceeding, but no doubt
defense counsel felt that if he tried at the
penalty phase proceeding to inject Parks’
general character into the case, the state
would endeavor to bring out all the details
of Parks’ current endeavors, including his
trafficking in drugs, as well as the guns
and dynamite, which were apparently in
the trunk of Parks’ vehicle, and the pur-
pose for which they were intended.

Counsel argues here that at the very
least Parks should have been given an evi-
dentiary hearing on the claim of ineffective
counsel and points out that there was an
evidentiary hearing in Strickland. We do
not believe, however, that an evidentiary
hearing must be given in every case involv-
ing a claim of ineffectiveness of counsel.
In the present case, defense counsel was
not available to testify, having died shortly
after the state trial. The federal district
judge did not reject, out of hand, Parks
claim that defense counsel’s courtroom per-
formance was constitutionally deficient.
He allowed Parks, assisted by his counsel,
to answer interrogatories. And these an-
swers, and supplemental answers, indicated
quite clearly that the only fault he had with
his counsel was his failure to place his
entire history before the jury. If counsel

< a Statistics regarding the rate of imposi-
ion of the death penalty in the post-Fur-

1
512. 840 FEDERAL REPORTER, 2d SERIES

ey, the facts and circumstances of
homicide, coming necessarily from only
e state’s evidence, showed a senseless
cold-blooded killing, the evidence therefor
coming from the defendant himself. And
as previously stated, defense counsel did all
he could do with what he had to work with

Judgment affirmed.

reserved for a small number of extreme

cases.” Gregg v, Georgia, 428
US. 158
182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d gso

rate in this country. indi
Icates. that juri
obviously agree with this eibdtiog, :

McKAY, Circuit Judge, concurri At eo tence was
: pe: coucanite mmon law, the d
part and dissenting in part: ng -= mandatory for all Sevictar plvion "I
rs. In

While I concur in
con parts IT, V, VI, and VII
of the majority’s opinion, the issues raised

The murd i
€r committed by Robyn Parks Eddings v. Oklahoma, 455 U.S 104, 110-

11, 102 S.Ct. 869, 874-75, 71 L.Ed2d 1
S. at 176-79, 96 S.Ct.

inflicted in capital murder ‘cases, As Jus-
tice Brennan recounted in 1972:

most irrevocable of Sanctions should be .

_its use, I have no doubt that the rate fails

ao In the 1930’s; exe

per year; in the 1940’

was 128; in the 1950’s, it aes pais
the years 1960-1962, it was 48. There
have been a total of 46 executions since
then, 36 of them in 1963-1964. Yet our
population and the number of capital
crimes committed have increased great-

_ ly over the past four decades,

Furman », Georgia, 408 U.S. 238
S.Ct. 2726, 2753, 33 L.Edod oe Gate
(Brennan, J.,. concurring) (emphasis added
and footnote omitted). In the pre-Furman
era, less than twenty percent of those con-
victed of murder were Sentenced to death
in those states that authorized capital pun-
Ashment. See Woodson v. North Eatolina
428 U.S. 280, 295 n. 31, 96 S.Ct. 2978 2987
n. 31, 49 L.Ed.2d 944 (1976). Even if cur-

man era would show a dramatic increase in
to approach by an exceedingly large mar-

gin the rate of homicides in thi
e rate of is country.
The disparity is for good reason. “aTTke

ag no longer could be tolerated.” Jd. at
shi 96 S.Ct. at 2928. However, the Court
ognized that the penalty’s imposition
must be tailored So as to avoid arbitrary
it and capricious imposition based on irrele-
ns averaged vant biases and prejudices. A death sen
tence imposed because of these impermissi-
ble considerations Violates
amendment. Even a cursory
. Post-Furman cases reveals that
ough principles enunciated in those
eee the Court has attempted to restrict
he jury’s attention only to those
we that may Properly impact on the indi-
‘ ual sentencing determination before
em. In fact, the issues in parts I and II
that follow involve precisely

the eighth
reading of -

considera-

= such issues,
€ evolution of capital punishment for

the crime of murder thus evinces the co:
clusion that to be constitutional toda ‘s
death sentence must be closely fiteatytasd
with the facts of the murder and the pr
pensities of the defendant and must at be
actuated by extraneous influences Al-
though the jury may not be discriminato

it 18 constitutionally bound to be diserin,
nating. _The decision to impose the aati
penalty in a particular murder case pr
erly revolves around such saraedtee i

the depravit 7
killings y of the murder (z.e., a torture-

multiple and hideous wounds, etc.)

woes omen

PARKS v.

1513

BROWN

Cite as 840 F.2d 1496 (10th Cir. 1987)

and the demonstrated violent propensities
of the defendant. These are the types of
factors that differentiate those “routine
murder case{s],” Jackson v. Virginia, 443

US. 307, 328, 99 S.Ct. 2781, 2794, 61 L.Ed.

2d 560 (1979) (Stevens, J., concurring), that
do not result in the imposition of the death
sentence from those far fewer murder
cases that do result in the death penalty.

In short, the post-Furman cases have
established guidelines to ensure that juries
do not impose the death sentence in the
“routine murder case” but rather only in
those extraordinary murder cases that war-
rant it. At bottom, though unarticulated,
is a sense of proportionality in sentencing.
When the death sentence is imposed in the
“ordinary” murder case, the likelihood that
impermissible factors influenced the sen-
tencing determination is increased.

Along with those murders committed in
the heat of passion by someone known to
the victim, murder committed in the course
of committing a robbery seems to me to
epitomize the “run-of-the-mill” murder.
The victim in this case was killed by a
single gunshot wound to the chest, appar-
ently when Mr. Parks attempted to buy
gasoline with a stolen credit card. The
facts do not indicate that Mr. Parks
stopped at this station expressly to kill the
attendant. There was no evidence of tor-
ture or other wounds. His only prior con-
viction was as a juvenile and involved a
schoolyard scuffle. As unfortunate as
these facts are, the imposition of the death
sentence for this murder is disquieting, un-
less the death penalty is to be imposed in
every murder case. Its imposition in this
case thus requires close scrutiny to ensure
that the jury’s focus was properly chan-
neled to only those considerations that may
appropriately impact upon the sentencing
determination.

I agree with defendant’s contention that.

the prosecutor’s remarks in the sentencing
phase of the trial violated the principles
articulated in Caldwell v. Mississippi, 472
U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985). The Supreme Court has recently

interpreted Caldwell to prohibit those com-
ments “that mislead the jury as to its role
in .the sentencing process in a way -that
allows the jury to feel less responsible
than it should for the sentencing dect-
sion.” Darden v. Wainwright, 472 US.
320, 106 S.Ct. 2464, 2473 n. 15, 86 L.Ed.2d
231 (1986) (emphasis added). Near the
close of his argument in chief, the prosecu-
tor made the following remarks:
And then you may say, well, you know,
yeah, I still mean it, I could, without
doing violence to my. conscience if. this
was a proper case; but, you know, I
really don’t want it on my hands that I
had anything to do with anybody dying.
So for that reason, although this is a
proper case, I don’t want to assess the
death penalty because I just don’t want
to have to think about that. I don’t want
it on my conscience. ©
Well, I don’t think it’s on Robyn Parks’
conscience that he took an innocent per-
son’s life away; and I don’t believe in
observing him throughout this trial and
his testimony and listening to his voice
on the tapes—I don’t feel like there’s the
least bit of remorse in him over what he
did. But, you know, as you as jurors,
you really, in assessing the death penal-
ty, you’re not yourself putting Robyn
Parks to death. You just have become a
part of the criminal-justice system that
says when anyone does this, that he
_ must suffer death. So all you are doing
is you’re just following the law, and what
the law says, and on your verdict—once
your verdict comes back in, the law takes
over. The law does all of these things,
so it’s not on your conscience. You're
just part of the criminal-justice system
that says when this type of type of [sic]
thing happens, that whoever does such a
horrible, atrocious thing must suffer
death.

Now, that’s man’s law. But God’s law
is the very same. God’s law says that
the murderer shall suffer death. So
don’t let it bother your conscience, you
know.

Record, vol. 6, at 707-08.
Such an argument was designed to do
precisely that which Caldwell specifically

1506

any influence of sympathy, senti
sion, Prejudice, or. Me eae
when imposing sentence,” and to discharge
= duties “impartially, Conscientiously and
aithfully under your oaths and return
such verdict as the evidence warrants when
measured by these Instructions.” Since we
believe that a rational juror, hearing this
Instruction, would conclude “that it was
meant to confine the jury’s deliberations to
considerations arising from the evidence
Presented, both aggravating and mitigat-
ing, Brown, 107 S.Ct., at 840, the petition-
er’s claim based on the “anti-sympathy”

instruction must be denied.

is -Ihcomplete and Misleading Instruc-
s On Aggravating Circumstances
iS-a-vis Mitigating Circumstances

Instruction No. 7 given the jury, without’

objection, in the
; penalty-ph i
reads as follows: pra moe

isted, then you would not be authorized
to consider the penalty of death, and the
gacgpene! would be imprisonment for life.

Even if you find unanimously one or
more of the aggravating circumstances
existed beyond a reasonable doubt, and if
you further find that such aggravatin
circumstance or circumstances is oe
weighed by the finding of one or more
mitigating circumstance, then and in
such event the death penalty shall not be
imposed, and the sentence would be im-
prisonment for life.

On appeal, Parks asserts that the fore-
going instruction is constitutionally defec-
tive in three particulars: (1) the instruction
failed to instruct the jury that even if it
found that the aggravating circumstances
outweighed the mitigating circumstances it

; 840 FEDERAL REPORTER, 2d SERIES
Jury was instructed to confine its considera-

gating circumstances. We do not agree

Under the instruction set forth
and in accord with Oklahoma Sec es:
case law, the jury was instructed that it
must impose a life Sentence unless it unani-
mously found beyond a reasonable doubt

at one or more of the aggravating cir-
cumstances alleged by the State existed
Parks counsel does not object to this state-
ment. The instruction goes on to advise
the jury that even if it should find beyond a
reasonable doubt the existence of one or

— a life sentence if it should further find
at the aggravating circumstances are

es. Again, counsel has no objection to that
As indicated, what

mY, in just so many words, that even if it
ound that aggravating circumstances out-

could, in its discretion, stil] fix the penalt
at life imprisonment. Such an instruction
1S not required under Oklahoma law Nor
1s such, in our view, required by the Ei hth
and Fourteenth Amendments. .

{5] The first i
! Paragraph in the -
ee Instruction states that the ried
authorized to consider imposi:

0 co Posing a sen-
tence of death” if it finds iananimonsly that
one or more of the Statutory aggravating
circumstances existed beyond a reasonable

Struction is the reverse of the fi

graph, and instructs the jury Bab thae an
not authorized to consider the penalty of
death if they do not find unanimously that
one or-more of the. statutory aggravatin
circumstances existed beyond a reasstiahie

could still impose a life sentence and that
the charge instructed the jury, inferentially
at least, that if it found that the aggravat-
ing circumstances outweighed the mnitigat-
ing circumstances it must impose the death
Penalty; (2) it improperly places a burden
on the defendant of proving that mitigatin

circumstances outweigh the ageravating
nape strspecd and (8) it fails to adequate-
ly define the nature and function of miti-

doubt. The third paragraph in the instruc-
tion instructs the jury that the death penal-
ty cannot be imposed even if they find
unanimously one or more of the statutory
aggravating circumstances existed beyond

+, a reasonable doubt, if the jury further

finds that such aggravating circumstance,
or circumstances, is, or are, outweighed by
a further finding of one or more mitigating
circumstances. The first paragraph speaks
in terms of “authorized to consider” the
death penalty, and is not directory in its
terms. We think the instruction adequate-
ly advised the jury on this particular mat-
ter.

In Burrows v. State, 640 P.2d 533, 544
(Okl.Cr.1982), the Oklahoma Court of Crim-
inal Appeals was faced with the same argu-
ment made here. In rejecting that argu-
ment, the Court spoke as follows:

The defendant’s twenty-first assign-
ment of error is, in part, identical to the
_ argument presented in our recent deci-
i sion of Irvin v. State, 617 P.2d 588 (Okl.
Cr.1980). Arguing from Laws 1976, 1st
Extraordinary Session, Chapter 1, Sec-
| tion 5, now 21 O.S.Supp.1980, § 701.11,
defendant claims that the jurors must be
told four things prior to beginning delib-
erations. First, the death penalty cannot
be imposed unless. the jury finds one or
| more aggravating circumstances beyond
\

Spe

a reasonable doubt; second, if the jury
finds one or more aggravating circum-
stances, then they may consider impos-
- ing the death penalty; third, if the jury
finds one or more aggravating circum-
stances, but the circumstances are out-
weighed by mitigating circumstances of
the case, the jury cannot impose the
death penalty; fourth, even if the jury

. Strickland, 696 F.2d 804, 817-19 (Sth Cir.1983)
| (opinion of Roney, J.) (burden of proof argu-
ment confuses proof of facts and weighing of
facts in sentencing; weighing process not a fact

PARKS v. BROWN
Cite as 840 F.2d 1496 (10th Cir. 1987)

_ 1507

finds aggravating circumstances, and
those circumstances are not outweighed
by mitigating circumstances, they can de-
cline to impose the death penalty. In the
defendant’s case, the jury was given the
first three instructions but not the
fourth. As in Jrvin,. the argument is
rejected. The fourth instruction was
subsumed in the second, since the jurors
were told that they could, not that they
had to, impose the death sentence. As
stated in Irvin:

The only discretion provided the jury un-

“der the statute [21 0.S.Supp.1980,

§ 701.11] is that necessary to make a
factual finding of the existence or non-
existence of aggravating and mitigating
circumstances, as well as the discretion
requisite in balancing the two.

We do not read the instruction set forth
above as casting any burden of proof on
the defendant. Under that instruction, the
jury first had the responsibility of deter-
mining whether the state had proved be-
yond a reasonable doubt any of the aggra-
vating circumstances set forth in its Bill of
Particulars. If the jury so found, then, and
only then, was it to “weigh” the aggravat-
ing circumstance thus found against the
mitigating circumstances in the case. This,
to us, is not a burden of proof matter.’

Further, in our view, the jury was ade-
quately instructed on the nature and func-
tion of mitigating circumstances. Instruc-
tion No. 6 identified eight “mitigating cir-
cumstances,” and advised the jury that. it
was not limited to such itemization and
could consider “other or additional mitigat-
ing circumstances, if any, you may find
from the evidence to exist in this case.” ®

susceptible of proof under any standard); Son-
nier v. Maggio, 720 F.2d 401, 408 (5th Cir.1983),
cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79
L.Ed.2d 726 (1984); Foster v. Strickland, 707
F.2d 1339, 1345 (11th Cir.1983). -

8. We have examined the cases from other Cir-
cuits relied upon by the petitioner, and have
determined that they do not support his posi-
tion. See e.g. Peek v. Kemp, 784 F.2d 1479 (11th
Cir.1986) (en banc), cert. denied, —- US. —,
107 S.Ct. 421, 93 L.Ed.2d 371 (1986); Spivey v.
Zant, 661 F.2d 464 (Sth Cir. Unit B 1981), cert.
denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L-Ed.2d

1510 840 FEDERAL REPORTER, 2d SERIES

had placed before the jury the entire record
made by Parks from the date of his birth to
the date of trial, such would undoubtedly
include Parks’ present drug activities
which. would probably- not have enhanced
Parks’ position in the eyes of the jury. If
such had been the scenario, the claim in the
present Proceeding would be that counsel
was deficient in permitting his life history
to go to the jury. In our view, defense
counsel did a competent and vigorous re
resentation of Parks throughout the Stine
trial. His arguments to the jury were im-
Passioned. In the words of Strickland.
Parks Present claim of deficient represen-
tation is grounded on “the distorting ef-

fects of hindsight.” 466 U
a fae ‘S., at 689, 104

In his petition, and as a part of this ninth
ground for relief,. Parks also urged that
based on a study by Samuel R. Gross an
Acting Associate Professor of Law at Stan-
ford University, and Robert Mauro, an As-
sistant Professor of Psychology at the
University of Oregon, one is more likely to
receive the death penalty in Oklahoma if he

killed a black person. In this connection, it
is further alleged that Parks “will further
bring out evidence of other forms of racial
discrimination in Oklahoma County.” In
Support of this claim, Parks later proffered
to the federal district court Professors
Gross and Mauro’s study, since published
as Patterns of Death: An Analysis of
- Racial Disparities in Capital Sentencing
VII. Refusal of the Federal District Court _ et Bey nin pout
To Hold an Evidentiary Watileesne Rev. 27 (1984) (the Gross-Mauro Study).
Parks Claim That Oklahoma’s Death The federal district court declined to hold

Pa alty Statutes Are Applied Arbi. 2” evidentiary hearing on the claim of ra-

rily and Discriminatorily Against a cial discrimination in the application of

"jury in his case.

Defendant Such as Hi
with Killing a White = ore
In his petition for habeas corpus, Park.
urged as his ninth ground foe seine that
the application of the death sentence to his
case violated his Eighth and Fourteenth
Amendment rights. In his petition, Parks
Initially stated that his case is perhaps the
only case where a death sentence was im-
posed solely on the aggravating circum-
Stance that at the time of the homicide he
was attempting to avoid arrest or detec-
tion, and that in 90% of the cases where a
death Sentence was imposed in Oklahoma
the Jury either found that the offense was
heinous, atrocious and cruel, or that there
was a probability that the defendant would
constitute a continuing threat to societ
because of his record of violent changeset!
neither of which was the finding of the
This parti
apparently fell by the avr te en

pursued in the district coy is it raig
Stace rt, nor is it raised

9. idy j
Plc bharervari study itself states that “cases
Pip ~3 “sn rairssekatoe Indian defendants
: ve n removed from an
: tabu-
regen include the racial chetseerinis of
etendants or of the victims, respectively,

Oklahoma’s death penalty statutes. The
judge was of the view that what may have
happened in some other case didn’t prove

or even tend to prove, what had i
Parks’ case. “—

[7] The conclusion of the Gross-Mauro
study is that it is the color of the victim
rather than the color of the defendant, that
impels a jury to more readily return a
death penalty vis-a-vis a life sentence. In
the instant case, the victim, Abdullah Ibra-
him, was a native of Bangladesh temporari-
ly in the United States, and he is not white-
skinned, but, from the photograph in the
record before us, is very dark-skinned
Under such circumstances, a court would
be going far afield to hold an evidentiary
hearing on the basis of the Gross-Mauro
study. A Bangladesh victim does not ap-

pear to fall into pl] i
ae © piace in the Gross-Mauro

Moreover, the Supreme Court recently
considered and rejected a similar claim in
McClesky v. Kemp, — US. —, 107 S.Ct.

— all regression analyses, and from tabu-
ations involving our scale of aggravation.” Pat-

terns
paths RA ph 37 Stan.L.Rev., at 52 (footnote

ate

yn gcse * .

PARKS v. BROWN

1511

Cite as 840 F.2d 1496 (10th Cir. 1987)

1756, 95 L.Ed.2d 262 (1987). In McClesky,
a study similar to the Gross-Mauro study
offered here was considered. That study
(the Baldus study) purported to show a
disparity in the imposition of the death
penalty in the State there involved, Geor-
gia, on the basis of the race of the murder
victim.!° McClesky there argued, as Parks
does here, that the statistical disparities
shown by the proffered study demonstrat-
ed that Georgia’s capital punishment stat-
ute violated both the Equal Protection
Clause of the Fourteenth Amendment and
the Eighth Amendment’s ban on “cruel and
unusual punishments.” See McClesky, 107
8.Ct., at 1770.

The Supreme Court rejected McClesky’s
Equal Protection Clause argument. It held
that in order to prevail on the equal protec-
tion claim, McClesky had to “prove that the
decisionmakers in his case acted with dis-
criminatory. purpose.” McClesky, 107
S.Ct., at 1769 (emphasis in original). The
Supreme Court examined the Baldus study
and found it “‘clearly insufficient to support
an inference that any of the decisionmak-
ers ... acted with discriminatory pur-
pose.” 1 The Supreme Court also rejected
McClesky’s Eighth Amendment claim that
his death sentence was excessive since: ra-
cial considerations may have influenced
capital sentencing decisions in Georgia. It
found that at most, “the Baldus study indi-
cates a discrepancy that appears to corre-
late with race,” id., at 1777, and refused to
assume that the unexplained discrepancy
resulted from invidious racial discrimina-

tion. The Gross-Mauro study proffered
here is similar to the Baldus study con-
sidered in McClesky. Like the Baldus
study, it does not show what transpired in

10. The Baldus study also purported to show a
disparity in the imposition of the death penalty
based on the race of the defendant, although to
a lesser extent. In contrast, the Gross-Mauro
study here at issue indicates that, in Oklahoma,
the race of the suspect did not have a statistical-
ly significant role in the imposition of the death
penalty. See Patterns of Death, 37 Stan.L.Rev.,
at 97 n. 187.

11. At an evidentiary hearing, McClesky’s expert
witness testified that the Baldus study did not
show what occurred in any given case. McCle-
sky, 107 S.Ct., at 1767 n. 11.

Parks’ case. Nor does it demonstrate a
“constitutionally significant risk” of racial
discrimination.!”

Parks has offered no evidence that would
support an inference that the decision mak-
ers in his case acted with a discriminatory
purpose. As indicated, such evidence is
essential in order to prevail under the
Equal Protection Clause. Parks’ Eighth
Amendment claim must also fail. He has
not demonstrated a “constitutionally signif-
icant risk of racial bias.” As the Supreme
Court has observed, discrepancies in sen-
tencing decisions appearing in studies such
as the proffered Gross-Mauro study are
but an inevitable part of our criminal jus-
tice system. See McClesky, supra, 107
§.Ct., at 1778.

Finally, the additional proffer by Parks
that if given time he could “bring out evi-
dence of other forms of racial discrimina-
tion in Oklahoma County” is: conclusory
and non-specific in nature, and did not re-
quire the district court to hold an evidentia-
ry hearing. See Andrews v. Shulsen, 802
F.2d 1256, 1266 (10th Cir.1986) where we
upheld a district court’s ruling that an evi-
dentiary hearing was unnecessary where
the allegations of discrimination in fact
were conclusory, stating that a “habeas
petitioner must provide supporting factual
allegations.”

In sum, we think the defendant got a fair
trial. Perhaps not a perfect one, but we
know of no rule that in a capital case the
trial must be perfect. Certainly there is
nothing before us to indicate that the entire
proceeding was fundamentally unfair, or
that there has been a miscarriage of jus-
tice. Parks’ defense, as stated, was an
alibi. The jury rejected that defense. Ac-

12. The Gross-Mauro study concluded that in
Oklahoma, “the odds of receiving the death pen-
alty for killing a white were 4.31 times greater
than the odds of receiving the death penalty for
killing a black.” Patterns of Death, 37 Stan.L.
Rev., at 96 n. 184. This figure is substantially
identical to that which the Supreme Court char-
acterized as “not demonstrat[ing] a constitution-
ally significant risk of racial bias....” McCle-
sky, 107 S.Ct., at 1767.

1426 823 FEDERAL REPORTER, 2d SERIES

The majority concludes that defendant’s
alibi defense precludes any lesser offense
instruction, implying that any evidence in
the record supporting a lesser offense in-
struction must come from the defendant to
entitle him to the instruction. .“Parks testi-
fied in his own behalf and denied killing
Ibrahim, testifying that he was elsewhere
at the time of the homicide. So, there is
nothing in defendant’s testimony that
would justify giving an instruction on sec-
ond-degree murder.” Maj. op. at 1409 (em-

‘phasis added):

I simply find no law for this proposition,
and I think it would be a bad rule to write.
Anytime a defendant honestly denied par-
ticipation in a crime, he or she would auto-
matically forego the right to an instruction

‘on a lesser offense supported by other evi-
dence before the jury. Even if the evi-
dence, albeit from a source other than the
defendant, were overwhelming that a less-
er offense was committed, no instruction
could be given unless the defendant, possi-
bly perjuring himself or herself, admits
some participation in the incident. Fearing
conviction of the -greater offense even
though innocent, a defendant is caught be-

1409 (quoting district court). The majority
opinion does not rely on the district court's

analysis in reaching the same result. However, .

because I reject the majority's analysis, I must
address the alternative analysis ostensibly sup-
porting that result. While I could simply and
easily rely on the assertion made above in the
text that federal constitutional requirements
override Oklahoma state law as interpreted by
the district court, I feel compelled to refute this
troublesome, and I believe erroneous, interpre-
tation of Oklahoma law.

The defendant in Palmer was convicted of the.

felony of leaving the scene of an accident in-
volving personal injury. He alleged error in the
trial court's failure to instruct on the misde-
meanor of leaving the scene of “an accident
resulting only in damage to a vehicle.” Jd. at
724 (quoting applicable Oklahoma statute) (em-
phasis added). The words defining the lesser
offense required that there be no personal inju-
ry but only property damage in order for the
statute to be violated. Because there clearly
was record evidence that the accident at issue
resulted in personal injury, there was no record
evidence that the misdemeanor had been com-
mitted. The trial court’s refusal to instruct on
the lesser offense was thus upheld on the well-
accepted grounds that there must be some evi-
dence in the record supporting the lesser of-
fense in order to justify a lesser offense instruc-

tween maintaining his or her innocence,
risking such a conviction, and falsely ad-
mitting participation so as to gain a lesser
offense instruction. Such coercion is con-
stitutionally untenable. If the evidence of
a lesser offense is before the jury, defend-
ant’s entitlement to a lesser offense in-
struction should not depend upon whose
witness introduced the evidence. A jury
could reject the defendant’s alibi defense

but accept that the evidence supports con-_

viction on the lesser offense rather than
the greater.

There was sufficient evidence before the
jury in this case to support a lesser offense

instruction. The two taped telephone con- »

versations around which the prosecution’s
entire case revolved furnished evidence
sufficient to give an instruction that the
homicide was committed while using a sto-
len credit card. See ct. ex. 1, 2, record, vol.
5. (And, in a sense, the evidence did come
from the defendant through his taped con-
versations.)

In meeting this evidence, the majority
does what is solely within the jury’s prov-
ince to do. It interprets the evidence as

tion. The word “only” was significant in that
case solely because the lesser offense statute
employed it in defining the offense itself. Palm-
er is thus a unique case confined to its particu-
lar facts and to offenses that are similarly de-
fined in restrictive terms.

In failing to recognize the uniqueness of the
statutory definition of the lesser offense in
Palmer, the district court imported the word
“only” into every.lesser offense definition. By
so doing in this case, the district court in effect
judicially engrafted a new element onto a sec-
ond degree murder offense—that the greater
intent of malice required for first degree mur-
der be positively disproved. Absent evidence
showing that “only” the lesser offense was com-
mitted, no lesser offense instruction is necessary
under the district court’s reasoning. If such
were the rule, we would rarely ever see a lesser
offense instruction, for if the evidence showed
that only the lesser offense was committed, an
instruction on the greater offense would be im-
proper. Rarely could a case ever go to a jury on
more than one theory. Suffice it to say that
Oklahoma's subscription to the “any-evidence
test,” see Morgan, 536 P.2d at 956, belies such an
interpretation of Oklahoma law. Moreover,
even if that interpretation of Oklahoma law
were correct, such would clearly raise due pro-
cess concerns under the United States Constitu-
tion.

PARKS v. BROWN 1427
Cite as 823 F.2d 1405 (10th Cir. 1987)

showing that the felony of using a stolen
credit card was completed and only “there-
after’ did Mr. Parks form “a deliberate
intent to kill.” Maj. op. at 1409-1410.
Whether the predicate offense supporting
the second degree murder charge ended
the moment Mr. Parks paid for the gasoline
but before he left the station so that any
action “thereafter” was not connected to
the offense or actuated by the offense is a
matter for the jury in deciding whether to
convict on the lesser offense—an option
the jury was never given in this case. In-
deed, whether in fact the killing occurred
after defendant completed the credit card
transaction is not clear from the evidence
and is a fact appropriately determined only
by the jury. These are not matters to be
decided in evaluating whether there was
sufficient evidence supporting an instruc-
tion.

We need not be convinced that the crime
committed was second degree murder rath-
er than first degree murder. That differ-
entiation is for the jury to make. Our job
is merely to consider whether there was
sufficient evidence in the record, from
whatever source, to justify at least giving
the instruction. The majority, rather than
examining the record evidence of second
degree murder to determine its existence
for purposes of instruction, has evaluated
such evidence and rejected it in favor of the
evidence supporting first degree murder.
That is an usurpation of the jury’s func-
tion.

Moreover, the assertion that there was
no evidence in the record of homicide while
committing the felony of using a fraudu-
lent credit card is at direct odds with the
trial court’s instructions in the penalty
phase regarding the applicable aggravating
circumstances. The Bill of Particulars
read to the jury asserted the following as
an aggravating circumstance supporting
the imposition of the death penalty:

law as soon as he left. Defendant felt if
he killed the victim there would be noth-
ing the victim could tell the police and he
would not be apprehended.

The trial court evidently found sufficient
evidence in the record to support submit-
ting the “avoiding lawful arrest” aggravat-
ing circumstance instruction. Yet, now the
majority asserts that there was no evi-
dence supporting the requested lesser of-
fense instruction based on that same evi-
dence. I cannot fathom how we can uphold
the jury’s imposition of the death sentence
based on the sole aggravating circum-
stance quoted above while at the same time
rule that there was no record evidence sup-
porting the requested lesser offense in-
struction. The same theory and evidence
go toward both the aggravating circum-
stance instruction and the lesser offense
instruction.

[S]tates cannot fairly employ critical evi-

~dence to gain their own ends and, at the
same time, deny its probative use to de-
fendants. Nor can they fairly profess to
doubt the sufficiency of evidence and

_ then assert, in the same breath, that it
can be found adequate to support imposi-
tion of the ultimate sanction.

Brief. for Petitioner-Appellant at 22. As
Justice Brennan once wrote, “The Govern-

ey iy

1424 823 FEDERAL REPORTER, 2d SERIES

Caldwell, 472 U.S. at 341, 105 S.Ct. at

_ 2646.

II.

The defendant challenges the following
instruction given during the penalty phase:
“You must avoid any influence of sympa-
thy, sentiment, passion, prejudice or other
arbitrary factor when imposing sentence.”
The anti-sympathy instruction held consti-
tutional in California v. Brown, — US.
——, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987),
informed the jurors that they “must not be
swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opin-
ion or public feeling.” Jd. at 839. The
majority in this case notes that the present
instruction does not include the word
“mere” but cursorily concludes without ex-
planation that “such, under Brown, does
not dictate a reversal in the instant case.”
Maj. op. at 1413. -By denigrating any sig-
nificance in the additional word ‘“‘mére” in
the Brown instruction, this majority misses
the thrust of the Supreme Court’s analysis
in upholding the instruction in that case.
Moreover, the majority fails to consider the
significance of the modifying phrase in the
present instruction—“any influence of’—
as it relates to the Brown analysis. Such
modifiers as “mere” and “any,” however,
are critical to the analysis. In Brown,
Justice Rehnquist wrote, “By concentrat-
ing on the noun ‘sympathy,’ respondent
ignores the crucial fact that the jury was
instructed to avoid basing its decision on
mere sympathy.” Jd> at 840 (emphasis
added only to “crucial fact”). Likewise,
the majority in this case ignores the crucial
fact that the jury was instructed to avoid
basing its decision on any influence of
sympathy.

Not all forms of sympathy are impermis-
sible considerations in the sentencing deci-

-sion. Only general feelings of sympathy
not connected to the particular defendant
and the evidence introduced are prohibited,

3. Even the State in Brown acknowledged that
sympathy for the defendant is an appropriate
consideration in sentencing. ~It only argued,
and the majority of the Court agreed, that the
anti-sympathy instruction there given “simply
prevent[ed] the jury from relying on ‘untethered

for such would allow the imposition of the
death sentence in an arbitrary and unpre-
dictable fashion. The Brown court recog-
nized that there are different “sorts” of
sympathy and that sympathy tethered to
evidence introduced during the penalty
phase, such as evidence of a disadvantaged
background or emotional problems, is a
proper element for the jury to consider
when deciding whether to impose the death
penalty. “We think a reasonable juror
would ... understand the instruction not to
rely on ‘mere sympathy’ as a directive to
ignore only the sort of sympathy that
would be totally divorced from the evi-
dence adduced during the penalty
phase.” Id. at 840 (emphasis added).
‘{I}/ndividualized consideration of mitigat-
ing factors,” Lockett v. Ohio, 438 U.S. 586,
606, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973
(1978) (emphasis added), is the key, which
is why sympathy rooted in the evidence
presented for a particular defendant is per-
missible whereas generalized, “untethered”
sympathy is not. Cf Eddings, 455 US. at
112-16, 102 S.Ct. at 875-78 (evidence of
turbulent family history, of beatings by a
harsh father, and of serious emotional dis-.
turbance proper consideration in assessing
death penalty); Woodson, 428 U.S. at 303,
96 S.Ct. at 2990 (must allow “particularized
consideration of relevant aspects of the
character and record of each convicted de-
fendant”). The entire thrust of the majori-
ty’s opinion in Brown was that an instruc-
tion prohibiting “mere sympathy” suffi-
ciently conveyed that critical distinction to
the jury. The majority and dissent in
Brown parted ways not on the assumption
that sympathy rooted in evidence is a prop-
er consideration in sentencing, but rather
on whether the instruction at issue suffi-
ciently instructed the jury regarding the
difference between “tethered” (permissible)
and “untethered” (impermissible) sympa-
thy. See Brown, 107 S.Ct. at 843 (Bren-
nan, J., dissenting).4

sympathy’ unrelated to the circumstances of the

offense or the defendant.” Brown, 107 S.Ct. at
843 (Brennan, J., dissenting).

4. Although Justice O'Connor concurred in the
majority opinion, resulting in a 5-4 decision
upholding the instruction, she also submitted a

PARKS vy. BROWN . 1425
Cite as 823 F.2d 1405 (10th Cir. 1987)

The instruction in the instant case fails
to differentiate that sympathy which may
permissibly impact upon the sentencing de-
cision from that which may not. It prohib-
ited “any influence of sympathy,” which is
qualitatively quite different from avoiding
“mere sympathy.” It forecloses any possi-
bility of considering sympathy of any sort
and is thus distinguishable on a critical
point—the point on which the Supreme
Court’s analysis was founded—from the
instruction narrowly condoned in Brown.
By prohibiting consideration of all sorts of
sympathy, the instruction violated Ed-
dings, Lockett, and Woodson and hence
fails constitutional muster. Moreover, the
instructions given as a whole failed to cure
this fatal defect. See Brown, 107 S.Ct. at
839 (if specific instruction fails, must then
review entire charge to determine whether
it delivered a correct interpretation of the
law).

The damage is particularly acute in this
case because the only mitigating evidence
presented was testimony from defendant’s
father with respect to defendant’s difficult
childhood spent in various relatives’ homes
and his generally nonviolent nature. The
jury was instructed to ignore any influence
of sympathy—presumably even that sym-

pathy tethered to this testimony, defend- |

ant’s sole mitigating evidence. It is consti-

concurring opinion in which she voiced concern
over the collective effect of the court’s instruc-
tions and the prosecutor’s closing arguments.
She was troubled that the prosecutor “may have
suggested to the jury that it must ignore the
mitigating evidence about the respondent’s
background and character.” Brown, 107 S.Ct.
at 842 (O'Connor, J., concurring).

Along a similar vein, I am concerned that the
prosecutor’s admonitions that the jury must
avoid all sympathy, in tandem with the court’s
overreaching sympathy instruction, created a
“egitimate basis for finding ambiguity con-
cerning the factors actually considered by the’
jury.” /d. (citation omitted). In rebuttal to the
defense’s arguments, the prosecutor stated:

His closing arguments are really a pitch to
you for sympathy—sympathy, or sentiment or
prejudice; and you told me in voir dire you
wouldn't do that.

Well, it’s just cold turkey. He either did it
or he didn’t. He either deserves the death
penalty or he doesn't, you know. You leave
the sympathy, and the sentiment and preju-
dice part out of it.

tutionally impermissible to prohibit the jury
from considering, relative to the individual
offender, those “compassionate or mitigat-
ing factors stemming from the diverse
frailties of humankind.” Woodson, 428
U.S. at 304, 96 S.Ct. at 2991. Brown v.
California does not shield such an instruc-
tion.

Ill.

The defendant requested and was denied
a lesser included offense instruction for
second degree murder involving homicide
while committing the felony of using a
fraudulent credit card. Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2882, 65 L.Ed.2d 392
(1980), provides that there is a constitution-
al right, at least when the death penalty is
imposed, to a lesser offense instruction
warranted by the evidence. See generally
Trujillo v. Sullivan, 815 F.2d 597, 600-04
(10th Cir.1987) (discussing whether Beck
extends the constitutional right to cases in
which the death penalty is not imposed).
As a matter of federal constitutional law,
Mr. Parks was thus entitled to his instruc-
tion as long as there was evidence before
the jury to support it, whether or not the
Oklahoma courts would apply a stricter
standard for the giving of such an instruc-
tion under state law.5

Record, vol. 6, at 725-26. The prosecutor's re-
marks buttress the court’s over-inclusive sympa-
thy instruction and, while not sufficient in
themselves to warrant reversal, further under-
mine the reliability of the death sentence im
posed in this case.

5. Although not controlling in a federal constitu-
tional analysis, Oklahoma state law is, in fact,
very permissive in this regard. Under Okla-
homa law, a defendant is entitled to instructions
on every lesser offense that the evidence reason-
ably suggests. See McCullough v. State, 669
P.2d 311, 312 (Okla.Crim.App.1983). Oklahoma
extends the right even where supporting evi-
dence is “slight,” resolving all doubts in favor of
the accused. See Dennis v. State, 561 P.2d 88,
94 (Okla.Crim.App.1977); Morgan v. State, 536
P.2d 952, 956 (Okla.Crim.App.1975).

1428 _ 823 FEDERAL REPORTER, 2d SERIES

ment cannot have it both ways in the same
case.” Kennedy v. Mendoza-Martinez,
372 U.S. 144, 195, 83 S.Ct. 554, 581, 9
L.Ed.2d 644 (1963) (Brennan, J., concur-
ring).

Finally, the cases cited by -the majority
are not persuasive. In Hopper v. Evans,
456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982), the defendant was released on pa-
role and, according to his own testimony,
embarked on a two month, cross-country
crime spree, committing about thirty armed
robberies, nine kidnappings, and two extor-
- tions in seven states. During a robbery of
a pawnshop, the owner dropped to his
hands and knees and crawled toward his
office when the defendant shot him in the
back, killing him. After capture, the de-
fendant signed a written confession admit-
ting everything. He testified before the
grand jury and confessed “that [the victim]
was not the only person he had ever killed,
that he felt no remorse becatse of that
murder, that he would kill again in similar
circumstances, and that he intended to re-
turn to a life of crime if he was ever
freed.” Jd. at 607, 102 S.Ct. at 2050. He
requested before the grand jury that he be
executed as soon as possible.

. Because Alabama law required a jury
trial as a prerequisite for the imposition of
the death penalty, the prosecutor rejected
defendant’s guilty plea. Against his attor-
ney’s advice, defendant testified during his
subsequent trial, admitting everything as
before the grand jury and stating, “I would
rather die by electrocution than spend the

rest of my life in the penitentiary. So, I’m
asking very sincerely that you come back
with a positive verdict for the State.” Jd.
at 607-08, 102 S.Ct. at 2050-51. The jury
returned a guilty verdict in less than fif-
teen minutes, and the defendant was sen-
tenced to death. :

— Only after defendant’s mother initiated
habeas proceedings did defendant change
his attitude of desiring execution. The Ala-
bama statute under which he was sen-
tenced to death was the same that was
shortly thereafter found unconstitutional in
Becky. Alabama-because it absolutely pre-
cluded jury consideration of any lesser in-

cluded offense in a capital case—even if
warranted by the evidence. Mr. Hopper
did not claim that there was record evi-
dence supporting a lesser offense instruc-
tion and that he was therefore prejudiced.
Rather, he asserted that because the stat-
ute was unconstitutional on its face, his
conviction must be automatically set aside.

The Supreme Court ruled against Mr.
Hopper, stating that Beck held only that
“due process requires that a lesser includ-
ed offense instruction be given when the
evidence warrants such an instruction.”
Id. at 611, 102 S.Ct. at 2053. The statute
under which defendant was convicted re-
quired an intent to kill. The lesser offense
that he asserted should have been con-
sidered by the jury applied only when a
defendant lacked an intent to kill. The
defendant’s testimony absolutely precluded
a conclusion that the murder committed
was unintentional as opposed to intentional,
and there was no evidence from any other
source conflicting with the defendant’s tes-
timony and supporting a lesser offense in-
struction.

The unusual and particularly one-sided
record in Hopper is distinguishable, as the
rather elaborate recitation of the facts
above indicates, from the present. record.
In this case, the defendant’s proffered tes-
timony did not support the lesser offense
instruction, but his testimony (taped tele-
phone conversations) proffered by the state
was sufficient evidence contradicting such
testimony to warrant the instruction. Hop-
per was not decided on the basis that the
defendant himself failed to come forward
with evidence supporting a lesser offense
instruction. It does not stand for the prop-
osition that such evidence must come from
the defendant. Rather, it stands for the
proposition that when zo evidence supports
such an instruction, one need not be given
just because the case is a capital case.

Spaziano v. Florida, 468 U.S. 447, 104
S.Ct. 3154, 82 L.Ed.2d 340 (1984), is equally
inapposite. No lesser offense instruction
was required in that case because as a
matter of law there was no lesser offense
on which to.instruct. The statute of limita-
tions had run on the lesser offense. The

GOUDEAU y. SCHOOL D. NO. 37 OF OKLAHOMA CPY., OKL. 1429
Cite as 823 F.2d 1429 (10th Cir. 1987)

court did not rule that there was no factual
basis in the record to support a lesser
offense instruction.

IV.

The Supreme Court “has repeatedly said
that under the Eighth Amendment ‘the
qualitative difference of death from all oth-
er punishments requires a correspondingly
greater degree of scrutiny of the capital
sentencing determination.’” Caldwell, 472
US. at 329, 105 S.Ct. at 2639 (quoting
California v. Ramos, 463 U.S. 992, 998-99,
103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171
(1983)). In my view, exacting scrutiny of
the issues embraced in sections I and II of
this dissent—issues which directly impact-
ed upon the capital sentencing determina-
tion—require vacation of the death sen-
tence in this case. Furthermore, due pro-
cess requires that defendant’s conviction
for first degree murder be reversed. On
retrial, the evidence shows he is entitled to
a lesser offense instruction for second de-
gree murder.

O © KEY NUMBER SYSTEM

“ams

Rosetta GOUDEAU, Plaintiff-Appellant,
v.

INDEPENDENT SCHOOL DISTRICT
NO. 37 OF OKLAHOMA COUNTY,
OKLAHOMA, a/k/a Millwood Public
Schools, et al., Defendants-Appellees.

No. 85-2891.

United States Court of Appeals,
Tenth Circuit.

July 20, 1987.

Preschool aide terminated from her
employment allegedly due to lack of enroll-
ment and insufficient funds filed civil
rights complaint, alleging that school dis-
trict’s failure to provide her with hearing
prior to termination violated her due pro-

cess rights. The United States District
Court for the Western District of Okla-
homa, Lee R. West, J., dismissed action,
and appeal was taken. The Court of Ap-
peals, Wesley E. Brown, Senicr District
Judge, sitting by designation, held that pro-
viso in Oklahoma statute providing that
members of protected class, consisting of
support employees with more than one
year’s employment, could not be suspend-
ed, demoted or terminated except “for
cause,” unless layoff was for lack of funds
or work, did not limit property interest in
continued employment. of preschool aide;
once protectable interest was created by
statute, school district could not determine
whether individual had protected interest
simply by offering reason that there was
no work, or there were no funds.

Reversed and remanded.

Constitutional Law ¢=277(2)
Schools €=63(1)

Proviso in Oklahoma statute providing
that members of protected class, consisting
of support employees with more than one
year’s employment, could not be suspend-
ed, demoted or terminated except “for
cause,” unless layoff was for lack of funds
or work, did not limit property interest in
continued employment of preschool aide
with three years employment; once pro-
tectable interest was created by statute,
school district could not determine whether
individual had protected interest simply by
offering reason that there was no work, or
there were no funds. U.S.C.A. Const.
Amend. 14; 70 0.S8.1982, § 24-133.

Richard B. Wilkinson, Oklahoma Edu-
cation Ass’n, Oklahoma City, Okl., for
plaintiff-appellant.

Linda Maria Meoli, Oklahoma City, Okl.,
for defendant-appellee. With her on the
brief, William P. Bleakley, Groves, Bleak-
ley & Tague, Oklahoma City, Okl.

CAR moved slowly down

the narrow, winding mountain

trail and came to a stop near a
se clump of underbrush which
ted the roadway. A man slid from
eath the wheel and stood for a mo-
it, studying the scene about him.
r the woods and hills lay a brood-
silence.
he man walked away from the car,
ching the sandy road for some-
ig. At length he lifted his head and
e a low’ whistle, a peculiarly
‘cing sound that cut sharply across
stillness. He listened intently, and
1 repeated the call. When the
yes died away he was greeted by
ace. Shrugging, he got back into
machine, and swinging about to
» in the opposite direction, he be-
to retrace his route, driving very

vy.
short distance away, perhaps a
rter of a mile, other car tracks
red abruptly from the main trail
led onto an abandoned side road,
vanish around a sharp curve. For
rief moment there was indecision
the man’s face—then he swung his
sharply to the right and began to
ow the tracks. The old roadbed
; grass-grown and rocky, and the
thine jolted and lurched painfully
it ascended the steep grade and
nded the curve. Suddenly the
ver slammed on his brakes and sat
sely, staring into the edge of the
ods. Some fifteen or 20 feet from
road lay a man.
lis body was sprawled, face up-
:d, across a large rock, and his head

By J. Fred Green

County Attorney,-Sequoyah County, Oklahoma,

as Told to

A. L. Covert

was hanging downward, so that the
open eyes stared toward the driver of
the car. Across the man’s shirt-front a
gruesome stain was clearly visible.
The face was swollen and black.
Staring, sightless eyes testified all too
plainly that he was dead.

For a long moment the driver sat
frozen in his seat, his own face ashen
with horror. Then, with an inarticu-
late cry, he meshed gears, turned his
machine at a perilous rate of speed,
and went rocketing down the steep
trail. The sound of the racing engine
died away in the distance, and once
more the brooding silence settled over
the desolate wilderness of Wild Horse
Mountain.

On a warm Spring day—April 26,
1932—Sequoyah County’s deputy, Bill
Byrd, lay comfortably relaxed in a
barber chair, his face shrouded in
lather. He alternately drowsed and
listened to the companionable chatter
of the barber who was shaving him.

Suddenly the door was opened with
such forceful haste that it swung com-
pletely around and crashed against the
wall. A slender, overalled man burst
into the room. He was pale and
staring.

“Is that the Deputy Sheriff in the
chair?” he demanded. “I got to re-
port a murder!”

Gounty Attorney J. Fred Green,
co-author: “I think if we search
long enough we'll find another
body, and it'll be Ted Patton's”

Byrd pushed the barber’s razor hand
away and sat up abruptly.’ Recogni-
tion dawned in the slim man’s eyes,
but the terror did not leave them.
“Bill,” he gasped, “there’s a dead man
out on Wild Horse Mountain!”

The Deputy reached for a towel and
began to wipe the lather from his face.
“You sure he’s dead? Maybe he’s just
drunk.”

“He’s dead. I’m sure of it. I didn’t
go up to him, but he’s got blood on
him and his eyes are all starin’-like.”

Byrd studied the man’s face, and de-
cided he knew what he was talking
about. He said shortly, “Let’s go.”

They hastened out to his car and

OFFIC ie DeGVectTwe?e « YORIES

MAY (974/

‘nt, made him wonder
1ightmare.

in shelter of the ad-
g and rapidly thrust
:. He turned then and
he had not been fol-
prison yard the little
till advancing toward

n other places in the '

w guards converging
‘lubs drawn.

he group edging to-
Warden Dunn. And
e convict at his side
glint of steel.

Tarning

e deputy warden and
uthority at the peni-
t to reach the group.
€ poised razor and
Id it would not hesi-
‘e slashing its blade
ilar vein should any
ipted.
ay with it, boys,” he
be killed sure if you
e gates,”
eplied was Claude
ty robber who five
rdered a man while
had gained him but
lom,
or it’s curtains for
nd off. We’re going
and we're taking
warden with us.”
“he convict’s nar-
’ black eyes were
distended with
red and excitement.
words came in a

DYNAMIC

Ae Oa

oe
taille e,
, ed

Deputy Sheriff Bill Alexander, former prison guard, lett, wearing

: e) fF oo hed

belt holster, points out the spot where the fugitives made their last
stand. Posseman Bob Pollock, right, was wounded in the hand but
coolly continued to pass ammunition to Alexander during the battle.

sullen growl. He pressed the point of his
razor more deeply into Dunn’s throat and
Crider knew that further remonstrance

would be useless.

By this time they had reached the

East gate.

Fentriss, fully aware that the moment
had come when fate must determine
whether he was to sink dying to the
ground with a steel shaft in his back,

looked wildly up to the two prisoh

guards stationed on the walls over-
looking the gate. In the hands of

those two men lay the decision.
He saw one of the guards raise
his rifle, level it directly toward
the felon at his:side. The blood
drained from Fentriss’ face and
for the first time he considered
the possibility ‘of making a break
for it. But even as that thought
crossed his mind he knew that
he would not stand a chance.
[Continued on page 42]

DETECTIVE

When brought to bay, Roy McGee,
above, stood off the officers literally
to the last ditch in company with
William Anderson, left, who es-
caped in 1936 and was recaptured.

_Through the. grim
_ East gate of McAles-
ter penitentiary, four
desperate men made
their way to freedom
with Warden Jess
. Dunn, below, as their
hostage and shield.
Although the war-
‘den’s standing orders
in case of a break
were to shoot, regard-
j less of hostages, the
i tower guards with-
t held theirfirebecause
fF of a circumstance

tt.

ut
et

ty for an afternoon’s
ieo.

e warden must stop
2ntriss, another elec-
ig loud speakers to
imunications system

Fentriss at the en-
iall and the warden
place on the roof of
he planned to have
olifiers placed. He
‘e the directions but
or uttered.

Jess Dunn felt cold:
at! A little band of

i no one had foreseen.

The bullet-riddled getaway.car, top
of page, became a death trap in the
furious gun battle. Lifer Hiram
Prather, above, was wounded. Below

ts Claude Beavers, most desperate
criminal .in’ Oklahoma, who engi-

neered the grim, fantastic escape.
Pi ee ote

cu”

~ meee A pes Se + .

66 ES, we ought to see
Y: good exhibition at
the rodeo today, but

T’ll have to be getting back
early. You know how it is here with the

thirteenth only three days off.”

The speaker was Jess F. Dunn, veteran

Southwestern peace officer and warden of
the Oklahoma state penitentiary at Mc-
Alester.

“The thirteenth ?” repeated R. W. Mur-
ray, Oklahoma City electrician who stood
with his 12-year-old son in the shadow
of the administration building talking
with the warden.

“That's right,” Dunn went on thought-
fully. “Every major break for the last
two decades has occurred on the thir-
teenth of the month.” As the warden
spoke he seemed already to sense the at-

SYNAMIC DETECTIVE, November, 1941.

sive tel ltt,” \

Fidds tii

a SEA0E! YUEN Ehitmerned

‘mosphere of dread foreboding that per-

vaded the vast prison every month as that

fatal day approached. He thought of the

four times during recent years when
death, sudden and: violent, had struck
within the shadow of the prison walls,
of the four times when prison-made

knives had flashed and rifles had spoken .

their language of death. '

Warden Dunn, Murray and the boy
left the administration building and
started across the yard where 500 con-
victs were taking their regular Sunday
exercise. It was exactly 10:35 on the
morning of Aug. 10 of this year, In an-
other 15 minutes Dunn and Murray

would be on their way for an afternoon’s
recreation at the rodeo,

First, however, the warden must stop
where J. Herschel Fentriss, another elec-
trician, was installing loud speakers to
augment the new communications system
at the penitentiary.

They came upon Fentriss at the en-
trance to the mess hall and the warden
turned, indicating a place on the roof. of
the building where he planned to have
one of the new amplifiers placed: He
parted his lips to give the directions but
his words were never uttered.

The next moment Jess Dunn felt cold’

steel against his throat! A little band of

Throug
East g
ter per
desper:
their w
with

Dunn,

hostag
Althou
den’s s

Fin cas
) were tc

less of

; tower

held th

r of a «
no one

men in prison garb had slipped out
from beneath the stairway of the mess
hall.

Dunn saw the expressionof stark ter-
ror that came into the eyes of the man
at his side. He stood rock still, his right
hand still raised in the air, his lips parted.

Warden Dunn knew it had come. The
thing that every prison official is forever
on his guard against—the moment when
his next action may decide whether or
not he and other innocent men may go
on living.

Dunn’s mind was working like a trip
hammer. He had no need to glance be-
yond the glistening steel blade of the six-
inch razor at his throat to know that be-
hind that instrument of death stood a
desperate man ready to gamble his own
and other lives against a hundred-to-one
chance of freedom.

Murray was the first of the three men
to move. As he became conscious of
other convicts closing in, the electrician
stepped forward stealthily that he might
place his body between the steadily ad-
vancing convicts and hjs 12-year-old son,
A second later the first words were ut-
tered to break the deathly silence.

, which frustrated the fleeing convicts,

“Get that kid out.of here!”
Dunn raised his cool gray eyes to the

speaker, and at the same moment felt the «

point of the razor prick the flesh of his
throat. Before him he saw Claude
Beavers, 39-year-old highway robber and
murderer, long known as the most vicious
criminal in that pen of desperate men.
Three other convicts had come up and
now stood with drawn knives, one behind
the warden and two behind Fentriss. A
slight pressure was put behind those
crudely fashioned, prison-made daggers,
and inch by inch the group was starfed
moving off toward the center of the yard.
Murray, fully conscious of the danger
that lay in any sudden movement, reached
slowly toward his son, took the boy’s
hand and started leisurely back toward
the administration building, Momentarily
he expected to feel the thrust of a knife
in his back. Slowly he raised his arm to
protect his child’s neck and shoulders
should a thrown blade strike the boy.
With a strange sense of being a wit-
ness to some awful’ thing that was hap-
pening outside*his own ken, the electri-
cian noted that the other prisoners were
going about their exercises as though
nothing untoward had occurred. He could
not know what was going on behind him,
but the incongruity of those hundreds of
men, with their apparent unawareness of

Deputy Tab Ford of McAlester, left,
fell before the first blast of the mur-
derers’ gunfire. Below is shown the
unexpected barricade of the road

that dramatic moment, made him wonder
if this wasn’t all a nightmare.

Murray got within shelter of the ad-
ministration building and rapidly thrust
his young son inside. He turned then and
with relief saw that he had not been fol-
lowed. Across the prison yard the little
cluster of men was still advancing toward
the East gate. From other places in the
big area, Murray saw guards converging
on the group, their clubs drawn.

In the center of the group edging to-
ward the gate was Warden Dunn. And
from the hand of the convict at his side
there still flashed a glint of steel.

Last Warning

BN CRIDER, the deputy warden and
second man in authority at the peni-
tentiary, was the first to reach the group.
Crider, too, saw the poised razor and
knew the man who held it would not hesi-
tate an instant before slashing its blade
through Dunn’s jugular vein should any
interference be attempted.

“You won’t get away with it, boys,” he

’ said slowly. “You'll be killed sure if you

try to go through’the gates.”

The man who replied was Claude
Beavers, the highway robber who five
years before had murdered a man while
making a break that had gained him but
a brief week of freedom,

“Shut up, screw, or it’s curtains for
the big boss here. Stand off. We’re going
through those gates and we’re taking

: the warden with us.”

The convict’s nar-
row black eyes were
now distended with
hatred and excitement.
His words came in a

{

sullen gi
razor m
Crider }
would b
By tl
East ga!
Fentr
had co1
whether
ground
looked
guards
looking
those tv
He s:
his rifle
the felo
drained
for the
the poss
for it. }
crossed
he wou

[Con
nk DETE(

ONVICTS
\N ONE!

s shows spot where the

taken captive.
atmed to face the mad-
give up. their pian.

-e the convicts—pur-

arling in his ear:
-hrow down their guns
‘icks, you ——! I'd as

‘arnest. Dunn_ slowly

e, the two convicts still

lives still at his throat.

1 in behind. 4

spot where all major
rates with a twenty-five-
parties came and went
is, Elsewhere more than
to freedom.

yossible to give Murray
spread the alarm. There
the east gate would stop
forced him to say. In
ie had given the guards

rey do, I’m likely to say
‘ay no attention to me!

the white-faced Murray
secretary. In frightened
her, he gasped out what
raced back through the
-e. While he called the
the telephone, he relayed
who was on duty. Crider

INSIDE DETECTIVE

3 At this point in the partly-blocked road the shooting began,
and here Tab Ford, ex-prison guard, fell dead at the first shot.
4 A reporter points to the ditch which the embattled convicts
used as a trench, and in which two of the four were fatally shot.
5 A girl holds the four knives the felons had hidden on their
persons. Biggest one, a foot and a half long, was Prather’s.

flashed the word to the tower guards. Then, hatless
and coatless, the deputy ran out of the office sin hope of
making a barehanded rescue of his chief. Prison rules
forbid taking arms inside the yard because of the
danger that convicts may seize them,

Crider caught up with the grim party halfway to the
east gate. Hope waned as he saw Dunn's wound and
realized the temper of the four convicts. Yet with cold
determination he approached almost within reach of
the men.

“Boys!” he cried hoarsely. “You can’t get away with
this! Stop it while you can!”

McGee glared over his shoulder. Still holding Fen-
tress with one hand, he stabbed with his knife at Crider’s
midriff,

“Keep back!” he rasped. “I'll cut you wide open!”

Crider dropped back a step, but continued to follow
and plead with the desperadoes. Every half dozen steps,
McGee turned and jabbed at him again. Once the knife
point almost slit his shirt, but McGee never released
Fentress to grapple with him as Crider hoped.

As the alarm spread, tower guards began to appear
on the walls all about. Other guards in the yard were
hustling convicts back to their cells. By the clock, less
than three minutes had passed since Dunn was over-
powered. Was it three minutes or three hours?

Realizing what was happening about him, Warden
Dunn slowed his step to give time for rescue. Prather

HAILED THROUGHOUT OKLAHOMA as the hero of the day
was Deputy Bill Alexander (right), whose bull’s-eye aim bagged
three of the four escapers. Note bullet hole in windshield, made
by slug which killed Tab Ford at the start of the fray.

DECEMBER, 1941

took his knife from Fentress’ throat and stabbed it savagely three
inches into the warden’s back.

“Snap it up!” the bald-headed convict snarled.

Despite the agony of the new wound, Dunn’s mind was racing at
frantic speed. He saw the two tower guards at the east gate come
to sudden alert as they caught the first glimpse of the party. Their
shots might liberate him, but what of Fentress? Fentress would be
killed before they could fire again.

“My God, Ben!” he pleaded with Crider. “Don’t let them shoot
now! We’ve got an innocent man here!”

For a tense moment the guards leveled down their rifles on
Beavers and Anderson while Crider frantically relayed his chief’s
orders. Then they raised the muzzles of their rifles.

For a moment they stared down in puzzled rage. The convicts
pushed Dunn and Fentress forward almost to the foot of the
towers. It was point-blank range, less than 25 feet. sDunn and
Crider were pleading with thern not to shoot,

(“I’m likely to say any fool thing! Pay no attention to me!
Shoot, and shoot to kill!’)

The orders didn't seem to fit. Nobody had thought of the convicts
getting an outsider, too. If they let the men pass, the warden was
doomed. Two shots would free either him or Fentress, but not both.

Beavers stabbed Dunn in the side of the face. “Talk, you!”
he shouted. “Tell them to throw down their guns and keys Y

Dunn nodded feebly. “Throw ’em down, boys,” he said. “Let ‘em
down on a rope.”

(“Don’t give up your guns or keys to anybody, I’m likely to
say any fool thing. But shoot, and shoot to kill!” )

Once more the guards raised their rifles, They couldn’t miss.

“Now’s not the time, boys!” Crider shouted. “Do as he says 1”

Unwillingly the pair lowered their rifles and their pistols on a rope
and threw their keys down to the ground. Beavers picked them up
and unlocked the clanging gates while the others pushed their
hostages through. The helpless guards and Crider looked on,
knowing that Jess Dunn was’ doomed.

Just outside the gates, a trusty was washing a new 1941 Ford
sedan, a car belonging to one of the guards. The four convicts rushed
for it, hurling the trusty aside. They hustled Dunn into the front
seat, taking time to loosen his right hand.

“That’s so you can signal to any officers,” Prather snapped. “And
you’d better get us through! It’s your neck if we're trapped!”

Fentress they threw bodily to the floor of the tonneau. Prather
and McGee leaped into the back seat, Anderson and Beavers the
front. Beavers, a former truck driver, slid under the wheel.

Beavers knew where he wanted to go. He had learned the way in
the eight days of dodging and flight in 1936 and he had a view of
the country from the high window of his cell block. North and east
of the prison a net work of back lanes and (Continued on page 46)

Blood Bath at
McAlester

~(Continued from page 17)

half-developed streets led to Rainbow
Drive, which cut diagonally across country
to the paved highway. From there it would

_ be simple to cut off into the rugged hills

that stretched across a half million square
miles of Oklahoma, Arkansas and Mis-
souri. Somewhere along the way they
could dispose of Dunn and Fentress—and of
anybody else who got in their way.

“Boys, you can’t get away with this,”
Dunn protested. “You’d better go back
while you can. You'll get killed, sure as
fate!”

“Shut up!” Beavers growled. “How do
you start this contra tion ?”

Dunn shrugged. “It’s your show,”. he re-
turned.

Beavers found the starter button and the
motor leaped to life. But when he reached
for the gear shift, he found the floor empty.
He glared for a moment at the new-style

shift on the steering post and began to jerk:

it with’ ffantic haste.

Watching, Crider and the guards saw the
car jerk back violently in reverse. Then,
long ‘seconds later, it began to crawl for-
ward in low gear. Still in low, but gather-
ing speed as Beavers gunned the motor, it
swung north down a rough, unpaved road
for a block, then swung eastward toward
a shaded cross street. There the raw edge
of a concrete culvert protruded a good six
inches above the incline which led to it. The
car reached it and stalled. Twice more
Beavers killed the engine before he was
able to surmount the obstacle.

Meanwhile, still lounging ‘in his car
downtown, Deputy pst wa Bill Alexander
dimly heard the telephone ring inside the
jail. But elderly more Barlow, office

deputy, and Tab Ford, a former prison.

guard who was visiting with him, were
there to answer it. Alexander squinted his
eyes against the sun and stared out through
the windshield at the street. A’ moment
later he jerked suddenly alert as Ford raced
out the jail doorway, a sawed- off repeating
shotgun in his hands.

Barlow was at his heels. “There’s been a
break at the prison!” the elderly deputy
shouted. “They’ve got Jess Dunn and an-
other guy as hostages!”

Alexander could scarcely believe his ears.
“Jess Dunn!” he repeated incredulously.
The warden was one of his personal
friends, one of the best. If the convicts had
ping it would mean his death unless some-
oO Anger and fear for his friend
Saad Bill Alexander see red for an instant.
He twisted in his séat and seized the high-

- powered rifle in the tonneau behind him.

Throwing open.the breach, he satisfied
himself that the weapon was loaded. He
became deadly cold, his mind racing like a
well-oiled machine.

“What om tl How far has it gone?”
he demanded tensel

Barlow told him ail that Blaylock had re-
ported in his first conversation. Another
ring of the telephone interrupted him.

“Wait!” he called, hurrying back up the
jail steps, “Let’s see what this is!”
“Alexander waited while Ford opened
the rear door and slid into the rear seat.
Barlow reappeared.

“They’re headed east!” the elderly jailer

shouted. “And they’ve still got Jess Dunn!” ‘

AST! THE HIGHWAY that led east-
ward into the hills cut through the city
two blocks north of the county jail. If
Dunn were not already dead, there might

INSIDE DETECTIVE

- first-class detective: work is constantly ©

being performed by ‘the officers, Usually © mh in ‘the te inti This left seven, . s
i it is the deputy warden, or “Ol e seven, however, one was a
pic taphynoadprinentivenoomen die aor who didn’t have the in-
if - telligence to write such /a note, while still
cause he is the officer who maintains con- '

4 ‘another was a Czecho-Slovakian who didn’t

\ tact with them. The warden, generally, is’

* know a word of English, and who had just
so busy with the financial affairs of the | “started in the prison school.to learn it.
institution that he must delegate these ~ ‘Old Calamity struck them both off his list

other duties to his first assistant. -of suspects.
j ctically every day Old Calamity re-" A> This left five. all confrined criminals, all
ceives’a half-dozen anonymous notes from _“prison-wise,”-and all able to write. The
inmates, most of them “tipping him off” ““note had in-all probability, Old Calamity
about one thing or another. Some are~ figured, been written by one of these five.
fakes, designed to give the “dep” a run But which one? It was useless to ask them
sed he Hck Some are writin about TeMm cmvindng ens, ovo
other inmates because of jealousy, revenge, would deny’ He ee, y
to throw possible suspicion’ off the writer, © ‘But the deputy wasn’t discouraged. He
or because of some other motive. The © sent for the guard in charge of the boiler
| wise official ignores none of them. Some- room and told him what, he wanted done.
times it is of vital importance to find out. ‘The guard saluted and departed, Every day
~who-the-writer -is;as-many -prisoners will efter that-he-would-tell-one-of the: five sus-
report a certain situation in which other _ pected “men to write the deputy for him,
inmates are involved, but will not give their “asking. for’ this, that or the other. ;
. ~hames,-even though -the-situation ‘reported no A week later the deputy had five notes in
may result in the death or injury. of ‘his Possession, all signed by this particular’
prisoners or guards, or both, “screw,” bey: were all different:
_ A note of this kind was received by a. 3 = Deputy Sarin chowta wane err
deputy warden whom. I used to see... Depity: Will you please issue a pase
frequently. Ir wae peietod in, block letsere et for Johnson to go to laundry to fix a
| and it-read;: ; las whink ou'd better assi
| Deppity : Watch youre step. Sum of the . te men to me at pe Two of ma
cons has got rods in. ‘Bevo oe ,
There was no signature, of course, no ~ ae ou Bese sine this order.
fingerprints, and no indication from the ee. & hunperd fort six-inch
i rac be yc pil nett lignan . . When the last of the five had heen re-
from, nor which of the 1800 prisoners had private: Salamity | sent for, Redmond,
written it. Nevertheless, it was of prime > arp fai pease a Rare ne larceny,
se aang the deputy to find out who.“ «y got your note about the rods, Red- ©
The first thing he did was to examine _ mond” pe Ree. Teaeiete a
it under an. unusually powerful magnifying Redmond looked startled, My—my
i glass. He discerned several pieces of lint , aath Ube damental, ghee
1. which, when put beneath a microscope, ‘Your note, The one you sent me telling
proved to be cotton waste. “me some rods were in the institution.”
Here was a lead—but a slight one, as . , Redmond» protested. The deputy in-
i cotton. waste was used in a dozen shops. Sisted, then persuaded, then threatened,
a | in the institution. But a. prisoner-chemist Whereupon Redmond demanded that Old
| found that to the cotton waste clung several . C@lamity. tell him on what he based such
| bits of coal dust. There was only one #? absurd charge.
| place in the prison where coal was handled, _ “The way you: spelt ‘Deputy’, ” Old °
There , were an even dozen priscoers .” “So Redmond “fessed up.” He knew all
working there. Three of them, however, *-aboutthe plot, but wasn’t in on it himself:
| were simple-minded “hill-billies” who would ‘The reason he had written the note was
} never have thought of keeping a note clear . because he didn’t want to see anyone get
of finger prints. The mere fact that the hurt. On the other hand,.he didn’t want to
note had no prints convinced the deputy be branded as'a stool-pigeon. :
that it had been written by one of the “stir- A few moments later ‘the deputy had the
wise” inmates. He eliminated the three guns in his possession. <A. tiny piece of
| _ “billies.” “cotton waste, plus an outstanding :ability
Two of the remaining nine had merely a | as a sleuth, had probably, saved the lives
| “butt” to serve, one of them ten days and ‘of several men. It’s the kind of work
the other fifteen. The deputy cancelled which, unheralded and unsung, goes on in
them off, because long experience had told prisons everywhere,
him that prisoners that near discharge had | i ~Joserx Fuuuns FisHMAN
46 _
Car \
i, By cpl. si ledafell halide pipe so

be time.

“Hang on!” Ale
to Ford as the car
high gear. Swingin
tersection on two wv
up the hill to the hi
to meet the fugitiv
come that way. Bu

' intersecting highw:

North McAlester,
of the fugitives.

Al er swun;
down the highway
to the shoulders t
North McAlester t
of the convicts anc
ander bumped acr<
and again gunned
the straight stretct
due west to the pr
distant.

At the main e
grounds he swung '
A block to the, nort
ing about the cart
sign 0! tive
- A tall, barehead
from a little grocer
corner of the inters«
nized him as Bob ]
prison guard,

“Turn around!” )

' for the running bc

beside Alexander a
car into a U-turr
Rainbow Drive, bu
Those guys don’t |
has all the culverts
the roads blocked.”

Alexander’s” min
out of -fittle-travele
knew as well as |
yard.

“Then they’ve g
pavement!” he exc!
“And I know whe:

«“At that filli
Pollock sna a

“Right! Got a gt

Pollock produce:
matic. “I borrowed
some bird had left
teered.

Alexander’s eyes
the car into the str
the way he had con
against four armed
were dead shots. T)

In the meantime,
ing a desperate tim
out of low gear, |

- fury that verged or

sedan down first «
only to find them <
deep ditches. He :
a deep ditch within
bow Drive a block
brush-grown prairi:
and dash forward : :
ture.

He swung mec
clear for three fe
barricades barred |
ing pavement. Tgno
of his companions,
celerator to the fic
low, roared a prot
ward,

It lumbered ove:
the intersection, th:
Beavers set his bral
a black Ford sedan
ing station and st
road, blocking it.

In the sedan} A
and his two comp
grim satisfaction :
their ie. Wit!

eaped ou
behind a stone gar
road. Ford remain

{0MA FELONS
-AND BEGAN

3LOOD in the sun-
ester, Oklahoma, the
z of August 10, 1941.
| sinister across the
ind down the gray-
¢ surround the town
to the wild Kiamichi

Bill Alexander, 43,
d and _ steel-nerved,
e air.
onvicts in Oklahoma
out northwest of town
nd the convicts knew,

Claude Beavers, Bill
{cGee and their bald-
oge, Hiram Prather.
a.M., Bill Alexander
- in front of the Pitts-

with his white hat
is eyes and found the
watch deadly dull.
ment, out at the pent-
ay-eyed Warden Jess
1m the main cell block

{ prison yard with his
‘ity visitors and found
other summer Sunday
1e air was heavy with
ister menace, but no
e past two years.
Dunn halted in mo-
just outside the door-

INSIDE DETECTIVE

TRAPPED THE WARDEN

By HUGH V. HADDOCK

way and his eyes swept the prison yard.
With him were Poss Murray and the
latter’s 11-year-old son, as well as Her-
shell Fentress, an electrical contractor
who had come down to plan installation
of a loud-speaker system to be part of
the prison safeguards. The men could
take a few chances, but the boy :

Everything looked all right, though.
Most of the convicts, clad in denim uni-
forms and gray kepis, milled in the sun-
shine enjoying their week-end exercise
as usual. A few isolated groups lounged
in the scant shadows of the grim build-
ings playing cards. ,Here and there
white-hatted guards circulated to break
up any trouble before it could start.

“Gee!” the boy exclaimed in awe as
he moved up beside the warden. “Are
all these guys bad?”

Dunn smiled. ‘““Most of them,” he
replied.

“But those guards will take care of us,
won't they ?”

Forcing the poker face that had served
him for 20 years as one of Oklahoma’s
most fearless peace officers, Dunn as-
sured the boy that they would. He hoped
they would, although he knew his prison
was overcrowded. And too many of the
convicts loose in the yard were desperate
men. Like Claude Beavers who had led
the 1936 break and killed Charley

DECEMBER, 1941

IN A CIRCLE OF
A SLAUGHTER THAT CLAIMED FIVE LIVES

_ tone as they started walking down the

BEAVERS (left), already a
killer-lifer, had nothing to
lose. He led the break.

ANDERSON (right) had tried
to crash out before—and the
attempt had taken a life.

PRATHER (above) is the
only one of the quartet
alive today—and sorry.

Powell, the brick-yard foreman, then had
been sent back to serve life when he was
already doing 25 years.

“Better stay close to me,” Dunn
drawled to the others, forcing a casual

McGEE—like the rest of the

yard. evil four, he carried a vi-
cious prison-made “shiv.”

“Anything wrong, warden?” Fentress
asked, falling in beside Dunn.

“There’s always something wrong in
a prison like this,” Dunn. replied. ‘‘No-
body’s attempted a break since those
fellows tried to snatch Governor Phillips
on his inspection tour two years ago.
But we’re overdue. You can’t get that
equipment in too soon for me.”

How truly he spoke even Jess Dunn
didn’t know. He began to point out lo-
cations for the speaker boxes as the
party strolled down the yard. At the
corner of the hospital building they
passed four lounging convicts, One was
Claude Beavers. The others were Bill
Anderson, his pal in the 1936 break and
now serving life on top of a 27-year
robbery rap; desperate Roy McGee, do-
ing 25 years for robbery; and Hiram
Prather, serving life for murder. All
had reason to be grateful to the square-
shooting warden. Dunn glanced at them
and passed on.

Instantly the evil quartet galvanized
into action. Springing forward as

WARDEN JESS DUNN—he had or.
dered his guards to let him be killed
rather than allow, convicts to escape.

nee ee ee

ae ee

silently.as panthers, Beavers and Anderson seized Dunn, pin-
ioning his arms behind him before he could even struggle.
McGee and Prather seized Fentress. Murray sprang back,
jerking his boy out of the melee as the child paled in terror.

Beavers whirled viciously on father and son. “Get that
damned kid out of here!” he snarled.

Half-dragging the boy, Murray turned and raced back
toward the cell block.

With a chill, Dunn realized that the four desperadoes were
living the dream of every desperate convict. They had the
warden for a hostage. tt was his life or theirs—maybe a
dozen other lives if they succeeded in their escape. He
threw his whole strength into a desperate struggle. Instantly
Beavers had the sharp edge of a razor against his throat.
The convict’s hand flicked and the blade slit a thin red
wound across the warden’s throat.

“You'll get more of that if you don’t stand still!” Beavers
grated with a foul epithet.

Vicious, crude, prison-made knives leaped into the hands of
the other convicts, Prather held one a foot and a half long.
With the sharp points pricking their throats, Dunn and
Fentress stood frozen while blood from Dunn’s wound flowed
down across his white shirt and the convicts bound their
hands with suddenly produced baling wire.

Beavers and Anderson wrapped their arms around Dunn’s
neck, the points of their weapons pressed against his neck
from opposite sides. McGee and Prather trussed Fentress the
same way. Without fear for himself, Dunn felt gooseflesh
playing along his spine for Fentress. Unable to turn his head
for the sharp blades, he flashed a desperate glance across the
prison yard. But the affair had lasted less than 30 seconds and
the attackers had struck noiselessly. The guards, oblivious,

THE FLEEING CONVICTS
IN MORE WAYS THAN ONE!

1 In this photo of McAlester Prison yard, cross shows spot where the
warden and his companions were taken captive.

2 Deputy Warden Ben Crider walked out unarmed to face the mad-

dened convicts and demand that they give up. their plan.

were all looking elsewhere. So were the convicts—pur-
posefully,

The warden heard Beavers’ voice snarling in his ear:

“Start for the east gate! Tell ’em to throw down their guns
and keys if you want to live! And no tricks, you ——! I’d as
soon kill you as not!”

The convict’s tone was savagely earnest. Dunn slowly

_ turned and marched toward the east gate, the two convicts still
holding him in an iron grasp, their knives still at his throat.
Fentress, with Prather and McGee, fell in behind.

The east gate was the vulnerable spot where all major
escapes were tried—two sets of barred gates with a twenty-five-
foot compound between, where work parties came and went
under the eyes of a pair of tower guards. Elsewhere more than
a dozen barred doors blocked the path to freedom.

Dunn trudged along as slowly as possible to give Murray
and his son time to reach safety and spread the alarm. There
was a chance, too, that the guards at the east gate would stop
the escapers, no matter what they forced him to say. In
meeting after meeting in his office, he had given the guards
their orders:

“Some day they’ll get me. When they do, I’m likely to say
any fool thing. But I’ll be lying! Pay no attention to me!
Shoot and shoot to kill!”

T THE DOOR of the cell block, the white-faced Murray
met Eugene Blaylock, warden’s secretary. In frightened
sentences that tumbled over each other, he gasped out what
had happened. Blaylock wheeled and raced back through the
clanging gates to the warden’s office. While he called the
Pittsburg County sheriff’s office on the telephone, he relayed
word to Deputy Warden Ben Crider, who was on duty. Crider

INSIDE DETECTIVE

3 At this point in
and here Tab For
4 A reporter poin
used as a trench, «
5 A girl holds the
persons. Biggest

flashed the wor:
and coatless, the
making a bareha
forbid taking a
danger that conv
Crider caught
east gate. Hope
realized the temy
determination he
the men.
“Boys!” he cri
this! Stop it whi
McGee glared
tress with one har
midriff,
“Keep back!” |
Crider dropped
and plead with th.
McGee turned an
point almost slit
Fentress to grapp
As the alarm s
on the walls all ;
hustling convicts
than three minute
powered. Was it
Realizing what
Dunn slowed his

tae THROUGH
was Deputy Bill Ale
three of the four chem

]

by slug which kill

DECEMBER, 1941

wee
C
t-
=
<
B
2
is

* crime | scene. .

HE man in the

ed that very morning and twice
the man fell, the damp red cloy

soiling the knees of his expen- //

sive suit.

Finally, though, he reached |
the spot where Claude Oliver -
and his nephew George stood :.
watching him. They had seen *%;

him coming toward them, had
halted their plowing to await
his message.

“You. Claude...Oliver?”

The tall young. farmer nodded.

The city-dressed stranger pulled
out. a fine linen handkerchief and
wiped the moisture from his round
face as he puffed, “Better come
with me—my car’s back there on
the road—afraid I’ve bad news for

Oliver’s face clouded and his
nephew a nice-looking lad of 18,
‘shot an apprehensive glance at

“Well,” the farmer said quietly

‘after a moment’s silence, “guess

you’d better break it. I don’t know
who you are, but—” :

“That doesn’t matter. I just hap-
pened to be passing in my car.
It’s your wife. I’m afraid that she’s
—underneath: They’re trying—”

The stranger left the sentence
suspended as he saw the shocked,
agonized look on Oliver’s face. The
color drained from the lean, sun-
bronzed face and his lower lip
trembled. For a second he stared
at the earth, his eyes misted, then
he turned to the wide-eyed youth
at his side.

“you better stay here. Unhitch
the team and water it.” He started

~ walking toward the road. “All right,

mister. Can you drive me there?
Where did it happen?”

Oo FID <ASTIACK

gray topcoat |
was running across the field ~",..
as fast as he could, but his
rogress was none too rapid.
The field had been deeply plow- §

Was, elec, OK (Murray) gp 8/25/1935

“Just a little over a, mile down
the road.” .

A handful of onlookers was
clustered about the overturned old
Model T when they arrived. The
body of'a pretty young woman lay
on the brown grass covering the
shoulder of the road.

“We got her out as fast as we
could,” said a husky-voiced man
who wore a town marshal’s badge
on his vest, “but she must haye
died almost instantly.”

Oliver nodded and walked toward
the figure on the grass. Tears
coursed freely down his cheeks.
They had been married only three
months. She, the former Della
Ring, one of the loveliest. girls in
the county, had been only 19, he
28, when she went as his bride
to the hundred-acre patch of
southern Oklahoma land which he
was farming with the help of his
nephew George.

Marshal Dee Ramsay, from the
nearby town of Davis, was behind
him, talking softly.

“I got a call from one of your

neighbors. They were. notified by

‘

(May P47

the man who went for you. He and -

his wife were passing by. That’s
her sitting in the car over there.”
He turned around to the stout man

in the grey topcoat. “By the way,

I wonder what happened to that
other fellow? See anything of him
along the way?”

The man shook his head. “Not a
sign.” \ :

Oliver wheeled around. “What
other man?”

“It’s queer,” the sheriff said,
frowning. “These people were driv-
ing up to Oklahoma City, saw the
overturned car beside the road as

‘they approached abcut an hour

ago—that is, around 10 a. m. An-
other ear was parked about twen-

ty feet beyond it, on the other’

side of the road, and the driver
was running from your car to his
—on his way to get help, I guess.
When he saw the car pull up, he
turned and ran toward them. Was-
n’t that right?”

The stout man nodded. “I saw
at once: we couldn’t get her out
without help. I told. him to stand

by while I went to that farmhouse— a
c \ rig

» aren

‘Derecrd€

“some fancy

wher
Ppt +

on the h
an ambu
farmer’s —
She recog
asked the
your farn

- an’s” dire

enough, !
got them

‘marshal I

I went fc

The ar
been out
siderable
Marshal }
speeding t
berson. 17
nounced :
as the me
forts, had
on its sid:
ure from

Death }
pound fr:

‘body was

the accide
than a fe
“That :
got there
did,” the

f said;
ce driv-
saw the
road as
a hour
m. An-
t twen-
>» other
driver
- to his
I guess.
up, he
n. Was-

“I saw
ner out
o stand
mhouse

on the hill to call a doctor, and
*-an ambulance from Davis. The
~*farmer’s wife came: back with us.
-. § he recognized Mrs. Oliver and we -
=< asked the other man to drive to

your: farm and get you. The wom-

PS an’s directions seemed plain
enough, I thought ,but maybe he

got them mixed. Finally, after the

| ~ marshal had arrived with a doctor,
, I went for you myself.” “=:

The ambulgnce at Davis had
been out on: another call;*® con-
siderable distance from town, but
Marshal Ramsay had lost no time
speeding to the scene with Dr. Rob-
berson. The physician had: pro-

* nounced the woman dead as soon.

- as the men, by their combined ef- |
i forts, had tipped the ancient wreck .
on its side and lifted the limp fig-

ure from it. : .. See
Death had resulted from a com-
pound fracture of the skull. The
body was still warm. That «meant
the accident had occurred not more
than a few minutes before 10 a. m.

“That stranger told us that he .

got there only a minute before we
did,” the stout man said. “It’s fun-

ny he hasn’t come back.”
Marshal Ramsay was begining
to find it not funny, but definitely
suspicious. There had been no rea-
son, to suspect the missing motor-
ist up to now. When he had failed
to return within a reasonable
length of time, certain misgivings

. had begun to form in the officer’s

mind... Saeay
There had been no collision, the
stout man said—at least, not so
far as he could tell. And he had
taken the pains to investigate, for
the same thought had occurred to
him. He had looked closely at the
front of the other car- and exam-
ined the road for tire tracks. He
saw no evidence either that the
cars had collided or that the miss-
ing car had forced Mrs. Oliver to
swerve sharply and overturn,
Indeed, this possibility was ruled
out almost immediately by further
investigation. It was noticed that
the car had plunged off the road at
a point where it was underpassed

by .a culvert. The wreck now lay

on the dry bed of a stream several
feet below the road’s surface. It’s

hood and front end were smashed,
and the right front wheel was
twisted under the frame.

Marshal Ramsay walked down
the road and returned a minute
later. “Yes,” he said, “it seems to
be plain enough that she drove it
off the road and it toppled over.

i= “I can see the tracks leading straight

to the edge of the culvert. Possibly
the steering knuckle broke.”

After asking Oliver and the oth-
ers a few more perfunctory ques-
tions, he dismissed them. The

young husband told him that his —

wife had left their farmhouse at
9:30 o’clock that morning of No-
vember 3, 1932, to buy some chick-
ens. She was a competent driver.
The car was old and sometimes

‘undependable, but he had noticed ,

reread wrong with it the day be-
ore. .
-A short time later the ambulance
from Davis removed the: body of
_ the young bride and subsequently
a wrecking car took the battered
Model T into town.

WO days later funeral services

were held at the home’ of Mrs.
Oliver’s parents in nearby Wynne-
wood, and she was buried there.

But Marshal Ramsay had not
been back from the services for
more than an hour before suspi-
cion again began gnawing at his
mind. A seed of doubt had been
planted there the day before when
he and a local garage mechanic
had gone over the. steering appar-
atus in the wrecked car and found

no defects. The tires were all right; .

a blowout could not have made
the car swerve. Mrs. Oliver had
enjoyed good eyesight; she had
never had an accident before.

. Why, then, had _ she _ driven
straight over the edge of the cul-

_ vert? Somehow an inner convic-

tion, inexplicable at the moment,
persuaded Ramsay that she hadn’t.
She had been only a mile and

a half away from home when she |

ao er retain ae

met,her. death, Presumably she, was

‘except the compound skull
fracture, had been unusually

‘cially the windshield and top, just

sen" O22 Sh geist abe ee Reo!

riding alone. But was she? Dr. Rob-

berson,. who examined. her later,...

said she had suffered, no- injuries
turéand minor bruises. ‘Th ic

however; the top of the}
Could it have been re
some. other way? Befo
was wrecked, perhaps?
Suddenly the marshal was,
his chair, reaching for his hat

strode down the main street of the - \

little town and turned in at a ga-
rage. In the dimly lighted. back

part of the establishment he saw
the wrecked Model T. Borrowing 2

light, Ramsay took off his coat and
went to work. Inch by inch he went
over the interior of the’ear, espe-

above the driver’s head).

Half an hour later, when he put
his coat back on, his mouth was
grim. Not a trace of blood: was to
be found anywhere within,’ except
on the cushion of the seat’ beside
the driver’s, which the woman’s

head was touching when‘ they” a

found her. a

_ There was no sign that her head E:
had struck any hard surface on

the interior. That was. significant

enough, but the most tell-tale bit |’
of evidence—the thing both he and ©

the mechanic had overlooked until
now and the thing that convinced
him beyond doubt that Della Oli-

’ yer had been murdered—was not

discovered until last.
The ignition had been turned off!
No one could have done it be-

‘fore Ramsay arrived on the scene,

for the position of the car made
the switch inaccessible. And it was
highly unlikely that young Mrs.
Oliver had done it as the car
plunged over the culvert.
Ramsay left the garage, got into
his own automobile, and drove out
to the place, three miles from town,
where the girl bride had met her
death. He scrambled down the em-

‘bankment beside the_ culvert,

climbed a barb wire fence, and
searched for two hours in the field
beyond.

- Finally, as he prepafed to return

‘to his car, he glanced down and

saw a piece of metal at his feet.
It was a large file. It was not rusted
or otherwise weathered. And on
the end of it he could distinctly
see a brownish black stain and two
brown hairs! ,

Encouraged and — excited, he |

searched further, this time along
the road itself. Presently, about 50
feet from the culvert on the shoul-
der of the road, he found the im-
print of a woman’s heel. It was a
deep imprint, despite the hardness
of the earth’s clay surface. Fur-
ther along he saw another one, of
equal depth. "

tot

the earth with :
Ramsay that could only «suggest

that a struggle had taken place, “i
All about the two feminine heel.

marks were masculine footprin
These were much less distinct-
worthless, in fact, for purposes Of
later identification—but one thin
was plain. The prints had bee
made by more than one man.

That might be misleading, Ram-
say decided. The men who had been
on the scene shortly after Mrs. Oli-
ver was found dead had trampled
all around this spot. But the wom-
an’s heel mark, he was sure, had
been made by Della Oliver. She
had worn high heels that day.

Fifteen minutes later the marshal
was back in town, talking earnest-
ly on the telephone with the sher-
iff’s office at Sulphur, the county
seat, eight miles distant.

“It seems a little fantastic.” Un-
dersheriff J. H. Samples said when

Ramsay had finished relating his-

story. “But if that’s blood on the

esembled hers, aS_ | 4

‘shown up yet?” K
» hadn't, Ramsay said. 4
But the next.’
turned upside’ down: on the :
bed. Yéah, we better go out the:
and have another look. We've: g6
- plenty of gaps to fill.” “ aS :
Two hours of daylight remaii
The three officers worked fast bu =
thoroughly, covering every inch of aastiry th
ground within a radius of 150 feet. Be tons i
At first they found nothing on the at cae
creek bed save afew pieces of “% of
_broken glass and a pool of oil one ee u
where the car had overturned. But hae th

stone, bigge

sd hers, aS
very well

» every inch of
iius of 150 feet.
nothing on the
few pieces of
a pool of oft
overturned, But

aes...
Wines

this he picked”
: << stone, bigger than a

ah RS

* Rowe, who was searching in the he
- field where the file had been dis-
“covered, finally called to the other
two. Between the tips of his ex- —
tended forefingers he held a flat
_ piece of metal 1
~~ “Another file?” Samples
“escredulously.
“No, a tire iron—pa
spring. But there’s blood all
ef it. You're right, Ramsay. Mur-
ler’s, been done around
“you're born.” «:

4 inches long.

“In another five minutes, another
t discovery »,ha

de, Near the place -o

so: aaa

rt of an old

bearing bloodstains! BF ete
The marshal whistled. “This,
-makes it look like three people

ms.”
“Well,” drawled Samples, “three
- people were present when she was |
found, weren’t they?”

. those people who were on their way’
_to Oklahoma City—gosh, I can’t
believe they’d be in on such a
thing. They were high-class city
people.” oe,

“Where from?”

“Dallas, they said. They had a
Texas license. Of course, we can
check on them. But what would be -
their motive?” Samples asked.
What would be. anyone’s_ motive,
‘or that matter?”
4-™he woman had not been rob-
d. She was not known to have
“any enemies. However, when she
“had married three months previ-

Sously, & dejected suitor might have
“sh “plotted revenge. “

+ “But he ‘wouldn’t have known
<that she was leaving. the farm on
“that particular morning and at
that. particular “shour,’, Samples
pointed out. Remember,», most of
her’ men friends lived in _Wynne-
wood. That was her home ‘before
she moved down here.”

ort

“T'd say it was .

‘Naturally, we'll’ want ‘to’ learn ‘if

est’ anybody had ‘been bothering her
ately. Have you talked. wit 1, her

Shusbarid?”.. eis Pee
“The marshal shook his head. “Not
along those_ lines... haven't told

Pte dnd

: nikers, it.
uu’ ask. me,” Deputy Rowe put. in...

{ «need to have: the ‘body exhumed
beat her to death. One. person. ~ + tot el
wouldn’t have used all those weéa-..-

_gaone person killed her.”
Ramsay looked surprised. BUGS ss : CG ae

him that: T-thinkshe’ was mutder=)""
ed. But I'll have to now. We may”?

eb rae

for an autopsy.”""' ~~ Ot ee

“we're’ not though here yet,”"’
Samples ‘said, “We've got to fi eo,
out what happened after’ she was,
killed—and‘I agreé that more than’,

cae
ne?

“4
‘

FTER discussing all the possi2¢f

bilities, the officers arrived af
a partial reconstruction of the’,
crime that satisfied them tentative-"*'-
ly. They could not decide what, Ae A
had impelled the young woman to *’ 1
leave her car. But after the strug- we ; =
gle which resulted in her death,
they felt sure that the killer or
killers had placed her body in the
car, pushed the Model T along the’ H
road toward the culvert and steer- ‘ !
ed it over the ledge. One man ‘
could have done it.

“This guy who supposedly dis+
covered the body—you say he was
running back toward his own auto-
mobile when the couple from Téxas
arrived on the scene?” Samples
asked. “He might have been start- {
ing to go for help, and he might ;
not. Looks to me as if that’s the :
guy we'll want to find first.”

Why hadn’t the man returned? ~
He had not even gone to notify”
the woman’s husband, as he prom-
ised to do. He should have known
that the authorities would want to.
question him further. His precipi-
tate and complete disappearance
suggested but one thing: that he
wanted to put distance behind him

‘ as rapidly as possible.

“He might have been an itiner-

- ant harvest hand on the way south, NH be
for. the winter,” Ramsay said, me

“They said he was dressed in work
‘clothes, and his car was an old
rattletrap: with a broken wind-
shield, painted light blue.” . “i ‘
That, Samples thought, was &
good, enough description to send
out on the teletype through Okla-
homa and Texas. “Of course,” he
added, “he may be a thousand —
miles away by this time. You send
out the alarm, Rowe, while the
marshal and I see what background
facts we can get from Claude Oli-,
ver, Then’, you might check some
of the filling stations around here.”
It was dusk and the young farm-
er had just come in from the fields
when they arrived at his home. bs
The nephew, George Oliver, was
preparing a crude meal while his
uncle ‘attended to the barnyard _
chores, and the officers engaged
him in conversation while waiting.
for. Claude Oliver. ened
‘The youth appeared glum, and.
he showed signs of nervousness
when they asked him questions
about the condition of the car.in — =
which his aunt had been killed a
few days earlier. 4 : ;
(Continued on page 56)

ee nye Sg

ried
"

Ee:
Bie ge
pe Mee | ee ae

OLIVER, Glaude & George, whs, elec OK& (Murray) August 25, 1933

meee
Sb ; es 2 aa Be aia ‘

| ~S"“Arrow "shows “where car plunged

| “through rail © (since repaired) ...~

‘and dropped—straight downward.. . :

TO ae

AP Sa tS

@ WHEN CLAUDE
folks in Murray Cc
everything. Claude
a swashbuckling, h:
of a Saturday nig
and handsome in :
could take his won
years old. Nobody

Delia Ringer wa:
could pick cotton
When she walked i:
a bright red calicc
whistle.

Claude Oliver sta
A younger boy, Se
But Claude took «
suppers, square dar
they were married.

For the next th
peared -to be the
Claude had a neph
than himself, who
most of the time. B
waited on his pretty
said he was a chang

Shortly after noo:
came to a screechin
Davis. Two men h

“There’s been an
them told Police (
jumped the wooden
of here. Get out tl

“Hold your horses
Was anybody hurt?

The men were in

“We don’t know \
the chief. “We're
there. But this is <
happened. Seems t
car. It’s upside dov

Ramsey grabbed

ne,
\ \ "
¢

Sakina

Paes,

Was the sh
things, or w

something {

auto accide

jieeeteie

HEADLINE DETECTIVE ANNUAL, #9

paces Sat,

m= WHEN CLAUDE OLIVER married pretty Delia Ringer,
folks in Murray County, Oklahoma, thought they’d seen
everything. Claude was a cotton farmer. He was also
a swashbuckling, hell-raising fool when he went sportin’
of a Saturday night. Sandy-haired, broad-shouldered
and handsome in a rugged sort of way, Claude Oliver
could take his women or leave them alone. He was 30
years old. Nobody figured he’d ever get hitched.

Delia Ringer was as pretty as a calendar girl. She
could pick cotton all day and dance most of the night.
When she walked into the general store in Davis wearing
a bright red calico dress the boys gave her the wolf
whistle.

Claude Oliver started courting Delia when she was 16.
A younger boy, Seth Wheeler, had been her first beau.
But Claude took over. He and Delia went to church
suppers, square dances and on hayrides together. Then
they were married.

For the next three months Delia Ringer Oliver ap-
peared-to be the happiest girl in southern Oklahoma.
Claude had a nephew, George Oliver, 10 years younger
than himself, who hung around’ the honeymoon cottage
most of the time. But Delia didn’t seem to mind. Claude
waited on his pretty bride hand and foot. Folks in Davis
said he was a changed man since he’d settled down.

Shortly after noon Thursday, November 3, 1932, a car
came to a screeching stop outside police headquarters in
Davis. Two men hurried inside.

“There’s been an accident on Price Falls Road,” one of
them told Police’ Chief Dee Ramsey. “An old jalopy
jumped the wooden bridge three and a half miles south
of here. Get out there quick.”

“Hold your horses,” Ramsey said. “Who was in the car?
Was anybody hurt?”

The men were impatient.

“We don’t know who the people are,” one of them told
the chief. “We're working on a highway project near
there. But this is serious. We came along right after it
happened. Seems there were two men and a girl in the
car. It’s upside down in the creek. The girl’s hurt bad.”

Ramsey grabbed his hat and jumped into his. car. He

Was the sheriff imagining
things, or was there
something fishy about that

auto accident?

covered the short distance to the bridge in a matter of
minutes.

Two men were sitting on the creek bank. A girl was
stretched out on the ground. A Negro man was standing
nearby. The girl’s face and clothes were covered with
blood. One of the men was resting her head in his lap.

Chief Ramsey recognized Claude and George Oliver.
Both men had been crying. They didn’t speak as he
approached. Neither did the colored man.

“Has anybody called a doctor?” Ramsey asked.

George Oliver nodded toward the Negro. “He did,” the
younger man said.

The police chief stepped closer. The girl’s skull was
hideously crushed. The features were so mangled it was
hard to tell who she was.

Ramsey asked if it was Delia.

George Oliver managed to say, “Yes.”

The girl didn’t appear to be breathing. Chief Ramsey
knelt down and felt her pulse.

“A doctor wouldn’t do any good,” he said. “She’s dead.”

The two Oliver boys looked .up at the police officer.

hah Seth iia

According to the story,
middle of the seat, had no time to

Delia Oliver (shown) sat in the
jump to safety.

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the floorboards, the blood you men found
in the road 30 or 40 feet from the bridge
and the unscarred bridge itself all tell a
story, TL helieve the pirl was killed ins the
auto at the spot where the blood was
found in the road. The machine was then
driven to the bridge and pushed over the
side with Della Oliver inside.”
Both Rowe and Samples agreed that that
was the way the “accident” had happened.
“We're really getting some place,” John-
son said, “but there’s still not enough evi-
dence to prove a murder case. Let's find
those Oliver boys and talk with them,”
They drove into Davis, but were unable
to locate Claude and George Oliver until
quite late that night. The uncle, whose
wife had died, and the nephew were ar-
rested on suspicion of murder and lodged
in the Murray County Jail in Sulphur.
Both men put on a good act about being
surprised that there was any question

They talked freely.

“All right,” Sheriff Johnson told George
Oliver, “tell us exactly what happened on
the morning of the accident. Start at the
beginning.”

The youth repeated his earlier statement
about Della Oliver having a headache.
“Claude had said something about going
over to Jed Bromfield’s farm and getting
some chickens,” George continued. “So
when Della wasn’t feeling well I said
maybe some fresh air would do her good
and suggested a ride over to get the
chickens. Io was driving: and everything
went along all right until we came down
the hill towards the bridge. I still don’t
know exactly what happened, but the car
is old and something must have pone
wrong with the steering apparatus. Any-
way, it went out of control. I tried my
best to hold the car in the road, but just
as we hit the bridge the right) wheels
missed and we went over the side. That’s
all I know except that we were lucky all
of us didn’t get killed.”

Claude Oliver had been sittings with his
face in his hands, eryings.

Sheriff Johnson reminded him of the
$5,000 insurance policy.

“Yes,” he admitted, “I took out that
amount on Della and the same amount
on myself. I’ve never had anything be-
cause I’ve never been able to save any
money. I thought that would give us pro-
tection and make us save at the same
time.”

“But your income didn’t justify that
amount of insurance,” the sheriff told
Claude.

“T guess you're right,” the widower said,
“but that insurance salesman convinced
me I could meet the premiums and I
didn’t want Della left without anything
to live on if somethings happened to me.”

By the time this questioning had taken
place it was very late. The Oliver boys
were returned to their cell and Johnson,
Rowe and Samples called it a day.

The following morning they called Mar-
shal Ramsey and asked him to meet them
at the scene of the questionable accident
on Price’s Falls Road.

While the sheriff, Ramsey and Samples
studied the bridge and the surrounding
ground Deputy Rowe was sent to talk
with Jed Bromfield, the farmer who
raised and sold chickens, and to whose
house George Oliver claimed they had
heen headed when the car went off the
bridge, Bromfield lived about a quarter
mile from that bridge.

“You know about the accident,” the
deputy told Bromfield. “It happened on
Thursday, November 3rd. Did you notice
anything unusual that day?”

hesitation. “There were two men sitting

in an old blue touring car just before

about Della Oliver’s accidental death.

“Yes, I did,” the farmer replied without .

noon that day. ‘They were parked out
there on the road at the top of the hill,
opposite my house. They sat there about
thirty minutos, then they drove off in the
direction of Davis.”

“Could you tell me what they looked
like?” Rowe asked. “Maybe you recog-
nized them?”

“No, I didn't recoynize either of them,”
Bromfield said, “but I think they were
Mexicans.”

“What about the make of the car?”

“Tean't tell you that,” the witness said,
“but To oremember it had a lizht colored
top, and the top flapped in the wind
when they drove away.”

Deputy Rowe thanked Bromfield and
started back to the bridge. He tried to
think about the blue touring car with a
light top that flapped in the wind. but
couldn’t seem to remember any such
vehicle.

While he’d been away Sheriff Johnson
and the others had unearthed another
important clue. This was a rock about
the size of a cocoanut in the creek bot-
tom. They had seen dark spots on one
side of the rock and when they turned
it over they found an even larger stain
that appeared to be coagulated blood and
several strands of brown hair clinging to
a fragment of scalp about the size of a
fingernail.

It was obvious the rock had not been
in the water long because it was not
covered with the same kind of under-
water growth the other rocks were. The
officers believed they’d found the death
weapon,

“What we need now is a witness to the
crime,” Sheriff Johnson said.

Deputy Rowe repeated the story Jed
Bromfield had told him about the men
in the blue touring car. They all tried
to think of the owner of such a car and
Marshal Ramsey came up with a possible
answer.

“I know a Mexican named Jose Ochoa
who owns a blue car like that,” he said,
“And | think the top is lighter than. the
rest of the car, It’s loose and = flaps in
the wind.”

Sheriff Johnson went with Ramsey to
Ochoa’s house. The Mexican was at home
and his blue Jordan touring car was
standing outside.

After listening to the officer’s story
about what Jed Bromfield had said Ochoa
admitted that he had been parked on
Price’s Falls Road the day Della Oliver
died.

“I was there all right,” he told the
investigators. “George Palino was with
me. We went over that way to sce about
some livestock.” ;

“And you did see the Olivers’ Model-T
Ford around noon?”

“Yos, we did.”

“What were the people in it doing?”

Jose Ochoa hesitated and first looked
at Sheriff Johnson and then at Ramsey.
Finally he said, “They were fighting.”

“Who was doing the fighting?” Johnson
asked.

“They were all fighting. The two men
and the girl. It looked serious, too.”

Johnson eyed the Mexican closely.
“Just how could you see down in that
ditch under the bridge from where you
and Palino were parked?” he wanted to
know.

“They weren’t in the ditch under the
bridge when we saw them — fighting,”
Ochoa protested. “They were up on the
other hill before they got to the bridge.
It looked like they were beating the girl.
Then we saw them put her in the car
and go down to the bridge in it. The
two men got out and pushed the car off
the bridge.”

“You're positive about that?” the sheriff
asked.

“T sure am.
scared.”
“What did
"We drove |
me to keep no
we'd seen. Li’
and George |
house. I tried
they found m
told) anybody
day they'd kil!
George Pali:
told) substants.
and Ochoa w:
the crime and
spot where th:
Signs of a stru
Ochoa also |
one of the m
A thorough se
he thought th:
turned up a
Nearby was a
wisps of brov
Sheriff John
for their coop
officers knew
They not on!
death but th:
eye witnesses
murder plan.
Sheriff Joh:
gan, Samples.
together in F:
was brought
story he had
had gone out
the bridge.
County Att
Then he sho:
stained rock {:
if he’d ever
“No,” Georg
saw that rock
“What about
county attorn:
objects found
George's fav
back, He tre
came, Finally
been lying to
I'll tell every
“Start at the
anything out,”
George Oli,
story of what
ing of Thursd.
he couldn't.
part about thi
dened, he gro;
failed him. Fi
cers were cor
re-constructin
Claude Olive:
The uncle
nephew and
talked enous!
made a full «
torney Fagan
After tellin
up to the a
said, “Georg:
‘to the hill sor
bridge. I told
was losing ai
to the back o:
‘My God, Gec
do?’ I could
in the car an
with the file
of the car
Blood was ri:
screamed, ‘Ti
trying to kil!
“George th
into the past
bling in the
iron from th
her over the
in the road.
dead, so we v

parked out
» of the hill,
there about
ve off in the

looked

recog-

they
you

ier of them,”
they were

the car?”

witness said,
light colored
n the wind

romfield and
He tried to
‘ car with a
1c wind, but
r any such

riff Johnson
hed another
rock about
» creek bot-
pots on one
they turned
larger stain
d bleed and
clinging: to
i size of a

id not been
if was not
! of under-
: were. The
{ the death

itness to the

.e story Jed
ut the men
ey all tried

hoaocar and
h a possible

Jose Ochoa
at,” he said.
‘er than the
ind flaps in

Ramsey to
was at home
uf car was

licer’s story
i said Ochoa
parked on
Della Oliver

he told the
2 was with
to see about

rs’ Model-T

it doing?”
first looked
at Ramsey.
fighting.”
3?” Johnson

ne two men
us, too.”
‘an closely.
wn in that
where you
wanted to

under the
fighting,”
up on the
the bridge.
ing the girl.
in the car
in it. The
the car off

the sheriff

“ft sure am. George and I were plenty
seared.”

“What did you do then?”

“We drove back to town. George told
me to keep my mouth shut about what
we'd seen, Later that same night Claude
and George Oliver came over to my
house. I tried to hide in the back, but
they found me. They said that if I ever
told anybody about what I’d_ seen that
day they'd kill me,”

Georfe Paling was questioned and he
told substantially the same story. Palino
and Ochoa were taken to the scene of
the erime and they pointed out the exact
spot where the fighting: had taken place.
Signs of a struggle were apparent.

Ochoa also told the officers that he saw
one of the men throw something away.
A thorough search of the pasture where
he thought the object would have landed
turned up a heavy blood smeared file.
Nearby was a tire tool. Both objects had
wisps of brown hair clinging to them.

Sheriff Johnson thanked the two men
for their cooperation. He and the other

officers knew that the case was broken.
They not only had the instruments of
death but the two Mexicans had been

eye witnesses to the carefully carried out
murder plan

Sherif! Jolson, County Attorney Fa-
gan, Samples, Ramsey and Rowe _ got
together in Fagan’s office. George Oliver
was brought in. Tle repeated the same
story he had told before, saying the car
had gone out of control and crashed off
the bridge.

County Attorney Fagan let him finish.
Then he showed the youth the blood-
stained rock found in the creek and asked
if he’d ever seen it before.

“No,” George Oliver replied, “I never
saw that rock before.”

“What about this tire tool and file?” the
county attorney asked, showing him = the
objects found in the field.

George's face flushed and he stepped
back. He tried to speak, but no words
came. Finally he managed to say, “I’ve
been lying to you. You know the truth.
lll tell everything.”

“Start at the beginning and don’t leave
anything out,” Sheriff Johnson told him.

George Oliver tried to tell a coherent
story of what happened that fateful morn-
ing of Thursday, November 3rd, 1932, but
he couldn't. Each time he came to the
part about the murder itself his face red-
dened, he groped for words and his voice
failed him. Finally, when the county offi-
cers were convinced he was incapable of
re-constructing the crime, they sent for
Claude Oliver.

The uncle took a quick look at his
nephew and must have known that he’d
talked enough to implicate them both. He
made a full confession when County At-
torney Fagan showed him the evidence.

After telling about the events leading
up to the actual murder, Claude Oliver
said, “George was driving as we came
to the hill some distance west of the little
bridge. I told him to stop because a tire
was losing air and I got out and walked
to the back of the car. I heard Della yell,
‘My God, George, what are you trying to
do?’ I could hear a thud and a scuffle
in the car and knew George had hit her
with the file. She managed to get out
of the car and came running to me.
Blood was running down her face. She
screamed, ‘Help me, Claude, George is
trying to kill me.’

“George threw the file over the fence
into the pasture. When he saw her stum-
bling in the road he grabbed the tire
iron from the back of the car and hit
her over the head with it. She fell down
in the road. We both thought she was

dead, so we wrapped her in that old blan-

ket and put her back in the car. We
rolled it on down the hill to the bridge.
Then George and I pushed it over into
the stream. We went down, took her out,
spread the blanket on the side of the
bank and laid her on it.”

Claude Oliver went on to say that
George asked him if he thought the girl
was dead. “I said I thought she was,” the
older man added, “but George picked up
a bigs rock and hit her with it, anyway.
That's ition the table,” he said) indicating:
the blood stained stone. “Then he went
to telephone the doctor. Some _ people

came by and 1 pretended IT was crying. |

Pretty soon Marshal Ramsey came out.
So did the doctor. He thought it was an
accident, just as we’d planned he would.
I guess that’s all there is to. tell.”

After the confessions had been. signed,
Sheriff! Johnson returned George and
Claude Oliver to their cells.

It turned out later that the two wit-
nesses to the crime, Jose Ochoa and
George Palino, had been promised money
to be near the bridge and see the car
wrecked. "They'd been told) the Olivers
were going to claim the car went olf the
bridge accidentally and collect insurance
on it. Ochoa and Palino knew nothing
about the murder part of the plot) and
weren't supposed to have seen the fight.

To avoid any possible trouble in the
community, George and Claude Oliver
were taken to Ardmore and lodged in the
mob proof jail there. They were returned
to Sulphur for a preliminary hearing on
Thursday, November 17th. A “not guilty”
plea was entered by both men and they
were bound over to the district court.
The court appointed two capable attor-
neys to defend the accused men.

On December 12th, when George and
Claude Oliver appeared for trial, they an-
nounced through their attorneys that they
desired to change their plea to guilty.

Judge W. G. Long explained that in a
case such as theirs Oklahoma law made
the death penalty mandatory, and asked
if any promises or concessions had been
offered the defendants in order to obtain
the guilty plea. After each man answered
in the negative Judge Long reviewed the
evidence and, on December 14th, sen-
tenced Claude and George Oliver to death
in the cleetric chair at the State Peniten-
tiary at McAlester on March 10th, 1933.

The defense attorneys filed a motion
for a new trial, arguing that the defend-
ants had been advised the county was
without funds and that they would not
be tried for three years because of that.
The motion was denied.

The condemned men were taken to the
State Penitentiary and delivered to War-
den Sam E. Brown on Friday, December
16th, by Sheriff Johnson.

Many people who had followed the case
closely believed that 18-year-old George
Oliver had been a pawn of his uncle,
Claude Oliver, and that the death sentence
was too severe for him. Governor William
Murray issued a stay of execution until
June 30th, 1933, so that the Court of
Criminal Appeals could review the case.
On August 3rd, 1933, the déath sentence
was affirmed despite the younger man’s
age; and the date of execution was set
for August 25th, 1933.

George and Claude Oliver died early
that morning in the Death House at Me-
Alester, less) than one hundred miles
northeast of the town of Davis and the
little wooden bridge they had chosen as
the vital prop in the most cold-blooded,
planned crime in all Oklahoma history.

Eprtor’s Norte:
The names Jose Ochoa and George
Palino are fietitious,

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FRONT PAGE DETECTIVE

_ The Bizarre Case of
the Floating Corpse

(Continued from page 36)

to get away from my boat after I had
invited her over. I didn’t like that.”

For three hours, after the two had
returned to the office, the barge cap-
tain told his story, waving his huge
hands, hands with bronzed, strong
fingers.

He was awakened, he said, by the
sound of his dogs barking Re f had
discovered his guest trying to make
her escape, clothes in hand. He had
beat her up badly, silenced her; then
he had forced her back into the cabin,
pointing the way with the flashlight,
the identical scene described by the
night watchman, _ ;

Once more he had fallen asleep only
to be awakened by the dogs. And once
more he had found the woman trying
to leave his boat.

This time he “almost beat the devil
out of her.” She resisted, let out a
scream for help. Then he had fastened
those strong fingers around her throat.
For a while she struggled, struggled
with almost superhuman strength un-

‘til she lapsed into semi-consciousness.

Then she pitched headlong into the
Hudson.

“And what did you do after that?”
Rosenbloom asked.

“I went to bed,” Malen retorted.

The confession signed, the case was
handed over to Assistant District At-
torney Alfred J. Scotti who worked
up the State’s case.

With the case ready to come up for
trial, Captain Malen suddenly decided
to repudiate the confession. He
claimed complete innocence. The
statement, so he claimed, had been
beaten out of him by incredible third-
degree methods. In fact, he set up the
amazing defense that the woman had
struck at him, had missed and had
toppled into the water. And to bring
out his story—along with an acquit-
tal—he hired for counsel the eminent
criminal lawyer, Abraham M. Fisch.

To this defense Assistant District
Attorney Scotti opposed the State’s
version which declared in no uncer-
tain terms that Andrew Malen, frus-
trated in his desires to make Justina
Safko—a woman who supported two
absentee children and without any
police record whatever—submit to his
desires, slew her when she tried to
escape from his clutches.

Attacking the hypothesis that the
slain woman had tried to strike Ma-
len, had missed and had plunged into
the river, Scotti proved to the jury
that if the defendant had been stand-
ing where he swore he had and Jus-
tina Safko had tried to strike him and
had missed, she would have landed
on deck—not in the Hudson.

“Nor does this explain the fact that
this woman was strangled before she
was flung to her death,” Scotti pound-
ed home.

The case was in the hands of the
jurors when the defense forces sud-
denly decided to capitulate and plead
guilty to manslaughter.

On March 18, 1940, Judge Jonah
Goldstein, after a stern rebuke to the
defendant, sentenced him,to a term
of five to ten years in the state prison
at Sing Sing.

Murder on the Flip
of a Coin

(Continued from page 19)

that he. still loved her. But he had
borne no ill feelings when she had
married Oliver.

“We just couldn’t hit it off,” he said.
“We quarreled all the time and I
didn’t get along with her parents so
we decided to call it quits.”

Sheriff Johnson stared thoughtfully
out the window for a time. Then he
turned back to the youth.

“Know anything about a car?” he
demanded sharply.

The suspect shook his head vigor-
ously..

“I wouldn’t know a spark plug from
a piston, Sheriff,” he said. “Say; you’re
not trymg to accuse me of anything
are you? Because if you think that
Delia didn’t die in that accident, you’d
better go question her husband!”

This statement did not startle Sher-
iff Johnson. He merely looked steadily
at the youth.

“What makes you say that?” he
asked.

“Well,” said the boy, now thorough-
ly ill at ease, “I don’t want you to
tell Oliver what I’m going to say but
I knew he didn’t love Delia when they
were married!”

“Then why did he marry her for?”
demanded Sheriff Johnson although
he was almost sure of the answer.

“I think he did it for spite against
some one,” answered the other, “May-
be he did it because Delia called him
some uncomplimentary names once.
Maybe he thought to pay her back by
being cruel to her.”

Sheriff Johnson and the other men
in the room eyed the boy for a time.
Then Chief Ramsey spoke.

“Do you know whether he treated
her meanly?” he demanded.

“That’s the funny thing about it,”
said the boy. “I heard that Claude
treated her like she was made of gold
and real valuable!” He turned to
Sheriff Johnson. “Why, I understand
that Claude would baw] her out if
she went out in the rain or cold with-
out proper clothing!”

Here was a queer twist, a statement
that threw everything out of line. If
this boy’s story was believed, how
could the investigators account for
their suspicions? The case was bog-
ging down.

The boy was told that he might re-
turn home but Sheriff Johnson sug-
gested that he be readily available.
After that the officer held another con-
ference with the rest of the men.

“There’s still a lot to do,” he said.
“First_of all we might as well ques-
tion Claude Oliver and his nephew
and the parents. If we can’t get any
Satisfaction from that score we'll try
something else.”

Accordingly, the five men drove
over to the Oliver farm. Claude and
George Oliver were in the yard polish-
ing up the car they had taken from
the Davis garage. When the two
sighted Sheriff Johnson and the others
they looked at each other sharply and
then greeted the officers cordially.

“Hello, Sheriff,” said Oliver slowly,
“What's up?”

He looked at the insurance investi-
gator and then at the othe

“We want to question you some
more on that accident,” answered the
sheriff. “We’ve learned something that
looks mighty queer.”

Oliver’s face paled as did his neph-
ew’s. His lips tightened.

“Yeah? What is it?” he demanded.

“Well,” began Johnson, “we learned
that you had a big policy on your
wife naming you as beneficiary. This
man is an investigator for the in-
surance company.”

“Investigator?” Claude Oliver didn’t
even glance at the agent. “What's the
matter with the company now?” he
wanted to know. “They didn’t say a
thing when I bought the policy and
paid cash for one third of the premi-
um. Now that they have to pay the
full policy they’re yelling. you
mean to say that I killed my wife,
Sheriff?”

“Nothing like that, Oliver,” an-
swered the sheriff sternly, “but there’s
a number of queer things we want ex-
games. 2eP Tell us just how that accident

oer again.
laude Oliver told his story once
more to the men. It was almost the
same as the one he had told in the
waiting room of the undertaking par-
lors. At the same time Chief Ramsey
had engaged George Oliver in ani-
mated conversation out of earshot of
the rest. Sheriff Johnson made an im-
perceptible signal and Ramsey and
George Oliver joined the group. The
latter Oliver was then asked to tell
his version of the story to all of them.
It was identical to the one which the
husband had recounted a-few mo-
ments before to the sheriff.

From there, the men questioned
Oliver’s parents and learned that Delia
was greatly loved. Her death had
been a distinct shock to the couple.

Finally, Sheriff Johnson and the
others left. No one spoke for a few
minutes. The agent muttered sudden-

“Those two men told their stories
as though they had rehearsed for
hours!” i

“I was about to say the same thing,”
answered the sheriff. “And yet, that
doesn’t make them guilty. We've got
to remember that they were pretty
excited and probably remember only
the 2g tne of what actually hap-
pened. We’ll question Ringer and his
wife. Maybe we can learn something
there.”

But the Ringers could give little in-
formation of importance to the inves-
tigators. They described Claude Oli-
ver as a very considerate husband who
brought his wife over to her parents
quite frequently.

“He didn’t want us to think that
we couldn’t see our daughter ain
because she was married,” said Mrs.
Ringer. “Claude was a good husband
to — Delia always.”

e men drove back to Davis in a
highly preoccupied state of mind.

‘I was just thinking of making an-
other investigation of that place of
accident,” mused Sheriff Johnsan.
“We'll need some shovels to dig
around in the dirt by the bridge. May-
be we’ll find something worthwhile.”

Armed with shovels and picks the
five men returned to the bridge. First,
they inspected the ground on their
hands and knees for more than three
hundred feet on either side. If there
were any clues to be found, this t

FRONT PAGE DETECTIVE

“Look what I found, boys!” he
called.

He held up a long black hair. And
Delia Oliver had black hair! Ramsey
aaa to the spot where he had
ound it—about five feet from the end

of the bridge.

EPUTY ROWE was the next to
discover a clue. He had’ been
searching in the deep ditch that ran.
along the side of the road when he
noticed a small spot of freshly turned
earth. He sank his spade into the mass
and pried up. There, on the tip of his
shovel, was a large cluster of human
hair heavily matted with blood!

The men eyed it speculatively, then
matched it with the strand found by
Chief Ramsey. It was identical but
—_ identification would have to

made under a microscope.

The search continued with feverish

‘activity now. A few feet from the spot

where they had discovered the hair,

’ the men unearthed a car spring that

had been fashioned into a tire tool.
This was also heavily smeared with
blood and again, more long black
hair adhered to the stic surface.
Immediately near this third find, the
men located a rock lying in the weeds.
This, too, was covered with gore and
strands of black hair.

“It looks as though one of them
used a tire tool and the other wielded
the rock,” commented Chief Ramsey
soberly. “There’s no question but that
the poor girl was dead before she went
into the gully.”

“You'll have to prove that those
things were in the hands of the Oli-
vers,” imterrupted the insurance
agent. “And what about this Atkins
who stated that he saw the car go
off the bridge?”

That was the sticker, and the in-

‘ vestigators knew. it. But as they dis-

cussed it, the deed could have been
undertaken with the negro none the
wiser. Sheriff Johnson reconstructed
the crime for the men.

“We'll say that Delia Oliver was
killed in the car as indications prove
now,” he said. “These two men then
drive to the bridge and they have a
stroke of luck. Right before them
stands Atkins, a good witness. Mind,
they’ve thought of running the car off
the briage and now that there’s a
witness their story will hold water
much better with the insurance com-
peer: Well, they run the car off the

ridge and then*’while Atkins is all
excited they notice that the things
used in slaying the girl are around the
car. They pick them up on some pre-
text and bury them. The negro could
be none the wiser for he could have
been engaged in. conversation with
one of the Olivers while the other
concealed the stuff.”

“There’s just one thing wrong with
your story, Sheriff,” stated Chief Ram-

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let out an excited shout.

IX DAYS later the townspeople
had all but forgotten about the
accident. And early on the morning of
the 8th an _ insurance investigator
called at Sheriff Johnson’s office. He
made known his business and then
struck a serious attitude.

“I understand you investigated this
accident, Mr. Johnson,” he said. “Since
I represent the insurance company
which holds a large policy on the dead
woman, I’d like to have your report
as a judgment.”

Sheriff Johnson outlined the case to
the man and then asked casually:

Arrow indicates spot where Oliver car

crashed through rail in bizarre acci-

dent which left pretty Delia Oliver,

her body battered and crushed, dead
in gulley below bridge.

“How big is that insurance?”

“Five thousand dollars and in event
of accidental death ten thousand,” an-
swered the investigator.

The sheriff sat bolt upright. Then he
demanded:

“Who is the beneficiary?”

“The husband, Claude Oliver,” an-
swered the man. “That isn’t my reason

for asking these questions,” he said.

hastily, “It’s just that—well, doesn’t
it strike you as odd that such a big
policy should be taken out by a com-
paratively poor farm hand like Claude
Oliver?”

Sheriff Johnson agreed with the
man and then asked if the premiums
had been paid regularly.

“That’s another odd part of the en-
tire setup. The policy is only two
months old!”

Sheriff Johnson did not answer. In-
stead, he picked up the telephone and
contacted another insurance office in
the city: When he turned to the in-

surance agent he wore a wide smile. —

“Oliver was just paid another policy
on his wife’s death in the amount of
three hundred dollars,” he said. “Tell

FRONT PAGE DETECTIVE

you what I’ll do: I noticed something
out there last week that was out of
kilter with the story of the accident.
We'll call on Chief Ramsey in Davis
and investigate the scene again.” —
The agent agreed heartily and to-
gether with Sheriff Johnson and
Deputies Sample and Rowe, they

drove back to Davis where they again .-

picked up Chief Ramsey.

At the bridge, the sheriff outlined
the case to the insurance investiga-
tor. Then he walked over and pulled
the splintered board loose from the
span. He stroked his chin, then spoke.

A blood-stained rock, human hair and
a tire tool, clues which transformed a
routine accident into a ghastly riddle
of murder, were found by Sheriff
Johnson near this underway.

“This board marks the spot on that
bridge where the car went off into
the gully,” he said. “Now, the marks

on it point to the fact that the car.

was pushed off. If the tire had rolled

diagonally off the board wouldn’t have ©

split like this. I had this suspicion in
mind when the accident occurred but
I wanted to wait and be positive of
any statements I made.”

The four men grouped about him
nodded agreement. Chief Ramsey then
vouchsafed the information that the
wrecked car was still in a garage at
Davis.

“Then maybe it’s high time we gave
that bus a real good going over,” an-
nounced Sheriff Johnson with a grim

smile. “Now, that we're all together .

on one phase of the case we might be
able to agree to everything else.”

Mystified, the others nodded again .

and the five men drove back to Davis.
They went directly to the Ford garage
where the machine had been towed.
As they entered Sheriff Johnson
called the floorman in charge.

“No one has been near that Oliver
car, have they?” he demanded.

“Not a soul, Sheriff,” answered the
man. “She’s standing over in that
corner in the same condition as the
day it was pulled from the gully.”

Sheriff Johnson led the way to the
badly damaged Ford. A mechanic
brought two powerful lights into play
and the men began their tedious task
of inspecting every inch of the car.

And it was here that Chief Ramsey
discovered something that was signifi-
cant. For there was a large quantity |
of dried blood on the running board
and also on the front seat cushion. He
called the attention of the others.

“How could Mrs. Oliver
have stained the running
board and cushion when she
was pinned under the car
when the car was upside-
down?” he demanded.

“That was impossible,”
said Sheriff Johnson. “She
must have bled when the
car was still on four wheels
—on the bridge,” he added.

“There isn’t a chance that
the Olivers were injured
and bled either,” said Depu-
ty Ramsey, “because they
weren’t in the car. This
looks like murder!”

Sheriff Johnson called to
the shop foreman then.

“Has Claude Oliver been
around lately?” he _ de-
manded. “Has he said any-
thing about fixing this junk
up?”

“No,” the foreman shook
his head. “He didn’t want
this car fixed again. Said
that he was going to pur-
chase a new one from us.
‘soon as he got his insurance
money. I sent him over to
the sales department.”

Led by Sheriff Johnson
the small group of men
went to the sales depart-
ment to determine whether
Oliver had purchased another car.
They learned that Claude Oliver had
taken a comparatively new car on
trial with a promise to purchase if it
proved satisfactory.

What did this act indicate? Oliver
had not purchased a car and the one
he had accepted on a promise was
not new. Was he really responsible for
his wife’s death, or was this just an
odd prank of Fate?

So far, the investigators had no
clues to support their contention of
Oliver’s guilt except that one slender
bit of splintered wood. And this was
not enough to arrest any man.

ND THEN another angle devel-
oped in the case leading suspi-
cion to a direct opposite. Sheriff John-
son learned shortly afterwards that
Delia Oliver had had a suitor whom
she spurned to marry Claude Oliver.
The young farmer, who lived about
fifteen miles from Davis, was called
in and asked to explain the case. —
With forthright honesty he stated
that he had been in love with Delia
Ringer, and (Continued on page 46)

~18

Shortly afterwards, Sheriff John-
son left to drive over to Wynnewood
where Mr. and Mrs. J. B. Ringer, the
victim’s parents, lived. Arriving there,

he sheriff broke the news as gently
ras possible to the couple and then re-
turned to Davis. By this time it was
quite dark and further investigation
for that day was out of the question.
He. notified Chief Ramsey that he
would return the following morning
and they would check on the accident.
Since the car had not been removed
from the gully because of lack of
equipment to hoist it out, Sheriff
Johnson ordered that it be left there
until his inspection was over.

‘T'll send a deputy out there to
guard it for the night in event some-
thing is wrong,” he said.

‘Back at Sulphur Sheriff Johnson or-
dered a deputy to the scene. The man-
hunt in which he had been actively
- engaged was turned over. to another
deputy for the time being.

Chief Ramsey had notified the
sheriff at four o'clock Pp. mM. on No-
vember 3, 1932, and early the next
morning found the Murray county
officer back at Davis accompanied by
two of his deputies, J. H. Sample and
Earl Rowe. They picked up Chief
Ramsey and then the four men con-

Sheriff Boze Johnson of Davis,

Oklahoma, disentangled the

web of conflicting stories wov-

en by principals in the case.
The truth was gruesome.

tinued on to the bridge where the
accident had occurred, about two and
one half miles southeast of the city.

The men got busily to work, check-
ing on the tire marks that were plain-
ly discernible on the bridge flooring.

@:: that they descended into the
1]

y where the ancient vehicle lay
with the wheels in the air. There
were innumerable footprints about it
by this time, made by the undertaker
and Ramsey when the body was re-
moved the day before. However,
Deputy Rowe was detailed to check
the steering apparatus thoroughly
since he was a widely experienced

FRONT PAGE DETECTIVE

mechanic. Ten minutes later, Deputy
Rowe crawled out of the wreckage,
his face smudged with grease.

“Nothing wrong with this steering
knuckle, Sheriff,” he said. “Nothing
pulled ‘loose and everything is in
place.”

“Then you're positive that didn’t
cause this accident?” demanded Sher-
iff Johnson.

“J’m dead sure!”

Silently, the four men clambered
up the bank and back to the highway
again. They inspected the bridge mi-
nutely. At the exact spot where the
tire marks had gone over the
edge of. the flooring, Sheriff
Johnson noted that one of the
boards was split. It was of
one inch material and this
could have easily happened
if some great weight had
been thrust upon it. However,
the board in this particular
spot bore no marks other than

Right: Claude and Delia
Oliver resided here with
his parents and a nephew.
The elder Olivers were
very fond of their daugh-
ter-in-law and were heart-
broken when Death struck.

George Oliver participated in

an unholy game of chance in

which the stakes were a lovely

young woman and the badge
of a cold, cruel killer.

that already noted: the tire tread.

The attention of the other investiga-
tors was called to this peculiar cir-
cumstance. About three inches from
the edge the tire marks had blurred
into a solid streak as though the tire
had been rubbed violently against the
wood. Sheriff Johnson looked at the
other and rubbed his chin reflectively.

“If any of you wanted that car to
go into the gully and not get hurt
what would you do?” he questioned.

“Why, I’d drive it close to the edge
and push it off!” exclaimed Deputy
Sample. “Say! Maybe that’s what
happened!”

Sheriff Johnson shook his head.

“Let’s not be hasty,” he warned.
“We see this in one light and the
story told to us is different. We won't
say a thing about this and let the in-
vestigation go for the time being. We
can’t get anywhere by jumping to
conclusions.”

Apparently, the easy-going Sheriff
Johnson knew what he spoke of and
was waiting for further developments
in the case. His reason for being calm
about the entire affair was quickly
noticed by the other men. The Olivers
were a greatly respected family and

Claude Oliver escaped un-
harmed from a peculiar auto
accident in which he lost his
wife and car. He took another
automobile on trial soon after.

| had committed many a kind act in

direct benefit to the surrounding
neighborhood. It was entirely possible
that the participants in the case had
become confused because of the highly
nerve-wracking ordeal. Also, Atkins
had been at too great a distance to
give an accurate account, His story
was totally a supposition since the
steering gear was in working order.
But what had caused the car to go
into the gully? That had puzzled the
investigators since inspection of the
road approach to the span had indi-
cated no object in the car’s path which
might have thrown it off its course.

Wednesday, November 20, 1991

~ The Seattle Times

Justice calls legal establishment ‘ a fraud’

by Peter Lewis
Times staff reporter.

U.S. Supreme Court Justice An-
thony Kennedy. yesterday called
the legal estaNishment “a fraud”
for pretending 9 be in charge of
the criminal-justise system.

The truth is, “we're just reac-
tive,” he said.

Kennedy's generally upbeat re-
marks to an audience ‘of several
hundred University of Washington
Law School students turned som-
ber when he was asked to ‘com-
ment about the death penalty
the country’s fast-growing prison
population.

The legal system “is obsessed
with what happens in the,
phase ...,” he said. “We

this talent, all these reSources ,

adjudicating the question of guilt.
And the minute that’

medical professio does better for
its patients.

Pediatrician’ “are excellent at
telling us what child abuse is, how
to prevent it. ... I’m sorry to be
pessimistic, but ] am.”

Each Supreme Court justice is
responsible for a different federal
circuit. Kennedy’s is the 11th,
covering the Deep South, which
has the most executions in the

United States.
He had no
comment on the
legality and mo-
rality of the

death penalty -
but said he has
‘some ques-

tions”’ about
whether At de-

the

past/15 death- Anthony

pewfalty cases he Kennedy
s reviewed involved a defendant
ith a history of being abused as a
child. The legal profession does
othing with corrections and next
othing for prevention, he said.
ere are about 750,000 people
in custody in the United States,
will be about a million

and the

iy
~
\
\

by the year 2000, Kennedy said,
The country, he said, has lost an
entire generation to drugs. _

(ove ®)

NY TIMES
MON.
Nov. 2S,

199)

Congress Goes Wrong
On the Death Penalty

Tp the Editor:
embers of the House of Repre-
sen\atives and Senafe will soon meet
to reconcile their/ versions of this
year’S3 omnibus cyime bill. Unless the
conferdges seriougly alter — or aban-
don — the Hous¢ and Senate bills, the

reckless behavior.

Many Americans \were appalled
when newspapers ported last
month that 35 drug dealers in China
were paraded around a crowded sta-
dium, sentenced to death and imme-

simultaneously in a dozen ot
nese towns. The new crime bill
push the United States dangerously
close to the Chinese model of jwyris-
prudence. The Senate version of \the |
crime bill also severely restricts the

‘right to appeal death sentences. |

As of 1989, according to Amnesty
International, 80 countries had abol:
ished the death penalty for all crimes;
ordinary crimes or “in practice,”
among them Britain, France, Aus-.
tralia, Canada, Germany, Israel, Bra-
zil, Ireland and Hong Kong. The Unit-
ed States, unfortunately, finds itself
on the. list of the 10 countries that
carried out the most executions be-
tween 1985 and mid-1988, along with
China, Iran and South Africa.

On many human rights issues, the,
United States prides itself on setting’
a good example for the rest of the
world. However, in widening the
death penalty, the United States is
clearly moving in the wrong direc-
tion. ALLYSON COLLINS |

Research Associate

Wirmarn Diuts

Hobyn

Lu LO Yo

|
By Wayne Greene
World Capitol Bureau

OKLAHOMA CITY — No one
should be surprised that the first
black man slated for execution in
Oklahoma in 43 years would come
from Oklahoma County, statistics
show.

The state’s;largest-county is
sending blacks ‘to Death Row in
numbers disproportionate to its
population and disproportionate

for the rest of the state, correc-

' tions department figures show.

Oklahoma County District At-
torney Bob Macy, who has made a
national reputation as a law-and-
order proponent of capital punish-
ment, said there is no racism in
his office’s death-penalty deci-
sions.

“T’m colorblind,” Macy said. “I
don’t even consider the race of the
victim or the defendant.”

Robyn Parks is scheduled to be
executed Dec. 6 at the Oklahoma
State Penitentiary. Parks would
be the first black Oklahoman put
to death since 1948 and only the
second oo executed in 26
years.

Parks, 37, was convicted in
1978 of the 1977 killing of an Ed-
mond service station attendant.
The victim was a native of Bang-
ladesh.

Oklahomans for Fairness in
Capital Sentencing has announced

riday py conference featur-
‘ing the Rev. Joseph Lowery,
director of the Southern Christian
Leadership Council.
The National Association for

' the Vi de ake eee St. ted

Death Sentence Prompts Cries ©
Of Racism in Oklahoma County

the Advancement of Colored Peo-

yle has become involved in the
2arks case with Dick Burr, direc-
tor of the Capital Punishment
Project of the NAACP Legal De-
fense Fund, acting as one of Parks
attorneys.

Longtime Oklahoma City
NAACP activist
Clara Luper
also has beenia
leader in the ef-
fort to get
clemency for
Parks.. ;

“In Oklaho-
ma County,
they say let's
kill, let’s sen-
tence them,’’
Luper said.

Parks

‘“‘When Robyn was sentenced I

think it was a combination of our

entire city that was sentenced.”
“When you really want to lynch

a person, you lynch them not with

a rope, but with a legalized pro-

cess,” Luper said.

Luper said racial discrimina-
tion in Oklahoma City drives
blacks to commit more crimes
and white prosecutors pursue
crimes against black with harsher
sentences.

Corrections statistics show
Oklahoma County is sending a
very high number of blacks to
Death Row since 1980.

Of 45 Oklahoma County mur-
derers on Death Row, 18 are
black, or 40 percent. The 1990
census shows that 14.7 percent of
Oklahoma County is black.

Since Macy took over the prose-
cutor’s office in 1980, 41.5 percent

of the condemned criminals have
been black.

In the other 76 counties, the
rate of blacks being sent to Death
Row is markedly lower.

Of 82 non-Oklahoma County
prisoners on Death Row, only 14
are black, or 17.1 percent.

The number remains dispro-
portionate to the black popula-
tion. Statewide, 7.43 percent of
the population is black, according
to the latest census.

There are 10 Tulsa County kill-
ers on Death Row. All three are
black. Census data shows 9.86
percent of Tulsa County is black.

Burr said the disproportionate
figures for Okiahoma County are
not completely out of line with
national figures.

About 40 percent of Death Row
inmates in the United States are
black, although blacks make up
11 percent of the national Pop-
ulation.

“Race is certainly an issue, but
it’s not the only issue,’’ Burr
said.

Courts have refused in the past
to allow statistical evidence of
disproportionate impact of on
tal punishment on mitiorities to
used as clear evidence of discrim-
ination, Burr said.

Parks’ first criminal conviction
came from a fist fight at John
Marhall High School pink Sabpa the
forced integration of Oklahom
City Public Schools. Parks bok
six cents from a white student in
the fight and was convicted of
robbery.

A white student never would
have been pushed into the crimi-
nal justice system because of a
school fight, Burr said.

“We feel very pled Sir dah
race bias was the reason Robyn
was criminalized in the first
place,” Burr said.

Macy said murder is the issue,
not race.

Oklahoma County prosecutors
are probably more aggressive in
seeking death penalties than pros-
ecutors in the rest of the state, but
those decisions have nothing to do
with race, he said.

Macy said he thought Oklaho-
ma County was sentencing blacks
to death at about the same ratio
as the rest of the state.

The last black man executed in
Oklahoma was Atoka County
murderer Ben Gould, put to death
Sept. 27, 1948.

he next most likely inmate to
face execution is Stephens County
killer Olan Robison, a white
man.

Lawyers Claim
New Evidence
In Parks Case

By Don Mecoy
and John Greiner
Staff Writers

Hours after a court rul-
ing granted Robyn Leroy
Parks a reprieve from his
scheduled Dec. 6 execu-
tion, his attorneys said
Thursday they have evi-
dence that another person
committed the murder
that placed Parks on
death row.

The new evidence, con-
ained in prosecutors’
les that remained closed
until last year, “raises
very substantial doubt
about the reliability of ev-
Idence on which he was
convicted,” said Dick
Burr, director of the Capi-
tal Punishment Project
pi the NAACP Legal De-

nse Fund.

“There is substantial
flew evidence that he
(Parks) was not involved
in the crime and someone
else was,” Burr said.
“We've certainly been
persuaded by it. We think
the evidence will speak
for itself.”

Burr declined to speak
in detail about the new
evidence because he said
Some aspects still are be-
ing investigated.

Earlier Thursday, the
gate Court of Criminal
popeats said Oklahoma

ounty District Judge
Daniel = L. Owens
shouldn't have set an exe-
cution date because .the
U.S. Supreme Court
fasn't acted on Parks’ pe-
ttion for a rehearing of

The

its refusal to consider his
latest appeal.

“We are very disap-
pointed by the court's de-
cision,” Attorney General
Susan Loving said. “It is
important to point out
that this is not a question
of Parks’ guilt or inno-
cence, or a question of
whether he should have
received the death penal-
ty.”
Courts have heard more
than a dozen appeals on
Parks's case during his 13
years on death row, she
said.

The U.S. Supreme Court
has denied his appeals
four times, most recently
in October, and the
chance the Supreme
Court will grant a petition
for rehearing is ‘“extreme-
ly remote,” Loving said.

“Therefore, this
amounts to a frivolous de-
lay and a good example of
why there is so much
skepticism and frustra-
tion with the death penal-
ty,” Loving said. “In fact,
if this ruling is carried to
the extreme, the death
penalty can't be carried
out if any petition is pend-
ing in any court, any-
where.”

Terry Hull, of the state
Appellate Indigent De-
fender Division, said she
spoke to Parks after the
court announced its rul-
ing.
“He said he was very,
very happy and is very,
very happy, as am I,”
Hull said.

Burr said the new evi- .

dence will be turned over
to the state Pardon and
Parole board next week
along with other informa-
tion that Parks’ support-
ers hope will persuade
the board to recommend
clemency for the death
row inmate.

The board has sched-
uled a special hearing for
Parks on Dec. 2. However,
board chairman Jari As-
kins said she will cut off
any attempt by Parks’ at-
torneys to argue the in-
mate's guilt or innocence.

“T think that would be a
waste of their time. We
are not a trier of fact. We
constantly tell inmates we
are not here to retry the
case,’ Askins — said.
“Those issues have al-
ready been determined
and ruled upon by courts
at every state and federal
level.”

Askins said she has not
discussed Thursday's
events with any of the
other four board mem-
bers. But she said Parks’
supporters should concen-
trate their efforts on what
Parks has done to deserve
clemency since his incar-
ceration.

Burr said the new evi-
dence will be presented to
the board because “that's
the forum that’s open to
us,”

Burr said prosecutors il-
legally failed to divulge
the evidence and placed

See PARKS, Page 9

» Mew. 22, '9F1

Pa rks

From Page 1

“misleading witness-
es” on the stand dur-
jng Parks’ trial. Parks’
defense attorney also
failed to investigate
the case fully, Burr
said.

Parks protested his
innocence at his trial
and repeated his
claims more recently
in a statement released
last week by the parole
board. In that state-
ment. Parks claims he
was at his girlfriend's
home on the night of
the murder.

“I did not do this
crime. There are two
persons who could
have done this crime
but I don't know for
sure who it was,”
Parks said in the state-
ment.

He also claimed that
the victim, Abdullah
Ibrahim, wrote down
Parks’ license tag

- number after Parks
- bought gas at the sta-
lion where Ibrahim

'
‘

“worked, but was un-
‘ able to pay for the pur-
- chase.

- That slip of paper

: made Parks the prime
‘ suspect early in the in-

vestigation. Authori-
ties claimed Ibrahim
wrote down the license
number after Parks
tried to pay for gas
with a stolen credit
card. The act of writ-

- ing down the license

number prompted
Parks to shoot Ibra-
him, authorities said.

Parks had asked the
U.S. Supreme Court to
consider whether ju-
rors in his trial should
have been allowed to
consider convicting
him of second-degree
murder, for which
there is no death pen-
alty.

The U.S. 10th Circuit
Court of Appeals re-
jected the same argu-

ment by Parks in 1987..

The U.S. Supreme
Court declined to con-
sider this issue Oct. 7,
and Parks filed a peti-
tion for a rehearing on
Nov. 1.

Loving said that she
expected the U.S. Su-
preme Court to deny
Parks’ petition for a
rehearing “any day
now.”

Her office then will
go back to Oklahoma
County District Court
and ask a new exccu-
tion date be set.

Thursday’s ruling al-
so could affect the case
of convicted killer
Olan Randle Robison.
State officials recently
said they would seek a
January execution
date for Robison, who
apparently has. ex-
hausted his appeal
process. He also has a
petition for a rehear-
ing pending before the
Supreme Court.

tS x

Ss
gy

Court Delays
Execution

Of Parks

By Wayne Greene
World Capitol Bureau

OKLAHOMA CITY — The
Oklahoma Court of Criminal
Appeals on Thursday tempo-
rarily blocked the execution of
convicted killer Robyn Parks.

Attorneys for Parks also
said they are preparing to re-
lease new evidence that will
vindicate the condemned
man.

Parks was scheduled to die
Dec. 6, but the court's ruling
means the execution couldn't take
place before late February, de-
pending on the U.S. Supreme
Court.

On a 4-1 vote, the court found
that Oklahoma County District
Court Judge Charles Owens erred
when he set the Dec. 6 execution
date because Parks had not ex-
hausted all appeals in his case.

The U.S. Supreme Court denied
Parks’ request for a hearing Oct.

FAST TAKE

An appeals court
blocked the scheduled ex-
ecution of an Oklahoma
City man. Robyn Parks
was convicted of murder-
ing a station attendant.
His attorneys say they
have new evidence. More
Fast Takes on A-4.

7, but on Nov. 1 Parks filed a
petition for reconsideration.

“The application to set an exe-
cution date is premature,” Pre-
siding Judge James Lane wrote in
the majority opinion. Until the
U.S. Supreme Court denies the pe-
tition Vor a rehearing, “the dis-
trict court is without jurisdiction
to set an execution date.”

The Parks ruling means the ex-
ecution date cannot be set until 60
days after the Supreme Court dis-
poses of the ‘case. Terry Hull, an

See Parks on A-4

.. .Parks

Continued from A-1

attorney for Parks, said she has
been told the high court could rule
on the petition as soon as Dec. 2.

Attorney General Susan Loving
reacted angrily to the Parks deci-
sion.

“This amounts to a frivolous
delay, and a good example of why
there is so much skepticism and
frustration with the death penal-
ty.” Loving said.

“If this ruling is carried to the
extreme, the death penalty can’t
be carried out if any petition is
pending in any court, anywhere,”
Loving said.

Loving said she would ask the
Oklahoma Legislature to reform
the process of setting execution
dates next year.

Vice Presiding Judge Gary
Lumpkin cast the vote against the
execution delay.

Only the Supreme Court can in-*

terpret and enforce its rules and
the state appeals court has no
reason to enter the issue, Lump-
kin said in a short dissent.

Parks’ attorneys said the deci-
sion was just and will allow the
parole board to consider clemen-
cy under less pressure.

“It certainly comes as a relief,”
said Dick Burr, director of the
Capital Punishment Project of
the National Association for the
Advancement of Colored People
Legal Defense Fund.

Parole board spokesman Terry

Jenks said the Dec. 2 clemency
hearing for Parks will not be
delayed because of the court deci-
sion.

The parole board can recom-
mend Gov. David Walters com-
mute Parks’ death sentence to a
lesser penalty.

Burr said attorneys for Parks
will soon present “very substan-
tial” new evidence showing Parks
is not guilty of the 1977 killing of
service station attendant Abdul-
lah Ibrahim. The evidence will
implicate someone else in the kill-
ing. Burr said.

New evidence also will show
that a license tag number found at
the murder scene, which prosecu-
tors used to link Parks to the
crime, may not have been Parks’
license tag, Burr said.

“The evidence will speak for
itself,” Burr said.

Burr said the new evidence will
also explain why Parks appeared
to confess to the killing in a taped
telephone conversation with a po
lice informant.

Parks knew the man was work-
ing for the police and made the
confession only to stop police har-
assment of his family, Burr said.

Attorney General spokesman
Gerald Adams scoffed at the new
evidence.

“After 14 years, it's more than
a little suspect that any evidence
would surface just before the exe-
cution,” Adams said.

1410 823 FEDERAL REPORTER, 2d SERIES

required an instruction to the jury on sec-
ond-degree murder.

Parks, in his statements to Clegg, ‘indi-
cated that he had gone to the Gulf station
to buy gas with a “hot” credit card. Pre-
sumably, Parks had pumped the gas and
had used the “hot” credit card for pay-
ment. In any event, thereafter Parks no-
ticed the attendant taking down his license
number. Then, Parks, according to his
statements to Clegg, formed a deliberate
intent to kill the attendant in the belief that
“dead men tell no tales.” Parks at the
time was apparently concerned not only
with the “hot” credit card, but also with
the small arsenal, consisting of guns and
dynamite, which he had in the trunk of his
car. It was in this setting that Parks pro-
ceeded to the attendant’s booth and,
through the partially opened door to the
booth, shot Ibrahim once in the chest. This
evidence does not justify an instruction on
a homicide without malice occurring in the
use of a stolen credit card. It only shows
a premeditated killing of another with de-
liberation and malice, the motive, there-
fore, being a desire to avoid possible detec-
tion by the police.

We believe our holding that the evidence
in the instant case did not require an in-
struction to the jury on second-degree mur-
der squares not only with Beck, but that it
is also in accord with subsequent decisions
of the Supreme Court in such cases as
Hopper v. Evans, 456.U.S. 605, 102 S.Ct.
2049, 72 L.Ed.2d 367 (1982) and Spaziano
v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82
L.Ed.2d 340 (1984). Hopper involved a
homicide perpetrated during the course of
an armed robbery. The defendant, against
the advice of his attorney, testified and
stated, in effect, that he deliberately shot
the deceased in the back. Later, in a feder-
al habeas corpus proceeding brought by
the defendant’s mother, the Supreme Court
held that an instruction on second-degree
murder was not required since “the defend-
ant’s own évidence negates the possibility
that such an instruction might have been
warranted.” 456 U.S., at 606, 102 S.Ct. at
2050. In the instant case, Parks’ own
statements to Clegg concerning the homi-

cide negate his counsel’s claim of second-
degree murder.

In Spaziano v. Florida, supra, there
apparently was evidence, which if believed
by the jury, would have supported a verdict
of second-degree murder. However, the
Florida statute of limitations had run on
murder in the second degree, a non-capital
offense, but had not run on murder in the
first degree, a capital offense. In such
circumstance, the state trial judge refused
to instruct the jury on second-degree mur-
der unless the defendant agreed to waive
the statute of limitations. This the defend-
ant refused to do, and no instruction was
given. The defendant was ultimately con-
victed of first-degree murder and sen-
tenced to death. The Supreme Court in
Spaziano found no error in‘the state trial
court’s refusal to instruct on second-degree
murder, stating that “[w]here no lesser in-
cluded offense exists, a lesser included of-
fense instruction detracts from, rather than
enhances, the rationality of the process.
Beck does not require that result.” 468
US., at 455, 104 S.Ct. at 3159.

II. Admission of Evidence That Parks
Had a Prior Felony Conviction

In 1972, Parks, then seventeen years of
age, was charged as an adult with robbery
by force and fear. He pled guilty to the
charge and was given a five-year suspend-
ed sentence. A few years later Parks was
also convicted of attempted burglary in the
second degree after a felony charge and
was imprisoned for three years for that
conviction. At the very commencement of
the state trial on the murder charge, Parks
sought an order which would preclude the
use of his prior conviction for robbery at
the guilt phase of the proceeding. No chal-
lenge was made to the prosecution’s possi-
ble use of the burglary conviction for im-
peachment purposes should Parks elect to
testify in his own behalf. The reason ad-
vanced for the exclusion of the robbery
conviction was that Parks was only seven-
teen years of age at the time of the rob-
bery conviction and that accordingly such
conviction was invalid under Lamb ».
Brown, 456 F.2d-18 (10th Cir.1972). See
Radcliff v. Anderson, 509 F.2d 1098 (10th

PARKS v. BROWN 1411
Cite as 823 F.2d 1405 (10th Cir. 1987) :

Cir.1974) (en banc), cert. denied, 421 U.S.
939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975);
Bromley v. Crisp, 561 F.2d 1851 (10th Cir.
1977) (en bane), cert. dented, 435 U.S. 908,
98 S.Ct. 1458 (1978). See also Edwards v.
State, 591 P.2d 313 (Okla.Crim.App.1979).

The state trial court denied Parks’ re-
quest, noting that no challenge had ever
been made in state court to the conviction.
At trial, then, defense counsel, in his direct
examination of Parks in the “guilt-phase”
of the state proceeding, brought out the
fact of the robbery conviction and the bur-
glary conviction. This was the state of the
record on this particular matter when the
case went to the jury on the guilt-or-inno-
cence phase of: the trial. Later, in the
penalty phase of the bifurcated proceeding,
the jury was ultimately apprised of all of
the underlying facts leading up to Parks’
plea of guilty to robbery with force or fear.
In brief, the facts were that Parks, and two
other black youths, accosted a white stu-
dent in a school yard and after a fight took
six cents from the victim. All involved
were students.

The federal district judge in the habeas
corpus proceeding ruled that any possible
error in connection with.the admission into
evidence of Parks’ prior robbery conviction
was, when viewed in context, “harmless
error” as that term is defined in Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). We agree and are not
inclined to disturb that ruling.

At the time when the jury was deliberat-
ing the guilt-or-innocence of Parks on the
murder charge, the jurors knew about the
robbery conviction, but did not, at that
time, know of the underlying facts leading
up to Parks’ plea of guilty to the robbery
charge.® However, counsel in the penalty
phase of the proceeding went “behind” the
robbery conviction and apprised the jury of
all the underlying facts and circumstances.
Thus, the jury was eventually fully in-
formed about the entire matter and knew
that this was not, by way of example, the

5. Although the fact of the robbery conviction
was admitted by Parks on direct examination,
the conviction’s underlying facts were not
presented to the jury at that time. On objection
of the prosecutor, the state trial court ruled that

armed robbery of a bank by an adult of-
fender, but, on the contrary, arose out of a
fracas in a school yard where only six cents
was taken from the pocket of the victim.

[2] In our view, this entire episode was
de minimis, and must have been viewed as
such by the jury. As the federal district

. court observed, the evidence of Parks’ guilt

was overwhelming. It is seldom that au-
thorities have a tape-recorded confession to
a crime made during the investigative pro-
cess. In the first tape-recorded telephone
conversation, Parks admitted the crime and
related details which only the perpetrator
could know. In the second recorded con-
versation, Parks detailed where the death
weapon could be found, and the police,
following Parks’ directions, found the
weapon. The introduction of the robbery
conviction at the guilt phase of the proceed-
ings is plainly harmless error, if it be error,
beyond any reasonable doubt.

In the penalty phase of the proceeding,
where the jury was weighing life vis-a-vis
death, the jury was fully informed as to the
circumstances giving rise to the robbery
charge.. At that stage, the jury in effect
rejected the State’s arguments for the sole
statutory aggravating circumstance to

‘which this robbery conviction was relevant,

when it refused to find that there was a
probability that Parks would commit crimi-
nal acts of violence in the future that
would constitute a continuing threat to so-
ciety. See note 1, supra. The only aggra-
vating circumstance contended for by the
State which the jury found supported by
the evidence was that the murder was com-
mitted by Parks for the purpose of avoid-
ing or preventing a lawful arrest or prose-
cution, which was the reason given by
Parks himself for the killing. We refuse to
believe that a jury would impose the death
sentence because of Parks’ conviction for a
crime arising out of a school yard fist
fight. To us, it is inconceivable that a jury
of twelve adults would be influenced in any

Parks’ testimony regarding the circumstances
surrounding the robbery conviction was incom-
petent at that stage. The prosecutor did not
pursue the robbery conviction on cross-exami-
nation.

1408 823 FEDERAL REPORTER, 2d SERIES

license number of his car was found on the
unused credit card slip by stating that sev-
eral days before the homicide he had been
in this particular gas station and had pur-
chased gas when he had no money. He
said the attendant at that time took down
his license number, but that he had re-
turned later on the same date and paid for
the gas. Parks also explained his presence
in California at the time of his arrest by
testifying that subsequent to the date of
the killing he had gone first to Kansas
City, and then to California, in an effort to
buy marijuana. On this general state of
the record a jury convicted Parks of first-
degree murder and the same jury, after
further hearing, sentenced him to death.!

On appeal to this Court, Parks asserts
that his state conviction and sentence is
constitutionally infirm for any one, or all,
of the following reasons: (1) failure of the
state trial court to instruct the jury on a
lesser included offense; (2) admission of a
prior conviction of Parks for robbery by
force and fear; (8) improper comment to
the jury by the state prosecutor in the
hearing at the penalty phase of the case;
(4) error by the trial court in instructing
the jury to disregard “sympathy”; (5) in-
complete and misleading instruction on ag-
gravating circumstances vis-a-vis mitigat-
ing circumstances; (6) ineffective assist-
ance of counsel at the penalty phase hear-
ing; and (7) failure of the trial court to hold
an evidentiary hearing on his claim that

1. At the penalty phase, the State sought three
statutory aggravating circumstances. First, the
State alleged that the murder was especially
heinous, atrocious, or cruel. Second, the State
alleged that the murder was committed for the
purpose of avoiding or preventing lawful arrest
or prosecution. Third, the State alleged the
existence of a probability that the defendant
would commit criminal acts of violence that
would constitute a continuing threat to society.
The jury found only the second statutory aggra-
vating circumstance charged, i.e., that the mur-
der was committed to avoid or prevent a lawful
arrest or prosecution.

2. The judge stated:

As a matter of fact, the defendant’s own
testimony was that he didn’t even-own a cred-
it card. But even in the State’s case thére was
no evidence of a credit card, except his state-
ments and his statements alone do not prove
the corpus delecti of the crime. There is no

Oklahoma’s death sentence statutes are ap--
plied in a racially discriminatory manner.
These matters will be considered. seriatim.

I. Lesser Included Offense

The state trial court refused to instruct
the jury on murder in the second degree
and such fact is alleged to render Parks’
conviction for first-degree murder unconsti-
tutional. The state trial court initially re-
fused to instruct on second-degree murder
on the ground that “there was no evidence
as to how much had been charged on the
stolen card.” The trial court later ground-
ed its refusal to thus instruct on the fact
that there was “no evidence” that a credit
card offense had been committed.? The
Oklahoma Court of Criminal Appeals, on
direct appeal, agreed. that there was no
evidence to support “a lower degree of the
crime charged or an included offense... .”
Parks v. State, 651 P.2d, at 690.3

The federal district judge in the present
habeas corpus proceeding was unimpressed
with the reasoning of either the state trial
court or the Oklahoma Court of Criminal
Appeals on the lesser included offense ar-
gument, but nonetheless reached the same
result based on Hopper v. Evans, 456 U.S.
605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982)
and Palmer v. State, 327 P.2d 722 (Okla.
Crim.App.1958).4 In so holding, the federal
district judge concluded that the state had
made a prima facie case of the greater

corpus delecti of any other felony having been
committed. ... There is no evidence and,
consequently, it’s Murder One or nothing.

3. This holding is consistent with other pro-
nouncements of the Oklahoma courts. See e.g.,
Irvin v. State, 617 P.2d 588, 596 (Okla.Crim.App.
1980) (where no evidence supports requested
second-degree murder instruction, unnecessary
to instruct thereon); Seegars v. State, 655 P.2d
563 (Okla.Crim.App.1982).

4. In Palmer v. State, 327 P.2d 722.(Okla.Crim.
App.1958), the Oklahoma court held that it was
not error to refuse to give a lesser included
offense instruction where the state made out a
prima facie case of the greater offense, and
there was “no evidence whatever to refute the
allegations of the information....” In order to
justify or require the giving of a lesser included

offense instruction, there must be “evidence suf- ~

ficient to raise the issue ...." 327 P.2d, at 726.

PARKS v. BROWN
Cite as 823 F.2d 1405 (10th Cir. 1987) _

offense, ie, murder in the first degree,
and that the evidentiary matter relied on
by the defendant, Parks, for requesting an
instruction on second-degree murder was
“no evidence whatever to refute the allega-
tions of the information.” The court com-
mented that, under Palmer v. State, su-
pra, the evidence relied on by Parks, in
order to justify the instruction on second-
degree murder, must “raise the issue of
whether the defendant was guilty of the
lesser offense only.” We need not attempt
to reconcile these different approaches to
the problem, since our view of the testimo-
ny relied on by the defendant is such that
there was no error in the trial court’s re-
fusal to instruct on second-degree murder.

In advancing this particular argument,
counsel relies heavily on Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980). In Beck, the Supreme Court, citing
Keeble v. United States, 412 U.S. 205, 98
S.Ct. 1993, 36 L.Ed.2d 844 (1973), com-
mented, at p. 635, as follows:

In the federal courts, it has long been
“beyond dispute that the defendant is
entitled to an instruction on a lesser in-
cluded offense if the evidence would
permit a jury rationally to find him
guilty of the lesser included offense and
acquit him of the greater.” (Emphasis
added).

Our analysis of the evidence relied on by
counsel in advancing the lesser included
offense argument is that the evidence
would noé permit a jury to rationally find
Parks guilty of second-degree murder and
acquit him of first-degree murder.

Under Oklahoma law, a person commits
murder in the first degree when he unlaw-
fully and with malice aforethought causes
the death of another human being. Fur-
ther, “malice” is defined as the “deliberate
intention” to take the life of another, which
intent is manifested by “external circum-
stances capable of proof.” Okla.Stat. tit.
21, § 701.7(A) (1981).

ated crimes, such as forcible rape, robbing
with a dangerous weapon, kidnapping, and
the like. A killing occurring in connection
with the use of a stolen credit card is not
one of the enumerated crimes constituting
murder in the first degree.

Okla.Stat. tit. 21, § 701.8 (1981) provides
that a homicide is murder in the second
degree when perpetrated by an act immi-
nently dangerous to another, “although
without any premeditated design to effect
the death of any particular individual.”
That same statute also states that a homi-
cide is murder in the second degree when
perpetrated by a person engaged in a felo-
ny “other than” the felonies enunciated in
Okla.Stat. tit. 21, § 701.7(B) (1981). Okla.
Stat. tit. 21, § 1550.22 (1981) provides, in
effect, that it is a felony to unlawfully use
or possess a stolen credit card.

Based on the foregoing statutes, Parks
argues that under Oklahoma law the state
district court should have instructed the
jury on second-degree murder and that the
failure to so instruct violates the mandate
of Beck v; Alabama, supra. In thus argu-
ing, counsel suggests that there is evidence
that the homicide in the instant case oc-
curred when Parks was engaged in a felo-
ny (using a stolen credit card) other than
the ones enumerated in Okla.Stat. tit. 21,
§ 701.7(B) (1981) and that accordingly an
instruction on second-degree murder was
mandated by Beck. The argument borders
on the ingenious, but in our view does not
stand up under a careful analysis of the
evidence relied on for the giving of such
instruction.

[1] As indicated, Parks testified in his
own behalf and denied killing Ibrahim, tes-
tifying that he was elsewhere at the time
of the homicide. So, there is nothing in the
defendant’s testimony that would justify
giving an instruction on second-degree
murder. The evidence which counsel relies
on in advancing the present argument are
the statements made by the defendant to
Clegg in the two tape-recorded telephone
conversations, particularly the first of the -
two conversations. We do not agree that
these statements made by Parks to Clegg

1412 823 FEDERAL REPORTER, 2d SERIES

manner by such testimony to the end that
such would affect their deliberation on ei-
ther the question of guilt or penalty in a
first-degree murder proceeding. We have
more faith in the jury system.

III. Improper Comment by State
Prosecutor in Closing Argument

Counsel argues that statements made by
the prosecutor to the jury during closing
argument in the penalty phase of the case
come within the prohibitions laid down in
Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 86 L.Ed.2d 281 (1985). The
Supreme Court in Caldwell held that it is
“constitutionally impermissible to rest a
death sentence on a determination made by
a sentencer who has been led to believe
that the responsibility for determining the
appropriateness of the defendant’s death
rests elsewhere.” Id., at 328-29, 105 S.Ct.
at 2639 (emphasis added). In Caldwell, the
prosecutor, according to the majority opin-
ion, sought to “minimize the jury’s sense of
the importance of its role.” Specifically,
the state prosecutor commented that
should the jury return a death sentence,
such would be “automatically reviewable
by the Supreme Court.”

In the instant case, the state prosecutor
spoke to the jury as follows:

But, you know, as you as jurors, you
really, in assessing the death penalty,
you're not yourself putting Robyn Parks
to death: You just have become a part
of the criminal justice system that says
when anyone does this, that he must
suffer death. So all you’re doing is
you're just following the law, and what
the law says, and on your verdict—once
your verdict comes back in, the law takes
over. The law does all of these things,
so it’s not on your conscience. You're
just part of the criminal justice system
that says when this type of type [sic] of

thing happens, that whoever does such a. -

horrible, atrocious thing must suffer
death. Now that’s man’s law. But
God’s law is the very same. God’s law
says that the murderer shall suffer
death. So don’t let it bother your con-
science, you know.

{3] We do not read the prosecutor’s
comment to minimize the importance of the
jury’s role in fixing Parks’ sentence. In
Darden v. Wainwright, — U.S. ——, 106
S.Ct. 2464, 91 L.Ed.2d 144 (1986), the Su-
preme Court, in footnote 15 at page 2473,
stated, in part, as follows:

Caldwell is relevant only to certain types

of comment—those that mislead the jury

as to its role in the sentencing process in

a way that allows the jury to feel less

responsible than it should for the sen-

tencing decision. In this case; none of
the comments could have had the effect
of misleading the jury into thinking that
it had a reduced role in the sentencing
process. If anything, the prosecutors’
comments would have had the tendency
to increase the jury’s perception of its
role. We therefore find petitioner’s

Eighth Amendment argument unconvinc-

ing.

In Dutton v. Brown, 812 F.2d 593 (10th
Cir.1987) (en banc), and in Coleman v.
Brown, 802 F.2d 1227, 1240-41 (10th Cir.
1986) this Court considered closing argu-
ments quite similar, though not completely
identical, to that made in the instant case
and held that such comment was not consti-
tutionally impermissible. In the instant
case, we have read the entire closing argu-
ment of both the prosecutor and defense
counsel in the penalty-phase of the case.
There was no objection by defense counsel
to the prosecution’s argument. We fail to
see how the argument of the prosecution,
read in its entirety, tends to minimize or
downgrade the importance of the jury’s
determination of the penalty to be imposed.
Indeed, the prosecutor’s remarks tended to
dramatize the extreme importance of the
matter and was an exhortation to the jury
to “follow the law” of both man and God.

IV. Anti-Sympathy Instruction
Instruction No. 9 at the penalty phase of

the state proceeding advised the jury, in-

part, as follows:

You are the judges of the facts. The
importance and worth of the evidence is
for you to determine. You must avoid
any influence of sympathy, sentiment,

PARKS v. BROWN 1413
Cite as 823 F.2d 1405 (10th Cir. 1987)

passion, prejudice or other arbitrary
factor when imposing sentence. You
should discharge your duties as jurors
impartially, conscientiously and faithfully
under your oaths and return such verdict
as the evidence warrants when measured
by these Instructions (emphasis added).

Trial counsel did not object to the fore-
going instruction. However, counsel in the
federal habeas corpus proceeding in the
district court, and here, argues that the
giving of the “anti-sympathy” instruction
constitutes constitutional error. In thus
arguing, counsel relies primarily on Skip-
per v. South Carolina, —- U.S. ——, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings. v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982); Lockett v. Ohio, 488 U.S.
586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978);
and, in a Supplemental Brief, counsel both
relies on and distinguishes the recent case
of California v. Brown, — U.S. ——, 107
S.Ct. 837, 93 L.Ed.2d 934 (1987).

Neither Skipper, Eddings, nor Lockett
concern an instruction to the jury that in
their deliberations they should “avoid any
influence of sympathy, sentiment, passion,
prejudice or other arbitrary factor....”
These cases all stand for the general propo-
sition that under the Eighth and Four-
teenth Amendments the sentencer in a capi-
tal case should not be precluded from con-
sidering as a mitigating factor any aspect
of the defendant’s character and back-
ground which might serve as the basis for
a sentence less than death. In Skipper,
the Supreme Court held that the exclusion
of testimony of jailers and of a regular
visitor regarding the defendant’s good be-
havior during the defendant’s seven
months’ incarceration in jail awaiting trial
deprived him of his right to place before
the sentencers “relevant evidence on miti-
gation.” In Eddings, the Supreme Court
vacated a state conviction wherein the
death penalty was imposed after the state
court refused to consider as a mitigating
circumstance the defendant’s unhappy up-
bringing and emotional disturbance, includ-
ing evidence of the defendant’s turbulent
family history and beatings by a harsh
father. In Lockett, the Supreme Court
held that “in all but the rarest kind of

capital case, [the sentencer may] not be
precluded from considering, as a mitigat-
ing factor, any aspect of a defendant’s
character or record that the defendant
proffers as a basis for a sentence less than
death.” 438 U.S., at 604, 98 S.Ct. at 2964
(opinion of Burger, C.J.) (footnotes omitted)
(emphasis in original).

In its simplest form, then, Parks’ argu-
ment is that “sympathy” could serve as the
basis of a sentence less than death, and
therefore the jury must be allowed to con-
sider it. The Supreme Court recently con-
fronted an “anti-sympathy” instruction in
California v. Brown, supra. In that case,
the jury was instructed not.to be “swayed
by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public
feeling” during the penalty phase. 107
S.Ct, at 840. The California Supreme
Court had held that the anti-sympathy in-
struction violated the Eighth Amendment
and stated that a defendant had a right to
“sympathetic consideration of all the char-
acter and background evidence” which is
presented as mitigating evidence. People
v. Brown, 40 Cal.3d 512, 709 P.2d 440 (Cal.
1985). The Supreme Court granted certio-
rari and reversed, holding that the anti-
sympathy instruction in Brown did not vio-
late the Eighth or Fourteenth Amend-
ments. It is true that the Supreme Court
in Brown noted that the instruction there
referred to “mere sentiment, conjecture,
sympathy, passion, prejudice, public opin-
ion or public feeling,” whereas the instruc-
tion in the instant case did not utilize the
adjective “mere.” However, such, under
Brown, does not dictate a reversal in the
instant case, and, in any event, we are not
persuaded by the rationale of the California
Supreme Court in Brown.

[4] In our view, “sympathy” and “miti-
gating factors” are not synonyms. Miti-
gating factors are based on evidence aris-
ing generally out of testimony concerning a
defendant’s background and from the facts
and circumstances surrounding the crime
for which the defendant is on trial. Sym-
pathy, on the other hand, as is evident from
the context of the challenged instruction,
here plainly refers to the mere emotional

1414 823 FEDERAL REPORTER, 2d SERIES

responses of jurors. The instruction di-
rects the jury to make its sentencing deci-
sion based on the aggravating and mitigat-
ing evidence presented, and not on “extra-
neous emotional factors.” Brown, 107
S.Ct., at 840. A jury should indeed not be
influenced by “sympathy” for either the
defendant, or, for that matter, for the vic-
tim and his family.

In his Supplemental Brief in this Court,
petitioner attempts to show that, under the
approach of Justice O’Connor’s concurring
opinion and four dissenters in Brown, the
challenged instruction, taken together with
certain remarks made by the prosecutor,
renders his sentence infirm. In Brown,
Justice O’Connor agreed that an anti-sym-
pathy instruction, by itself, does not violate
the Constitution. However, she cautioned
that care must be taken, else “juries may
be misled into believing that mitigating evi-
dence about a defendant’s background or
character also must be ignored.” 107
S.Ct., at 842 (concurring opinion). Here,
however, there is no possibility that the
jury was misled concerning its role or the
scope of the mitigating circumstances it
could consider. The jury was clearly in-
formed that the only bound on the mitigat-
ing circumstances it could consider was the
evidence found “to exist in this case.” ® In
addition to the statutory mitigating circum-
stances, which the jury was told it must
consider, the court instructed the jury that
it “may consider any other or additional
mitigating circumstances, if any, that you
may find from the evidence to exist in this
case.”

Thus the jury was not instructed to ig-
nore mitigating evidence. Such an instruc-
tion would indeed run afoul of the princi-

6. With regard to nonstatutory mitigating cir-
cumstances, Parks’ jury was instructed as fol-
lows:

* You are not limited in your consideration to
the minimum mitigating circumstances set out
herein, and you may consider any other or
additional mitigating circumstances, if any, that
you may find from the evidence to exist in this
case. What facts or evidence that may consti-
tute an additional mitigating circumstance is for
the jury to determine.

In Brown, the jury there was instructed that it
could consider nonstatutory mitigating circum-
stances as follows:

ples of Lockett and Eddings. Instead, the
jury was instructed to confine its considera-
tion of both aggravating and mitigating
factors to the evidence before it, to “avoid
any influence of sympathy, sentiment, pas-
sion, prejudice, or other arbitrary factor
when imposing sentence,” and to discharge
its duties “impartially, conscientiously and
faithfully under your oaths and return
such verdict as the evidence warrants when
measured by these Instructions.”’ Since we
believe that a rational juror, hearing this
instruction, would conclude “that it was
meant to confine the jury’s deliberations to
considerations arising from the evidence
presented, both aggravating and mitigat-
ing,” Brown, 107 S.Ct., at 840, the petition-
er’s claim based on the “anti-sympathy”
instruction must be denied.

V. Incomplete and Misleading Instruc-
tions On Aggravating Circumstances
Vis-a-vis Mitigating Circumstances
Instruction No. 7 given the jury, without
objection, in the penalty-phase proceeding
reads as follows:
In the event you find unanimously that
one or more of these aggravating circum-
stances existed beyond a _ reasonable

‘doubt, then you would be authorized to

consider imposing a sentence of death.

If you do not find unanimously beyond
a reasonable doubt one or more of the
statutory aggravating circumstances ex-
isted, then you would not be authorized
to consider the penalty of death, and the
sentence would be imprisonment for life.

Even if you find unanimously one or
more of the aggravating circumstances
existed beyond a reasonable doubt, and if

Any other circumstance which extenuates
the gravity of the crime even though it is not a
legal excuse for the crime. .

Justice O'Conner was concerned that the jury
may have understood this instruction to limit its
consideration of nonstatutory mitigating factors
to evidence about the circumstances of the
crime, and to preclude consideration of. evi-
dence about the defendant's character and back-
ground. See Brown, 107 S.Ct., at 842 (concur-
ring opinion). The instruction given here, how-
ever, does not so limit the jury's consideration.

PARKS v. BROWN 1415
Cite as 823 F.2d 1405 (10th Cir. 1987)

you further find that such aggravating
circumstance or circumstances is out-
weighed by the finding of one or more
mitigating circumstance, then and in
such event the death penalty shall not be
imposed, and the sentence would be im-
prisonment for life.

On appeal, Parks asserts that the fore-
going instruction is constitutionally defec-
tive in three particulars: (1) the instruction
failed to instruct the jury. that even if it
found that the aggravating circumstances
outweighed the mitigating circumstances it
could still impose a life sentence and, that
the charge instructed the jury, inferentially
at least, that if it found that the aggravat-
ing circumstances outweighed the mitigat-
ing circumstances it must impose the death
penalty; (2) it improperly places a burden
on the defendant of proving that mitigating
circumstances outweigh the aggravating
circumstances; and (8) it fails to adequate-
ly define the nature and function of miti-
gating circumstances. -

Under the instruction set forth above,
and in accord with Oklahoma statutory and
case law, the jury was instructed that it
must impose a life sentence unless it unani-
mously found beyond a reasonable doubt
that one or more of the aggravating cir-
cumstances alleged by the state existed.
Parks’ counsel does not object to this state-
ment. The instruction goes on to advise
the jury that even if it should find beyond a
reasonable doubt the existence of one or
more of the aggravating circumstances re-
lied on by the state, it must still impose
only a life sentence if it should further find
that the aggravating circumstances are
outweighed by the mitigating circumstanc-
es. Again, counsel has no objection to that
part of the instruction. As indicated, what
counsel does object to is that the instruc-
tion did not go further and instruct the jury
that even if it found that the aggravating
circumstances outweighed any mitigating
circumstances, it could, in its discretion, fix
the penalty at life imprisonment. Such is
apparently not in accord with Oklahoma
law. See Irvin v. State, 617 P.2d 588, 598
(Okl.Crim.App.1980). See also Parks v.
State, 651 P.2d 686, 694 (1982). Nor is

such, in our view, required by the Eighth
and Fourteenth Amendments.

[5] Since Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972),
the Supreme Court has on numerous occa-
sions tested a state’s system for imposing
capital punishment for constitutionality.
The case we deem most akin to the instant
one in this regard is Jurek v. Texas, 428
U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976). In Jurek, the Texas capital-sen-
tencing procedure was examined and found
to be non-violative of the Eighth and Four-
teenth Amendments. Under the Texas pro-
cedure, where a defendant has been con-
victed of a capital offense the same jury
hears any relevant evidence on the ques-
tion of life sentence or death, and both the
prosecution and defense counsel may
present argument for or against a death
sentence. The jury is then presented with
two questions, sometimes three, the an-
swers to which will determine whether a
death sentence will be imposed. If the jury
in a given case unanimously answers all-of
the statutory questions in the affirmative,
then the defendant is mandatorily sen-
tenced to death by the judge. See U.S., at
269,96 S.Ct. at 2955. We regard the Texas
procedure to be essentially the same as the
Oklahoma procedure here under considera-
tion. Under Oklahoma law, if a jury deter-
mines that there are aggravating circum-
stances, and. affirmatively identifies them,
and if it further finds that such aggravat-
ing circumstance, or circumstances, out-
weigh any mitigating circumstances, then,
but only then, shall the death sentence be
imposed. We regard Oklahoma’s statutory
capital-sentencing procedure to be at the
very “tip” of the “pyramid” referred to in
Zant v. Stephens, 462 U.S. 862, 103 S.Ct.
2738, 77 L.Ed.2d 235 (1983).

(2 eM

‘rong points pre-
3 case—a hand-

cimony that the

he one to Ed on
vere written by

Mrs. Johnson’s
‘ker, and Mrs.
on of the Indian-

r the jury had
‘ty-five minutes,
d of second-de-

H. DeWitt Owen
ife imprisonment
Prison in Michi-
2 today.

e names of Mrs.
and Olga Crane
r to conceal the

questioned by
he investigation
Lillian Johnson.

igle,” the sheriff
i—and a damned
I was talking to
ites a filling sta-

town. Bill re-
ld some gas to
was killed. Wall
Betty Lernbrook

ything for a mo-
dk lived in Salli-
yung and pretty
mirers. But her
good.
Lembrook have
Green asked.
ctly know,” the
yhen I heard this
rook, Betty’s fa-
etty disappeared
returned home.
ie father’s story
bed and a car
the engine run-
iressed, ran out
asn’t been seen
her at the filling
Patton, which
ar that stopped
- house.”
1w see Betty and
Sounty Attorney

on eleven and

Betty Lembrook
the mystery the
oma and Arkan-
eople, all from
id all enjoying
illisaw, had dis-
had been found
ntain, and over
and volunteers
1e other two.
t the other two
discovered even
{ searchers were
; of ravines, gul-
’ did find, how-
1 eyeglasses and
lentified as hav-
e Wall.

But as the sheriff and his depiitios

conducted the search, and the State ©

Police sent their best men into’ the
Cookson Hills, County Attorney Green
worked alone on the case. The baffi-
ing element of the mystery was the
utter lack of motive for the murder
or triple murders. ’

None of the three young people had
carried any large amount of money on
them, not more than a few dollars in
change. ‘Robbery had often been com-
mitted in the Cookson Hills when no
more than that was involved, but how
did the three youths get on Wild Horse
Mountain at that time of night? Or if
they had been held up on a highway,
why would the robbers bother to carry
the bodies to Wild Horse Mountain’, a
place almost impassable even in the
daytime? \

These problems were running

through Green’s mind as he started to’

uestion the friends of the three. At

rst the information he got was of
little value. Those questioned admit-
ted they were Se baffled by
Wall’s death and the actions of the
two youths at Mrs. Tuggle’s home on
the night of the murder.

But when. Green talked to Billie
Hogan, a friend of Patton, he got a
different story. “I saw Patton that
afternoon,” Billie explained. “He
looked scared and was terribly ner-
vous. I don’t know what about.: He
said that something was going to hap-
pen to him and he was getting his
sister’s gun. He nientioned some
name. I think it was Buford. I
I never heard of ‘any such person, but
whoever this Buford is,
afraid of him.”

Green ran into the same story when
he questioned Vivian Bryant and Fred
Lee, two close friends of Patton and
Wall. But neither of them had ever
heard of Buford before and weren’t
agi) where he was supposed to
ive.

Buford became as much an enigma
as the murder. Green called all the
police: officers in the towns in and
around the Cookson Hills. None of
them had,ever heard the name.

Another week passed, and the
enigma of the strange murder re-
mained unsolved. The posses search-
ing the Cookson Hills realized that
their chances of finding the bodies
were about a hundred to one against
them. A grim anger had settled over
Sallisaw and the community.

Green continued working alone on
the case.’ He questioned Mrs. Tuggle
again. She couldn’t add anything to
what she had said. The mother and
father of young Wall, grief-stricken
and broken by the tragedy, gave the
County Attorney all the hel
could. But it brought no results.

Then Green found the piece of
per. It wasn’t large, oN. the end of
a letterhead-size pa On it was
scrawled two wor 3—“this night.”
These words had little or no meaning.
The ink used was green, and it looked
fairly fresh.

The County Attorney had found it
as he walked out of the Tuggle home.
He picked it up largely through curi-
osity, looked at the two words, and
stuck the piece of paper in his pocket.

It wasn’t until he was home that
evening, when he reached in _ his
pocket for some matches and pulled
it out, that he gave the paper and
writing any thought. He studied it
closely, not having any _ definite

thought about the two words at first.

Then suddenly he got up, walked to
the phone and called the sheriff. “I

atton was -

they .

think I’ve got something on the Wall
case,’ he announced. briefly. “It’s' so
startling and fantastic that I’m afraid

_ to mention it to anybody. “Give me

twenty-four hours aaa I think I can
produce the solution to this strange
murder.”

It took. Green more than twen
four hours, however, He gave the e
— to Sergeant Jim Flake of the

tate Police, who had come to Salli-
saw as the State Police. technician. It
didn’t take the Sergeant long to find
out what Green wanted to know. °

But three days passed before Green.

walked into the. Sheriff’s office and
announced, “We'll find the murder of
young Wall, and the. man who knows
what happened to Patton and Betty
Lembrook, in or around Dallas, Texas.
He’s going under the name of George
Anderson.”

HERIFF ‘CREEK, County Commis-
S sioner George Mitchell and County
Attorney Green drove over to Dal-
las, Texas. They contacted W. O. Sel-
lers, the Dallas postmaster; and ar-
ranged to have the postal clerk at the
general delivery window signal them
when George Anderson came in for

his mail. It was Saturday, and Green’

figured that Anderson would call that
afternoon.

At three o’clock a young and dark-
haired man. walked up to the General
Delivery windéw. The clerk made a

- motion with his right hand. Green

whispered | to the sheriff, “This is
Andersen.”

Green stepped forward, the sheriff
at his side. The dark-haired man
turned, faced Green. All color left
his face when he saw the Pini §
Attorney and the sheriff. He gulp
'tried to say something, but the words
stuck in his throat.

“Hello, Patton,” Green said. “We

had a hard time finding you.”

Ted Patton, the youth who had dis-
appeared with young Wall, continued
to stare at the two officers, unable
to find his voice,

Green added, “We want to ask you
ppg: questions, Ted. We’ re taking you

olice headquarters.”

t police headquarters, Ted Patton
sat slumped in a chair, his face still
pale and his lower li juivering.

“Why did you kill Hayne Wall?”
Green shot at him.
with a .22-caliber revolver, and you
took de sister’s revolver. Posses
have been looking for your body, as
well as Betty Lembrook’s, for weeks.
I had a hunch that maybe you hadn’t
been killed. That hunch got stronger
when I found a torn piece of paper in
your sister’s home. I had it tested by
the technicians of the State Police.
They found it was your handwriting
and that the ink on it wasn’t more
than three or four days old. So I
knew then that you’were living and
that you were writing your sister. I
had her letters aye fant at the post
office and it wasn’t long until one
came from you, saying that you were
in Dallas, going under the name of
Anderson. We came here and figured
the post office was the best place to
pick you up.”

It took two hours’ grilling to break
Ted Patton, and when the break came,
he claimed first that he had killed
Wall in self-defense. This story didn’t
hold up because of the bullet wound
in Wall’s head. Then Patton changed
his story. He said that both he and
Wall had been in love with Betty
Lembrook, and he had killed Wall in
a fight about her. He completely ex-

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onerated Betty Lembrook of any
knowledge of the murder and said
; that she was living on the outskirts
of Dallas.

When picked up by the officers,
Betty Lembrook denied that she had
even known that Wall was dead. She
said that Patton had proposed to
marry her and had promised that they
could both get. good jobs in Dallas,
and she had gone with hi

On September 29th, Ted Patton was
brought to trial. The jury found him

guilty of murder in the first degree,
and Judge Frank Dailey sentenced
him to die in the electric chair. On
January 3; 1933, he entered the
death house. Five minutes later was
pronounced dead.

Epitor’s Note: The names of Tom
Tanner and Betty Lembrook are fic-
titious in order to conceal the identi-
ties of innocent persons involved in

the investigation of the murder of

Hayne Wall.

HEADQUARTERS

DETECTIVE

several times for numerous crimes, in-
cluding petty theft and inciting brawls
in cheap joints.

The prisoners were taken back to
their cells and locked up. Upton and
Luce then reported to Ellis.

“When we find Velarde I think we'll
have solved the case,” Upton told the
assistant chief. “These other punks
are pretty bad, but they haven’t nerve
enough to murder a man. It lies be-
tween Kline and Velarde. Id pick
Velarde as the most vicious character.”

“Get a full description of these two
fellows and have it put on the radio,”
Ellis ordered. “We better grab them

uick before they find out we’re after
em, or they’ll skip.”

LL SQUAD CARS were alerted to
A watch for Kline and Velarde, while

Luce and Upton rushed to their
latest known address. As they feared,
Kline was not at home, nor could his
relatives give them any. information.
The two officers then began to ques-
tion neighbors in that locality.

When they questioned at the house
on the opposite side of the block, a
man came to the door and said, “I
heard Joe and another fellow I didn’t
know talking about hiring a fellow
they knew to take them to Nevada in
his car. The next morning a car came
by and picked them up at Kline’s
house.

“What kind of car was it?” Luce

asked.

“A 1933 Dodge tudor sedan,” the
man answered.

“Do you know where the man who
owned the car lives?” Luce asked.

“No, I-don’t. But I saw it parked
over on Fifth Street once. I don’t
know whether he lives there or not.”
, ‘The man could not give the number
‘of the house but offered ‘to go along
and show them where it was.

When the officers inquired at the
‘house on Fifth Street for the man who
drove the 1933 Dodge sedan, bid pc
man nervously answered, bb OR
guess that’s my son. But he left about
three days ago to take two passengers
to Nevada where they said they
jobs waiting for them.”

“Who were the passengers?” Upton
asked.

“T don’t know,” the woman an-
swered. “Somebody he met down
town. They hired him to take them
to Nevada. Is there sometoing wrong?”
the mother asked ein a

“The two’men are wanted by the
police,” Upton answered. “Have you

BK
ae?

HIS BODY BAREFOOT

CONTINUED FROM PAGE 21

ERE ROR

BURY

any idea to Wiat place in Nevada he
was taking them?”

“No, I don’t,” she answered. “But I
received a postcard from my son this
morning, and it was mailed at Las

Vegas. He didn’t say whether he was
returning home or going some other
place.”

The officers asked to see the card,
but it contained no other information
of value. The driver had merely
mentioned that his car had broken
down and he was waiting for it to be
repaired. But the officers noticed that
the card had been written with a wide,
blunt pencil.

After assuring the mother that her
son was not involved, they returned to
penaqharters and reported to Ellis.
“Tf Kline and Velarde are waiting for
the car to be repaired, we have a reas-
onable chance to catch them there,”
Ellis said.

The card was sent to the Los An-
geles police laboratory, along with the
pencil pocket ripped rom the victim’s
carpenter’s overalls. The cloth was
coated with lead where the pencil had
rubbed against it.

Ellis immediately wired the Las
Vegas police to be on the lookout for
the two suspects. He also radioed all
officers throughout California and Ne-
vada to be on the lookout for them.

Early the next morning, the Las
Vegas police informed the San Ber-
nardino Lene department that they
were holding the driver of the car.
But. the two passengers had not yet
been apprehended. Upton and Dep-
uty Sheriff Heap of the San Bernar-
dino sheriff’s department.immediately
set out for Las Vegas, armed with
warrants for both Kline and Velarde.
When they arrived, they found the
driver of the Dodge car in custody of
the Las Vegas police. But his two
passengers had vanished. When ques-
tioned, the driver could give them lit-
tle or no information. He willingly
substantiated the fact that Kline and
Velarde were his two passengers. “I
owed Kline some money, and he told
me if I would-take them to Las Vegas
he would cancel the debt,” he said.

When asked about the pencil he had
addressed the card with, he told them
that he had borrowed it from one of
his passengers, but he didn’t remem-
ber which one.

Further questioning brought no
more information. The youth had had
no idea that Kline and Velarde were
suspected of a crime, nor had he heard
them mention anything pertaining to

10
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County
ieve his

further

i said to
ve Tan-
at young
else and
in. Tan-
d robbed
. and the

but it

.ppen in
“And a

Living
ion Hills
» human
e in the
t out at
at might
of scrub

It was
2 famous
nt years
“Pretty
jd a score

ynditions
lfa Bill,”
na, had
1 out the

posted,

rom where
ayne Wall,

warning tourists that they entered the
Cookson Hills at their own risk. :
Sheriff Bill Creek entered the case
and assigned Deputy Fred Drake, one ,
of his ace men, to assist Byrd and
Green. There wasn’t much:the three
officers could do but attempt to check
up on the actions of. young Wall the
night before. - : ete
‘ere was only one way to do this.
As in all small towns, it is the custom
of people in Sallisaw to loaf in cars or |
in drugstores along the main street, _
talking with friends, ba peatge, Ria
as they walked up and down the side-
walks. Green started the job of ques-
tioning everybody in town. He found
the population of Salligaw stunned at
the news of the murder of Hayne Wall,
and to all his questions he got. the
answer: “It can’t be true that Hayn
was murdered?” ‘
But it wasn’t long before Green
picked up the trail of Hayne Wall the
night before. One person, a man
named Jim Crowley, said that at
around 9:30 he had seen young Wall
walking toward the railroad station to
mail some letters. He had talked with
Hayne a few minutes at the ‘station,
and then the youth had started to-
ward his home. Crowley was certain
that the youth had been on foot and
hadn’t had a car.
Crowley had seen Hayne about the

. time he made the call. home; so Green

started out to find from what business
place the call had been made. He got
his answer at the Palace Drug Store
where Ed Flynn, the clerk, told him
that Hayne had come in sometime be-
tween nine-thirty and ten and had
made a phone call. Flynn recalled
seeing him walk out to his car, which
was parked at the curb.

“Ted Patton was: with him,” Flynn
said. ;
Green was acquainted with Ted Pat-
ton, another Sallisaw youth about:
Hayne’s age, popular and well known.
He, too, came from a fine family.

Flynn added quickly, “There was
one thing I heard them talk about.
They said something about bee to
Muskogee. I didn’t get the idea they
had decided to go. They just talked
about it and weren't definite.”

REEN then went to the Patton

. home, where Mrs. Patton greeted

i him with a worried look. “I’m so
glad you came,” she exclaimed to
Greén. “I’m about crazy with worry.
I just heard about what happened to
Hayne Wall—and—my son—Ted—
was with him—and Ted hasn’t come
home—”

“We have no information that any-
thing happened to him,” Green an-
swered. “Do you know where he was
going last night with Hayne Wall?”

“T don’t know anything,” the “Gis- ,
trait mother cried. “I only know that
Ted hasn’t come home. He’s never
stayed away before without letting us
know. I:know something has. hap-
pened to him, something terrible, like
what happened to Hayne Wall.”

The mother was on the point of col-

‘lapse as she gasped, “Please take me

over to my daughter’s home.” Green
took the mother to the home of Mrs.
Minnie Tuggle, sister of the missing
Ted Patton. Mrs. Tuggle was a pleas-
ant woman in her early forties.

She had heard about the murder of
Hayne Wall and was upset by the
news. Yet she saw no connection be-
tween his murder and her brother.

Her mother broke the news indi-
rectly and abruptly when she asked

HIDE-OUT OF IMPORTANT CHARACTER IN THE MURDER MYSTERY—.

One-room cabin six miles outside of Dallas, Texas, where a man known as George
Anderson hid out. He later gave officers valuable information about the case.

Mrs. Tuggle if she had seen Ted. ‘It
wasn’t so much the question: as. the
haggard and_ terrifi face of the
mother that frightened Mrs. Tuggle.

She’ looked at» County Attorney
Green and then at her mother. “Isn’t
Ted home?” Her voice faltered a lit-
tle, and she paled.

“He—he—was with — Hayne — last
night,” the mother burst into tears.
“He hasn’t—been home all night.” -

Mrs. -Tuggles sat down weakly.
“They. were here -last night, both of
them,” she explained. “I think it was
about 9:30. ey sat and talked a
while and then left. I thought they
had gone home. They didn’t say any-
thing about going anywhere else.”

“But Ted didn’t come home,” the
mother moaned. “He wouldn’t go
anywhere without letting me know.
He always told me where he was
going and what he was going to do.”

“There’s no reason to believe that

Ted was also killed,” Green assured
the grief-stricken woman. “We don’t
even know that he left with Hayne
Wall.” :
- But as Green walked away from
the Tuggles’ home, he didn’t have
much hope for Ted Patton. It might
have been instinct or intuition, but it
all added up to the fact that since
both the youths had been in the Wall
car, if one. had been killed, the other
had suffered the same fate.

Why? The motive was baffling.
Robbery was the logical answer, but
several questions puzzled Green. What
were the two boys doing on that iso-
lated trail on Wild Horsé Mountain?
How could they have gotten in that

‘country at night? If they had been

killed for robbery alone, why . had
Hayne’s body been so carefully hid-
den in the brush, some distance from
where any car could possibly pass?
The killers of the Cookson Hills didn’t
take that much trouble to hide their
victims.

Back at the Palace Drug Store,
Green talked to Flynn again. Flynn
recalled seeing the two youths walk
to their car. He was positive that
there had been nobody with them and

that nobody had approached the car
as they got in.

Green returned to his office, called
Byrd and Drake in. “I’m afraid,” he
said, “that there’s another murder and
another body somewhere up there on
Wild Horse Mountain.”

He.,related what he had learned
about Ted Patton and what his mother
and sister had said.

“It’s hard to surmise exactly what
happened,” Green added. “My theory
is that they were driving along some
country road in their car when the
killer accosted them. I believe there
was. only one killer. The fact we have

- found Wall’s body and not Patton’s
would indicate that they were killed
at different times. A lone killer works
that way.”

“There’s a chance,” Drake sug-
gested, “that Patton-may have es-
caped the killer and is somewhere in
those Hills, probably wounded.”

“T hope you're right,” Green replied,
“put that’s doing a lot of wishful
thinking. We better start the search
at once.”

HEN the news that Ted Patton had

been with Hayne Wall, and that

probably he, too, had been mur-
dered, spread over Sallisaw, public
feeling ran high. Both boys had lived
in the town all their lives, and both
had been very popular. Posses were
formed, and within a few hours over
a hundred men were scouring the gul-
lies, ravines, caves, and mauntain tops
of the Cookson Hills. :

. .And while this was taking place,
County Attorney Green requested the
State Police to send out a five-state
alarm for Wall’s car. The bullet taken
from the body of the murdered youth
had been sent to the state ballistics
expert, C. N. Reber, in Oklahoma City,
and when his report was phoned to
Green, Reber stated that the death-
dealing bullet had been fired from a
.22-calibre pistol.

Tanner was investigated, and it was
learned that he had been in the habit
of meeting a moonshiner on Wild
Horse Moun- (Continued on page 90)

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1944 for aiding.an attempted jail
break.

_ “Snapshots sometimes are deceiv-
ing,”. one of the laundry employes
agreed later, “especially poor ones.”

Parker’s defense then took the line
of reasoning that the state had failed
to prove that there had been a mur-
der because only a portion of the
skeleton could be found—and not
enough to determine, even, that it
was that of a woman.

But the scientist who drew the prac-
tical analogy of a geologist’s and an
anthropologist’s ability to identify the
products of their fields said that he
didn’t need the pelvic bones to de-
termine sex in a skeleton. -

The Vigo Circuit Court jury which
heard the murder case placed consid-
erable faith in this, testimony, and in
the fact that Parker led detectives to
+ 1 ea spot where the bones were
ound.

There were other strong points pre-
sented in the state’s case—a hand-
writing expert’s testimony that the
“Alma” letters and the one to Ed on
December 23, 1943, were written by
Parker, the sale of Mrs. Johnson’s
furnishings by Parker, and Mrs.
Richardson’s refutation of the Indian-
apolis story.

On March 4, after the jury had
deliberated only thirty-five minutes,
Parker was convicted of second-de-
gree murder.

On May 12, Judge H. DeWitt Owen
sentenced Parker to life imprisonment
at the Indiana State Prison in Michi-
gan City. He is there today.

Eprror’s Note: The names of Mrs.
Brown, Mike Scarzo, and Olga Crane
are fictitious in order to conceal the
identities of persons questioned by
the officers during the investigation
of the murder of Mrs. Lillian Johnson.

HEADQUARTERS

DETECTIVE

tain. But. nobody seemed to be able
to back up his alibi that he had been
home the night when the murder was
committed. So he was held for fur-
ther questioning.

It was Minnie Tuggle who gave the
information that added a sinister note
to the mystery. She came to County
Attorney Green’s office, excited and
a little uncomfortable. :

“I forgot to tell you something im-
portant,” she said. “The shock of my
mother and you visiting me, and
mother’s fears, caused my mind to
stop working, and I forgot ‘something
that could have a bearing on the case.”

“What is it?” Green asked.

Minnie Tuggle hesitated. “It may
be my imagination,” she then ex-
plained, “but I think Ted and Hayne
were mighty frightened when they left
my home. I have a .22-caliber pistol.

tice. I keep it on the top of the bu-
reau in the living room. It was gone
when the two boys left, and I re-
member now that they seemed ner-
vous and jittery . They were afraid of
somebody, I’m sure of that.”

“Did they say who?”

“No, they didn’t even say they were

afraid of anybody. They didn’t say

much of anything. I didn’t get sus-

the pistol was gone.” ’
“But you're sure they acted ner-
vous.” Pe
“Very much.so, and they. whispered
to each other, which was something
they never had done before.”
“Youre sure your brother took the
un?” i
“Who else would have taken it?”
Green couldn’t answer that, and
when ‘Mrs. Tuggle left the office, he
sat staring at the wall, His stare was
interrupted by the entrance of Sheriff
George Cheek ‘into the office.
“George,” Green said, “I just got a
new angle to this mystery. Young Wall
and probably young Patton were shot

that night, and they took a .22-caliber

‘pistol owned by Mrs. Tuggle.”

I , : tw - U

“STIFF ON WILD
HORSE MOUNTAIN’

‘CONTINUED FROM PAGE 61

Ted uses it sometimes for target prac- .

picious until I found out today that

with Patton’s gun. They were scared .

“T’ve got another angle,” the sheriff
countered. “It’s a girl—and a damned
pretty one at that. I was talking to
Bill Crow, who operates a filling sta-
tion at the edge of town. Bill re-
members now he sold some gas to
Patton the night Wall was killed. Wall
wasn’t with him, but Betty Lembrook
was.”

Green didn’t say anything for a mo-
ment. Betty Lembrook lived in Salli-
saw, and she was young and pretty
and had plenty of admirers. But her
reputation had been good.

‘What could Betty Lembrook have
to do with the case?” Green asked.

“Well, I don’t exactly know,” the
sheriff replied, “but when I heard this
I called on Bob Lembrook, Betty’s fa-
ther.. He said that Betty disappeared
that night and hadn’t returned home.
The funny part of the father’s story
is that Betty was in bed and a car
stopped outside with the engine run-
ning. She got up, dressed, ran out
of the house, and hasn’t been seen
since. But Crow saw her at the filling
station with young Patton, which
means it was his car that stopped
outside the Lembrook house.”

“What time did Crow see Betty and
young Patton?” the County Attorney
questioned.

“Sometime between eleven and
midnight.” :

HE ENTRANCE of Betty Lembrook

. into the case made the mystery the

sensation of Oklahoma and Arkan-
sas. Three young people, all from
excellent families and all enjoying
fine reputations in Sallisaw, had dis-
appeared. One body had been found
on Wild Horse Mountain, and over
three hundred police and volunteers
were searching for the other two.

A week passed, but the other two
bodies hadn’t been discovered even
though three hundred searchers were
covering the hundreds of ravines, gul-
lies and caves. They did find, how-
ever a pair of broken eyeglasses and
a pipe. These were identified as hav-
ing belonged to Hayne Wall.

But as the
conducted th
Police sent t
Cookson Hills
worked alone
ing element
utter lack of
or triple mw

None of the
carried any 1:
them, not mc
change. Rob
mitted in the
more than th
did the three
Mountain at
they had bee
why would t!
the bodies tc
place almost
daytime?

These pr
through Gre:
question the
first the inf
little value.
ted they we
Wall’s death
two youths «
the night of

But when
Hogan, a fr
different stc
afternoon,”
looked scar¢
vous. I don
said that sor
pen to him
sister’s gur
name. I tl
I never hea)
whoever th
afraid of hi

Green ran
he questione
Lee, two cl
Wall. But
heard of B
certain whi
live.

Buford be
as the mur«
police’ office
around the
them had -«

Another
enigma of
mained uns
ing the Cc
their chanc
were about
them. Ag
Sallisaw an

Green co
the case. }
again. She
what she h
father of 3
and broker
County At
could. But

Then Gri
per. It wa
a letterhe<
scrawled
These worc
The ink us:
fairly frest

The Cou
as he walk
He picked
osity, look
stuck the |

It wasn’
evening,
pocket for
it out, th:
writing ar
closely, r
thought al

Then suc
the phone

heriff’s car, * his
eled across the
‘¢ other machine.
‘en Dunn in the
ct’s car. He also
tiller” Anderson
en’s. body, The
fire, hoping that
ize the hopeless-
id surrender.
ast, Billy.”

10 spoke, and his

‘0 William Alex-
rd. Alexander’s
yainst the trigger
bered, in that in-
Dunn five years

you rot to shoot, .

ils fire.
Varden,” he an-

ese prisoners are.

: rear of the auto-
convicts and their
ed the deputy’s’
varrel was thrust

adow and an in- —

rash from: one of
‘rom the guards.
of the car, had

red up one of the-

ing. An instant

lowed and Alex-’

Warden Dunn’s
the latter’s bleed-
had slashed with

rd the shot that

fe, but he saw-.

3 the trigger: that
at Alexander had
‘om Beavers and
arefully. :

8 squeezing the

ot Warden Dunn
' the floor of the
A second later

ver of the death.

in the firing and
of agony from
| one of his, own

ralizing suddenly
yw empty, ran to
aition. It would
forcements could

ler saw, had run
ar and now stood.
He held a clip

ty sheriff’s rifle.” .

nder learn that)
had proved’ use-
ie fight that was
e weapon which

abbed up in the. , °

stood reloading
up in time to see
rom the convicts’
d to the driver’s
2rson thrust his
sel and a second
of gears and the

w bullet-riddled,
ind the front of

two wheels it .

down the diag-
wn of McAlester.

Bill Alexander leaped
“automobile.

-tonneau with his sawed-off shotgun, and

Bob Pollock, although he climbed ‘in be-,

side Alexander, was. virtually.’ helpless

with an unloaded gun.

weapon to the ground before they started.
Pollock and Alexander saw the other

| <machine hit the’ first intersection, 200
yards ahead. They saw it swing north:

“, once more, then, still another hundred

yards farther on, cut back east.. The
deputy. sheriff wondered what: had “hap-

pened to Claude Beavers, No longer did:

the blue prison rifle point from the broke
rear. window of the black sedan.‘

- Back at the prison the sirens were still .

screaming.( The two cars now }raced

“.madly over the dirt road. Alexander’s
eyes were. fastened ‘on the road and ‘his’

foot pressed hard on the floor. board. But,

/. above the roar of’his motor, above the.
> wailing of the sirens, and above. the:

shouts of a hundred armed men who ran
across the fields toward the spot they’d
just left, he heard Pollock’s cry, i's 7
“ “Bill, slow down! « They’re. turnin

again—they’re turning into another. dead:
end road!’ ak, ) ceketayl no ies

It was true. Once more luck had

ee: played into the hands of the authorities.

- Once more a washed out bridge was 'to
stop the fleeing convicts and their ‘cargo.

\of death, ..

Alexander saw the car ahead swing to ;
+ the left.. Then, not more than.a

of a mile in front of him he saw. Ander-

son pull the machine to an abrupt halt.
The deputy sheriff went on for another’

. © 300: yards and stopped his own automo-

/ bile behind the black sedan. Again he |

* swung his car across the narrow lane ‘to
prevent:the other’s return. .This time:
there would be no room for them to pass. °

* _ It was to be a fight 'to the death, | 4

an X

fips moved. “I picked up a man’. ,. he
‘hit me with a hammet . .’., took my Car,

He saw two figures emerge from the
black car dnd run, stumbling, toward a
shallow ditch at the side of the roadway.

One of the striped-shirted men—Ander-

_son, he believed—turned and fired as he-

rary ovo. Page
No longer was Alexander dealing with

. convicts bent upon gaining their freedom: -

‘ Now, he knew, he must face two trapped
rats—two yicious, fear-crazed killers
whose only thought was to kill, and kill

until they ‘at last went down under the:
: gunfire of the men who pursued them. | -

Claude Beavers had slumped down out

sly 4

Even in the excitement, of
* the chase he was aware that he alone was .
armed. Tab Ford no longer sat; inthe |

He tossed. his .

‘<- elip' of shells.’ >

uarter_

Aaa
abe eae 1

gnt ki C

knew he ‘must; have been’ struck by a
bullet.as the chase ended. The deputy
sheriff sent another bullet into the. car
where Beavers and Prather lay wounded,
then turned toward the ditch into which
the other two convicts now lay partly,

concealed by tall weeds. 9) | /
With a vengeance Alexander opened
firé once again, ‘He was. conscious that
Bob Pollock stood at his side, extra clips
_of shells ready for the rifle. There came
an answering blast from the weeds ahead.
Alexander’s left hand was hot against
the barrel of his gun, As he fired the last
cartridge in the clip, he saw.a form rise
awkwardly like’a man from a sound sleep.
‘There was a twitching of the body, a
grimace of the facial muscles over bared
teeth, and*the next moment Roy McGee’s
heavy bulk plunged back into the weeds.
Pollock held: out another clip of shells.
_Thé next instant the former guard’s hand
went limp ‘and the clip fell to the ground.
» For an‘instant’ Bob, Pollock ‘stared

. down at his ‘hand, He. saw: the: blood

slowly ‘drip from ‘a wound, made by a
stéeel-jacketed;,30-30 bullet: » Then, grit-

- ting his teeth, he reached to the ground

with his. other#hand. and recovered the

_. Another shotcathie from the direction
_ of the ditch and Alexander felt ‘a whistle
of scorched air over. his right ear. He
“stepped backward, knelt to the earth and
‘calmly leveled his rifle. Sets

"The shouts of: running men came again. .

to: his ears. With calm deliberation he
lined up ge: sights, There was a slight
movement in the weeds, . 5, >

. His rifle spoke for the last time.
_ Rich Qwens, veteran guard and prison
executioner, came running up at the head

of ‘a group of armed‘ men in time to: see ©

something writhing in the weeds at the
edge of the ditch. Alexander, knowing
that his final shot had ended Anderson’s
_ resistance, turned’ back to: the convicts’
Cane he ey BG Rage ia
'_In the front) seat he found Warden
Dunn, two bullet/holes in ‘his. head,’ a
deep knife slash across his neck and a
stab wound in his thigh, ‘ Beside the slain
_warden lay: the body of Claude Beavers,
a half dozen’ bullet. wounds showing
where Alexander’s -rifle. had found its
mark: Gare i pei
Slowly, Hiram Prather, the first driver
of the convict car, raised a bloody head
from where helay on: the floor ‘beside
the bodies of the warden and Beavers.

4“
an ~ PeEY.

and Alexander.

at % ;

_\Prather’s hands’ went up and he
pleaded, for mercy. More than one. gun

.was pointed at the murderer as he

stepped from the car, but Deputy Sheriff

Alexander warned the possemen that the

man was now his prisoner and would be
delivered back to the penitentiary alive.
Prather had suffered only a minor head
injury. His blood-soaked shirt was
caused by Warden Dunn’s wounds. é

Less than one hour after Beavers and
his fellow conspirators had started their
break for freedom four dead men and
three injured were being carried back to
the prison.

Tab Ford, the former guard who had
started out from the sheriff’s office with

, Alexander, had been killed by a rifle bul-

let in the first exchange of fire.. It was
his cry that Alexander had heard behind
him. When Anderson had set off that

|) first battle by his brutal attack on the

helpless warden, Beavers, firing through
the back window, sent a bullet through
Ford’s head.

Fentriss, his arms tightly bound and
his body trampled by the feet of the con-
victs in,the tonneau of the car, had gone
through the entire battle without a
scratch, :

When the officers found Anderson he
was suffering from a_ bullet wound
-through the abdomen. Quickly removed
to’ the .prison -hospital hé' was operated
on in an effort to save his life that he
might be brought to trial for the callous
slaying of Warden Dunn, :

The day, following the break Anderson
and Prather were questioned by Paul
’Gotcher, Pittsburg county attorney, after
formal charges of first degree murder had

‘been placed against them. Both men

yadmitted that their attempt to escape had
been planned for months and that the

‘crude knives they had used were manu-

factured in the prison machine shop.
They ‘could not account for Beavers’
possession of a razor. .

. Immediately following physicians’ an-

nouncement that both Anderson and |

Prather would live to answer for their
part in the most sanguinary break ever
attempted at the penitentiary, Governor
Leon Phillips of Oklahoma started an in-
vestigation of the entire plot.

The governor at the same time went
to McAlester to pay personal tribute .to
Bill Alexander, the former guard who
single-handed had killed two of the fugi-

. tive convicts, wounded another and cap-

tured the fourth. \

Wray

Hammer Slaying and the Tavern Playboy

iis {Continued from. page 27).

fect

?
¢

he whispered jerkily. |” ied
But what man? What type of nvan?

- And who was: the tortured victim him-

“self? Before Hill: could: get the answer
to’ these pressing. questions, the speaker
lapsed ‘into unconsciousness, |”
Then, as he stood by the bed, the sheriff
noted something important, One finger of

‘the man’s left hand showed a light citcle.
‘on the flesh. There was_a tiny bruise on

the knuckle of the finger. Hill’s lips
. closed grimJy ‘as he read the sign, A

man’s finger. But the knowledge brought
‘the sheriff some satisfaction, The ring
would: in all probability be pawned. It

might serve, to give him the. clue, he

Holts

Pheely

ring had been jerked violently from the —

¢ alae

needed. At headquarters, Hill met Dinkins
_and Nevil. “So far we've drawn a blank,”
“Nevil said. “Couldn’t find a thing around
ithe attack spot... Anderson and the others
hunted, for over an hour. 'We've got a

- cast of the tire tracks, but no description
pe, Ne Pe that's worth, anything. That's

all. {

“Pye got something,” Hill said calmly.

“The car belonged,'to the victim. If we
can get him identified, then it will be easy
to get’a description of the car. When we

. do, the state police will blanket the coun- :

try. He can’t get-away.” |.
The task of identifying the middle-aged

victim appeared hopeless and continued

that way, although an extra’ edition of

the paper came out describing him. Visi-
tors.thronge
PIAS OR ;

CNY aah 8 a Opies
y y yet * +s ts Soe

‘sean

d the hospital, fearfully look-

ing for missing relatives to no avail.
Meantime, Hill had the victim’s clothing
brought to headquarters and subjected to
«minute search. .
From the man’s shirt he soon obtained

+. a clear laundry mark. ,

Deputies Dinkins and Nevil started a
survey of the laundries in the city and it
-was not long before they had valuable
-information. The owner of the shirt ap-
peared to be one Lee McFerren. But
there the information ended. \Who was
_McFerren? Where did he live? He had
been a cash-and-carry customer at the
laundry, and the employes knew nothing
about him. The Houston directories did
not list the name. Police had no record
of the man.
While the two officers sought informa-

PRATHER, Hiram, white, elec... Okla. SP (Pittsburg Co.)

MNS UC

vs “1-193 ro

| GUAS
KNIVES ‘CUT
THESE DESPER BIE KILLERS —

ae, oe 7

CLAUDE BEAVER (top) and
ROY McGEE (bottom) en-
joyed 10 minutes of free- 7
dom .. . Bullets cut them:
down as they blazed away

at their former captors.

Jailbreak Murder!

[Continued from page 13]

\ we : .
The warden broke the silence, “Wait,

’ Ben, don’t let them shoot now,” he com-

manded, “There’s an outsider, with ‘us.”
The warden addressed his order to his
deputy, but it was said for the benefit
of the men upon the wall. The next nio-
ment Fentriss saw with relief that the
guards had lowered their weapons,
Beavers was speaking again, his lips
close to the ear of the warden, “Tell
*em to lower their guns to the ground,

Tell ’em the guy with you will die if they”

don’t do it. We mean business and we're
ready to prove it.” : ‘

“Lower your guns, men,” Dunn com-

manded. ;
The next moment the guards on the
wall slowly lowered two .38 caliber re-

volvers and two .30-30 rifles, employing |

ropes used for that Purpose by guards
checking in and out. The instant the
weapons touched the ground two con-

victs sprang forward and grasped them. .

Beavers still held his razor, but the other
felons took the guns and leveled them at
their prisoners.

“Now open the gates, both of ’em!” ’

“You know we don’t open both gates
at once,” Dunn said calmly,

“This is one time you're going to,
‘Warden.” The blade dug still deeper
into Dunn’s throat, :

When Warden Dunn finally issued the
order to the guards to open the gates he
remembered the time, five years before,
when Governor E, W. Marland had per-
sonally fired two other guards for open-
ing those same gates after escaping pris-
oners had threatened to kill a fellow
guard, ;

It was after that break that Jess Dunn
had been given his job as warden. It was
after that break, also, that Dunn had led

a posse which had captured highway |

robber Claude Beavers and returned him
to the penitentiary to spend the rest of

his life for his part in the murder of a-

man during the wholesale getaway.
Warden Dunn, on taking office, had

called his men together and told them; -

“Tf ever there is another break and guards
are taken hostages, even if I am one of
the hostages, and I tell you not to shoot,
go ahead and shoot.”

But ‘this was different. Along. with
Dunn there was an outside man, not under

Oath as a peace officer, a victim of cir-

cumstances he could not.have foreseen,
And the guards, seeming to sense that
those orders which had been issued five
years before did not hold in this case,
complied with their chief’s order to throw
up the gates.

Slow}y the:two great gates in the wall
came up. As the four convicts and their

. two hostages made ‘their way through °

the wall, Beavers’ crafty little eyes went
instantly to a small black sedan parked
near the entrance. Warden Dunn,’ fol-
lowing his gaze, recognized the car as
belonging to a guard, ;

Dunn and Fentriss were pushed rough-
ly toward the waiting machine. Into the
front seat behind the ‘steering wheel slid
one of the convicts whom Dunn recog-
nized as' Hiram Prather, a 34-year-old
lifer, sent up for a. brutal-murder,

Next to Prather the convicts pushed:
the warden, while \Beavers jumped into
the rear seat, still with his razor at the
warden’s neck. There was a length of

wire on the ground near the car, Utilizing .-
_ this, another of the convicts bound the

wrists of Fentriss, The electrician was’
then, ordered to climb into the tonneau.
and lie on the floor, :
As the car's. motor roared, into life
“Warden Dunn saw: William Anderson, a

34-year-old slayer who had’ been given -

life for his part.in the 1936 break, jump |

into the front seat by his side, Anderson,

reputedly one of the most wanton crimi-

back. of the deputy sheriff's car, his

., Sawed-off shotgun leveled across the -

_ Window ledge toward the other machine. .

‘Alexander saw Warden Dunn in the

, front ‘seat of the convict’s car. He also

saw the gun which. “Killer” Anderson
held against the warden’s body. The
deputy sheriff held his fire, hoping that
the convicts would realize the hopeless-

nals\ever to be imprisoned at McAlester,’ ness of their Position and surrender,

the warden’s head. 31 Bees tes eh
The fourth convict to enter the ma-

' chine. was Roy
years for armed robbety,’ :

The next moment prison sirens were

thrust ‘one of the stolen revolvers against

_Shrieking a warning. ‘to the*countryside

as the car gathered speed ‘and’ swerved -
into a highway leading straight north,
Deputy Sheriff William E, ‘Alexander,
a former prison guard under’ Warden
Dunn, was sitting in his office in the ad-.
jacent town when-the sirens sounded,
“Trouble: at the prison,” the deputy
sheriff cried to Tab Ford, another former
_ prison guard and deputy. sheriff who was
visiting him at the time. But Ford was
already on his feet, reaching for a sawed-
off shotgun that stood against the wall. .
A moment later the two men were speed-
ing toward the penitentiary, | ;

Hears'Siren)
HE deputy sheriff's automobile ap-
“ proached ‘the East \@ate “with the-

throttle wide and siren screaming, A man

rushed into the roadway, his arms flailing.»

Alexander immediately recognized him’

as Bob Pollock, another former employe: —

of the prison.

Pollock had been sitting in a store ‘only
a hundred yards peony Pie peeon x psp Ag swung his gun ‘away from Beavers and °.-

heard the siren,’

‘time to:see the fleeing car turn into a.
lane three blocks norths:Lon ‘familiar ~

with the neighborhood, Pollock knew that’.

this lane was blocked at a point two blacks: ,

to the east where a bridge had been re-.
cently washed out, | pony kee
The former guard rushed back into the
store only toreturn a moment later with if
a borrowed. gum under his/arm.” In an-
other minute he knew that the fleeing car
would. be forced to turn, cut back toward
the prison, and take one of two intersect-
Sing roads.) A488) eG i) bat
Then Pollock saw the deputy’s er ap

his_ rifle held ready for action, “Bridge
out ‘down, there—they’ll » have to turn
back,” Seishin se core
Alexander. threw his gears into high
and the machine roared’ down the lane

toward the spot where ‘the. escaping car

must emerge, , an ie
At the intersection of a diagonal lane
Alexander saw

ing stop just in

men inside. st

McGee, 36, serving 15°. ander, his

\*\two

road- —

~ ©The. black sedan,!

“Don't shoot; let us past, Billy.”
«It was the warden who spoke, and his

words were. addressed to William Alex-
former. guard. Alexander’s

finger pressed tighter against the trigger
_ Of his rifle. . He'remembered, in that in-
stant, the words of-Jess Dunn five years
before: 5 \ '

“|. and even if I tell you not to shoot,
go ahead and shoot.’ .

Still Alexander held his fire, 4

“Tl let. you Past, Warden,” he an-:
swered steadily; “but these prisoners are
piling out right here.”

A crash of glass in the rear of the auto-
mobile occupied by the convicts and their
hostages punctuated the deputy’s’
words, A gun’s blue barrel was thrust
through the broken window and an in-
stant later-there was a crash from: one of
the .30-30 rifles taken: from the guards,

Beavers, in. the rear of the car, had

dropped his razor, grabbed up one of the. ~

“guns and started shooting. An instant
exchange of bullets ‘followed and Alex-’
‘ander saw the man on Warden Dunn’s
right raise a revolver to the latter’s bleed-
ing face whicly Beavers had slashed with’

is razor. Peers

Alexander never heard the shot that
ended Jess Dunn's" life, but he saw:
'“Killer’

fired it. The next instant Alexander had

for a morhent sighted carefully.

trigger methodically,’
)} "The man who had’ shot Warden Dunn

car as Alexander fired: “A second later

. Then. his finger was squeezing ‘the .

in'cold blood ducked to the floor of the: »

Stas

(oy

. Hiram Prather, the |driver of the death. ©

car, slumped in his beat. :
A second’s lull came in the firing and
Alexander heard a \cry of agony from
behind him and realized one of his, own
' men had been hit. ;
The deputy sn a tow eng suddenly’

that his own gun was now empty, ran to
hig car for more ammunition. It would
arrive. :
Bob Pollock, Alexander saw, had run

_ around the back of the car and now stood
with his hand extended. He held a clip
of ‘shells for the

Only “later did Alexander learn that
, ‘Pollock's own. shotgun had proved‘ use-
less in that battle and the fight that was”
So soon to follow. |The weapon which
Pollock had hastily) grabbed up in the.
store was unloaded) :

As. the deputy sh¢riff stood reloading
his-own gun he glanced up in time to see
“Killer” Anderson slip from the convicts’
machine and run around to the driver’s
side of the car. nderson thrust his
body in behind the wheel’ and a second
later‘there was a clash of gears and the
vehicle was in moti

i yes ‘bullet-riddled,
swerved. perilously
Alexander's car,
careened southeast
_ onal road toward,

” a

¢ minutes before. r¢-inforcements could -

Pputy sheriff’s rifle.” .

around the front of a
On two wheels ‘it \. .)

td. down the diag.) > -
the town of McAlester. - 3

‘

Anderson press ‘the trigger'that ©.

Bill A
automobi
the chase
armed. '
tonneau \
Bob Poll:
side Ale:
with an

weapon t
Pollock

‘machine

yards ahe
once mo:
yards far
deputy st}
pened to |
the blue p
rear wind
Back at
screaming
madly oy
eyes were
4oot press
above the
wailing ¢
shouts of
across th«
just left, }
“Bill, s
again—th:
end road!
It -was
played int
Once mor
stop the f
of death.
Alexanc
the left.
of a mile
son pull t
The dep
300. yards
bile behin
swung his
prevent t)
there wou!
It was to
He saw
black car
shallow di
One of th

_.son, he be

ran,
No long
convicts bx

* Now, he k

Tats—two
whose onl:
until they
gunfire of

Claude I

lips moved

hit me wit!
“he whisper

But wha
And who
self? Befor
to these pr
lapsed into

Then, as
noted some
the man’s |

‘on the ftest

the knuck!

“might -sery

‘
S i$ 4

Tom

Sturm.

openings in steps
{ light o” their
; sw

stripes ©

and they ¥
Rat-like,

prison yard.

denim-clad legs }

belonged to thelr
Much closet

‘

they could
oO freedom!

ve the

and yemo
their

from

but they ©
one ot the EEE

electricians 4

turned to

“WITH His BOOTS ON:

- Jess Dunn

3 , wa

the - Okla Caan tere

penitentiony at McAl-
5 since 1936, died

AUGUST 10, 941, a

| rtyr to duty

the

Anderson
McGee
two convicts,
electricians,
and held him

little boy SCf
self into the
W. Murray,

“Get that —

time,

tween clen

d Beaver P

ith at
ster

page 17) \

led to Rainbow
illy across country
rom there it would
o the rugged hills
aalf million square
rkansas. and Mis-
ig the way they
d Fentress—and of
\ their way.

away with this,”
d better go back
get killed, sure as

zrowled. “How do

>
VW
your show,” he re-

‘ter button and the
it when he reached
nd the floor —
it at the new-style

and began to jerk:

the guards saw the
in reverse. Then,
»gan to crawl for-
in low, but gather-
inned the motor, it
ugh, unpaved road
z eastward toward
‘here the raw edge
otruded a good six
which led to it. The
lled. Twice more
ine before he was
ystacle.
nging ‘in his car
riff Bill Alexander
me ring inside the
aie Barlow, office
, a former prison:
g with him, were
xander squinted his
stared out through
street. A moment
alert as Ford raced
sawed-off repeating

els. “There’s been a
the elderly deputy
Jess Dunn and an-

rely believe his ears.
rated incredulously.
> of his personal
If the convicts had
death unless some-
fear for his friend
e red for an instant.
ind seized the high-
mneau behind him.
‘reach, he satisfied
ym was loaded. He
mind racing like a

ow far has it gone?”

nat Blaylock had re-
iversation. Another
nterrupted him.
arrying back up the
hat this is!”

vhile Ford opened
into the rear seat.

1" the elderly jailer
till got Jess Dunn!”

WAY that led east-
cut through the city
‘he county jail. If
+ dead, there might

be time. me
“Hang on!” Alexander snapped grimy

to Ford as the car roared and jumped into
high gear. Swinging across the broad in-
tersection on two wheels, the deputy raced

up the hill to the highway and swung west —

to meet the fugitives in case they should

_ come that way. But when he reached the

intersecting highway that came in from
North McAlester, there still was no sign
of the fugitives.

Alexander swung north and streaked
down the highway while other traffic took
to the shoulders to give him room. In
North McAlester there still was no word
of the convicts and their hostages. Alex-
ander bumped across the railroad tracks
and again gunned his black sedan down
the straight stretch of pavement that led
due west to the prison, a mile and a half
distant. :

At the main entrance to the prison
grounds he swung to the north and halted.
A block to the; north, guards were swarm-
ing about the east gate. But there was no
sign of the fugitives. ee

A tall, bareheaded man came running
from a little grocery store at the southeast
corner of the intersection. Alexander. recog-

~ nized him as Bob Pollock, another former

prison guard. f
“Turn around!” Pollock shouted, leaping
for the running board. He scrambled in
beside Alexander as the deputy swung the
car into a U-turn. “They’re. trying for
Rainbow Drive, but they'll never make it.
Those guys don’t know it, but the WPA
has all the culverts torn up that way and
the roads blocked.” ;
Alexander’s* mind flashed over the lay-

out of -little-traveled~cross~streets-that -he

_— as well as he knew his own back
yard,
“Then they've got to cut back to the
pavement!” he exclaimed in grim triumph.
“And I know where!”

~“At that filling station four blocks back !”
Pollock snapped.

“Right! Got a gun?”

Pollock produced a battered .45 auto- .

matic. “I borrowed this at that store where
some bird had left it for sale,” he volun-
teered.

Alexander’s eyes narrowed as he swung
the car into the street and sped’ back over
the way he had come. Three armed officers
against four armed convicts. But the officers
were dead shots. That made the odds even.

In the meantime, the fugitives were hav-
ing a desperate time. Unable to get the car
out of low gear, Beavers was in a blind
fury that verged on panic. He swung the

“sedan down first one road, then another,

only to find them all barricaded or cut by
deep ditches. He stopped on the verge of
a deep ditch within sight. of cars on Rain-
bow Drive a block and a half across the
brush-grown prairie. But to feave the car
and dash forward afoot meant certain cap-
ture. . ‘

He swung the car south. The road was
clear for three blocks. Then only warning

barricades barred the way to the connect- .

ing pavement. Ignoring the smothered oaths
of his companions, Beavers pressed the ac-
celerator to the floor, The engine, still in
low, roared a protest but the car shot for-
ward.

It lumbered over the rutted earth past

the intersection, then skidded to a stop as.

Beavers set his brakes. At the corner ahead,
a black Ford sedan slewed around the fill-
ing station and stopped crosswise of the
road, blocking it.

In the sedan} Alexander's pulse leaped
and his two companions swore softly in
grim satisfaction at the first glimpse of
their quarry. Without waiting for orders,
Pollock leaped out and dashed to cover
behind a stone garage at the right of the
road, Ford remained in the car, his shot-

34:

“and waited, wits
-his . outward |
"seething tumul

man, I saw
chaif, his white. knuckles set off agai

the loose, florid flesh of his hands; oy"it

‘silence, in.
most. tnintelli,
di

to witness,”) hageiiie sa
Sartain stood tore the’ udge.

tence you,” said the latter, “to a y
a. day. in , the. Federal Penitentiary 49
Be ce ae a

gun half raised.

Leaving the rifle in the car, Alexander
stepped deliberately into the center of the
road and stood there, feet apart and hands
on his hips. His right hand strayed to his
pistol butt.as he saw the convicts’ car get
under way and lumber toward him again.

The car stopped less than 75 feet away,
and with a surge of hope, the deputy
recognized his friend, Jess Dunn, covered
with blood but still alive. Sitting between
Beavers and Anderson, he was signaling:
with his one free hand.

“Billy,” he called, “let us past.”

For a split second, Alexander stared in-
credulously.. There wasn’t a yellow fiber in
Jess Dunn’s body. Yet——

“Please, Billy, let us past.” The warden’s
tone carried no conviction.

“When they get me, I’m likely to say-
; ,

m_ nothing.’ Practi=*) easy for him, ,
cally every one was a “dead Mids \. Sema :
the usual ied the fore

ip the arms of his

which he was. soon”

Hits

OTLTIN;

ss
0, &
OT. ;

Welle duGies

©. jus an experience. shits:

Rai

any fool thing. But pay no attention to me!
Shoot, and shoot to kill!”

Alexander’s eyes narrowed to deadly blue
slits in his bronzed face as his hand leaped
up, covering the fugitives with his. revolver.

“You can come past, warden,” he shouted.
“But those convicts are going to pile out
right here!”

Beavers’ hand slammed at the gearshift.
and the car shot backward.

“Stop that car!” the deputy yelled.

In the rear seat, McGee fired through the
windshield with one of the stolen rifles.
The bullet whined over Alexander’s right
shoulder and thudded into splintering glass.

The deputy’s gun roared.. A white-edged
hole leaped into the windshild of the con-
victs’ car as Beavers slumped forward
across the steering wheel. The car stopped.
Aware that no shots were. coming from

1041
ate

an.
a7

desperadoes would
is to get a shot at

> came gleamingly
Alexander fired and
cross it as the con-
h a scream. But‘a
later showed that he
le to kill.
‘r shouted with sud-
out of ammunition.
the car!”
- and raced to the
-d’s shotgun in the
‘ed in the glove com-
he cartridges. The
hooting at Alexander
at Pollock. A bullet
id, but on he came.
eyes on the ditch.
feet, his left hand
1 bullet had smashed

mmunition, are you,

He leveled a pistol

» his rifle and fired.
Gee squarely in the
The pistol dropped
ind as he crumpled

vy,” Alexander mut-

the clip of cartridges
of the road, circling

the evil little con-
tis pistol was useless.
rough the grass, his
w Pollock slip from
knew that he was
whimper and cry for

there before I shoot
!” Pollock roared.
erado rose to his feet
h his hands up while
1 his empty pistol.
hile Pollock guarded
Alexander felt of
find that he was un-
had cut through the
t that was all. And

f the prairie to the
on guards was racing
of any possible sur-
h Owen, executioner,

a lonely Cali-
rachine. And
notify author-

i still another,
iway from the
ng marks.

| four victims!

ap the slayer,
h riddles, look
ctive!

cember Ist

white-hatted survivor..of another break,
raced up from the south, rifle in hand. He
had heard the firing at’ his .home three
blocks awdy and had done his best to reach
the scene in time.

Alexander, still dazed, jerked his head.

“See to the warden,” he said tersély.

Owen strode to the car and looked in.
Jess Dunn was beyond help. Three powder-
burned wounds gaped behind his night ear
and at the back of his skull. A dozen stab
wounds pierced his body.

“The warden’s dead!” Owen said grimly.

Fentress, however, was but little hurt.
He had been stabbed once by one of the
murderers—which one he did not know. But
he had saved his life by lying quietly on
the floor of the car. He was still shaking,
but able to. tell the little he had grasped
of the desperate quarter hour.

Ford was not dead but his death was
only a matter of minutes. He barely lived
to reach the hospital after: being loaded -into
an ambulance.

ALEXANDER glanced bitterly at Jess
Dunn’s body as reinforcing guards
laid it on the boards of the rough culvert.
There was nothing to do for his friend now.
He walked, calmly forward to inspect the
bodies. of the convicts, the calmest of those
present.

Beavers and McGee had both caught his
bullets in the center of the forehead and
were dead. Anderson, at first appearing
dead, was still living but so badly shot
through the body that he died two days
later. Prather, sniveling i in fear.and deny-
ing more than a stooge’s part in the break,
was only creased across the scalp. But
he had had enough.

Feeling ran high in McAlester and the
entire state that afternoon as news of the
bloody quarter hour went out over press
wires and radio. Jess Dunn had been a
friend of every newspaper man and every
peace officer in the state. Governor Leon
Phillips, huge, red-haired friend of the
murdered warden, rushed to the prison
from Oklahoma City and launched an in-
vestigation.

Meanwhile, Prather-and Anderson were
under questioning by officers. Both named
Beavers as the leader of the break and as
the man who had fashioned the knives used
in the kidnaping of Dunn and Fentress.
Anderson denied that Dunn’s death had been
any part of the plan and Prather frantically
denied any hand in the warden’s murder.
But investigators noted that Dunn’s wounds
were all from behind and remembered that
Prather was back seat man.

County Attorney Paul Gotcher at once
filed charges of murder against him and the
sniveling convict was arraigned a few days
later in the Pittsburg County courthouse
where a dozen other convicts have been
tried for the slaying of penitentiary guards.

Prather pleaded innocent, but with Dunn’s
death an unchallenged fact he has little
chance for acquittal. Oklahoma law makes
him equally guilty with the others, regard-
less of’ who pulled the trigger on Dunn.
His mys chance to escape the electric chair
is to plead guilty and take the life term
that automatically accompanies the plea
when his trial is held later this autumn.

Enprtoér’s Note: Fred Hunt, former head
of Oklahoma’s Granite Reformatory, has
been named: warden at McAlester in place
of the slain Jess Dunn. Hunt, who. never
lost a prisoner during six and.a half years
at Granite, said that the two tower guards
who lowered their guns to the convicts who
seized Warden Dunn, had been let out.
“We must keep the prisoners behind the
walls,” he said. Hunt drastically curtailed
activities of the trusties, cance ling’ town
pi gg and requiring trusties to wear prison
gar’

DECEMBER, 1941

‘wheels are

rtles
their victims to die on se ‘$tréets were
involved in 14,600 sorted ‘accidents, in.
“the nation last year—accidents . with an

“ow
appalling. death, injury! and’ ‘“‘property- oo
of ote gravity? form, hard

“damage toll far in excess. of jthat of
- quick-trigger gutimen.) pe
4. The old adage, “Tlt “blows? the wind ”
“that profits nobody,” fits the problem of |
__.. the hit-and-run motorist, for, as pointed
“out by :Police Captain Ray. Ashworth.’
- of Wichita, Kansas,;.a recognized
authority on traffic problems ia
. “The catastrophic and mounting num-
v.'ber. of automobile accidents* will even-
‘tually do more to raise the standards of
“the police profession than any other
single type of, hazard to life pod Prop-
erty.
This s stateinent is based apons ‘the fact
na that the us¢_ ‘of TwentiethCentury. .
scientific crime detection methods , by
-« progressive. accident ‘investigators has

, Nproven (30:4 Successful, ‘that similar mod-
r way » Ay

ern, practices” ‘are ‘worming.
into the routine of other. divisions of the
nation’s police forces,’ | ’
J Take for * example the” horéiory
‘sleuthing that ‘figured in the ‘apprehen-
“sion. ofa Dallas, Texas,: hit-and-run
* driver, who ‘left a pedestrian’ to bleed
to death on the roadway when prompt _

first aid might: have saved. his life. Dili- \
gent search’ at the scene revealed only
one. lead—a fragment. of glass, ‘concave _
tie brs evidently from an eid head- ..

: t.

“ ‘From’ this ‘ight clue; detectives Niet

“able to figure ¢ out the original diameter, :

x qevatate ane patter of, the » Jens,.::

Satlb sold chen was from the

ycowl ee tights of (a.1932: Ford, rdiAmazing? ©
“Not at all; it’s done every day by acci-..
,_ dent investigators. atti nipped Op

: re ak Dai i a
! A bit of old-fashioned, sw at-produc-

“ing: work: followed. Ten. blue-coats:

“canvassed a’mile-squaré, area tntil they. i
~ found a housewife who; from’a distance, sf
had seen ‘the death-dealing ‘cat speed off.”” ’

. She said it was a black coupe, Detec-
‘tives strained their eyes, checking -
tration. records: of. 70,000 autos en the
c Delia area, \ bloat hey | finished ° two”

‘sli ef fa He hee

.eye and usually undetected: by normal

‘Yatent on their surfaces extremely fine
grreeuiarities, caused by the _bolishing’
’ tools. « NER Na

“the motorist ° confersed. He ®

<. and puny, ack’ a knockout wallop. i=

Benn ory pee = Fina ap pe
pens Tew

fractive index, color, ‘ultra-violet’ fltors</
“escence andschemical ae
Technicians also. took ‘the :

prints” of it, Invisible to the. naked

microscopic examination, lenses have

> Like gun barrels; which engrave iden- ay
tifying marks on the bullets they dis--

‘charge, the polishing instruments. leave.

distinguishing . characteristics, | 2The™
marks ‘are out by. first wash-
ing glass with alcohol and then. spray-
ing it with hydrofluoric acid. aed
“The scientific scrutiny cated ta "
glass’ picked’ up’in the® °.
the glass found at the killing scene were: ayy
aoa, in =A erg Sm withoot 4
doubt, were fragments ae
' Confronted with ‘this, damning report: oh

‘now vin |
Sahn AE
rege eg a

lenses are the. most
dent, ands ds cere, Fe this techniques’
lent squai Citi ique =
“has been pi Barn to. other _ cof
“crime, notably burgiari i
_dows ‘were beter and
ere
leut so. have
“showing. = Hits ‘mic
ta certain

bes

Liles monies “Capea Nabs the

~~ Rite AL

et San Relat age aie ee oe

ry
a]

-” Throwing down

-wound in his fore!

his two companions; the deputy leaped for
the cover of a big. tool box at. the roadside
under a hail of lead. He emptied his pistol

‘in ‘return, qvery bullet striking the car. But
e

miraculously convicts escaped injury.
their guns, they dragged
Beavers’ body from beneath the wheel and
stuffed it into the rear seat. McGee took

his place and whipped the car around,

‘headed’ it back north. The next’ instant,
Prather and Anderson thrust rifle muzzles

through the rear glass and began pumping
bullets at the officers. ,

Their shots were wild, however. Alex-
ander leaped back into the driver’s seat of
his own car as Pollack raced from. the
cover of the garage. :

“What’s the matter with Tab?” Alex-—

ander demanded.

Pollock glanced around. Ford lay in the
back seat, blood a from a ghastly
ea

“Dead!” Pollock exclaimed grimly.
“That first bullet got him!”

‘As Alexander gunned his car in pur-
suit of the fugitives, Pollock explained that

-he had not had an opportunity to fire with-

out hitting Dunn.

“You will get it!” Alexander growled.

For a moment the two men saw Dunn’s
one free arm outlined between the broken
rear window and the windshield of the
car ahead. It was fighting frantically as
the doomed warden strove to knock down
the guns of Prather and Anderson. Then
Prather’s head jerked back from the win-
dow and three sharp reports sounded from
the fleeing car.

But when Prather turned back, the car
had reached the end of the lane. Ahead
lay a yard-deep ditch spanned by a rattle-
trap culvert that led only to a slope of
bald prairie that stretched up to a farmer's
house a hundred yards away. McGee swung
the car into the intersecting road, heading
west, parallel with the ditch. But in that
same instant he jammed on his brakes. A
hundred feet ahead, a raw ditch and an un-
finished culvert cut the road, blocking
further progress and barring them from
a spot where they had been ten minutes
before.

At a shovt from McGee, the three sur-
viving convicts tumbled from the car and
threw themselves into the ditch. The next
instant their gun muzzles protruded through
the grass that edged it and sprayed the

lane ahead with lead. <<.

Alexander slid his car to a halt. With

‘his’ pistol empty, he snatched up the rifle

and slid into the road, firing. Pollock
dashed off to the left, taking cover behind
a small outhouse and fence corner, He
squeezed ‘the trigger of the automatic pistol
in his hand as he ran. But the only answer
was a dull click. He slid back the cock-
ing slide and tried again. Again there was
only that dull «click, Dropping to his
stomach, he jerked out the cartridge clip.
It was empty.

jE KE, unaware of that, Alex-
ander was facing the three desperadoes
alone. : He saw that their bullets were go-

‘ing wild. Unable to see him from where

they lay, they were firing blindly, their
bullets kicking up little spurts of dust
around him or whining past like angry bees.

Less than 15 minutes had passed since
the convicts had seized the warden. With

' a chill, Alexander realized that Dunn was

nore dead by now. Beavers and Tab
‘ord at least were dying. Thus far only
he and Pollock stood between the murder-
ous survivors and freedom—freedom that
might cost a dozen other lives, But Alex-
ander vowed that they would be enough.
He had sworn to uphold the law and this
was the eventuality against which-he had
been drawing a salary from the county.

Scorning to take cover and give the con-
victs a chance. to elude him, the iron-
nerved deputy stood boldly in the middle
of the road and raised his rifle to his shoul-
der. He pumped a full magazine of bullets
at a movement in the grass to give Pollock
time to slip into a flanking position. But
he knew that he had hit nothing.

Then he glanced toward Pollock for a
split second. The latter was holding up his
empty pistol in one hand, the useless clip
in the other. With a sinking heart, Alex-
ander realized the bitter truth. This was
probably: the end for him. The thought
crystallized his nerves and mind in cold
clarity. He had supreme faith in his own
marksmanship, All he wanted was one shot
—first—for each man. ‘

The deputy slipped another clip of cart-

ridges from his pocket into his rifle and.

oie the trigger insrapid succession. He
eard a howl of pain at the third. One con-
vict hit. Two men left and three cartridges.
Plenty, if he could get a fair shot.

Sooner or later the desperadoes would
fy to lift their heads to get a shot at

Prather’s bald pate came gleamingly
above the green grass. Alexander fired and
a red streak leaped across it as the con-
vict tumbled back with a scream, But*a
burst of shots a second later showed that he
was still living and able to kill.

“Pollock!” Alexander shouted with sud-
den inspiration. “I’m out of ammunition.
Bring me a clip from the car!”

Pollock broke cover and raced to the
sedan. Forgetting Ford’s shotgun in the
excitement, he rummaged in the glove com-
partment and found the cartridges. The
two convicts had quit shooting at Alexander
for a moment and fired at Pollock. A bullet
struck him in the hand, but on he came.

Alexander kept his eyes on the ditch.
McGee rose to his feet, his left hand
dangling redly where a bullet had smashed
into it.

. “So eee out of ammunition, are you,
you half-tough ——!” He leveled a pistol
over his useless arm,

Alexander threw up his rifle and fired.
The bullet struck McGee squarely in the
center of the forehead. The pistol dropped
from his nerveless das he crumpled
dead into the ditch,

“Only one left now,” Alexander mut-
tered.

Pollock tossed him the clip of cartridges
and slipped to the left of the road, circling
Prather. He realized the evil little con-
vict didn’t know that his pistol was useless.

Prather, watching through the grass, his
gun almost empty, saw Pollock slip from
cover to cover and knew that he was
doomed. He began to whimper and cry for
mercy.

“Then come out of there before I shoot
you deader’n a tomcat!” Pollock roared.

Trembling, the desperado rose to his feet
and’ came forward with his hands up while
Pollock motioned with his empty pistol.

It was all over. While Pollock guarded
the cowering Prather, Alexander felt of
himself, astounded to find that he was un-
wounded. One bullet had cut through the
slack of his shirt, but that was all. And

: gt ay, was over.
A

ong the swell of the prairie to the
north, a group of prison guards was racing
to cut off the escape of any possible sur-
vivors. Grizzled Rich Owen, executioner,

ities...

January INSIDE DETECTIVE e- @

WHOSE WERE THE FOUR SKULLS?

When a weekending hiker stumbled upon a wrecked automobile at the bottom of a lonely Cali-
- fornia canyon, he thought it strange that no attempt had been made to salvage the machine. And
when he spied a human skull staring up-at him from empty eye-sockets, he hurried to notify author-

Investigating deputies were soon combing the scene. They found another skull, and still another,
and yet one more. Four skulls in all! They saw that the license plates had been torn away from the
death car, and that other attempts had been made to destroy the vehicle's identifying marks.

This was no tragic highway accident. It was deliberate murder that had claimed. four victims!

But how to identify the four, who had apparently never been missed? How to trap the slayer,
who had many months' head start? For the facts in one of California's weirdest death riddles, look
for "Whose Were The Four Skulls?" in the thriJl-packed January issue of Inside Detective!

On Sale Everywhere December Ist

white-hatted s
up from

had heard the
blocks away an
the scene in tir
Alexander, s

‘ “See to the wa:

Owen strode
Jess Dunn was
burned wounds
and at the bac!
wounds pierced

“The warden

Fentress, ho
He had been
murderers—wh
he had saved
the floor of th
but able to. te
of the desperat

Ford was n
only a matter
to reach the hc
an ambulance.

LEXANDE
/ Dunn’s kx
laid it on the
There was not!
He walked, ca
bodies: of the c
present.
Beavers and
bullets in the
were dead. .
dead, was sti
through the t
later. Prather
ing more than
was only cre:
he had had en
Feeling ran
entire state tk
bloody quarte
wires and ra
friend of ever
peace officer
Phillips, hug:
murdered wa
from Oklahon
vestigation.
Meanwhile,
under questior
Beavers as th
the man who |
in the kidnar
Anderson deni
any part of th:
denied any h:
But investigat
were all from
Prather was |
County Att
filed charges «
sniveling con
later in the
where a doz:
tried for the s
Prather ple:
death an unc
chance for ac
him equally g
less of* who
His only char
is to plead g
that automat
when his tria!

Eprtor’s N
of Oklahoma
been named. \
of the slain |
lost a prisone
at Granite, s:
who lowered
seized Ward
“We must k
walls,” he sai
activities of
leaves and re
garb.

DECEMBER, 1

outa it

| HEADS OR TAILo,

the afternoon it happened, Sheriff

Boze Johnson of Murray County in
Oklahoma had no immediate reason
to suspect the fatal auto crash was not
simply another accident attributable
to speeding in a jalopy which should
have been retired to the junk heap.

“Ought to be a law agin selling these
wrecks to kids,” he growled, scanning
the report which Police Chief Dee Ram-
sey of Davis handed him. “As if we
haven’t got enough on our hands al-

Fine’: THE INITIAL facts given him

ready, with that killer who breezed out .

of McAlester still in this neck of the
woods.”

“But there ain’t a law,’ Ramsey re-
minded him, “to keep a fellow from
buying anything a dealer will sell. Or
from driving it, neither.”

“Was she killed outright?”

“It appears so. She wes dead as a
doornail when I got out there. There
were three witnesses. They all say she
died instantly. Her husband is one of
them. I suppose you want to talk to
him.”

“A Jittle later,” the sheriff replied.
“I guess we'd better go to the morgue
first.” ;

It was about 4 p.m. when the police
chief telephoned Sheriff Johnson in
Sulphur, the county seat, nine miles
from Davis. It was scarcely half an
hour later in the afternoon of Novem-
ber 3, 1932, that the two officers strode
solemnly into the rear room of the
local undertaking parlor, where a
crumpled figure lay beneath a rubber
blanket on a table.

Johnson lifted the sheet, shuddering
as he forced himself to examine the
mangled corpse. The skull was hideous-
ly crushed, and the features of the
young woman were so battered they
were completely unrecognizable. The
officer inspected the remains for sev-
eral minutes.

“Must ‘have been quite a smashup,”
the sheriff said laconically, turning
from the body and replacing the
covering. ,

“It was,” the chief nodded. “Better
than 40 feet from the bridge into that

elec. OKSP (Murray) August 25, 1933

WHO
WILL

gully, and her husband admits he was

hitting a good clip just before the |

machine went over.”

“Tq like to hear his story.”

“Come along,” Ramsey invited. “He’s
waiting with the other two in my
anteroom.”

An officer ushered three young men

into the officers’ presence. One was a}

sandy-haired fellow of about 30, with
a high forehead; the second was much
younger, scarcely 20, the sheriff judged,
with thick, bushy eyebrows, a prom-
inent nose and ears which stood out;
the third man was a young Negro,
rather light in color, with a big jaw
and a thin line of a mustache.

The two white men showed signs of
great strain in their faces. The elder
stepped forward. Lines of sorrow and
worry were etched deeply into his
face.

“lm glad you’ve come, sheriff,” he
said gravely. “This is an awful thing,
I just can’t believe it happened at alll
Little Delia gone...” His voice broke
in a sob.

gruffiy
“Vo,

a my ney

P He sa

John
off wit!
Bob.
happen.
Adle 4
3 tioned |
ously, i

story

“Tow
. there,”
a-battir

C’ose I «

Claude

when of

buck lik
“It bor
tured er
“T hea’d
then Mis
4 come fly
3 other or
she just
Over she

“You

with thi

Claude Oli
suitor after
information
accident, b

/ ,

A_)} -

STL LE

a PPS

OY
—_ i“

GLLs
Ceo be — / 7 BS

“You her husband?” Johnson asked

gruffly.
“Yeah. I’m Claude Oliver. This is
q my nephew, and this here is Bob Adler.

He saw the whole thing.”

Steering Gear Faulty?

Johnson faced the Negro. “We'll start
off with his story,” he decided. “Go on,
Bob, tell me just exactly how it all
happened.”

Adler, ill at ease upon being ques-
tioned by the law, licked his lips nerv-
ously, for a moment unable to start his
story.

“I wuz comin’ along the road out

. there,” he began, “when I see this lizzie
a-battin’ it hell-bent toward the bridge.
C’ose I didn’t know then it wuz Mister
Claude, but I just stopped ter watch,
when of a sudden-like she started to
buck like a ornery old mule.

“It bounced along a-ways.” He ges-
tured erratically to illustrate his tale.
‘I hea’d somebody yell ‘jump!’ and
then Mister Claude-and Mister George
come flyin’ out, one on one side, the
other on the other, and the ol’ lizzie,
she just ba’ges th’u the railin’, and
over she goes. That’s about all, sheriff.”

“You got:any idea what was wrong
with that car?” Johnson asked.

admits he was
ust before the

story.” ass
ey invited. “He's
jer two in my

hree young men _
nce. One was a
§ about 30, with
second was much
-he sheriff judged,
ebrows, a prom-
which stood out,
a young Negro,
with a big jaw
mustache.
n showed signs of

faces. The elder
nes of sorrow and

deeply into his

ome, sheriff,” he
.s an awful thing.§
t happened at all. f
* His voice broke

Claude Oliver told of a disappointed
suitor after the sheriff gave out the
information that the wreck was not an
accident, but a well planned murder.

Telltale marks on the floor
of the bridge off which the
auto plunged (arrow) fanned
a small blaze of suspicion.

um 6 KILL DELIA? &

BY TED

Pretty Delia Ringer Oliver
was the victim of a brutal
plot to enrich two men at
the cost of her young life.

George Oliver said that he
leaped to safety from the
careening car, missing the
gully by only a slim margin.

Sea:

“Well, now if you’s to ask me, I'd
say it was the steerin’ business done
just give way. ’Peared to me as how
the steerin’ knuckles clean busted, and
she just went every ol’ which way.”

His brief story finished, Adler backed
to.a chair and sank into it, but his
interest in the proceedings did not lag
as the sheriff next questioned Claude
Oliver.

The young husband said that he, his
wife and nephew, left their home six
miles west of Davis to come into the
little city. Just before they reached
the bridge over a gully about two and
one-half miles out of town, he said,
something suddenly went wrong with
the steering apparatus.

“We were high-tailing it pretty fast,”
he admitted. “I was driving. Delia was
in the middle, between George and me.
I couldn’t say for sure what went
wrong, but I just couldn’t hold her i
the road. I saw we was going to crack
up. I yelled to George and Delia to
jump for it. Then I let go the wheel
and kind of kicked my way out.

“T heard the bus rip through the
railing, and then a great ‘Whoomp!’
when she hit the bottom of that gully.
I figured everybody got out. I saw
George picking himself up off of the
shoulder atthe side of the road, and
I asked him where Delia was. He said
he thought she got out with me. We
looked around, but couldn’t find her.
Then we knew she was still in the
wreck.”

“I thought I heard a scream down
there when the ol’ lizzie hit,” Bob Adler
interrupted from his chair behind
Claude Oliver.

“That’s right,” volunteered George.
“T heard a yell, too, but I was on the
ground then, and I couldn’t tell where
it came from.”

“Can you add anything to the stories
your uncle and Adler, here, told?”
Johnson asked. —

“Not much,” the boy admitted. “I
almost went into that gully myself.
When I jumped I lit right on the edge
of the bridge. Then Adler came run-
ning up, and we all went down to the
wreck. There was the old lizzie, all
right, upside down. Delia was pinned
in it, with most of the car on top of
her, it seemed like. Adler got his
machine and brought us into Davis.”

The husband and the nephew were
garbed in the simple gear of the farm.
Both wore blue denim workshirts and
trousers. Their garments were mud-
caked, but Sheriff Johnson noted sev~
eral stains on Claude’s raiment which
‘obviously had not come from the earth.
He asked about them pointedly.

“Yeah,” Claude nodded. “They’re

blood, all right. Delia’s blood. I picked

her up out of the wreck.” '
Chief Ramsey backed up his state-

ment. The girl, he said, still was inside
34 the heap of twisted metal when he, an

ee ey eee

THE FATAL AUTO CRASH MIGHT HAVE BEEN
WRITTEN OFF AS AN ACCIDENT BUT FOR A
DETAIL THE SHARP-EYED SHERIFF NOTED

undertaker, and. the Olivers returned
to the scene.

After a few additional questions, the
Murray County officer told the Olivers
and Bob Adler that they were free
to go.

_ Cane Prods a Hunch

“All satisfied?” Chief Ramsey queried
after the trio departed.

“It don’t pay to be satisfied about
anything until you know all there is
to find out about it,” the sheriff re-
joined. “Where’s the wreck?”

“Still in the gully.”

“We'll leave it there,” said Johnson.
“It’s ‘too late now to see much out
there. I’ll get one of my men to stand
watch over it till tomorrow. Now, let’s
go across the street and eat.”

“This way,” Ramsey suggested. “Lock
the- front door and follow me. I got a
path of my own beat over to the cafe.”

The sheriff pulled the office door shut,
and turned in the gathering gloom to
follow the bulking shadow of the police
chief through a back room and out the
rear of the building.

He saw Ramsey step through the
dark doorway, heard a heavy grunt

and the thump of a body tumbling on
the floor. He leaped quickly forward.
The chief was picking himself up to
the accompaniment of a string of male-
dictory adjectives.

“Danged cane!” he growled. “Had to
have it when I sprained my foot a
couple of months ago. Just leaned it
beside. the door, and it must have
fallen over against that chair. It tripped
me.”

“Hurt yourself?” Johnson inquired,
picking up the cane. and tossing it into
a corner.

“Like to have busted my wrist.
Come along, let’s get over to the res-
taurant. But tell me, Boze, what’s so
important about this wreck that some-
body’s got to stand guard over it till
morning?”

“Just a hunch, mostly, up to a minute
ago.” The sheriff smiled wryly. “If
you hadn’t spilled over that cane, Dee,
it would still be a hunch. Now maybe
it’s something a little more than that.”

“What in tarnation has my falling

over a cane got to do with that girl

being killed in that car?”
“You hurt your wrist, didn’t you?
What is the thing anyone would do,

‘led. “Had to
4 my foot a
fust leaned it
+ must have
air, It tripped

nson inquired,
tossing it jnto

ted my wrist.
ver to the res-
3oze, what’s so
-eck that some-
ard over it till

», up toa minute
jed wryly. “If
that cane, Dee,
ich. Now maybe
more than that.”
has my falling je
io with that girl %
wr?” 4
yrist, didn’t you? 7%
wnyone would do,

whom instinctively, in a fall. He—or she—
. throws up a hand or an arm for pro-

tection. I thought there was something
not quite right about Delia Oliver’s
corpse when I looked at it.”

“You're way ahead of me, sheriff,”
Ramsey confessed.

“You saw the body. The head and
facé are unrecognizable. That was an
awful crash. Took maybe a second or
so for the car to hit the bottom. Delia
should have had her hands over her
face, trying to protect herself. Not that
it would have helped the poor girl
any, but that’s what she’d have done,
thrown up her hands to break the fall.
A body just can’t help doing that.”

“Sfow do you know she didn’t?”

“J don’t know. I’m only guessing.
But you saw her head. Absolutely
crushed. It took force to do that, lots
df force. It stands to reason her hands
and arms would have been busted up
pretty bad. But they weren’t. They
were bloody, all: right. Good heavens,
that child was bloodsoaked clean down
to her waist! But they weren’t hurt—
her arms, I mean. Something funny
there.”

“Any idea. what?”

“Nope. We'll wait until tomorrow.
Maybe the wreck will show us what’s
wrong.”

Early the next day Sheriff‘ Johnson
stopped in Chief Ramsey’s office. With
him were Deputy Sheriffs J. H. Sample
and Earl Rowe.

“Rowe’s as good a mechanic as there
is in these parts,” the Murray County
officer said. “He'll tell us what made
that lizzie go over the bridge.”

The four officials drove to the scene
of the fatal crash. The machine résted
on its top, a heap of junk fit only for
the scrap pile. While Rowe set to work
examining it the others went back to
the road to seek out what evidence
there was to indicate the cause of
the accident. ~ |

Plain tire marks led over the bridge
to the gap in the railing. Johnson ob-
served that one of the inch thick planks
of the bridge floor was split at the end,
where it protruded from the longi-
tudinal support over the gully. For

about three inches to the edge of the
. planking the tire marks were blurred

in a straight line, about a foot long.

Believes Car Was Pushed

The sheriff studied, the tire marks
and the split board for some time before
reaching a decision about them.

“That machine never ran off the
bridge,” he announced at last. “It was
pushed.” -

“How do you figure it?” Ramsey
asked.

Johnson pointed out the split board.
“A lot of weight was on that,” he said.
“A car rolling fast, like the Oliver boys
said, wouldn’t put any strain on the
plank.”

“Looks to me like she might have
skidded off,” said the chief.

The sheriff shook his head slowly.
“In the first place,” he said, “there’d
be wobbly tire tracks leading up to
here. These are straight. And, to skid,
the wheels would have to lock. The
front wheels could have done that,
throwing her into a skid, if the steering
was gone, like they said. But then the
back wheels would have swung in a
big arc. No sign of that.

“But here’s the most important thing.
You. can see from the marks on the
bridge floor that the tires slid right
straight off for about three inches. But
there ain’t any marks of the wheels on
the other side of the machine sliding
at all. There’s only one answer. That
car was driven right. up to the edge
of thé bridge, and then somebody
grabbed the running board on the other
side and tipped her over.”

Johnson’s deduction was supported
by the report of Deputy Rowe when he
finished his examination of the wrecked
automobile.

“The steering knuckles are okay,”
he told his superior. “I couldn’t find
anything wrong, except that the crate
was absolutely wrecked in the crash.
But mechanically it had been in good
condition.”

Johnson ordered the wreck im-
pounded in a Davis garage, then re-
paired with his two assistants and the
police chief to the latter’s office for a
conference on the next steps in the
investigation of Delia Oliver’s death.

The young couple and the nephew
had lived on the farm of George Oliver's
parents, highly respected residents of
the county. The dead girl, a bride of
only a few months, was the daughter
of Mr. and Mrs. J. B. Ringer of Wynne
Wood, a small city in adjoining Garvin
County, ten miles north of Davis on the
Washita River.

Both families (Continued on page 43)

But Scones Ree

esas Seta ee ee

a RT EL

Sane

PEAS

Te ee ee ee ee en

ving, local and
—Shipping and
auling.”

ea key, unlock
er,, other store-
,0d told me that,
ppearance there,

vit 2 store.
| x ice the
trucks

nev:
ription—at least
w up in front.

assigned to help
e under constant
; a phone listed
| tapped that, but
alls. When Joe
emises, I peered
ut all I could see
yoked to be a big
ashed at the rear.
Joe, I discovered,
ce record. Yet he
ye peddlers. And
taxi-driver doing
spany—especially
ympany? It was

d to enter the
t around, but my
running the risk
sbtaining a search
| the place at 3
rmed with an ice
beat.
‘thien as a federal
was working on a
“I’m hoping the
d, “will show up
inly they'll never
and your uniform
op made himself
at I ~< after. I
> the of store-
pect
vas out of he way,
36 Hudson Street,
a paper clip. In-
e, I headed for the
re pile of furs and
1 found, a number
ses. I jabbed my
he cases and after
through the wood,
ris encouraged me.
packed in airtight,
+ the characteristic
1 odor like rotten
etected. ; ;
‘bed in my ice pick
e it went through
substance. I pulled
Fed at the gummy
Ypium.
ass as I could, I
;, slipped out of the
lock back in place.
I reported my dis-
-charge of our New
reed that before any
. we'd best sit tight
"more evidence, if
e trucking company
and the rest. But
to be rewarded. It
with.
ed were other agents
id earlier, there had
the Abe Stein tap
1o Chicago, and now
ah The trunk
oran entral and
agents, acting pre-
least—and certainly
-what they were do-

is doing—seized the 4

contained 50 pounds ;

-d Abe Stein. This, %

Se na

of course, gave everybody in the mob
the jitters, and now all I could do was to
and who I could down on

grab what
Hudson Street.

It was on April 2 that I first walked

Truchies Company store—
I have good reason for re-
membering the date; it was my birthday.

into the A. B.
in daylight.

And what a birthday present I found!

I flashed my credentials and asked Fat
Joe, who was there alone, about the pack-
ing cases in the rear. He told me, nerv-
that so far as he knew they
contained shoes. They'd been left there,
he claimed, in December of the year be-
fore, and he professed not to know who

ously,

owned them.

“If that’s true,” I said, “I shouldn’t

think you'd mind if I opened them?”
He turned pale. “Well . .
pose not.”

I called in another agent and we went
to work. There were ten cases ard each
packed full of “Turkey Red,”
To give
the lie to what Joe had said about when
we found
New York
February of that
The papers were balled

case was
Grade No. 1, pure gum opium.
the cases had been left there,
in some of them copies of
newspapers dated in
very year, 1931.
up and used as stuffing.

We arrested Joe,
guard in the store,

house on Trinity Place. We weighed it.
It tipped the scales at 1,860 pounds and
was worth roughly $1,000,000—the big-
gest lot of dope ever seized in the history
of the U. S. Treasury Department.

I hoped that Joe would talk and turn
evidence against the others in the moh,
and with this in view we questioned him.
On April 14, we were still questioning

Death Went on
Her Honeymoon

[Continued from page 37]

seemed no possible way of reconciling

their theory with the story Brown had

told. Yet they felt they were right—that

Della had died at the hands of one or two

attackers, and not accidentally,

As for motive, one suggested itself im-
mediately. Robbery seemed a far-fetched
explanation—but Della had been a strik-
ingly attractive girl, Conceivably, she had
given a lift in the car toa couple of men—
either known to her or not—and had been
killed in the course of an attempted. or
successful, sexual assault.

Back in Davis, the three officers’ first
move was to visit Dr. Robberson. In a
confidential interview with the physician,
they told him of their Suspicions regard-
ing Della’s death, showed him the blood-
stained tire tool, file and rock, and asked
him if, according to his recollection,
Della’s wounds could have been inflicted
with those instruments.

“What you suggest is shocking,” the
doctor replied. “But my answer is yes.

Owever, according to the story of
Chester Brown, there was no question at
the time of such a possibility.”

“I know, Doctor,” Samples declared.
“That’s something we still have to clear
up. But there’s one thing more. Was there
any evidence of a sexual attack having
been attempted, or committed, on Della?”

“I'm pretty sure there wasn’t. Yet,

- No, I sup-

of course, placed a
é and then hauled the
, opium off to the Narcotics Bureay ware-

|
grinned. “Business
right brisk. No sooner does Claude Oliver |

agents messed up my case, but they had

spoiled their own. There wasn’t enough

evidence to connect Abe with the trunk.

But Abe must have been scared about
something, because right after his trial
he went on the lam. Joe, as it turned out,
didn’t talk. Some member of the mob,
I figure, must have gotten to him and
promised to take care of him if he kept
his mouth shut. He drew four years —a
stiff sentence for a first offender, especially
in a dope case.

In 1932, I arrested Little Itch Halper
in connection with another case, and he,
too, went off to the pen, where he died
of a heart attack. Oscar Kirshon also died
of a heart attack—but out of jail.

Benny Silver? No one seems to know
what’s happened to stupid old Benny.
Al Spitzer? In 1932, Al was arrested for
opium smoking, but couldn't be held be-
cause no pipe was actually found in his
mouth.

And Arnold Rothstein?

Now there’s a mystery for you in more
ways than one. Inasmuch as McManus
was acquitted of killing Rdthstein, who
did kill him? And why? And why did
Rothstein welsh on that $303,000 gam-
bling loss? Was he broke?

The poker game was held, remember,
only a few weeks after the mob took a
terrific licking on the forced sale of the
Copeman’s cargo, and it may be that if
they hadn't met with this disaster, Roth-
stein would have paid his debt. Who
knows? Sometimes I comfort myself by
reflecting that perhaps after all I did the
job I had been instructed to do.

Perhaps—indirectly, to be sure—I got
Arnold Rothstein.

under the circumstances, I didn’t look

Particularly for anything of that nature.

and we held no autopsy. Of course, the

body could be exhumed.”

“That may be necessary, or it may not,”
Samples concluded. “In any case, thank
you, Doctor.”

The officers’ next stop was at the local
Ford agency, where, Ramsay knew, the
wrecked touring car had been taken. It 4
was parked in a corner of the Garage, and ”
when they examined the front seat, they
found a condition which strengthened
their growing belief about how Della had
died. The front seat and floor boards, they
noticed, were heavily bloodstained, much
more so than the ground in the gully.

If Della had been injured as the car
crashed down the steep bank, they rea-
soned, then the ground would have re-
ceived the major share of the spilled
blood, and the car seat and floorboards
comparatively little. However, if she had
been placed, bleeding, in the car before it
was driven off the bridge, then the con-
dition of the seat and boards was easily
explained.

At the investigators’ request, a me-
chanic gave the vehicle’s steering appa-
ratus a thorough going-over, At tHe
conclusion of his examination he told
them: “Steering works fine. It’s one of

him, when Abe Stein was acquitted in the
trunk business. Not only had the other

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Pike’s curiosity asserted itself. “What
brought you two all the way down here
to ask about a couple of hitchhikers?”
she asked. “What’s it all about?”

“A young woman named Della Oliver
died under suspicious circumstances.”
Samples replied. “It may be a case of
murder.”

“What?” Wohlen exploded. “You mean
the girl from Wynnewood, who married
Claude Oliver?”

“That's right,” Rowe acknowledged.
“T guess you knew her, eh?”

“T'll say I did,” the red-headed chap
went on. “Last summer, when I was work-
ing near her father’s place, I used to go
see her, along with a lot of other fellows.
We were sure surprised when she married
Claude Olive.” He shook his head rue-
fully, and then another thought struck
him. “Why I saw her the morning vou say
she died—the morning we came down
here. Just ‘before Mrs. Pike came along,
Della drove by in a Ford sedan—Claude’s
car, I guess. She was with two men, and
they were all in the front seat. I couldn’t
see the driver’s face, but she was in the
middle and the man sitting on the right
side was Claude’s nephew, George.”

“What makes you so certain it was
George?” Samples asked.

“T sure ought to know his face. I saw it
enough last summer at Della’s hotse.”

The deputies immediately realized the
possibilities inherent in what Wohlen had
said. They recalled that George had
courted Della, and perhaps. in league with
the unidentified driver of the car, had
planned some sort of reprisal on her for
being turned down in the matrimonial
sweepstakes. However, Claude had given
no indication that his nephew had been
away from the farm at any time during
the fatal morning. Was this an oversight.
or was there another explanation?

Wohlen readily agreed to accompany
the officers back to Sulphur and in less
than two hours, he was telling his story
to Sheriff Johnson and County Attorney
Fagan. At its conclusion, Johnson said:
“Get witness Brown and the two Olivers
over here. We'll get to the bottom of this
business.”

Forty-five minutes later, Claude Oliver
sat in the sheriff’s office while his nephew
and Brown waited in another room:
“We've one important question to ask
vou,” Samples declared bluntly. “Was
George away from the farm any time at
all the morning Della was killed?”

Claude screwed up his face as if in the
throes of an effort to remember, and then
said: “I’m sure he wasn’t. Not for a
minute.”

After Claude was led from the room, to
wait further developments alone, Samples
banged the desk with his fist. “I think that
guy is about as honest as a nine-dollar
bill. First, when we think we have some-
thing on Brown, he tries to make us be-
lieve the man is a saint. Then he alibies
George when we know very well that
George was it that.car. He must be cover-
ing up—for a reason, And that reason has
to he to protect himself. This is beginning
to look like a real put-up job.”

Samples brooded a motnent and then
snapped his fingers. “I’ve got an idea,”
he said, reaching for the telephone. With-
in a few minutes he was talking with a
friend who was an executive in the Tulsa
regional office of the National Bureau of
Casualty and Surety Underwriters, a
clearing house for insurance information.
At the end of the conversation, he told
Johnson and Rowe of its substance, and
then they had Brown and George Oliver
brought into the office.

Brown bore the initial impact of the
barrage. “You're under arrest for

murder,” Samples flung at him. “You and

George killed Della so Claude could collect »

on that $5,000, double indemnity policy he
took out a couple of months ago on her
life. He has already entered claim for it.
Claude promised you a cut, and that’s
why you began looking at new cars.”

Brown sat stunned for a moment, then
babbled out a protest. “No!” he shouted.
“T didn’t touch her! They didn’t tell me
anvthing like that was involved. Here’s
how it was... .”

The thoroughly frightened man went
on to say that Claude had approached him
to be a witness to an accident that would
involve only damage to the car, and had
offered him a part of the car insurance as
an inducement. He agreed, and was out
on the Price’s Falls Road at the appointed
time.

ae original plan was for the Olivers
to push the car from the gully-bridge,
claim they had jumped from it as it top-
pled over, and have him come forward asa
witness to the “accident.” He stood at a
distance, he said, while they pushed the
car over, but when he came up to the
bridge, they told him Della was in the car,
dead.

“They said I was already in so deep
that, I had to go along with them,”
Brown explained, “and they promised me
$400 of the insurance money. I waited
until they had time to cut through the
fields and get back home and then I noti-
fied the marshal.”

George Oliver had sat limply through
this recital, and when he was challenged
to give his version of the crime, he nodded
dumbly and without hope. “What Chet
says is the truth. But it all started last
suimmer. Claude wanted to make some
easy money, and he hit on this insurance
idea. He talked me into going in with him.
The plan was to marry some girl, take
out insurance on her life, and then kill
her, making it look like an accident. I'd
been going over to see Della at Wynne-
wood, and Claude said she’d do as well as
the next one. We couldn’t decide which
of us should try to marry her, so we tossed
for it. The winner was to marry her and
the loser was to kill her. I lost. °

“That morning,” he went on, Claude,
Della and I went out in the Ford. When
we got near the bridge, he madé out we
had a flat tire. We all got out. I took the
tire iron and hit ‘her over the head. She
ran to Claude for protection. He used a
big file he had in his hand and picked up
a rock to finish her off. We put her the
car and pushed it into the gully.”

For the next two hours, Claude Oliver
denied the stories told by his nephew and
his neighbor, and attributed what they
had said to a plot to involve him in a
crime he knew nothing of. However, the
sheer impact of the cold facts in time
became too much for him and he con-
fessed that his role in the murder was as
they had described.

The next month, Claude and George
Oliver were tried in Circuit Court before
Judge W. G. Long. They were found
guilty and sentenced to death. On the
following August 23, they were electro-
cuted in the state penitentiary. Chester
Brown met a gentler fate. After exhaus-
tive investigation, the authorities were
convinced that his role in the case had
been a venal, but not a murderous, one.
In view of this fact, and his final co-
operation with the state in preparing the
case against the Olivers, he was permit-
ted to go free.

(The name Chester Brown is fictitious to protect

the identity of a man absolved of blame in the crime.
—-The Editor.)

fi
4

Was }
or th
skulls
instry
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remna
to coy
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expost
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been
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“He must
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first murder,
self to prever
“Could be,”
think it more
hitchhiker w.
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trunk. Then h:

later,”

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tell us to get him a new car, than Chester
Brown comes around and starts looking
at folders and asking about prices.”

“What’s he going to use for money?”
Ramsay inquired.

The mechanic guffawed. “That’s what I
asked him. He told me: ‘Don’t worry
about the money.’”

Outside the garage, and seated in the
deputies’ car, Ramsay looked quizzical.
“That's a funny thing about Brown buy-
ing a car,” he told the others. “So far as I
know, he doesn’t have two dimes to rub
against each other. How does this idea
strike you...”

The marshal went on to point out that
Dr. Robberson had seemed fairly certain
Della had not been molested sexually. It
was possible, then, that the motive for
killing her had been gain, after all. Now,
the one known witness to the “accident”
was suddenly giving the appearance of
affluence.

“Maybe, maybe,” Deputy Samples com-
mented. “But don’t forget we saw prints
of two men. If Brown was one of them,
who was the other? I think we’d better
have a talk with Brown and see what he
has to say.”

The officers drove out to Brown’s
bachelor bungalow and found him work-
ing in a shed out back. His dark, heavy
countenance remained impassive at sight
of his visitors, whom he recognized as
police.

Ramsay plunged into the matter at
hand. “About Della Oliver’s accident,” he
said, “_——is there anything vou saw that
you forgot to tell me at the time?”

Brown worried the question for a
moment and then replied laconically:
“No, I can’t say there was.”

“We have reason to believe.” Deputy
Samples declared, “that a couple of men

were out there on the road with the girl. _

But you didn’t see any signs of them?”

“No, Deputy, I didn’t. But wait a
minute. If they were there, as you say,
maybe I know why I didn’t see them.”
Brown went on to point out that between
the bridge over the gully and the place
where he had been standing at the time
he caught sight of the Ford, there was
a sharp dip in the road. When he ran for-
ward on seeing the car hurtle into the
gully, he had to traverse the dip. While
he was crossing it, for a period of several
minutes, the area of the bridge and gully
were out of his sight. “It could be,” he
said, “that in that time those men you
talk about might have run off.”

Each investigator, in his mind, recalled

the portion of the road to which Brown
had referred, and each had to admit that
his theory was possible, but not very
probable. They questioned him pressingly,
but the man would not retreat from his
original version. He insisted the car had
been progressing steadily along the road
just prior to going into the gully; that its
right front wheel seemed to have slipped
over the bridge flooring; and that he cer-
tainly had not observed two men, much
less seen them push the car over the
bank.
« Deputy Samples abruptly swung the in-
terrogation to another subject.- “We
understand you’re about to buy a new
car,” he declared. “Where did you get the
money?” :

Brown’s reply was laced with ire. “You
understand more than you should. I
haven't got the money.”

“But you expect to get it?”

“Maybe I do and maybe I don’t. That’s
my business. I haven’t done anything
wrong, and I don’t see why you come
around here trving to get me into
trouble.” He picked up a file and began
to sharpen a scythe.

Samples gave his colleagues a cue and
the three of them took their departure.
As they drove out the front yard, the
deputy remarked: “He's not telling all he
knows, to say the feast. But just what
he’s holding back beats me. Let’s see if
Claude Oliver can throw any light on this
business.”

A few minutes later the officers were
seated in the Oliver kitchen. Claude and
George were preparing an early supper.
The elder Oliver totund chairs for his visi-
tors and then faced them isqetr taal

“T hate to dredge this whole thing up,
Claude,” the marshal said apologetically,
“but there are a few things we want to
ask you about Della’s death.”

“You want to ask me?” Claude said in
a puzzled tone. “Why you know more
about it than I do, Marshal. After all, you
were on the scene before I was.”

“We're interested in a few other
things,” Rowe interjected. “For instance,
did your wife have any considerable sum
of money on her the morning she was
killed?”

“Not that I know of,” the widower
replied. “Oh, she might have had three
or four dollars to buy the chickens with
but not much more. Say, what's this all
about?”

Samples ignored the question and
countered with one of his own. “Tell me,
Oliver, did you ever get the idea that
Chester Brown had a yen for your wife?”

A flush slowly crept over Claude’s
countenance. “Say, this is getting a little
tacky,” he declared. “The answer to your
question is no, but I think you ought to
tell me what you’re driving at.” :

“Just this,” Ramsay explained. “We
have an idea that Della was murdered.”

At the last word, Claude and his nephew
gasped simultaneously, and for several
secotids neither uttered a word. Then
Claude found speech. “Murdered!” he
repeated in a dry voice. “What makes
you think such a terrible thing?”

“We found indications out at the bridge
that two men may have attacked your
wife—and killed her,” Rowe asserted. “As
we figure it, the motive could have been .
either robbery or sexual assault—although
we're glad to say that Dr. Robberson is
pretty certain no successful sexual attack
took place. But this is the thing: Brown
was the only witness, so far as we know,
and we don’t think his story stands up.
That’s why we asked you what we did.”

Ce trodded solemnly. “I guess I
don’t have to tell you what a loop this
knocks me for,” he said, “and I suppose
you know what you're talking about. If
Della was murdered, I’d like five minutes
alone with whoever did it. But I’ve

known Chet Brown a long time, and I

don’t think there’s a fairer, squarer
shooter. George, here, will bear me out

in that. I just can’t imagine him having - ”

any wrong ideas about Della. As for the
money thing, he knew darn well, from
being friendly with us, that Della never
catried around more than a few dollars”
for shopping. No sir, where Chet’s cone ;
cerned, I think you’ve got the wrong ;
possum up the tree.” {

That seemed to be that. If Brown had |
a murky role in the situation, any case 4
against him could not be strengthened by,
testimony of Claude or George Oliver. For
the sake of thoroughness, and in the hope
that some useful lead might result,’
Samples asked the Olivers if they ha
noticed anyone lurking near the farm-
house, or on the road, at the time Delle
set out that day to buy some chickett$

“Not a soul around,” Geotge replied
“I remember it very well. Claude crank

located on
a little sout

1s place
came alone
a drink of wa
chat, told hin
they had bee;
arms in the D.
they had hear:
© made pickin
some fifty mile
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the car, and we watched her for a few
minutes till she got out of sight up the
road, Then we went to the field to work,
and the next thing we knew, we got a
message that there’d been an acci ent.”

“That's the way it was,” Claude con-
firmed. “Just like George says.”

By this time the evening was well
under way, and the county men decided
to defer any further investigation until
the next day. Accordingly, they took their
leave of Marshall Ramsay and drove the
few miles back to Sulphur, where, after
eating dinner, they held a lengthy con-
ference with Sheriff Johnson and County
Attorney E, W. Fagan.

here was no doubt in any of their
minds that some sinister factors were in-
volved in the death of Della Oliver, but
they agreed that at the moment the sus-
Picions against Brown were far too
nebulous to justify holding the man.
“After all,” Fagan pointed out to Samples
and Rowe, “all you've really got is the
fact that he says he didn't see something
you’re sure happened.”

“And if your idea is correct,” Johnson
went on,“then you've got to prove it. But
even assuming Brown is mixed up in the
thing, don’t forget the other man you
Say was in on the attack. Who is he?”

There seemed but one Practical way to
‘seek an answer to the question. This was
to return to Davis and make exhaustive
inquiries all along the route Della must
have travelled from the Oliver farm to
the Price’s Falls Road bridge.

The next day, Samples and Rowe were
back on the job in Davis, alone, since
Marshal Ramsay was faced with other
duties which had arisen. To get a clear
picture of Della’s route, the county men
drove over the road she must have
covered. They found that it led from the
Oliver farm southwest to U. S. Highway
77, due south along the highway for about
a mile, to the intersection of Price’s Falls
Road, then again southwest along the
latter. ‘

This survey completed, Samples and
Rowe returned to the Starting point and
began to check at households and road-
stands inquiring for any testimony con-
oe Della Oliver on the day of her
death. ‘

Swung on to the main road. Stone gave
long thought to the deputy’s initial in-

.quiries and then said carefully. “I remem-

ber something that happened that morn-
ing around the time vou mention,” he
declared. “This is it, for what it’s worth.”
Stone went on to Say that at the time
in question he had been working about
his place when a couple of young men
came along on foot, They asked him for
a drink of water, and then, in a friendly
chat, told him that for several months
they had been working out on various
farms in the Davis area. Recently, though,
they had heard that good money was to
be made picking cotton around Ardmore,
some fifty miles to the south. They were
on their way to Ardmore, they said, and
expressed the hope that someone would
come along and give them a ride.
“Well,” Stone continued, “they started
hoofing it, and I went back to my work.
About ten minutes later, I happened to
glance out at the road, and I saw a Ford
sedan whiz by. There was a woman driv-
ing—she was alone—but I didn’t see her
face. For no particular reason, I watched
the car. and then I saw it stop, and these
two fellows got in. No, I don’t have any
idea of their names, but I can tell you this:
one of them was tall, red headed, with

a scar on his right cheek, and the other
was runty, very dark and had a slight
limp.” .

Stone's statement injected an entirely
new alternative into the case. It was quite
possible, the two deputies agreed that
Della had stopped to give the hikers a
lift. and that they had repaid her kind-
ness in a manner that had ample prec-
edent.

At any rate it was a concrete lead. The

problem was to find the two young men. -

Here, although Stone had not been able
to provide names, his descriptions of them
were almost as good, and they had men-
tioned Ardmore as their destination. Of
course, they might have changed their
plans—but at least it was a lead.

After telephoning Sheriff Johnson what
they had learned, Samples and Rowe set
out for Ardmore, and reached it in the
early afternoon. There, with the help of
the local authorities, they got a line on
the places in the vicinity that were likely
to employ itinerant workers. They spent
what was left of the day visiting severa!
farms, By bedtime, they had drawn a
blank. but after a night at a local hotel,
they were at their task early the next
morning, and before it was very old they
had found something definite.

HIS came about when they visited the

farm of Albert Pike, a few miles east
of Ardmore. When Pike heard the descrip-
tions of the men in whom the deputies
were interested, his reaction was im-
mediate. “Why those two are working
here now,” he said. “They started on
November 3, The red-headed fellow’s
name is George Wohlen, and the other
one’s Howie Stoddard. Wait a second—
I'll get them.”

Presently, the two men, summoned
from a nearby cotton field, were facing
the investigators’ barrage of questibns.
Their initial reaction of ewilderment at
the situation remained unchanged when
it became clear that the officers were de-
manding an account of the hitch they had
obtained near Ed Stone’s gas station on
the morning they left Davis. “You were
seen getting into a Ford car.” Samples
said, posing the key point. “Who was
driving it?” .° :

Wohlen and Stoddard looked at each
other and then grinned. “That's easy,”
Stoddard said. “Mrs. Pike, the boss’s wife.
Ask her. She'll tell you all about it.”

Pike left the room, but re-appeared
quickly with his wife. She was a sturdy,
competent-looking matron wearing a
voluminous, starched apron, which she
smoothed with hands whose touch upon
pie crust must have been like a benedic-
tion. Mrs. Pike, too, was not one to tell
a story concisely, but what she had to say
about the two cotton pickers boiled down
to a few sitnple facts

For a few days prior to November 3,
Mrs. Pike said, she had been Visiting
friends in Davis. and while there had met
Wohlen and Stoddard. In a casual way,
she mentioned to them that cotton pick-
Ng was good down around Ardmore. On
the morning she started back home in
her Ford car, she had noticed the pair
thumbing a ride on Highway 77. She
stopped, asked them where they were
headed. and when they told her Ardmore,
she invited them in the car and the three
of them drove directly to her farm, Her
hushand hired them ‘at Once and they
had been working for him every day
since.

Mrs. Pike’s statement blew sky high
this hitherto promising lead. of course,
but Samples and Rowe took it philo-
sophically. As they prepared to leave, Mrs.

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up and came tearing by the barn. ‘They
turned into the road that goes to Sul-
phur.”

“What kind of a car was it?” Samples
asked. .

The farmer. grinned sheepishly. “I
couldn’t tell; I’m not much on recogniz-
ing automobiles. But it was an. old
bluish-green touring car with a cloth top
that was torn in a couple of places.”

“What could those fellows have been
doing ?” Rowe puzzled as they left the
farmer’s place.

“I don’t know,” Samples said. “Any-
way, we've got a lead. That car prob-
ably belongs to someone around here.
We'll put Ramsay on that angle while
we run up to Wynnewood and talk to the
doctor and the undertaker.”

In Davis, the marshal readily agreed
to help locate the old touring car. Samples
and Rowe then headed north to Wynne-
wood. .

When the officers reached their desti-

George Oliver, above, told a
strange story to County At-
torney E. W. Fagan, right,
helping Murray county of-
ficers to tighten the web that
was to ensnare the killer.

nation they sought out Dr. Robberson. *

He had examined the body shortly after
it had been discovered and had deter-
mined the cause of death.

The medical man was surprised when
Samples and Rowe presented their theory
of assault. Robberson declared emphatic-
ally that there had been no indications
that Della might have been subjected to
criminal attack.

Undertaker C. F. Coonrod was of the
same opinion, “There was no sign of
any violence other than that sustained in
the accident,” he said flatly. “I prepared
the body for burial and would be almost
certain to see any evidence that would
substantiate this idea.”

“Well,” Samples said ruefully to Rowe
as they left the mortuary, “there goes the
motive for the murder. Now we're right
back where we started.”

“Maybe not,” Rowe said slowly. “Per-
haps Della wasn’t assaulted. But no one
can say at the moment that the person
who killed her did not have criminal at-
tack in his mind at the time. It is more
than possible that the murderer merely
meant to stun her before carrying out his
intentions. Instead, he hit her too hard.
Then, frightened by what he had done, he
tried to cover up.”

“What you say sounds plausible,”
Samples said. “At least it gives us
something to work on for the moment.
Since Della and Claude Oliver had no
enemies, and she was carrying little
money, what other motive can there be ?”

df Bear officers climbed into ‘their car
and drove back to Davis to see if
Ramsay had unearthed any leads. When
they got there they found the marshal
awaiting them eagerly.

“There’s no blue-green touring car in
town,” he said quickly, “but while I was
checking the filling stations I learned
something else. A man who operates the
gas station remembers seeing a woman
driving a Ford that looked like the Oliver
car. She stopped and picked up two men,
That was on the day Della was killed.

‘The man remembered it because he'd
never seen a woman pick up a hitchhiker
before.”

“Lead us to him,” Samples exclaimed.
He turned to Rowe. ‘Maybe your hunch
that Della picked up someone wasn’t so
far off.”

The three men hurried to the filling
station, where the man repeated his story.

“Are you sure it was the Oliver car ?”
Samples asked.

“No, because I was gauging my tank
when the woman passed and I had my
mind on that. Next time I looked up she
had stopped down the street a couple of
blocks away, and these two men were
getting into the car. But I know the
Oliver car and it sure looked like it.”

“Which way did she go—east toward
Price’s Falls ?”

“I don't know. She could have gone
that way or on down Highway 77 to
Ardmore. Somebody drove in to the sta-
tion about then and I didn’t notice.”

“Know who the two men were ?” asked
Rowe.

The man hesitated. “I hate to say,
considering what you’ve got in mind, but
they sure looked like the two young fel-
lows who’ve been helping with the fall
planting here, I don’t know their names.”

“I do,” Ramsay spoke up. “I had them
in the city jail overnight a couple of
weeks ago for being drunk and disorderly.
They got into a fight with some fellows
and broke up a dance at the schoolhouse.
Their names are Lee Bennett and Everett
Thorpe.”

“Has the man they’re working for got
a phone?” Samples asked quickly. The
station proprietor nodded and the under-
sheriff went inside to make the call.

He returned in a couple of minutes.
“Their boss says those two fellows are
gone. They quit the morning of the
murder,” Samples reported. “One of
them, Bennett, lives in Love county, near
Marietta. I called Sheriff Johnson to
have him get in touch with officers down
there.”

“Nice work,” Rowe commented. “Did
the sheriff do any good with the file ?”

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It was easy to visualize how the right
front wheel had left the road, sending the
car toppling into the creek. But there
was no track to mark the point. Even the
white surface of the culvert was un-
marred,

That in itself was a little peculiar.
There should have been oil stains and
scratches on the concrete culvert left by
the front axle and crankcase when the
car plunged over. But there was nothing.

Samples glanced up the road-and into
the adjoining pasture to where Ramsay
had indicated that the file had been found.

“Just easy throwing distance,” he mut-
tered.

Crossing the fence, he began an inten-
sive search of the south edge of the road
nearest the pasture. Almost at once he
discovered a deep, narrow heelprint in
the red clay, surrounded by a blurred
tangle of shallower prints. He called the
others to him.

“A woman’s high-heeled shoe made
that print,” the undersheriff declared,
pointing to the clear impression.

“The others were made by a man’s
shoes.”

“That’s so,” agreed Rowe, who had
dropped to his knees. “Only I'd say
there were at least two men. See, one
of these looks like the print of a rubber
heel. The rest seem to have been made
by a leather heel.”

Samples nodded thoughtfully. “And
notice how deep the woman’s print goes
into that hard clay? That means—”

“That means there was a struggle here
in the road,” Ramsay broke in excitedly.
“The Oliver car stopped here. Della
got out, or was dragged out, and then
soe boty struck her down with that

e!’

“Right,” Samples said enphatically.

The undersheriff scrutinized the ad-
joining shoulder and weed-grown ditch,
while Ramsay and Rowe moved down the

road toward the creek. A while later Rowe
let out a yell. He was. standing in the creek
bed on the north side of the culvert, holding
up a rock the size of a coconut.

‘“Here’s some real evidence,” he said grimly
when the others joined.him. He pointed toa
dark smear on the underside of the rock. A
fragment of dried flesh and a wisp of hair
some six inches long were clinging to it.

“More bloodstains,’” Samples muttered.
“And that looks like a piece of human scalp.
Obviously that car wreck was no accident.”

“Vou’re right,” said Rowe. “We're at
least thirty-five feet from where the car went
over. Not only that, but this blood and piece of
scalp were on the underside of the rock. The
killer must have finished Della off with this
rock at the culvert and tossed it over here.”

Te officers redoubled their efforts. Pres-
ently, in a tangle of weeds near the foot-
prints, Samples located a second piece of
scalp with strands of fine brown hair adher-
ing to it. Marshal Ramsay kicked up a broken
spring leaf in the pasture. Like the iron file,
it bore dark stains of coagulated blood and
matted hair.

“This does it,” Samples said. “We've more
than enough evidence to open an investiga-
tion.”

“Yes,” agreed Rowe, “but whoever killed
Della and then ran the car off the bridge to
cover up the crime has had nine days to make
a getaway.”

“T don’t believe the car was driven off the
bridge,” said Samples slowly. “There were
no marks on the edge of the culvert. That
would indicate that the car was simply pushed
sideways over the edge. It was a clever way
of simulating an accident.”

“Pushed over?” Ramsay queried.

“Sure. It would be easy for two men.
That’s another indication .this wasn’t a one-
man job.”

“But what was the motive?” the marshal
asked.

“Looks like an assault case to me,” Rowe
theorized. ‘‘A hitchhiker, or somebody she
picked up or who stopped her on the road.
Perhaps it was someone she knew.”

Ramsay looked incredulous. ‘Assault?
But how will you ever establish that? She’s
been buried a week.”

Bloodstained gravel and a. <)
woman’s. heelprint, found .
at cross, left, gave Under-
, Sheriff Samples his first
hint that the tragic accident
was in reality a murder.

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Laid against the wild
beauty of the Arbuckle
mountains, shown here,
the death plot was to
have its finale at Horse-
shoe Curve, below.

“The body can be exhumed,” Samples de-
clared, “but that can wait. I think we had
better talk to Claude Oliver first. He's en-
titled to know what’s going on.” He started
for the car. ‘Maybe he can tell us if he and
his wife have been having trouble with any
one.”

Ramsay returned to his duties in Davis,
while the county officers carried on. Claude
Oliver was located at the home of a relative.
When the officers drove up he was seated on
the farmhouse porch with his nephew, George
Oliver, a bright-looking lad of eighteen. Lines
etched the face of the young widower and
there were dark circles under his eyes. It
was obvious the loss of his wife had hit him
hard.

After offering his sympathy, Samples out-
lined briefly what they had found. ““We think
your wife’s been murdered,” the undersheriff
concluded.

The young farmer flinched. “Murdered ?”
he echoed bewilderedly. “Why, I thought—
everybody thought—she killed herself when
she ran off the road. I—I don’t understand.”

“Neither do we,” Rowe growled. ‘‘But we
aim to. Did anybody have it in for you and
your wife?”

Oliver shook his head slowly. ‘Not that
I know of,” he said simply. His eyes misted
suddenly. “We—we'd just been married
three months.”

For a moment his voice failed him, then he
continued.

AJ] I know is what I told Marshal Ramsay.
George and I have been working a hundred
acres on the Martin place and Della and I
were staying there on the farm. Della wanted
to get some chickens, And I cranked up the
car and she started out. Next thing I knew,
some fellows drove up fast and yelled to us
across the fence.” Claude’s voice broke mo-
mentarily. “She was dead when we got
there.”

His face was white and tiny knots of muscle
danced along the line of his lean jaw. “Was
she really murdered?” he asked huskily.

“We think so,” Rowe said firmly. “Some-
body slugged her over the head, then ran the
car off the bridge.”

Claude’s face flushed ominously. “The
fellow that did it better stay out of my way,”
he said darkly. His fists clenched convulsively.
“We'll take care of that,” Samples said

The file, tire tool

. and rock, right.
“were the state’s
main’ exhibits in
. ., trying Oklahoma’s
-, coldblooded killer.

quietly. “What did you do with the car?”

“It’s out in the barn. It won't run.”

Rowe brought out the file-and the
broken spring leaf. “Sorry to have to
show you these, Claude, but does this
look like Della’s hair?”

The young farmer choked up at the
sight of the bloodstains and matted hair.
He could only nod, his eyes filling with

‘tears. ‘Poor Della,” he managed to say

at last. “My poor little wife.”

“One more question, Claude,” Samples
said, “Did you ever see these tools be-
fore?”

The bereaved widower shook his head.
“No,” he said dully. “No. I never saw
them before.”

LAUDE OLIVER promised to help

in any way he could, and the officers

returned to Sulphur to lay their findings

before County Attorney E. W. Fagan
and Sheriff Bose Johnson.

“Looks like yot’re on the trail of some-
thing,” the county attorney said, looking
over the file and spring leaf. “What do
you figure as the motive?”

“She may have been attacked,” the
undersheriff answered. “Her youth and
the brutality of the crime imply that a sex
fiend may have killed her to prevent her
from talking.”

Sheriff Johnson, a_ sage oldtimer,
nodded inagreement. “Very likely. It’s
a typical criminal assault set-up. You
boys get back out there and talk to the
neighbors. I'll see if I can trace this file.”

Rowe and Samples covered the sparsely
settled rural community systematically.
No one remembered secing anybody on
the road the morning of Della’s death
except the farmer who had brought the
file to Ramsay. :

“Now that you mention it, I did see a
couple of peculiar acting fellows that
morning,” the farmer recalled when ques-
tioned. “They were dark-skinned and
roughly dressed. They drove west along
the road and pretty soon they came back
and stopped on the hill. One of them

got out and stood looking down into the
hollow, toward where I found the file.
About fifteen minutes later they started

ibered it because he’
an pick up a hitchhiker

”
1, Samples exclaimed,

*. “Maybe your hunch
4P someone wasn’t so

hurried to the filling
an repeated his story,
was the Oliver car >”

vas Zauging my tank
‘assed and I had =
time T looked up she
ve street a couple of
ese two men were
" But I know the
're looked like it.”
she §0—east toward

he could have gone
‘n Highway 77 to
: drove in to the sta-
didn’t notice.”

> men were?” asked

“T hate to
° 4 $a.
*e got in mind, but
he two young fel-
ing with the fall
now their names.”
eo “T had them
it a couple of
nk and disorderly,
vith some fellows
the schoolhouse,
‘nett and Everett

Working for got
‘d quickly, The
land the under-
ke the call,

ple of minutes,
“wo fellows are
‘orning of the

ted. “One of
ve County, near

't Johnson to

! officers down

mented. “Did
th the file?”

“No. Two hardware stores in Sulphur
handle that kind of file and they’ve sold
hundreds of them over the county.”

It was then 5:30 p.m. After an un-
successful effort to locate someone else
who had seen the woman and hitchhikers,
Rowe and Samples hurried back to Sul-
phur where they learned that Sheriff
Johnson had already been in touch with
Love county authorities.

“The sheriff down there knows Ben-
nett and says the other fellow is staying
with him,” Johnson stated. “He promised
to pick them up right away and—”

The telephone rang. Johnson grabbed
the receiver. “Okay, okay,” he said,
after listening a moment. “I’ll send for
them.” He replaced the receiver.

“They’ve got Bennett and Thorpe in
jail in Marietta,” the sheriff announced
briskly. “Samples, you and Rowe hurry
down there and bring them back. We'll
crack this case in a hurry.”

AFTER a quick supper, the officers
pointed their car south on U. S. 77.
It. was a dark, blustery night, making the
winding road through the Arbuckle
mountains doubly hazardous but Samples
drove to Marietta in record time.

In the Love county jail they found both
suspects highly indignant and demanding
their release. Bennett was a stocky fel-
low, while Thorpe was tall and slim.

3oth were heavily tanned from working
in the fields.

“T’m going to get a lawyer,” Bennett
blustered. ‘We haven’t done anything.
What are we charged with, anyway ?”

Samples explained the nature of the
investigation and the attitude of the pair
changed abruptly.

“Wait a minute now, Sheriff,” Thorpe
protested. “That wasn't Mrs. Oliver that
picked us up. I know her, met her at a
dance up by Davis. This was a woman
who lives near Ringling.”

“That’s right,” Bennett put in. “She
let us out in Ardmore and turned west
for Ringling. Said her name was Gran-
villé, or something like that, and that

she lived on a cotton farm near there.”

“Granville,” Samples repeated slowly.
“There’s a lot of cotton farms around
there. .We’ll check this.” He left the
room and, despite the lateness of the hour,
called the postmaster of Ringling, a simall
town west of Ardmore.

The undersheriff's mouth was grim
when he returned. “You’ve been lying
to us,” he snapped, eyeing the two youths
sternly. ‘The postmaster says there’s
nobody in Ringling or on any of the rural
routes named Granville.”

Benhett and Thorpe seemed stunned.
On the trip back to Sulphur they sat pale
and distraught and had nothing to say.
Thorpe, Who was no more than 18, burst
into tears when the pair was booked in
at the, Murray county jail.

“Let’s go catch some sleep,” Rowe said.
They'll talk in the morning.”

But that prophecy failed to pan out.
The combined efforts of Rowe, Samples,
Sheriff Johnson and County Attorney
Fagan netted only a repetition of the
story of the night before.

“We didn’t have anything to do with it
I tell you,” Bennett insisted. “Find the
woman who picked us up and she’ll prove
it.” He clasped and unclasped his hands
nervously. “If her name isn’t Granville,
it’s something like it. If I could only
think.”

“I'm almost convinced they’re telling
the truth,” the county attorney said, when
the pair had been returned to their cells.

“So am I,” Samples concurred. “Rowe,
let’s look around Sulphur for that blue-
green touring car that farmer saw.”

“Okay,” Rowe agreed. “You know, it’s
just possible that those dark-skinned men
he told us about saw Della killed. If so,
they may be able to help us establish the
assault motive, if that was the killer’s in-
tention.”

Samples started in to check the local
filling stations. Rowe took the garages.
An hour later he rejoined his partner,

“The car we’re looking for is an old
Jordan that belongs to Dave Alster,” the
deputy announced, “Alster is a transient
worker. Fe spends about as much time

Deputy Sherif Earl Rowe
‘examines a’ ‘bloodstained
rock found near the scene

conclusion of the long in-

evidence when justice

i ‘ of the crime. Murray county © «
Hh courthouse, left, saw the <3"

in Davis and Wynnewood and down at
Ardmore as here.”

Samples smacked fist in palm, “Alster.
Of course! And he has a pal, Jeff Henton,
who lives only a couple of miles from that
chicken farm. Those two have been rais-
ing some cotton out there.” The under-
sheriff got to his feet. “Earl, we’re going
to bring those boys in!”

Alster was standing in front of the post
office at Davis when he was located by
the officers. He denied being guilty of
anything before the officers even spoke.
When Rowe snapped the cuffs on him,
Alster lapsed into surly silence.

Jeff Henton was arrested on a farm
south of Davis and placed in the car with
him. Alster gave no sign of recognition.
Henton, a slight, timid-looking man, was
nervous and shaky, but the officers could
get nothing out of hin.

“I don’t know anything,” Alster re-
peated monotonously, as he was ques-
tioned in the sheriff’s office. “That’s not

[Continued on page 80]

Authorities Seek |
Execution Date —
For State Inmate

By John Greiner
Capito] Bureau

State officials filed:
an application Tues-

day asking that a Dec.
6 execution date be set
for Robyn Leroy Parks
in the 1977 shooting
death of an Oklahoma
City gasoline Station
attendant, =

The application was
filed in Oklahoma
County District Court
by Attorney Genera]
Susan Loving and Dis-
trict Attorney Bob Ma-
cy.

Last week the US.
Supreme Court re-
fused to hear Parks’
latest appeal in his
conviction in .the Slay-
ing of Abdullah Tbra-
him, an Oklahoma
City gasoline Station
attendant.

Loving said that or-

der was Parks’ Jast ap-

peal and predicted that
he would be the Sec-
ond Oklahoma death
row inmate executed
since 1966.

Charles Troy Cole-

“Man was executed

Sept. 10, 1999.

Last June, Parks
asked the Supreme
Court to look into
whether jurors in his
tyial should have been
allowed to consider
convicting him of
second-degree murder,
an. offense that doesn’t

‘carry the death penal.
ty

However, the 10th

5. Circuit Court of
Appeals had rejected
that issue in 1987, the
attorney general's of.
fice said.

On Oct. 7 the Sp.
Preme Court declined
to consider this issue.

The Supreme Court
previously had consid-
ered whether Parks’
constitutional] rights
were violated by the
jury being given an in.
struction not to allow
Sympathy to influence
the vote for a death
penalty.

The Supreme Court

d rejected this ap-
peal in March 1999.

Day Sxtayenan

ocr:

6, /79/

The State Newspaper Stnce 1907

THE DAILY @KLAHOMAN ®&:

OKLAHOMA CITY, OK >

TUESDAY, MARCH 6, 1990

32 PAGES 25¢

Supreme Court Reinstates City Killer’s Death Penalty

Robyn Parks _

By Chris Casteel
Washington Bureau

WASHINGTON — The U.S. Su-
preme Court on Monday reinstated
the death sentence of convicted kill-
er Robyn Leroy Parks, narrowly re-
jecting his argument that the jury
should not have been told to avoid
feeling sympathy for him.

The 5-4 decision reverses an earli-
er ruling by the 10th U.S. Circuit
Court of Appeals and, according to a
State attorney, puts Parks at the
front of the line of Oklahoma’s Death
Row inmates.

Assistant state Attorney General
Robert Nance, who argued the Parks
case before the Supreme Court, said
he would file a motion today to have
an execution date set.

“He's been all the way through the
state system and all the way through
the federal system .. . and we feel like
at this point, we’re entitled to an exe-
cution date,” Nance said.

Oklahoma Attorney General Rob-
ert Henry said a decision for Parks
might have meant retrials for most
of the state’s Death Row inmates.

Henry said the 10th Circuit opinion
had invalidated the state’s “anti-
sympathy” jury instruction com-
monly used in capital cases.

- Parks was convicted of killing an
Oklahoma City gas station attendant
in 1977. Parks said he killed the man
because he had caught Parks using a
stolen credit card to buy gas.

The circuit court agreed with
Parks that an Oklahoma City pros-
ecutor was wrong to tell the jury in
the case to “avoid any influence of
sympathy, sentiment, passion, preju-

dice or other atincey factors when
imposing sentence.”

Parks argued that the anti-sympa-
thy instruction used in Oklahoma
was tantamount to telling the jury to
ignore the mitigating circumstances
presented during the penalty phase
of the trial.

The circuit court had voted 6-4 to
throw out Parks’ sentence. The state
appealed it to the U.S. Supreme
Court.

Supreme Court Justice Anthony
Kennedy, who wrote the majority
opinion issued Monday, said Parks’

argument could not be applied to

earlier decisions by the court relat-

ing to the anti-sympathy question.
And Kennedy wrote that Parks’

case could not be used to establish a '

new rule because it was not on direct
appeal.

Kennedy said that telling jury
members to avoid sympathy was not
the same as telling them to ignore
the mitigating circumstances.

“This argument misapprehends
the distinction between allowing the
jury to consider mitigating evidence

See PARKS, Page 2

From Page 1
and guiding their con-
sideration,” Kennedy
wrote. ©

Kennedy was joined
by Chief Justice Wil-
liam Rehnquist and
Justices Byron White,
Sandra Day O’Connor
and Antonin Scalia.

Justices Thurgood
Marshall, William
Brennan, Harry
Blackmun and John
Paul Stevens dis-
sented.

Brennan wrote the
dissenting opinion, ar-
guing that jurors
probably felt obligated
after the prosecutor’s
comments to ignore
testimony from Parks’
father about his de-
prived background
“since only by exclud-
ing it completely from
consideration could he
eliminate all feelings

of sympathy for
(Parks).”

Henry said he was
“pleased and grati-
fied” by the decision
Monday.

TARKS
/
The NATIONAL EXECUTION ALERT NETWORK is a project

of the National Coalition to Abolish the Death Penalty

For more information, contact: Pamela Rutter, NCADP

1325 G St. NW LL-B, Washington DC 20005 (202)347-2411

Peacenet Access Code--ABOLITION//Non-Business Hours Alert Answering Machine 202-347-2415
| Partial Funding for the Alert Network is provided by the J. Roderick MacArthur Foundation,
the A.J. Muste Memorial Institute, the Boehm Foundation and the Unitarian Universalist

Foundation.
ALERT 91-7 November 13, 1991
**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**

ROBERT WAYNE SAWYER, (White), age 40 has been on death row since September
1980. He was convicted of the rape/torture/murder of a white female. His co-
defendant received a life sentence.
Sawyer comes from a physically abusive background. His mother tried
several times to kill Sawyer and his twin sister while they were infants. sawyer’s
4 mother suffered from post-partum depression and abuse from Sawyer’s father. She
took her own life while the twins were infants. Sawyer’s father became more
abusive toward the children blaming them for their mother’s death. Sawyer does
. suffer from frontal lobe brain damage and is mentally retarded. The Pardon Board
did rule favorably 3-2 for a recommendation for clemency on Nov. 11, 1991.
TAKE ACTION, CONTACT: Gov. Buddy Roemer LA Pardon Board

LOUISIANA 15 NOVEMBER 199] LETHAL INJECTION

| PO Box 94004 Chair Yvonne Campbell
| Baton Rouge LA 70804 504 Mayflower St.
(504) 342-7015 Baton Rouge LA 70802
FAX (504) 342-0909 (504) 342-5421
FAX (504) 342-3087
FLORIDA 15 NOVEMBER 199] ELECTR TION

LEO ALEXANDER JONES, (Black), age 41 has been on death row since November
| 1981. He was convicted of the murder of a white police officer. Tnere are
significant doubts to Jones’ guilt.

TAKE ACTION, CONTACT: Gov. Lawton Chiles
State Capitol
Tallahassee FL 32301
(904) 488-2272 or (904) 488-3494
FAX (904) 488-9578

x OKLAHOMA 6 DECEMBER 199] . 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. The Oklahoma Parole
Board has set a hearing date of December 2,:1991. Tne Parole Board has not

’ heard a clemency petition for a death row prisoner since 1966.
TAKE ACTION, CONTACT: Gov. David Walters OK Pardon & Parole Board

State Capitol 4040 N Lincoln Blvd. Ste 219
Oklahoma City OK Oklahoma City OK 73105
73105 (405) 427-8601

(405) 521-2342 FAX (405) 427-6648
FAX (405) 521-3353 |

| 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

” Death Penalty

(ark?

Appeals Draw

Judge's Attack tf

By Charolette Aiken
Staff Writer

A judge on Monday blast-
ed what he called ‘‘gro-
tesque and almost obscene”
appeals made on behalf of
two convicted killers exe-
cuted last week more than a
decade after being sen-
tenced to die.

Oklahoma County District
Judge Charles L. Owens
lashed out at a state Pardon
and Parole Board member
who “overstepped their au-
thority by trying to investi-
gate evidence” in the death
penalty cases once execu-
tions were ordered.

“There should be a point
in the appellate process
where we can say these
things are decided,” Owens
said.

Owens urged judges state-
wide to “just say no” and
throw. out frivolous appeals
once a death penalty sen-
tence has been heard by the

state and the U.S. Supreme

Court.
Six inmates now on death

Owens

| thy,” Owens said.

The judge criticized actors and
other entertainers who spoke out
against the death penalty. Televi-
sion actor Mike Farrell visited
Oklahoma last week to protest the
then pending execution of Parks,

From Page 1

condemned person, for. whom there
is an inevitable degree of sympa-

row — including-murder
defendant Roger Dale Staf-
ford — were convicted and
sentenced. in Owens’ court.

’ “The public has lost confi-

dence in the judicial system
because of these seemingly

endless delays,’’ Owens -

said.

The judge lashed out at
Pardon and Parole Board
member Carolyn Crump of
Tulsa, who he said tried “‘to
go far beyond” her authori-
ty in trying to win clemen-
cy for Parks.

In November, Crump
asked Gov. David Walters
for a 60-day stay of execu-
tion for Parks to allow the
Pardon and Parole Board
time to review the case and
make an “intelligent, ethi-
cal” decision on alleged
new information concern-
ing his conviction.

Walters denied that re-
quest, although Parks’ exe-
cution was later delayed un-
til March 10.

Owens said “She's the on-
ly one (on the state board)

Charles L. Owens

who has done things I ad-
dress, so if the shoe fits ...
Trust me, believe me, that
any evidence is fully ex-
plored before it gets to the
Pardon and Parole Board.”

Crump was not available °

for comment Monday.
Appellate defenders did

not do convicted killers Ro-

byn Leroy Parks or Olan

Randle Robison any favors .
by extending their time be- |
fore they were put to death, °

Owens said.

“They languished on»
death row for a decade plus '

four years,” he said.

The passage of so much :

time between a crime and
final. punishment ‘‘causes
the heinous facts to be long

“since forgotten, and we are

permitted to see only fleet-
ing glimpses of a shackled
See OWENS, Page 2

Capital punishment is “not a mat:
ter of a vote of celebrities. It’s a
matter of law,”’ Owens said.

Owens, the state’s only black

elected district judge, has been on -
-the bench for 23 years. He is a |
member of a task force set up to |
determine if the at-large system of |
electing district judges dilutes the |
voting strength of minorities. t

1516 840 FEDERAL REPORTER, 2d SERIES

not connected to the particular defendant
and the evidence introduced are prohibited
for such would allow the imposition of the
death Sentence in an arbitrary and unpre-
dictable fashion. The Brown court recog-

when deciding whether to impose the death
penalty.* “We think a reasonable juror
would ... understand the instruction not to
pe on _— Picts B as a directive to
ore only the sort of sympathy that
would be totally PEL. sa the Ps
dence adduced during the penalty
Phase.” Td. at 840 (emphasis added).
“Ufndividualized Consideration of mitigat-
ing factors,” Lockett v, Ohio, 438 U.S. 586
606, 98 S.Ct. 2954, 2965, 57 LEdod 974
(1978) (emphasis added), is the key, which’
is why Sympathy rooted in the evidence
Presented for a particular defendant is per-
missible whereas generalized, “untethered”
sympathy is not, Cf. Eddings, 455 U.S. at
112-16, 102 S.Ct. at 875-78 (evidence of
turbulent family history, of beatings by a
harsh father, and of Serious emotional dis-
turbance proper consideration in assessing
‘death penalty): Woodson, 428 U.S. at 303
96 S.Ct. at 2990 (must allow “particularized
consideration of relevant aspects of the

sympathy’ unrelated to the circumstances

of th
offense or the defendant.” Brown, 107 S.Ct 2
843 (Brennan, J., dissenting),

4. Although Justice O'Connor concurred in the
majority Opinion, resulting in a 54 decision

background and character.”
at 842 €O’Connor, J., concurring).

Along a similar vein, I am concerned that the

-. Prosecutor's admonitions that the jury must

avoid all sympathy, in tandem with the court's

tion prohibiting “mere Sympathy”. suffi-
ciently conveyed that critical distinction to
the jury. The majority and dissent in
Brown parted Ways not on the assumption
that sympathy rooted in evidence is a prop-
er consideration in Sentencing, but rather
on whether the instruction at issue suffi-
ciently instructed the jury regarding the
difference between “tethered” (permissible)
and “untethered” (impermissible) sympa-

thy. See Brown, 107 S.Ct. at 843 (Bren-

nan, J., dissenting).4

The instruction in the instant case fails
to differentiate that Sympathy which may
permissibly impact upon the sentencing de-
cision from that which may not. It prohib-
ited “any influence of sympathy,” which is
qualitatively quite different from avoiding
“mere sympathy.” It forecloses any possi-
bility of considering Sympathy of any sort
and is thus distinguishable on a critical
Point—the point on which the Supreme
Court's analysis was founded—from the
Instruction narrowly condoned in Brown.
By prohibiting consideration of all sorts of
Sympathy, the instruction violated Ed-
dings, Lockett, and Woodson and hence
fails constitutional muster. Moreover, the
instructions given as a whole failed to cure
this fatal defect. See Brown, 107 S.Ct. at
839 (if specific instruction fails, must then

overreaching sympathy instruction, created a
‘legitimate basis for finding ambiguity con-
cerning the factors actually considered by the’
jury.” Id. (citation omitted). In rebuttal to the
defense’s arguments, the prosecutor stated:

His closing arguments are really a pitch to
you for sympathy—sympathy, or sentiment or
Prejudice; and you told me in voir dire you
wouldn't do that.

Well, it's just cold turkey. He either did it
or he didn’t. He either deserves the death
penalty or he doesn't, you know. You leave
the sympathy, and the sentiment and preju-
dice part out of it.

Record, vol. 6, at 725-26. The prosecutor's re-
marks buttress the court's over-inclusive sympa-

_ thy instruction and, while not sufficient in

themselves to warrant reversal, further under-
mine the reliability of the death sentence im-
Posed in this case.

PARKS v. BROWN 1517
Cite as 840 F.2d 1496 (10th Cir. 1987)

review entire charge to determine whether
it delivered a correct interpretation of the

law).

The damage is particularly acute in this
case because the only mitigating evidence
presented was testimony from defendant’s
father with respect to defendant's difficult:
childhood spent in various relatives’ homes
and his generally nonviolent nature. The
jury was instructed to ignore any influence
of sympathy—presumably even that sym-
pathy tethered to this testimony, defend-
ant’s sole mitigating evidence. It is consti-
tutionally impermissible to prohibit the jury
from considering, relative to the individual
offender, those “compassionate or mitigat-
ing factors stemming from the diverse
frailties of humankind.” Woodson, 428
US. at 304, 96 S.Ct. at 2991. Brown v.
California does not shield such an instruc-
tion.

5. Although not controlling in a federal constitu-
tional ‘analysis, Oklahoma state law is, in fact,
very permissive in this regard. Under Okla-
homa law, a defendant is entitled to instructions
on every lesser offense that the evidence reason-
ably. suggests. See McCullough v. State, 669
P.2d 311, 312 (Okla.Crim.App.1983). Oklahoma
extends the right even where supporting evi-

“ dence is “slight,” resolving all doubts in favor of
the accused. See Dennis v. State, 561 P.2d 88,
94 (Okla.Crim.App.1977); Morgan v. State, 536
P.2d 952, 956 (Okla.Crim.App.1975).

The federal district court in this case relied in
part on another Oklahoma case, Palmer v. State,
327 P.2d 722 (Okla.Crim.App.1958), in conclud-
ing that “in order to justify the instruction on
second-degree murder, [the evidence] must
‘raise the issue of whether the defendant was
guilty of the lesser offense only." Maj. op. at
1500 (quoting district court). The majority
opinion does not rely on the district court's
analysis in reaching the same result. However,
because I reject the majority's analysis, I must
address the alternative analysis ostensibly sup-
Porting that result. While I could simply and
easily rely on the assertion made above in the
text that federal constitutional requirements
override Oklahoma state law as interpreted by
‘the district court, I feel compelled to refute this
troublesome, and I believe erroneous, interpre-
tation of Oklahoma law.

The defendant in Palmer was convicted of the
felony of leaving the scene of an accident in-
volving personal injury. He alleged error in the
trial court's failure to instruct on the misde-
meanor -of leaving the scene of “an accident
resulting only in damage to a vehicle.” /d. at
724 (quoting applicable-Oklahoma statute) (em-

Ill.

The defendant requested and was denied
a lesser included offense instruction for
second degree murder involving homicide
while committing the felony of using a
fraudulent credit card. Beck v. Alabama,
447 US. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980), provides that there is a constitution-
al right, at least when the death penalty is
imposed, to a lesser offense instruction
warranted by the evidence. See generally
Trujillo v. Sullivan, 815 F.2d 597, 600-04 .
(10th Cir.1987) (discussing whether Beck
extends the constitutional right to cases in
which the death penalty is not imposed).
As a matter of federal constitutional law,
Mr. Parks was thus entitled to his instruc-
tion as long as there was evidence before
the jury to support it, whether or not the
Oklahoma courts would apply a stricter
standard for the giving of such an instruc-
tion under state law.5

phasis added). The words defining the lesser
offense required that there be no personal inju-
ry but only property damage in order for the
Statute to be violated. Because there: clearly
was record evidence that the accident at issue
resulted in personal injury, there was no record
evidence that the misdemeanor had been com-
mitted. The trial court's refusal to instruct on
the lesser offense was thus upheld on the well-
accepted grounds that there must be some evi-
dence in the record supporting the lesser of-
fense in order to justify a lesser offense instruc-
tion. The word “only” was significant in that
case solely because the lesser offense statute
employed it in defining the offense itself. Palm-
er is thus a unique case confined to its particu-
lar facts and to offenses that are similarly de-
fined in restrictive terms.

In failing to recognize the uniqueness of the
statutory definition of the lesser offense in
Palmer, the district court imported the word
“only” into every lesser offense definition. By
so doing in this case, the district court in effect
judicially engrafted a new element onto a sec-
ond degree murder offense—that the greater
intent of malice required for first degree mur-
der be positively disproved. Absent evidence
showing that “only” the lesser offense was com-
mitted, no lesser.offense instruction is necessary
under the district. court's reasoning. If such
were the rule, we would rarely ever see a lesser
offense instruction, for if the evidence showed
that only the lesser offense was committed, an
instruction on the greater offense would be im-
proper. Rarely could a case ever go to a jury on
more than one theory. Suffice it to say that
Oklahoma's subscription to the “any-evidence
test,” see Morgan, 536 P.2d at 956, belies such an

“-. 2.. The challen

1514
erg to allow the jurors to minimize
a = of personal responsibility for
a : @ death sentence. “{I]t is con-
aay Y impermissible to rest a death
prensa we a determination made by a
- 5 in has been led to believe that
ponent ibility for determining the ap--
ari ose ” of the defendant's death
pci ie rg Caldwell, 472 US. at
ri a Ct. at 2639-40. Such delega-
Sentencing responsibility “presents

ger of bias toward a
4d. at 331, 105 S.Ct. at

di satay A

poe m Imposing the’ death sentence

wd es ecutor allowed the jurors to feel as
er “hands were tied.” He allowed

them to feel as if they weren’t choosing to

_— the death penalty;
i Portions of his argument merit
ing for illustration: sas

1. The majority also notes that “

objection by def,

[t]here w
€nse counsel t aia

tion's argument.”
there also was no objec i

tutional questions.”
Robyn Parks’ trial Occ’
before Caldwelf and e
Considering the en ban
this problem in Dutton, j
me to apparently fault
not objecting at trial.

Sight, unlike counsel i
Issue on direct appeal,

ad :
Ferm: ‘ed statements in Dutton were as

First of all [Def

; 5 ense

ae ps decision is pes ee -
to oe itis. But you are, as yo" -
_ €us Is, as all the cou;t. are er

‘Process. We are not functions - bir :

' 1-

as follows:

_840 FEDERAL REPORTER, 2d SERIES

You just have become a
’ ust | part of the crim-
seiner system that says then acc
a oes this, that he must suffer
wae sees [O]nce your verdict comes
: In, the law takes over. The law
oes all of these things.... You're just
= of the criminal-justice system that
sous when this type of type of [sic] thing
se that whoever does such a horri-
E 2 lous thing must suffer death,
ecord, vol. 6, at 707 (emphasis added). I
essence, he told the jurors that they ie
a ee for sentencing Robyn
— to death; the ephemeral “criminal
ce system” was responsible. The ju-

viduals. I am not h
ere as A
here as the District Raitig” eer

And you are not here in your individual

{ as the j
Judge Theus is not our good friend, Harol

Honor, J
Theus, when he is in this contrase fe

approach the problem.
Dutton, 812 F.2d at 596.

The challenged Statements in Coleman were °

all those days after when he got out of jail and

eR,

PARKS y. BROWN

1515

Cite as 840 F.2d 1496 (10th Cir. 1987) 3

The prosecutor in Dutton attempted to
define the juror’s roles functionally instead
of individually but did not minimize the
juror’s sense of responsibility within those
roles. The remarks in Coleman stressed
that the defendant was responsible for his
own plight but did not intimate that the
awesome responsibility of imposing the
death sentence did not rest solely with the
jury. The statements made in the present
case were much more egregious, directed
squarely at attempting to ameliorate any
sense of accountability for the decision that
this man must be executed.

Moreover, we found it critical in both
Dutton and Coleman that the prosecutor
made subsequent remarks stressing the im-
portance and exclusivity of the jury’s role
in the sentencing determination. “It is
clear that, when taken in context, the
statement of the prosecutor was not consti-
tutionally impermissible.... Indeed, the
tenor of the remainder of the closing was
that the crucial determination of punish-
ment was the sole function of the jury.”
Dutton, 812 F.2d at 596-97 (emphasis add-
ed). “Moreover, viewing this argument in
context, it is evident that the prosecutor
had no intention of diminishing the jury’s
sense of responsibility.” Coleman, 802
F.2d at 1241 (emphasis added). We quoted
the prosecutor’s subsequent remarks at
length in our Coleman opinion. See id.
In the present case, the prosecutor made

no additional remarks that may have molli-

fied his impermissible comments. He basi-
cally closed his argument in chief with the
unconstitutional statements.

The Supreme Court’s concluding state-
ment in Caldwell is equally applicable in
this case.

and killing. He wrote the verdict. This man.
He wrote it in blood over and over.

Because we cannot say that this effort
had no effect on the sentencing decision,
that decision does-not meet the standard
of reliability that the Eighth Amendment
requires.

Caldwell, 472 U.S. at 341, 105 S.Ct. at

. 2646.

II.

the Brown instruction, this majority misses

the thrust of the Supreme Court’s analysis
in upholding the instruction in that case.

Moreover, the majority fails to consider the

significance of the modifying phrase in the

present instruction—“any influence of’—
as it relates to the Brown analysis. Such
modifiers as “mere” and “any,” however,
are critical to the analysis. In Brown,

Justice Rehnquist wrote, “By concentrat-

ing on the noun ‘sympathy,’ respondent

ignores the crucial fact that the jury was
instructed to avoid basing its decision on
mere sympathy.” Id. at 840 (emphasis
added only to “crucial fact”). Likewise,
the majority in this case ignores the crucial
fact that the jury was instructed to avoid
basing its decision on any influence of
sympathy.

Not all forms of sympathy are impermis-
sible considerations in the sentencing deci-
sion. Only general feelings of sympathy

Coleman, 802 F.2d at 1240.

1518 840 FEDERAL REPORTER, 2d SERIES

The majority concludes that defendant’s
alibi defense precludes any lesser offense
a implying that any evidence in
the reo rd supporting a lesser offense in. In meeting this evidence, the majority
struction ust come from the defendant to does what is solely within the jury’s prov-
find in Hs ova hha an dead ng Swing tat theory af sat

n his own enied killing ving that the felony of usin
nothing in defendant’s testimon F tat intent to kill.” nig itt LOL, Whee
would justify giving an instruction ve aes the predicate maleic es
* g offense su i
: od inetes ee Maj. op. at 1501 (em- ci sega charge ea te mote
r. Parks paid for the gasoli
ze yan = - =e proposition ih left the station = cgi er
thi a bad rule to write, “thereafter” was not
Anytime a defendant honestly denied par- fense or actuated is offenas é a met
oe ° * . : ,
= i : es he or she would - ter for the jury in ielteg aes eS
maeally fi rego € right to an instruction convict on the lesser offense—an option
——s mg supported by other evi the jury was never given in this ia In-
acne) — jury. Even if the evi- deed, whether in fact the killing occurred
aay hag a ere apes than the after defendant completed the credit card
Se aes — se that a less- transaction is not clear from the eviden
pie = afi — ie » NO instruction andisa fact appropriately determi ‘i
> gi e defendant, possi- by the j T Senet
bly perjuring himself or he If i at ee
iene rself, admits decided in evaluating whether th
eee e incident. Fearing sufficient evidence supportin fee
rising greater offense even tion. ican
_thoug innocent, a defendant is caught be-
tween maintaining his or her innocence We need not be convinced Munk Soh cas
risking such a cietriction and ys a committed was second degree murder a
m iting participa tion so as to gain a lesser & than first degree murder. That differ.
offense instruction, Gia tueeulén isco. entiation is. for the jury to make. Our job
ti nally untenable. If the evidence of merely to consider whether there was
esser offense is before the jury, defend. sufficient evidence in the record, from

from the defendant through hi
versations.) ace aed

ant’s entitlement to a lesser offense in-

whatever source, to justify at least giving

structi i
ction should not depend upon whose the instruction. The majority, rather than

witness introduced the evidence. A j
sees reject the defendant’s alibi defense
a accept that the evidence Supports con-
viction on the lesser off

pipe Reta ense rather than

There was sufficient evidence before the
at in this case to support a lesser offense
_ ins ruction. The two taped telephone con-
"versations around which the prosecution’s

~entire~case revolved furnished evidence _

as to give-an instruction that the
:; omicide was committed while using a sto-
; e credit card. See ct. ex.1, 2, record, vol
> 5. (And, ina sense, the evidence did come
interpretation of Oklahoma law. Moreover,

even if that interpretati
ion of Oklahoma la
were correct, such would clearly raise due aad

ee the record evidence of second
ratte murder to determine its existence
or purposes of instruction, has evaluated
such evidence and rejected it in favor of the
evidence Supporting first degree murder.

Moreover, the assertion that there was
no evidence in the record of homicide while
committing the felony of using a fraudu-
lent credit card is at direct odds with the
trial court’s instructions in the penalty
Phase regarding the applicable aggravating
circumstances. The Bill of Particulars

cess concerns un i i
ea] der the. United States Constitu-

Seng te att a,

PARKS v. BROWN

1519

Cite as 840 F.2d 1496 (10th Cir. 1987)

read to the jury asserted the following as
an aggravating circumstance supporting
the imposition of the death penalty:

The murder was committed for the
purpose of avoiding or preventing a law-
ful arrest or prosecution. Defendant
had been in the service station attended
by victim. Victim took down Defend-
ant’s tag number. Defendant suspi-
cioned [sic] victim was going to call the
law as soon as he left. Defendant felt if
he killed the victim there would be noth-
ing the victim could tell the police and he
would not be apprehended.

Record, vol. 6, at 661. This allegation in
the Bill and the court’s ensuing instruction
on this aggravating circumstance were con-
sistent with the single theory advanced by
the prosecution throughout both the guilt
phase and sentencing phase of Mr. Parks’
trial: that Robyn Parks had killed in the
course of using a stolen credit card in order
to avoid arrest for that crime. See, e.g,
record, vol. 6, at 185-86, 631-32, 661, 697-
700, 708; ct. ex. 1, record, vol. 5, at 2-8, 12.
This aggravating circumstance was the
only one found by the jury to be applicable
beyond a reasonable doubt in this case.
The jury rejected as aggravating circum-
stances: (1) the murder was especially hei-
nous, atrocious and cruel; and (2) there
existed a probability that the defendant
would commit criminal acts of violence that
would constitute a continuing threat to so-
ciety.
The trial court evidently found sufficient
evidence in the record to support submit-
ting the “avoiding lawful arrest” aggravat-
ing circumstance instruction. Yet, now the
majority asserts that there was mo evi-
dence supporting the requested lesser of-
fense instruction based on that same evi-
dence. I cannot fathom how we can uphold
the jury’s imposition of the death sentence
based on the sole aggravating ‘circum-
stance quoted above while at the same time
rule that there was no record evidence sup-
porting the requested lesser offense in-
struction. The same theory and evidence

go toward both the aggravating circum-.

stance instruction and the lesser offense
instruction.

[S]tates cannot fairly employ critical evi-
dence to gain their own ends and, at the
same time, deny its probative use to de-
fendants. Nor can they fairly profess to
doubt the sufficiency of evidence and
then assert, in the same breath, that it
can be found adequate to support imposi-
tion of the ultimate sanction.

Brief for Petitioner-Appellant at 22. As
Justice Brennan once wrote, “The Govern-
ment cannot have it both ways in the same
case.” Kennedy v. Mendoza-Martinez,
372 U.S. 144, 195, 83 S.Ct. 554, 581, 9
L.Ed.2d 644 (1963) (Brennan, J., concur-
ring).

Finally, the cases cited by the majority
are not persuasive. In Hopper v. Evans,
456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367
(1982), the defendant was released on pa-
role and, according to his own testimony,’
embarked on a two month, cross-country
crime spree, committing about thirty armed
robberies, nine kidnappings, and two extor-
tions in seven states. During a robbery of
a pawnshop, the owner dropped to his
hands and knees and crawled toward his.
office when the defendant shot him in the
back, killing him. After capture, the de-
fendant signed a written confession admit-
ting everything. He testified before the
grand jury and confessed “that [the victim]
was not the only person he had ever killed,
that he felt no remorse because of that
murder, that he would kill again in similar
circumstances, and that he intended to re-
turn to a life of crime if he was ever
freed.” Jd. at 607, 102 S.Ct. at 2050. He
requested before the grand jury that he be

executed as soon as possible.

Because Alabama law required a jury
trial as a prerequisite for the imposition of
the death penalty, the prosecutor rejected
defendant’s guilty plea. Against his attor-
ney’s advice, defendant testified during his
subsequent trial, admitting everything as
before the grand jury and stating, “I would
rather die by electrocution than spend the
rest of my life in the penitentiary. So, I’m
asking very sincerely that you come back
with a positive verdict for the State.” Jd.
at 607-08, 102 S.Ct. at 2050-51. The jury
returned a guilty verdict in less than fif-

1520 840 FEDERAL REPORTER, 2d SERIES

teen minutes, and the defendant was sen-
tenced to death. .

Only after defendant’s mother ‘initiated
habeas proceedings did defendant change
his attitude of desiring execution. The Ala-
bama statute. under which he was. sen-
tenced to death was the same that was
shortly thereafter found unconstitutional in
Beck v. Alabama because it absolutely pre-
cluded jury consideration of any lesser in-
cluded offense in a. capital case—even if
warranted by the evidence. Mr. Hopper
did not claim that there was record evi-
dence supporting a lesser offense instruc-
tion and that he was therefore prejudiced.

Rather, he asserted that because the stat- ,

ute was unconstitutional on its face, his
conviction must be automatically set aside.

The unusual and particularly one-sided
record in Hopper is distinguishable, as the
rather elaborate recitation of the facts
above indicates, from the present record.
In this case, the defendant’s proffered tes-
timony did not support the lesser offense
instruction, but his testimony (taped tele-
phone conversations) proffered by the state
was sufficient evidence contradicting such
testimony to warrant the instruction. Hop-
per was not decided on the basis that the

' defendant himself failed to come forward

with evidence supporting a lesser offense
instruction. It does not stand for the prop-
osition that such evidence must come from
the defendant. Rather, it stands for the

proposition that when no evidence supports
such an instruction, one need not be given
just because the case is a capital case.

tions had run on the lesser offense. The -

court did not rule that there was no factual
basis in the record to support a lesser
offense instruction.

IV.

This matter comes on for consideration
of petitioner-appellant’s petition for rehear-
ing and suggestion for rehearing en banc.
The majority opinion and Judge McKay’s
partial concurrence and partial dissent
were filed on July 15, 1987, and appeared in
the advance sheet of 823 F.2d at 1405-29.
The opinion was withdrawn from the bound
volume pending the Court’s further order
on petitioner-appellant’s petition for rehear-
ing and suggestion for rehearing en banc.

The panel unanimously substitutes a re-
vised “Section V” for the original “Section
V” in the panel opinion filed July 15, 1987.
With the original opinion thus modified, the
panel majority votes to deny the petition
for rehearing. Judges McWilliams and

__ a aeelt

PARKS v. BROWN 1521
Cite as 840 F.2d 1496 (10th Cir. 1987)

Baldock vote to deny the petition for re-
hearing while Judge McKay voted to grant
the petition for rehearing. Judge Bal-
dock’s vote to deny the petition for rehear-
ing is accompanied by his partial explana-
tion which is attached to this order.

The suggestion for rehearing en banc
has received the votes of a majority of the
judges of the court in regular active service
insofar as argument I contained in petition-
er-appellant’s petition for rehearing. Peti-
tioner-Appellant’s Petition for Rehearing
with Suggestion for Rehearing En Banc at
iv. On all other issues contained in the
petition, the suggestion for rehearing en
banc has failed to receive the votes of the
majority of the judges of the court in regu-
lar active service. Briefs should be sub-
mitted concerning the following issues:

1. Whether the prosecutor’s summation
in the penalty phase concerning juror
responsibility diverted the jury from con-
sidering the full extent of its responsibili-
ty for determining the life or death sen-
tence?
2. Whether the penalty phase instruc-
tion “You must avoid any influence of
sympathy, sentiment, passion, prejudice
or other arbitrary factor when imposing
sentence,” influenced the jury to improp-
erly discount mitigating evidence
presented by the defendant?

3. Whether the combination of the pros-

ecutor’s comments (“You leave the sym-

pathy, and the sentiment and prejudice
part out of it.”) concerning the above

instruction and the instruction itself, and _

the absence of any corrective instruction
after the arguments under Okla.Stat.
Ann. tit. 22, § 831(6) (West 1986), influ-
enced the jury to improperly discount
mitigating evidence presented by the de-
fendant?

The briefs shall be served and filed as
follows:
1. Appellant’s opening brief shall be
served and filed within 20 days of the
date of this order.

1. Section I of the majority opinion entitled
“Lesser Included Offense” deals with this issue
and we adhere to our original disposition of this
issue.

2. Appellees’ answer brief shall be
served and filed within 20 days of the
date of service of Appellants’ brief.

8. Appellant may serve and file a reply
brief within 10 days of the date of
service of Appellees’ answer brief.

4. All briefs shall be filed and served in
person or by an overnight delivery
service. Fed.R.App.Proc. 26(c) shall
not be applicable.

Oral argument shall be heard at the May
1988 Term of Court on Thursday, May 5,
1988. ;

ON PETITION FOR REHEARING

BALDOCK, Circuit Judge.

The petition for rehearing largely re-
states the position of the dissenting mem-
ber of the panel. Accordingly, there are
two points concerning the refusal of the
state trial court to instruct on second-de-
gree murder! which I deem necessary of
further comment. The dissent states:

The majority concludes that defend-
ant’s alibi defense precludes any lesser
offense instruction, implying that any ev-
idence in the record supporting a lesser
offense instruction must come from the
defendant to entitle him to the instruc-
tion. “Parks testified in his own behalf

and denied killing Ibrahim, testifying .

that he was elsewhere at the time of the
homicide. So, there is nothing in de-
fendant’s testimony that would justify
giving and instruction on second-degree
murder.” Maj. op. at 1501 (emphasis
added).
Concurrence and Dissent (hereinafter re-
ferred to as the Dissent) at 1518 and 1519.
As a threshold matter, this analysis of the
majority opinion is inaccurate because the
majority did not conclude that the defend-
ant’s alibi defense, by itself, precluded any
lesser offense instruction.?, We merely re-
marked that there was nothing in defend-
ant’s testimony which would justify giving
a lesser offense instruction. That is not to

2. For such a conclusion see Briley v. Bass, 742
F.2d 155, 164 n. 9 (4th Cir.), cert. denied, 469
U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d 206 (1984).

Patton: Investigators knew if they found his body, public feeling,
ady high over one murder, might’ reach an uncontrollable stage

other road. That’s how I came
here; I followed those tracks.”
Why?” I asked him.

‘e stared blankly at me. Then a
v, dull red diffused his neck and

He stammered, “Why, I was

tin’ for someone.”

Who?”

‘e hesitated for a moment and then
said flatly, “I’d rather not say.”
stared curiously at him. “What
‘e you doing away out here, any-
‘, Frank? You live a long way out
the opposite direction from Salli-

This road ends a mile farther

and no one lives there. You couldn’t
e come out to visit anyone.”

( had business out here,” he mut-
d. Then he wouldn’t say any more.
mmented, “Well, we’ll have plenty
ime to talk about that later. Right
7, Bill, you and I had better make
ingements to get the body to town.”
he Deputy still was staring at the
th. “Those darned boots—” Sud-
ly he snapped his fingers, “Hayne
lll? he exclaimed. “That’s who I
wearing them. Exactly like these.”
scrutinized the dead boy closely.
uld that be Hayne?”

experienced a feeling of shock.
me Wall was a popular Sallisaw
th, a clean-cut, likable chap of
lerate habits, and he came from a
mdid local family. He never had
n mixed up in any scrapes or scan-
3, and I doubted if he had an ene-
in the world. However, there was
way of identifying him promptly,
— was so distorted and dis-
red.

pointed out dubiously, “Hayne

wore glasses all the time. This kid
hasn’t any on and there aren’t any
around. Besides, he doesn’t have
marks on the bridge of his nose, like
people do who’ve worn glasses for
years.” ,

“He’s built like Hayne,” Byrd said
stubbornly. “The marks could have
disappeared with the swelling. He
wore shoes like that, I remember
them.”

“Well, we ought to be able to find
out awfully quick, once we get him to
town,” I observed.

T= was the sound of an ap-
proaching car. It was followed close-
ly by another. Apparently word had
gone out from the barber shop and
we had been trailed by curious towns-
people,

When they came up we warned
them to stay back. They craned their
necks and peered in awe at the dead
youth, but none of them could identify
him. Deputy Sheriff Ray Drake ar-
rived and volunteered to go for Clay-
ton Burns, the coroner.

While we awaited the arrival of
Burns, and an‘ambulance to remove
the body to town, I studied Estes.
Something in the whole set-up puzzled
me. The man lived four miles north-
west of Sallisaw, and I couldn’t
imagine what business: had brought
him to the wilderness of Wild Horse:
I commented, “Following car tracks is
a queer sort of game.”

He looked startled and fiushed
again. His nervousness was increas-
ing, rather than lessening: He blurted
out, “I knew when I came in to re-

port finding thin fellow Ll was putting
Tr on the spot, but I almost had

“Why were you putting yourself on
the spot?”

“I knew you'd suspicion me,” he
said rather sullenly.

“When murder’s done, the police
naturally like to know all about
everyone who has been near the vic-
tim,” I retorted, “especially the man
who first discovers the body. What
interests me more is what you were
doing off out here in this neck of the
woods.” :

He fidgeted. “If I told you that,”
he muttered, “I’d be in a jam.”

“Being suspected of murder is
plenty tough,” I pointed out.

He looked more scared than ever.
Suddenly he said sharply, “I didn’t
have anything to do with it, and I
don’t even know who the kid is. If
I’d had anything to do with it, I
wouldn’t have walked in and reported
it to the police, would I?”

“Maybe not,” I admitted, “and then
again, you might, you know.” A sud-
den thought struck me, and I added,
“Look, Estes, if you didn’t hgve any-
thing to do with this, you’ve nothing
to fear. We know you run liquor. But
I’m not interested in that right now.
All I’m interested in is this murder.
If you tell what you know, I think I
can promise you won’t get into any
trouble over liquor, as far as anything
you tell here is concerned.”

After a moment’s hesitation, he said,
“I don’t know anything about this,
and that’s the truth. I guess I might
as well tell you how come I was out
here, though, bein’s you already got a
hunch it wasn’t on the up and up. I
sure don’t want to get mixed up in no
killin’, Well, I got a liquor contact
up on Wild Horse.”

“You mean someone who supplies
liquor to you for sale?”

“That’s right. I meet him here on
certain days. If he gets here first, he
turns his car around in the road, to
leave circular tracks. Then he goes

off into the brush, When IT come, 1
know by the tracks that he’s there. I
give a whistle we agreed on, and he
answers me. Then we get together and
transact our business. Well, today he
wasn’t there, and there weren’t any
tracks. ‘

“He didn’t show up, so I drove back
along the road. I thought maybe the
Federals had jumped him up. I saw
car tracks turning into this old trail,
and thought maybe they were his.. I
didn’t have any liquor in my car, and
there wasn’t anything to put the finger
on me, so I decided to trail along and
see if I could figure out what had
happened. That’s how come I saw this

y.?

I nodded. “If you’re telling the
truth, that puts you in the clear. We’ll
have to check you pretty carefully.”

He shrugged and said, “I expected
that.”

“You haven't any idea who might
have done this?”

H* SAID earnestly, “I swear I
haven’t! I just came on the body
accidental, like I told you.”

Byrd turned away from the body.
“Off-hand, I'd say the motive was rob-
bery,” he remarked. “There isn’t a
thing in the kid’s pockets except a
handkerchief.”

When the ambulance arrived we
gently lifted the body onto a stretcher.
I caught a fleeting glimpse of the face
from a different angle, and felt a sink-
ing sensation.

“That is Hayne Wall,” I exclaimed.
“I’m sure of it!”

As soon as Coroner Burns took
charge of the body at the undertaking
establishment, we decided to send for
Baker Wall, Hayne’s father. Accom-
panied by the two deputies, I went to
my office to call. Wall, a retired
judge and now active in law practise,
was in his office. I asked him where
Hayne was.

“I couldn’t say exactly,” he replied.
“He was out with some friends last

(Continued on Page 40)

Baker Wall, shown here with his wife: “Hayne went with very
few girls, and I’m sure that he had no trouble with any of them”

When This Sallisaw, Oklahoma, Youth's Body Was
Found in a Desolate Bootleggers' Haven, Why Did
Officials Seek Another Murder Victim Near By?

drove by the courthouse to pick me
up. I recognized the man with the
Deputy Sheriff. He was Frank Estes,
a Sallisaw farmer.

As we sped out of town he related
his finding of the body, and I glanced
curiously at him. Estes was visibly
perturbed, livid of face and trembling
badly. I never had considered him a
particularly excitable type, and his
extreme agitation puzzled me. While
not a vicious or dangerously criminal
character, he had experienced con-
siderable difficulty with local police
because of his traffic in illicit liquor.
I thought that he was more physically
shaken than a man normally would be

The spot where Hayne Wall's body
was found, marked here with an X,
is*éxamined by Prosecutor Green, who
wondered what the youth had been
doing in the Mountain ‘wilderness

after viewing a dead body, even un-
expectedly. Sallisaw, Oklahoma, lies in
the southern edge of the Cookson
Hills, notorious for their outiaw his-
tory, and is no stranger to violence.
I asked Estes, curiously, “Didn’t you
ever see a dead man before, Frank?”
He actually jumped, as if I had
struck him, and his face whitened.
After a moment he stammered, “I’ve
seen dead men—but I never ran across
one in the woods before.”
“Exactly where is the man?”
“About two hundred feet from the
mouth of the old Wild Horse Road.”
I knew the road, an abandoned old
trail that was used occasionally in

tess

Winter by woodcutters, hardly at all
in the Summer. It was not maintained,
and in spots was almost impassable,
although it lay only a little more than
four miles from Sallisaw.

We found the man where Estes had
said, lying across the rock. He was
dead. As we stared down at him, Bill
said, “Why, he’s just a young fellow.
Hardly more than a kid!”

I asked, “Do you know him?”

After a long moment, the Deputy
said uncertainly, “I don’t think so. I
can’t call him to mind—and yet, by
George, there’s something familiar
about him, too!”

To glanced at Kates. The man wan

Hayne Wall: The clothes on |
body proved a girl lied when ¢
said that he had attacked |

standing several feet from the de
youth. His hands clenched and u
clenched nervously. He shook |
head mutely.

The boy was a stranger to me.
at least I was unable to recall ev
having seen him. That, I observ:
might be due to the fact that his fez
was so swollen and dark. He was
slender, medium build, coatless, cl
in dark trousers and a light shirt. I
feet were shod in low-cut “cowbo
shoes, of a type that were new thx
the high-heeled, sharp-toed oxfo
style. I noticed that Byrd was stari
at the shoes, too.

“T’ve seen those boot-things som
where before,” he muttered. “And
knew who was wearing them, but
just can’t recall—”

MOVING carefully, so as not to o
literate any possible tracks, \

made a cursory examination of t
body. The boy had been shot once, a’
parently squarely through the hea
There was no weapon anywhere ne:

“It’s murder, all right,” said By
tersely. “The kid didn’t shoot hin
self, hide the gun, and then lie dov.
here to die with a bullet through b
heart, that’s a cinch!”

We made a quick search for foo
prints but we couldn’t find any.

Byrd said, “He didn’t walk in her
A man with flat heels might ha.
been able to walk around on the
leaves without leaving any tracks, b
those high, sharp heels would hav
dug into the ground. He must ha\
been killed somewhere else and ca)
ried here.” We examined the o
roadbed, but it was bare, rocky eari
where no tracks showed plainly.
the killer had come up in a car, wha
ever tracks he had left had been dd
stroyed by our own.
. When I commented on this fac
Estes said, “There were tracks: fi
ther «howe, where (hin trail turn oo

>
s

“What did she do?”

“She didn’t do anything. She just
pit on him when he was laying be-
ide the car.”

“Do you think you can find the
ace where you threw him out of
he car?”

“I think I could,” Phillips said.

Bray and Craig picked up Sheriff
}. M. Brown of Lincoln County, then
‘elped Phillips as he walked to the
ar. His nerves were shattered com-
letely.

The officers drove at top speed out
nto the Kimama Desert to beat the
etting sun, After a few false stops,
Yhillips finally found the place.

Beneath the sparse leaves of a cac-
us plant, they found Sanders’ bloated
vody. The tongue was swollen and
‘lenched between his teeth, showing
he horrible agony he suffered under
he burning sun before death came.
Phillips fainted when he saw the

Secret of Wild Horse Mountain (Continued from Page 34) ofrici

night, and hasn’t come home yet. I
imagine he stayed the night with some
of them.”

“Judge Wall,” I said quietly, “would
you mind coming down to the under~
taking parlors? I—we have a body—”

“Yes, I heard about the—” Then his
voice altered sharply. “You don’t
mean you think it’s my boy?”

“Tm not sure. If you’d just come
down—”

“Right away!” he said tensely, and I
heard the receiver click.

I returned alone to the funeral par-
lor. As I parked in front, a woman
in a car pulled away from the curb
just ahead of me. I couldn’t see her
face, but she seemed familiar. I leaped
out and hurried into the office. “Was
that Mrs. Wall?” I demanded.

The attendant nodded. “Yes, she
wanted a description of the body.”

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body. Bray examined the ground. It
showed where Sanders had_ inched
across the burning sand for 27 feet to
reach the small cactus for the trifling
shade it shed. His hands and feet were
tied behind him.

“Better leave the body here for
Coroner Howard,” Sheriff Brown said.
“We'll go back to town now and pick
up Flossie, George and Joe.”

“Isn’t it horrible?” Church winced.
“To think his own kids did it.” °

Bray shook his head. “I wondered
from the first if it might not be them,
but I could hardly conceive of it. The
facts were there, but I just couldn’t
imagine kids killing their own father.”

“You mean about those statements
like Flossie and George made about
the old man walking through Hell
without shoes?” Craig asked.

“Partly that, but the dog mostly.
You see, the killers had to be some-
body who knew about the dog, and

“Did she view it? Did she attempt
to identify it?”

“No.” He glanced at me in a sur-
prised fashion. “You know Mrs. Wall
writes for a Fort Smith newspaper.
She had the story of the ‘killing and
wanted a description—”

I told him, “Judge Wall is on his
way over. We think the kid may be
their boy.”

The attendant whistled softly. “I’m
sorry— But I asked her if she wanted
to see the body, but she said no, just
to give her the description. She want-
ed to telephone her story in right
away.”

Judge Wall arrived in a little bit.”

He went inside and stood for a moment
beside the slab, looking down at the
dead youth. Then he lifted his eyes
to us. All the color had drained from
his face.

“That’s my boy,” he said quietly.
“That’s Hayne.”

Doctor J. A. Cheek and Doctor J. H.
Morrow made the post-mortem ex-
amination. They found that a .22 cali-
ber bullet was lodged against the vic-
tim’s backbone. It had entered the
lower part of the heart and ranged
downward. Apparently the gun had
been fired with the muzzle very close
to the body, for there were powder
burns on the cloth of his shirt, and on
the flesh surrounding the wound.

Judge Wall was able to tell us very
little that would help us.

“Hayne left home last night about
eight-thirty,” he said. “He had asked
permission to use the family car for
a while, and said he would be in early.
However, he telephoned home about
ten and asked if he could keep the car
a little longer. He said that he was
going to a party. When he didn’t
come in last night I assumed that he
had gone to stay all night with friends.
He did that occasionally. He had tele-
phoned home and I supposed he fig-
ured I wouldn’t be worried.”

I asked, “How old was Hayne?”

“Nineteen.” ,

tIG@VER have any trouble with any-
one? Any girl trouble?”

“Hayne went with very few girls,
and I’m sure that’ he had no trouble
with any of them. He wasn’t serious
about any of them. And if he had
ever quarreled with anyone I feel cer-
tain he would have told his mother
and me; we were very close.” Judge
Wall still spoke quietly but he was
obviously in the grip of deep emo-
tion. He added presently, “If I cannot
be of any more aid now I'd like to go
to my wife. She’ll have to be told.”

“Just one more question,” I told
him. “Do you know what personal
property Hayne was carrying?”

“A very expensive, twenty-one-
jewel watch,” he answered promptly.
“His eye-glasses, a good Sheaffer
fountain pen, and a bill-fold. I don’t
know just how much money he had,
but I imagine several dollars.”

“You don’t know who he was with
last night?”

liked it. That’s why they came back
to let it loose so it wouldn’t go hungry.”

Church gasped: “You mean they
came back to untie the dog so it
wouldn’t go hungry, after they left
their father on the desert to die in the
sun of thirst and starvation?”

“That’s it,” Bray said. “You can
hardly believe it, can you?”

Back in town Flossie, George and
Joe were placed under arrest within a
few hours. Flossie wept for a few
minutes and cried: “I knew we
shouldn’t have done it.”

The two sons, however, snarled: “He
got what he deserved. I hope he died
slow and painful.”

Coroner F. H. Howard confirmed
this. He said Sanders must have lived
two or three days under the broiling
sun.

By the time of the inquest Flossie
lost all the regret she found when
first arrested and smiled for the cam-

“T have no idea.” :

When the grief-stricken father had
gone, Deputies Drake and Byrd and
I returned to my office, where we sat
down and went over what we had,
which was little enough. Robbery ap-
parently was the motive. The youth’s
pockets had been empty, apparently
rifled. And he had no known enemies.

| WAS well aware that human vul-
tures lurked in the fastness of the
Cookson Hills, venturing forth at night
to prey on luckless victims and then
speeding back to their lairs. However,
to get a line on when or where young
Wall had been attacked, we had to
know something of his activities on
the preceding evening. It was the
custom of many of the young people to
loaf around the business district in
the evening, visiting with friends, or
sitting in parked cars at the curb,
watching the strollers pass. Someone,
I felt certain, had spotted him down-
town and in some manner lured him
to the country, where he had _ been
robbed and killed, without a chance
to defend his life. ¢

Drake asked, “What do you think
about Estes?”

“I don’t know what to think?” I an-
swered honestly. “We'll give his story
a thorough checking. I’m inclined to
think, though, that he’s telling the

truth. He was just unfortunate enough -

to be out there on illegitimate business
when he stumbled onto the body. The
fact that he did come in and report
finding it, despite the danger to his
own freedom, is in his favor. If he
hadn’t come in the body might have
Jain out there on that abandoned road
for months before it was found.”

We decided to make a thorough can-
vass of the business district, in an ef-
fort to determine who had last seen
Hayne on the preceding evening. I
started out, and virtually everyone I
met stopped to ask me in tones of dis-
belief, “Is it true that Haney Wall
was killed?” I, in, turn, would ques-
tion them as to whether they had
seen him the night before.

Finally a youth named William
Wheeler told me he had seen young
Wall about 9:30. “I was on my way
to the train to mail some letters and
I passed him. We just spoke and went
on. He was headed toward home, and
I supposed that was where he was
going.”

That, I reflected, would be at about
the time he had telephoned home. Was
it just before or after? And where
was his car? I decided to see if I could
determine where he had made the
call. After eliminating those business
houses which would be closed at that
hour I narrowed the field down to a
number of filling-stations, drug stores,
cafes and pool-halls. Several of these
had no phone. Proprietors and em-
ployes in others could not recall hav-
ing seen young Wall nor permitting
him to telephone. At length, in the
Palace Drug Store I found what I was
looking for.

era men. “He made me go hungry
many times. I wonder if he thought
about that when he was dying.”

Young Phillips was the only one
effected. He became _ hysterical, and
finally after being held in jail for two
weeks was sent to the State Mental
Hospital at Blackfoot.

The two sons and daughter of the
dead man were charged with _first-
degree murder at their hearing before
Judge Doran Sutphen. All three
pleaded guilty to a charge of man-
slaughter.

On Wednesday, February 5, 1941,
Judge Sutphen sentenced Joe to serve
five to ten years and George and
Flossie to a term of one to ten years.

The names of Mrs. Hermina Bendiz,
Ollie Bent and Archie Hollman, as
used in this story, are fictitious to mask
the identities of persons who were in
no way involved in this crime.

Read It First in
AL DETECTIVE STORIES

Alvin Storts, a young employe, told
me promptly, “Sure, Haney was in
here about nine-thirty or ten and used
our telephone.”

“Do you know where he went then?”

“No, except that he walked out to
his car, parked at the curb.” .

“Who was with him?”

“Nobody except Ted Patton.”

I instantly recognized the name as
that of another Sallisaw youth about
Hayne’s age. He, too, was a popular,
well-known boy. Suddenly young
Storts exclaimed, “Say, I did too hear
them say something about they might
go to Muskogee! I almost forgot!”

I went immediately to the Patton
home. Mrs. Patton met me at the
door.

“Mr, Green!” she exclaimed. “I was
just going to call you. I’m so worried!
I just heard about that awful thing
that happened to the Wall boy. I’m
frightfully worried! My Ted was with
Hayne Wall last night—” She paused,
then, seeming to sense for the first
time that my coming to her was in
some way connected with the tragedy.
She grasped my arm and cried out,
“Mr, Green, where is my boy? What’s
happened to him?”

A grave sense of foreboding gripped
me, but I made my voice as casual as
possible. “Now, Mrs. Patton, there’s
no use in getting all upset. So far as
I know nothing has happened to Ted.
I just came to ask you where he was.
Someone had told me he was with
Hayne.”

HE stared at me and shook her

head. “He hasn’t come home.” Her
lips trembled. “That isn’t like my
boy, Mr. Green. He never goes away
without letting me know where he is
going to be. He knows I’d worry—”

“He didn’t mention to you that he
and young Wall might go to Musko-

ee?”

“No. And I know if he’d been plan-
ning to go so far he’d have talked it
over with me.” She added more firm-
ly, “Will you take me over to my
daughter’s—Minnie Tuggles? He al-
ways talks over all his affairs with
her. Maybe he told her where he was
going, and she hasn’t been able to get
away over here to tell me.”

We drove over to the Tuggle home.
Minnie Tuggle, an attractive, matronly
woman, was greatly upset over the
death of young Wall, but did not seem
to connect the tragedy in any way
with her brother, until her mother de-
manded, “Do you know where Ted
is?”

“Why, no,” she said, paling. “Isn’t
he at home?”

Mrs. Patton burst into tears. ‘He
never came home at all, and he was
with Hayne Wall last night.”

“They were here about nine-thirty,
the two of them. They didn’t stay long,
just sat and visited for a little while.
I supposed they were going on home.
Ted complained of his head aching,
and said he was going to sleep late in
the morning.”

oD—3

Mrs. Patton reiterated, almost moan-
tug, “He never came home!”

Mrs. Tuggle was certain the youths
hadn’t been planning on going any-
where when they had been at her
house.

“It was about ten when they were
in the Palace,” I pointed out. ‘“Per-
haps they decided on the spur of the
moment and didn’t have time to call
home.”

“Oh, no,” Mrs. Patton denied. “Ted
wouldn’t dream of doing anything like
that—and I don’t believe the Wall boy
would be allowed to go off like that,
either.”

I went back and had another talk
with Alvin Storts. Yes, he said, he re-
membered seeing them drive away.
He was certain no one but them had
approached the car. He couldn’t re-
member which way they had gone.

What had been the talk about
Muskogee? Were they only joking?
It seemed unlikely, from the attitudes
of both Judge Wall and young Pat-
ton’s mother and sister, that the boys
would have gone off like that at
night without express permission.

I hated to contemplate the probable
answer to the riddle. But I was sickly ,
certain that I knew what it was. I
went back to the office and told Drake
and Byrd, “I think we’d better go
back to the scene of the crime.”

“To hunt for clews?” asked Byrd.

“To hunt for a body,” I said short-
ly. Both of them stared at me, and I
added grimly, “I think if we search
long enough we’ll find another body,
and it'll be Ted Patton’s.”

The Coroner had told us that as near
as he could ascertain Wall had been
dead for not more than eight hours
when he was found. He said that the
swelling and congestion were due to
the fact that his head had been hang-
ing downward, much below his body.
This would place his death at about
midnight, approximately two hours
after the time when we knew defi-
nitely that both Wall and Patton were
alive and well.

| HAD a fair idea what had happened.
While riding in Wall’s car, perhaps

~ on the way to the home of one or the

other, the youths had been accosted by
the killer or killers. “I’m inclined to
believe,” I reflected, “that there was
only one. In my mind that would ex-
plain why Wall was probably killed
first. If Patton’s body isn’t near where
we found Wall, that will be the an-
swer. Hayne was taller than Ted Pat-
ton, and could have put up more of a
scrap. My guess is that our murderer
is a fugitive, and that he killed Wall,
then maybe forced Patton to drive him
somewhere,”

“In that case, don’t you think there’s
a chance Patton may have been kicked
out of the car somewhere, but alive?”

“I'd like to think so,” I admitted,
“but I haven’t much hope. You see,
the killer could have kicked either one
or both of them out and taken the car,
but for some reason he didn’t. I think
he must have been someone known
to both the boys, and that’s why he
killed Wall—to keep the kid from
talking. That’s why I think when we
find the other boy he’ll be dead, too.”

Cold anger possessed me. I didn’t
have any idea who the human skunk
was who so ruthlessly could snuff out
two decent young lives, but I intended
to find out.

Both boys had lived in Sallisaw all
their lives, and the public was up in
arms over Hayne’s brutal death. If
Ted was found dead, theirsfury would
be doubled. Aside from that, parents
were badly frightened, afraid to let
their youngsters go out at night. Like
I have said before, Sallisaw has wit-
nessed plenty of violence, but it has
usually occurred among the rougher
element, which caroused and brawled
and asked for trouble. Decent, home-
loving people had been spared. This
was different.

We went out to the place where
Hayne had been found and searched
for hundreds of yards in every direc-
tion. There was no trace of a second
body. My theory that the killer had
forced Ted to drive him somewhere

on oa

)~ildieeonesineneerenalanegiomninie

was strengthened. But where had they
driven? And how was I to get on the
criminal’s trail?, My one bet was to
get the Wall car traced, and I immedi-
ately sent out requests for the car to
be picked up and the driver held. I
was afraid, however, that we would
find the machine abandoned, and con-
taining no clews.

Frank Estes, in the meantime, had
not been held, and no charges were
filed against him. After carefully
checking his story I had been con-
vinced that he was in no way con-
nected with the crime.

Mrs. Patton was on the verge of
collapse, ill with worry over her son’s
disappearance. The mother of Hayne
Wall, -likewise, was prostrated with
grief. We talked again with Judge
Wall, and he tried desperately to think
of something that might prove of aid,
but it was no use.

We sent the .22 caliber bullet to the
state ballistics expert, C. N. Reber, in
Oklahoma City, for a report which
fhight aid us in locating the murder
weapon. The advice came _ back
promptly that the bullet had been fired
from a .22 caliber pistol.

Posses were set to searching the
county foot by foot in an effort to lo-
cate the body of Ted Patton. In Salli-
saw the officers concentrated on the
immediate friends of the two youths
in an effort to turn up some new angle.

Wall, as his father had stated, sel-
dom went out with girls, and had not
been known to date recently. Patton,
however, had a “steady” girl friend,
Vera Frazier, a beautiful local girl.
Miss Frazier, however, was not in
town, so we could not question her at
once.

At the end of several days we were
exactly where we had started, and
extremely discouraged. The perpetra-
tor of the crime had disappeared as if
by magic. In view of the weird crimes
which had happened from time to time
in our vicinity, I began to wonder if
it was one of those things which never
would be solved.

On April 28 Sheriff. G. R. Cheek
made a startling discovery. He was
talking to Ottis Tinney, a filling-sta-
tion operator and merchant. “Too bad
about Patton and Wall,” Tinney re-
marked. “I just imagine Patton’s body
will never be found now.”

“It looks that way,” Cheek agreed
glumly.

“That Patton was a nice kid,” the
merchant remarked. “Wall was, too,
but I knew Patton better. He used
to come by and talk to me. He
was full of life and fun. Came in just
a day or so before he disappeared—
kidding about a big deal he wanted to
close with me. He wanted to buy a
nickel’s worth of twenty-two shells.”

Cheek froze. “Twenty-twos?” he
echoed. “Do you know whether for a
rifle or a pistol?”

“Pistol,” replied Tinney. “Why?”

Cheek said, “I just had an idea.”

He picked me up and we hurried
out to Mrs. Patton’s. The Sheriff asked
her, “Mrs. Patton, did Ted have a
twenty-two caliber pistol?”

“No,” she denied, “he didn’t have a
gun at all.”

“Did you ever know of him borrow-
ing one?”

“No. I don’t think Ted ever shot a
gun.”

Mrs. Minnie Tuggle, the sister, gave
us a slightly different answer. “Ted
didn’t have a gun, but I have a twen-
ty-two. Sometimes he borrowed it to
practise shooting with. He used it
around here, though, and I guess
Mother didn’t know anything about
it.”

I asked, “Where is it now?”

"| KEEP it on top of that high cup-
board,”

“May we see it, please?”

“Certainly.” She took a stool and
climbed up beside the cupboard. Then
she turned to us with a startled look
on her face. “It’s gone!”

I demanded, “When did you see it
last?”

“Why, I haven’t had it down for
weeks. I never thought to look. I
haven’t used it for anything.”

“Did Ted know where you kept it?”

“Why, yes. He did. But he never
took it down without asking me!”

Cheek and I glanced at each other.
I knew we were thinking the same
thing. Wall had been shot with a .22
caliber pistol. Mrs. Tuggle had one,
Ted knew where it was kept, and it
was missing.

I asked Mrs. Tuggle, “Would you
mind coming in to town with us?
We'd like to ask you some more ques-
tions.”

She assented willingly, but with a
puzzled expression. “You don’t think
it was my gun that was used to kill
Haney Wall, do you?” she demanded.
“What would they have been doing
with it? And what about Ted?”

“I don’t know,” I admitted, “but I’ve
an idea we’re closer to finding out
right now than we’ve ever been.”

| DON’T know how the news spread
—I suppose no one ever knows ex-
actly how gossip gets around—but the
rumor spread like wild-fire that the
police now believed that Ted Patton
was still alive, and that he himself was
the murderer!

Another = filling- station operator
came forward with a bit of infor-
mation. “I’d forgotten it,” he said, “in
all the excitement, but I just remem-
bered that I saw Vera Frazier and
Ted Patton together late the evening
before Haney Wall was found.”

“It probably doesn’t mean anything,”
I told the others, “but I think I’ll go
back and have another talk with that
girl’s family.”

I talked with Vera’s father, an
elderly man stooped and worn with
care. I asked him, “Where is Vera?”

“T don’t know,” he said.

“But you told me that she was out
of town!”

“She is, but I don’t know where.”

“She was here the day before young
pean Wall’s body was found, wasn’t
she?”

He looked startled, but answered
promptly, “Sure. She left that night.”

“What time of night?”

“I don’t know just what time. Pretty
late, though. Might have been ten,
maybe later.”

“Did she go with someone?”

“Yes, but I don’t know who. Vera
comes and goes pretty much as she
pleases. A car drove up late and raced
its motor. Vera got up and dressed,
put her clothes in a bag and left. I
didn’t ask her where she was goin’.”

“Do you think it. might have been
Ted Patton?” I demanded bluntly.

He shrugged. “It might’ve been.”

That was all I found out, but I was
inclined to think it was plenty. Had
this been, all along, a coldly premedi-
tated thing, and had Patton used his
friendship with Wall as a means to lull
his suspicions? It was incredible, but

' I had to admit that the signs were

pointing in that direction. I knew that
Vera Frazier was by reputation a head-
strong, impulsive girl. Young men—
even older ones—had been known to
commit strange crimes to enable them
to take a girl they desired. Was this
the answer? Where were these two,
Vera Frazier and Ted Patton? Was
Patton, after all, alive and a fugi-
tive from Justice?

According to Judge Wall, there had
been considerable “pocket money” in
Hayne’s wallet, but not enough to take
a pair on an extended trip. Ted was
young and inexperienced. I felt cer-
tain that if he were alive and fleeing
with the girl, he would be stranded
somewhere shortly. Perhaps he would
be picked up for vagrancy.

Sallisaw was in an uproar, and di-
vided pretty evenly as to the probable
truth. Some refused to believe that
jolly young Ted Patton was capable of
cold-blooded murder, and preferred to
believe that he himself was lying dead
somewhere, the victim of a bandit’s
gun. Others thought that our contin-
ued failure to find his, body meant
that he was still alive, and that his
absence tied in damningly with the
death of Wall. I believed the latter,
now, myself. There was the matter of
Mrs. Tuggle’s missing gun, which
would not be satisfactorily explained

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PRATHER, Hiram, white, 35, electrocuted Oklahoma (Pittsburg County) on July 1), 193.

"McAlester, Oklae, July 1. = (AP) = Hiram Prather, 35, an unlettered student in the
school of crime, was executed in the electric chair today for the slaying of Warden Jess
Dunn in a 19,1 prison break = his third. Cool to the last, he answered with a defiant
'No, you've got the best hand,’ when Warden Fred Hunt asked if he had anything to say,
Byrle F. Dunn, a cadet at Sheppard Field, Texas, a son of the slain warden, witnessed

the execution, Prather never finished the fifth grade and spent much of his time in pri-
sons when others his age were going to school, No relative appeared to claim the body and
it will be buried in the prison cemetery." AMERICAN, Hattiesburg, Mississippi, July 1h,

1943 (2/he)

Neither did Drake or Byrd. Cheek
asked if she knew where they could
find Ted to talk to him, but she
didn’t She hadn’t seen him since .
she had let him out that day on the
street of Sallisaw.,

The officers hurried back to town.
From headquarters, a general pick-
up went out for Ted Patton. Au-
thorities in Tulsa were especially
placed on the alert, since it was
their belief that he had gone there.
The description of the car was
broadcast again.

Convinced that Patton was ac-
companied by Nell Adams, it was
requested that they also be on the
lookout for the girl. Then, sum-
moning Drake and Byrd, the sher-
iff went to Patton’s home. The’sus-
pect hadn’t returned — hadn’t sent
for his things. So they set up a
watch and waited.

But another day passed without
results. Calculating from the way
Nell Adams had packed and left in
the middle of the night, the sheriff
decided the suspect had:been on his
way out of the country.

He called off the watch. “I don’t
think he’s even in the state,” he told
the deputies. “Otherwise, that car
would have shown up by now.”

Drake and Byrd agreed. “I’ve
been thinking over what the woman
told you about him taking only his
coat when he left,” ‘said Drake.
“Packing his things would have been
too suspicious. He may write her to
send them later. Besides, he’ll have
to tell some of his folks why he got
up and left so sudden. How about
checking her mail and that of ‘his
relatives?”

This was a suggestion that paid
off. Through cooperation of the Post
Office Department, they ascertained
that a letter had arrived for one of
Patton’s relatives. It was postmark-
ed at Denton, Texas, the afternoon
of the day following. the murder.

The post office official revealed its
contents to’ the sheriff and County
Attorney Green:

’ “T guess you know what has hap-
pened and why I left by this time,”
it began, and went on to say that
he needed some monéy, advising the
addressee to send it in the name of
Fred Anderson, General Delivery,
Dallas. The official thought he knew,
the answer. :

“Patton will be expecting a letter
by Saturday,” he told the officers.
“He'll call for it at the post office
in Dallas.” ,

Cheek nodded. “When he does,”
he added, ‘“‘my deputy will be there

to grab him.”

Back in his office, he told Drake:
“You know Patton well, and can spot .
him on sight. I’ll call the Dallas
police and ask them to give you all
assistance necessary.”

Drake got in his car and drove to
Dallas. He checked in at the police
department and found Detectives
Bill Creech and J. W. Hitt assigned
to him. They covered the post office
Saturday morning and waited.

At eleven o’clock, a dark, stocky
man with black hair and wearing a
black cap strode up to the general
delivery. window and inquired if
there was a letter for Fred Ander-
son. The officers moved around him.

Ted Patton stared at Drake,
blinking. “Hello — what are you
doing down here?” His voice sound-
ed hollow.

“I came after you,” Drake said,
and snapped on the handcuffs. “Ted,
why did you kill Hayne Wall? You
and him were always good friends.”

Patton looked at the detectives,
shifted his gaze back to the deputy.
Apparently he was considering the
consequence of a full confession.
Finally, he said, “Hayne and I had
an argument, and I just shot hell
out of him.”

- “Where’s the gun?” asked Drake.

“In the car.”

“Where?” .

“T’ll show you,” Patton said.

And with him giving the direc-
tions, they drove out of Dallas on
State Highway 80 toa secluded spot
in the bend of a.creek, where they
found the stolen Wall coupe and.ar-
rested a 19-year-old girl who admit-
ted she was Nell Adams. In the door
pocket of the car, Drake found a .22
caliber Harrington and Richardson
revolver. One cartridge had been ex-
ploded and powder adhering to the
barrel indicated that the weapon had
been discharged recently.

Inside the coupe, he found Nell
Adams’ valise and an overcoat that
Ted Patton admitted was his.. In a
box behind the seat, he discovered a
pair of glasses, some stationery and
envelopes of the same type as the
letter which Patton had written the
relative in Sallisaw, and the victim’s
mottled design fountain pen.

The car was removed to Dallas
and the pair lodged in the city jail.
Patton was brought out first and
questioned about the missing watch
and billfold, but he denied any know-
ledge of them. They were never re-
covered.

+ Drake asked him if that wasn’t
why he had killed Hayne Wall, and

Patton claimed he had killed him in
self-defense after he had attacked
him, Pation, in the car while en-
route to purchase some whiskey
from a bootlegger on Wild Horse
Mountain. He refused to make any
further statements concerning the
slaying.

So Drake had them bring out Nell
Adams. She looked at the deputy in
amazement when he asked her about
her part in the tragedy, and declared
that she didn’t know Hayne Wall
was dead. ;

“We found his body the morning
you left,” Drake told her. “Out by
Wild Horse Mountain, where the
hogs and buzzards would eat him.”

The girl fell over, buried her face
on the cot and sobbed.

“You and Ted planned to get the
car the day you talked on the
street,” Drake accused relentlessly.
“It wasn’t whiskey that lured Hayne
out to Wild Horse Mountain. He had
a date that night and was coming
out to get you.”

“No! No!” cried the girl. “I
didn’t know that Ted had done a
thing wrong in the world when I
left Sallisaw. He didn’t even men-
tion a car that day. He just told
me to be ready any time, day or
night, that he was coming after me
and we were leaving Oklahoma. He
told me he had bought the car, and
I remarked that he had got a bar-
gain because he had got a pair of
glasses and a fountain pen,. too.

“Ted said the owner ‘must have
forgot them, and I thought nothing
more about it. He was light-hearted
as could be and was laughing and
talking: all the way to Dallas.”

’ Drake ‘notified Sheriff Cheek of
-the arrest, and the next day the pair
were returned to Oklahoma.

Cheek forwarded the revolver’
found in the car to the State Crime
‘Bureau at Oklahoma City, where
Charles Reber fired a test shot and
compared it with the bullet that had
been recovered from the victim’s
body. Both had been fired from the
same gun. —

County Attorney Green charged
Ted Patton’ with murder. He went
on trial September 20, 1932, in the
First Judicial District Court of Se-
quoyah County before Judge W. A.
Woodruff. Nell Adams, absolved of
any part in the crime, became the
state’s witness. On September 22,
Patton was found guilty and given
the death penalty. On October 20,
1933, he was electrocuted behind the
walls of the Oklahoma state peniten-
tiary at McAlester. THE END

ML
cal

(Cont

This man
idea of he)
her husbar
out there
dozen bodi

“T see \
nodded. “.

“T don’t
but one ol
Bailey —
I see it, tk
find out i
did leave }
she’d have
ferry, so
trouble lea
there’s no
then our
man, if an
with arou
‘tell us si
never mea
I know is
clothes an
questions.
added, “‘clc
than a hur

Deputy
then and (
thoughts.
he said, “‘:
lips tight
open. If -
to this, it’
it’s just a
ried wome
none of o

No man
conduct ar
in a small
that town
tain Hom
within th
knowledge
thought s«
Vedah Me
sently de
there. Bu
not the s:
that no t
ideas on t

ie night of
er became
nd furnish-
other per-
be visiting.
after Nell
ek was par-

any boy

his probing
ed that they
the past two

onday after-
d Cheek. “I
, East Main
. by the post
Patton. She
‘teen minutes
je along and

I was.”
neir conversa-

ays anything
| married you
get a divorce
, split up. He
‘etty thick for
ae was talking

”” asked Cheek.
ie best kind of
ded one, was
something like

1e was going to
ited oné, that’s

Patton, a young
1 who lived at
wn. The sheriff
» him. But the
stayed said he
since Monday

0?” queried the

something about
Isa with another
1 replied. “Said
couple of days.”
her fellow?”

m. Ted came in
‘oat and left.”
ng a black cap?”

there anything .

very wrong,” re-
oftly.

to the office. Just
he door, he met
coming out. He
ne had found out
utomobile and Ted
need at Byrd.

———

trunk in my bedroom.’

“This case gets more baffling
every minute,” he remarked. He said
to Cheek: “We just found out who
owns a .22 Harrington and Richard-
son revolver.”

“Who?” Cheek wanted to know.

“Roger Bowman. He was out to
that little service station and gro-
cery store west of town last week

and bought a half dozen cartridges.”

“We better check Bowman.”

“We were just going to do that,”
said Drake.

A few minutes later the officers
were asking the man if he owned
that type of pistol.

“T gure do,” he admitted. “But I
haven’t had it around for a week.
I purchased a round of ammunition
and loaned it to a woman up the
road.”

“What woman ?”.Cheek demanded.

“Mrs. Mae Bristol.”

“Who’s she?”

Drake answered his question.
“Ted Patton’s sister. She lives out
another mile.”

They hurried on the home of Mae
Bristol. Questioned, she readily ad-
mitted she had borrowed Bowman’s
revolver.

“I’m-alone at night with my little
boy and I wanted to have a gun
around,” she explained. “It’s in a

She led them to where a large
trunk set under the window. She
opened the lid and ran a hand down
the right end under some clothes.
Her face lighted with surprise.

“Tt’s gone!” she exclaimed. .

“Maybe you put it somewhere
else,” Cheek suggested.

But the woman shook her head.
“J. put it right in here,” she said
positively.

Cheek studied her closely. Her
surprise seemed genuine. Was she
tellirig the truth? She added that

the revolver had been loaded all way _

around with .22 long ammunition,
just like it was the day Bowman had
loaned it to her. le

“When do you last remember the
gun being in this trunk?” asked the
sheriff.

“Last Monday. I had the gun out»
straightening up these things and I.

put it back there. I can prove that
by Ted.” ‘

Cheek’s eyebrows lifted. “Ted
was here?”

She nodded. “Until the middle of

the afternoon. Then he went in
town with me when I took my little
boy to the show. Somebody must
have stolen it while I was gone.”
But the sheriff didn’t think so.

The late P. T. Barnum, who once.

said that there's a fool born every
minute, might revise his estimate up-
ward if he could know of the brazen
scheme that many Americans have
fallen for lately. Until the Post Of-
fice Department clamped down, this
message was appearing in the per-
sonal columns of newspapers :"Last
chance to send your dollar to Post
Office Box 106." Just that and nothing
more.. Yet hundreds of gullible indi-
viduals, having no remote idea of
what the dollar was for, promptly
mailed bills. And the man who in-
serted the notice simply pocketed the
money! ood housekeeping

Motorcycle Policeman A. A. "Tony"
Kraker of Virginia, Minn., believes
that when he reminds motorists that
speeding may get them off the earth
sooner than over it, he should do it
politely and harmoniously.

When it becomes necessary for
Tony to speak of safety to a driver,
he doesn't yell; "Hey. you! Pull over
to the curb!" Instead, Policeman
Tony motions to him with a smile, and
hands a card to the offender. It rec-
ommends ¢o the driver that he "Sing
While You Drive,” and to use these

. tunes:

At 45 miles per hour, sing “High-
ways Are Happy Ways.”

At~55 miles, sing “I'm But a
Stranger Here, Heaven is My Home.”

At 65. miles, sing “Nearer, My God,
to Thee."

At 75 miles, sing. “When the Roll Is
Called Up Yonder I'll Be There."

—Sunshine

Some years ago a woman com-
plained to King Ibn Saud of Saudi
Arabia that her husband. had been
working under a date palm when one
of the king's servants fell from the
tree and killed him. She demanded
the servant's life as a forfeit. When
‘Ibn Saud. asked whether she. would
accept a cash settlement, the woman

insisted on the servant's life, her
right under law.

The king pondered. “You are
right," he said. "Under law | am
forced to give you this man's life in
revenge for your husband's death.
But the manner of his execution is for
me to decide. Therefore, | decree
that he be tied hand and foot under
a date palm. You, then, will climb
the tree and fall upon him in such a
manner as ¢o kill him, just as he killed
your husband.” .

She took the cash.

Harold Courtenay Armstrong,
Lord of Arabia (Penguin)

Joe, charged with theft, was on the
witness stand, and the judge sought
to discover if he knew the value of an
oath. He said, "Joe, if you tell a lie
under oath, do you know what hap-
pens?"

Joe said: "Yessir, judge, | don't go
to heaven."

"And if you tell the truth?" per-
sisted the judge. ;

"| go.to jail," said Joe.

—Sundial

A recent census taken at a large
penitentiary réyealed that less than
5 out of every 100 prisoners ever
had a dog. fe ;

we —Dorothy Kilgallen
N. Y. Journal American

Women have considerable moral
sense when they don't love a man,
but mighty little when they do. With
a man, it's the apposite. ‘If he doesn't
care for a girl, he's without scruples.
If he does care, he is likely to develop
a moral code which only the angels
can live up to. —Our Paper

If you're 35 years old, you have,
on the average, about 17 million more
minutes to live. When you gamble
on safety to save a minute, you
wager all those remaining minutes.

—Long Lines

(Continued from page 19)
Nothing the officers could do.
They returned to headquarters,

completely baffled and feeling utterly
helpless.

“I feel like a fool!” Drake blurted
suddenly. “I want to find the man
who murdered Hayne. I! want to
smash this thing wide open. But
how can we? When? Where?”

“All we can do is keep hammering
at this thing for another lead,” the
sheriff declared. “We're looking for
that fellow in the black cap. We've
got to find out who he is.”

That night, they received encour-
aging news, when Deputy Byrd re-
turned from Oklahoma City with a
report from Reber.

“That bullet came from a revol-
ver,” he said, “a Harrington and
Richardson. We checked the crime
bureau files but they’ve never had
that pistol in there.”

So Cheek decided they had to find
out who owned a .22 caliber Har-
rington and Richardson revolver.
Early the next morning, he assigned
Drake and Byrd to the task of
checking all hardware stores, second-
hand shops, and other places where
firearms and ammunition were sold.
Then he returned to his office to
see if anything had come in yet on
the stolen automobile.

When he arrived, he found two
men waiting for him. They intro-
duced themselves as Morgan Mc-

Clothlin and Ernest Sheldon. They -

were two farmers who lived near
Maples, eleven miles from Sallisaw.

“We've got some information on
that car you're looking -for,” Mc-
Clothlin said.

“You have?” asked Cheek excited-
ly. “What makes you suré ”

“The newspaper said a model A
Ford coupe,” Sheldon broke in,
“with a rumble seat and a fabric
top. We saw it, all: right — went
past our houses up there right after
midnight, the night Judge Wall’s
boy was killed.”

“JT smoke nights,” explained Mc-
Clothlin. “Usually get up two or
three times. I noticed the clock. It
was ten minutes after twelve. This
coupe went by, going south. The

moon was pretty bright. I could see
the car plain, but I couldn’t tell who
the fellow was in it.”

“Just one man in the car?”

McClothlin nodded.

“Wearing a cap?”

The farmer nodded again.

Cheek turned to Sheldon, the same
question in his eyes.

“There was just this fellow with
the cap going down; there were two
people in the coupe coming back. I
was up with a headache looking
around for some pills when the car
passed. I sleep in the bedroom next
to the road, and I. noticed the lights
turn in at Harvey Adams’ place a
quarter mile south.”

A car coming out to the Adams
place at that time of night had
caused him to wonder. For a mom-
ent he thought someone might have
been sick, and he had tried to see

who was in the coupe as it sped past

his home a few minutes later.

“But it was too dark to tell who
they were,” he concluded. “But I
could tell the other person was a
girl.” ; ,

“A girl!”

Both men. nodded.

“Thanks very much,” the sheriff
said warmly. “I’ll run out to the
Adams place and see what I can find
out there.” was

That conversation was at 8
o’clock.

- An hour later, Sheriff Cheek was
listening attentively to. the story
being told him by Harvey Adams.

- “It, was my daughter Nell the car
came after,” he said. “I didn’t hear
it come in. I was in bed, The rest
of the family were in bed. Nell lit
the lamp. The light flashed in my
face and woke me up. The door to
her bedroom was open.

“J asked her what she was doing
up at that hour, and she said’ she
was going to Sallisaw. She started

packing her valise with dresses and ~

things, and I dozed back to sleep.”

“Did you inquire who was after
her?” asked the sheriff.

Adams shook his head. “She was
away from home all week-end. Her
sister lives in Sallisaw and she goes
back and forth so much I hardly
ever pay any ‘attention to. when she
leaves.” ; .

Cheek interviewed the other mem-
bers of the family. But none of
them had seen the car come and
go in the middle of the night. None

' of them even knew Nell Adams had

gone until the mext morning.
Back in Sallisaw, Cheek inquired

at the home of her sister. But Nell .

had not come there on the night of
the slaying. The sister became
alarmed at her absence, and furnish-
ed the sheriff names of other per-
sons in town she might be visiting.
Since a man had come after Nell
Adams in the coupe, Cheek was par-
ticularly interested in any boy
friends.

There were a few. In his probing
visits to them, he learned that they
had not.seen the girl in the past two
days.

“The last time was Monday after-
noon,” one of them told Cheek. “I
work at the garage on East Main
and I noticed her down by the post
office talking with Ted Patton. She
talked to him about fifteen minutes
before her father came along and
took her home.” ‘

“What did Ted do?”

“Came down where I was.”

“Did he say what their conversa-
tion was about?”

“No. He never says anything
about Nell. He’s still married you
know — never did get a divorce
after he and his wife split up. He
and Nell had been pretty thick for
sometime now. But he was talking
about automobiles.”

“What about them?” asked Cheek.

“Well, what was the best kind of
car. Ted said he needed one, was.
going to get one, or something like
that.”

“Did he say how he was going to
get it?”

“Just said he wanted oné, that’s
all.” ‘

Cheek knew Ted Patton, a young
farmer 25 years old who lived at
the south edge of town. The sheriff
drove out to talk to him. But the
woman where he stayed said he
hadn’t been home since Monday
night.

“Where did he go?” queried the
sheriff.

“He mentioned something about
having a ride to Tulsa with another
fellow,” the woman replied. “Said
he would be gone a couple of days.”

“Who was the other fellow?”

“I never saw him. Ted came in
alone, got his overcoat and left.’”

“Was Ted wearing a black cap?”

“Why, yes. Is there anything.

wrong?”

“Something is very wrong,” re-
plied the sheriff softly. (

He hurried back to the office. Just

as he reached the door, he met ~

Drake and Byrd coming out. He

told them what he had found out
' about the stolen automobile and Ted

Patton. Drake glanced at Byrd.

“This case
every minute,
to Cheek: “V
owns a .22 H:
son revolver.”

“Who?” Ch

“Roger Bov
that little se
cery store w:
and bought a

“We better

“We were .

_ said Drake.

A few mil
were asking
that type of

“T sure do,
haven’t had
I purchased <
and loaned i
road.”

“What won

“Mrs. Mae

“Who's she

Drake an:
“Ted Patton’
another mile.

They hurri
Bristol. Que:
mitted she h.
revolver.

“T’m. alone
boy and I \
around,” she
trunk in my

She led t
trunk set w
opened the li
the right e1
Her face lig

“It’s gone
“Maybe )y
else,” Cheek
But the v

“To put it ri

positively.
Cheek stu
surprise see
telling the {
the revolver
around with
just like it w
loaned it to }
“When do
gun being ir
sheriff.
“Last Mor
straightenin
put it back
by Ted.”
Cheek’s «
was here?”
She nodd«
the afterno
town with r
boy to the
have stolen
But the

CRIME

| DETECTIVE

continually forced the warden to
punish him, and when the punishment
had ended, invariably his hatred had
been deeper than ever.

The others who had escaped with
him, had settled back into prison rou-
tine, apparently chastened by their
unprofitable venture. They had given
no more trouble. But not Beavers.

Never a day had passed but his mind:

teemed with schemes for crashing out.
It had been in his thoughts day and
night, in his furtive conversation with
other prisoners. He had been watched
incessantly by the guards, and by the
warden himself, who had felt it inevi-
table that one day he would again
cause serious trouble.

By the same token, it had been
inevitable that there should be others
within the walls sharing his ambition
to crash out. He had three buddies,
all as murderous as himself: Roy Mc-
Gee, a robber from McKay county;
Hiram Prather, a murderer from
Chickasha; and Bill Anderson, who
had been with Beavers in the 1936
break. They had plotted. together,
evolving and discarding plans, until at
length one took shape which appeared
feasible. They had fashioned razor-
sharp knives from prison tools, and
concealed them, to be ready when the
“big moment” came.

T came on that Sunday morning—

and it must have stirred a filthy
joy in Claude Beavers when he saw
that his hostage was to be the man he
hated. Guards and officials knew of
the Indian’s hatred for the warden,
and it was partially that knowledge
which made them hesitate to anger the
convict further when the desperate
break for freedom began. ~

Outside the east gate, a guard’s car
stood at the curb, the key in the igni-
tion switch. The four convicts ordered
Dunn and the electrician in, got in
beside them, and the car roared away
from the wall. Even as it sped down
the gravel highway flanking the yard,
county and city police were heading
for the scene, sirens screaming. From
the penitentiary the word had been
flashed to them: “Four convicts escap-
ing—holding Warden Jess Dunn and
Herschel Fentris captive—”

McAlester citizens cringed once
more as the prison sirens moaned out.
Children were called hastily inside,
doors were locked.

The fleeing men rocketed down the
same highway taken by Beavers and
his cronies in their first attempt at es-
cape—and it was there that Fate took
an ironic hand. Shut away inside the
walls, Beavers.could not know that all
about the city highways were being
torn up, preparatory to new paving.
At an- intersection, less than two
blocks from the prison, they ran into
a blockade.

Hastily retracing their route they
hurtled down a side-street.

Meanwhile, from the sheriff’s office,
veteran Deputy Bill Alexander and
Jailer Tab Ford were hurrying pris-
onward in Alexander’s car. They
glimpsed the fugitives and gave chase,
and were just entering the blockaded

CRIME DETECTIVE

BIG HOUSE BOOMERANG

CONTINUED FROM PAGE 41

area as the convicts’ machine backed
out. .
Alexander could see that Beavers,
sitting in the back seat, was holding
a razor to the warden’s throat. Dunn
was obviously painfully wounded, but
conscious. He called out, “Let us
pass, Billy.” . “
Alexander was Dunn’s_ personal
friend. Moreover, he had been ‘a

guard at the prison, and he had heard, :

many times, the warden’s orders to
stop fleeing convicts at any cost.

Standing within shooting range of the-

car, he was forced to make a grim
decision—and he made it quickly. “Pll
let you pass, Warden,” he said, stonily,
“but those prisoners are piling out
right here.”

is answer was a blast of lead from
the outlaw car. Alexander took hasty
aim and fired, and he saw Beavers
slump forward. The car backed in a
wide circle, careened through a flimsy
barricade and was off down a side
dirt road.

Alexander and Ford went in hot
pursuit. Three blocks away, the con-
victs were halted by a torn-out bridge,
and their retreat blocked by Alex-
ander’s approaching car.

One of the men smashed the glass
from the rear window and opened fire.
Tab Ford, climbing from the officers’
machine, pitched forward, a bullet in
his head.

Alexander flung himself into a ditch
and began firing steadily. From a
nearby store Bob Pollock—himself an
ex-prison guard—seized a revolver
and dashed to Alexander’s aid, only
to discover that his weapon was
empty.

The deputy gasped, “I’ve got to get
them soon—I’m running out of ammu-
nition. There’s more—but they’re in
my car—”

“T’ll get them!” Before the deputy
could stay him, Pollock was out of the
ditch and running across the road, in
full view of the firing convicts, to get
shells. Three times, during the fifteen
minutes of pitched fighting, he braved
death to sprint to the car for clips.
Lead flew thick and fast. There was
a terrified shriek from a nearby house
as a bullet ploughed into a wall—and
from the convicts’ car an agonized
scream as hot lead found its mark.

Walter Haggard, the sheriff, and
executioner-guard Rich Owens ar-
rived, and entered into the battle.
Presently there was an abrupt silence
in the trapped car. The officers ceased
their firing and started forward, cau-
tiously. There came a frightened call,
“Don’t shoot—I’ll give up!” and Hiram
Prather crawled out, hands held high,
shaking in terror.

Alexander shouted, “Someone look
after the warden!”

Rich Owens, nearest to the car,
sprinted forward. After a moment he
turned away, his face pale. He said,
tersely, “The warden’s dead!”

Dunn lay on the front seat, the
dead body of Roy McGee slumped
across him. Beavers was dead in the
back seat, and at the wheel Bill An-
derson was unconscious, his body so
riddled with bullets that it was a

miracle that he still managed to

-breathe.

On the floor of the tonneau lay
Herschel Fentris, the electrician, face
downward, his hands and feet bound.
He was unharmed.

Dunn had been shot once, in the
back of the head. There were powder
burns in the flesh about the wound.
He had been slashed repeatedly across
the throat, and there was an inch and
: on stab wound directly above his

eart.

TUNNED disbelief settled over

town and prison alike as the body

of the warden was borne away to an

undertaker’s. Anderson was removed

to a hospital, where small chance for
recovery was given him.

An autopsy’ on the bodies of the
dead convicts revealed that both had
been killed by Alexander, the deputy
whose bravery had prevented the es-
cape of the murderers. Alexander
was unharmed, although plucky Bob
Pollock, in his last dash for ammuni-
tion, had suffered gunshot wounds in
both hands.

At the prison, blubbering Hiram
Prather pleaded that he had not
known of the impending’ break until
that morning, ‘when Claude Beavers
told me to be ready to go, and shoved
a gun into my hands.” He added, tear-
fully, “They never intended to kill the
warden, though—I’m absolutely sure
of that—”

But other inmates, who had known
Beavers and who had heard him talk,
shook their heads, grimly. “He hated
the warden—he’d have killed him,
even if they’d gotten away. The
warden knew that—he’d have wanted
them to stop Beavers, any way they
could.”

As the mourning town prepared to
hold funeral services for the murdered
warden, floral offerings from friends
and fellow officers all over the nation
arrived. Six trucks were necessary to
transport the bountiful flowers to the
church.

In the prison, a pall of gloom des-
cended over the inmates, who realized
their loss of “the best friend we ever
had.” One of them made a tribute to
the bravery of the warden: “I guess
he’d have wanted to die doing his duty
—but if he had to go, I wish he could
have known they didn’t get away, and
that his guest wasn’t hurt.” That
was undoubtedly the warden’s chief
thought to the end.

On his deathbed Anderson, cold-
blooded thug to the last, gasped, “I’m
not sorry I made the break—it’s too
bad it turned out the way it did. We
didn’t intend to kill Dunn—somebody
must have lost their head—”

But Fentris, lying helpless on the
floor, had heard someone snarl, “We
can’t make it, so here’s where you get
yours!” He did not see who fired the
shot.

For Anderson, as for the others, the
mad break for freedom gained noth-
ing, for he died within twenty-four
hours. His death left cowardly Hiram
Prather alone to face the consequences
of the murderous attack.

PRATHER,

Hiram, wh, elec. OK (Pittsburg) July 14, 1943

“START FOR the east. gate!”

snarled Beavers to the warden,

“Tell ‘em to throw down their guns

and keys if you want to live!"
(Posed photo.)

INSIDE DETECTIVE, December, 1944

“FOUR OKLAHOMA FELONS
DAGGERS—AND BEGAN

rise over McAlester, Oklahoma, the

Sunday morning of August 10, 1941.
It splashed red and sinister across the
cloud-flecked sky and down the gray-
green prairies that surround the town
and stretch away to the wild Kiamichi
Mountains.

Deputy Sheriff Bill Alexander, 43,
bronzed, blue-eyed and _ steel-nerved,
called it dust in the air.

But the 3800 convicts in Oklahoma
State Penitentiary out northwest of town
called it blood. And the convicts knew,
because they knew Claude Beavers, Bill
Anderson, Roy McGee and their bald-
pated hill-billy stooge, Hiram Prather.

Yet at 10:40 a.M., Bill Alexander
lounged in his car in front of the Pitts-
burg County jail with his white hat
pulled low over his eyes and found the
Sunday morning. watch deadly dull.

At the same moment, out at the peni-
tentiary, tall, gray-eyed Warden Jess
Dunn stepped from the main cell block
into the sun-baked prison yard with his
three Oklahoma City visitors and found
the day like every other summer Sunday
at the prison. The air was heavy with
an elusively sinister menace, but no
more than for the past two years.

Nevertheless, Dunn halted in mo-

_ mentary caution just outside the door-

Tasco WAS BLOOD in the sun-

INSIDE DETECTIVE

TRAPPEI
A SLAUE

way and h
With him
latter’s 1]

shell Fent
who had c
of a loud-
the prison
take a few
Everythi
Most of th:
forms and
shine enjo:
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in the scar
ings playir
white-hatte
up any trot
“Gee!” t
he moved
all these gu
Dunn ss:
replied.
“But tho
won’t they
Forcing t
him for 20
most fearle
sured the bi
they would.
was overcri
convicts loo
men. Like (

the 1936

DECEMBER,

firearms must not come within the prison, where in-
mates may have access to them.

Slowly the gates swung open and the six men went
through. The warden’s hands were at his throat, to
staunch the blood, and he was stumbling a little, as if
he were ill...

}* WAS inevitable that for all the men within the grim

walls who trusted and respected Jess Dunn as a
friend, there must be those who hated him. Claude
Beavers was one of the latter. Beavers, already a con-
victed murderer, was serving his eleventh year in a life
sentence. Sent originally from Oklahoma City on a rob-
bery conviction, the thirty-nine-year-old Indian had
been, from the first, a troublemaker. Sullen, quarrel-
some, unamenable to discipline, he had quickly proved
himself treacherous and dangerous. He had been sent
to the brickyard to work with other convicts who were
considered incorrigible.

From the day he was incarcerated, there burned with-
in Beavers a fierce determination to “crash out.” “The
pen was never built that could hold me!” was his boast.

There were others who shared his ambition. On May
13, 1936, Beavers and seven others had seized rifles from
guards and shot their way out of the brickyard plant,
taking with them as hostage the yard superintendent,
C. D. Powell. In the ensuing gun battle, one of the
escaping convicts had been killed, one wounded—and
the others had escaped. Powell had been shot and killed,
and his lifeless body dumped from the fleeing car, on
a McAlester thoroughfare.

Terror had reigned among the residents of Mc-
Alester, for almost at once Beavers and' his companions
had begun a siege of viciousness. Making good their

escape into the Jack Fork mountains, to the south, they
had staged robberies to obtain food and clothing, hold-
ing fear-stricken victims at the point of guns while they
ransacked stores and homes. Beavers had kidnaped an
Indian and held him as a hostage for the safety of him-
self and his outlaw companions.

In McAlester, Warden Dunn had assumed full respon-
sibility for the break, set about the task of returning the
prisoners to the institution to face a charge of murder.
Day after day and night after night the courageous
warden had tramped the densely wooded hills with a
posse, following baying hounds, in an attempt to cross
the trail of the fugitive. Beavers had sent back a brag-
ging challenge—“Tell that cop he’ll never take me
alive!”

One by one the escaped convicts had been tracked
down and captured, until only the elusive Beavers had
remained at large. ,

The search had gone forward. At length they had
found trace of him, and tightened the web. Nightly,

famous Ol’ Boston, the prison bloodhound known
throughout the nation for his trailing exploits, had bayed
through the Jack Fork woods, the indomitable warden
and his officers close behind.

They had trailed him down. Cornered in a thicket,
with the dogs baying fiercely and the posse closing in
upon him, Beavers had surrendered meekly, coming out
whining, “Don’t shoot—here I am.” Cowardly as any
cornered rat, he had made no attempt to turn his gun
upon himself as he had hinted he would do, if caught.

Later, safely back in prison, with the threat of dogs
and guns removed, he had become braver. ‘Some day
I'll get you and get you right!” he had told Dunn,
goaded to fury by the fact that the warden, whose
custody he had plotted to escape, had been the man to
bring him back.

Tried and convicted in the death of
Superintendent Powell, Beavers had been
sentenced to life imprisonment (his orig-
inal sentence had been 25 years) with
no chance for parole.

As the days had passed, and there
was no lessening of Beavers’ persistent
troublemaking, the warden had treated
him as fairly as the convict himself would
allow. There ‘was little he could do.

Time and again, when the surly Indian
had stood before him for infraction of
prison rules, the warden must have been
conscious of his implacable hatred. He
had treated Beavers impersonally, as he
would have treated any troublesome in-
mate. Sometimes he had been forced to
place him “on high’—solitary confine-
ment—for brawls and trouble-making.
Beavers had (Continued on page 90)

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ON
IME!

DELIA

(Continued from page 35)

were widely and favorably known in
the region on the eastern slopes of the
Arbuckle Mountains. The investigators
were acutely sensible of the fact that
they must be prepared to support any
allegation of foul play in Delia’s death
with sound, bedrock facts. They could

hope for no popular backing in a homi-~

cide probe based on the few shreds of
deductive evidence they had put to-
gether thus far.

“We'll just go ahead on the q.t.,” said
Johnson sagely. “Let things work them-
selves out a spell.”

He visited the parents of pretty Delia
Oliver, offering his sympathy in their
shocking hour of grief, and feeling his
way with crafty questions to discover
whether there was any family circum-
stance which might point to a murder
motive.

The Ringers were ready to accept
their daughter’s fate as an accident.
There had been a witness—Bob Adler
—they reminded Johnson.

“Claude was good to Delia,” said the
mother. “He brought her to visit us
whenever they could manage. The poor
boy didn’t want us to think we couldn’t
see our girl any more, just because
she was a married woman.”

The coroner’s report, after an
autopsy, added nothing to the sheriff’s
quiet investigation. It merely affirmed
that the girl had died of multiple skull
fractures which could have been suf-
fered in the plunge of the autombile
into the gully.

Big Insurance Policy

- Six days passed. Residents of the
town of Davis and the surrounding
countryside accepted the tragedy as
accidental, and, after the young bride’s
remains were laid to rest, ceased talk-
ing of it.

Sheriff Johnson had made no further
progress in turning up clues to prove
Delia Oliver was murdered, when he
greeted a caller who identified himself
as an investigator for a life insurance
firm. s

“We had a policy on Mrs. Oliver,”
the agent said. “I want your opinion on
the crash for my company’s records.”

Johnson talked guardedly, outlining
the facts as they were publicly known.
He was aware that if he were to bare
his suspicions the insurance company
doubtless. would hold up payment of
the principal of the policy, and might
even contest the claim, thus exposing
the sheriff to censure from which he
could not clear himself.

Apparently the investigator was sat-
isfied. He rose to go, tucking the notes
he had made into his briefcase.

“Just a minute, son,” Johnson said.

“How much insurance did your com- ,

pany carry on her?”
“Five thousand,” the agent replied.

“With double indemnity for accidental

death. I guess we’re stuck for the big.

end of that one. We thought it was a.

little queer, because the policy was in

effect only the past two months.”
The sheriff’s feet came down off his
desk with a bang. “Sit down,” he said.

“I take it that her husband, Claude

Oliver, was the beneficiary?”

“Yes. We also thought it peculiar that
an ordinary farmhand could pay the
heavy premiums oh such a big policy on:
his wife.”

“I happen to know,” Johnson told the
investigator, “that Claude’s already.col-
lected $300 on another policy. That
seemed about the right amount to ex-
pect, but $5,000 is a horse of another
color. There are some mighty funny
things about this accident.. Maybe I’d
better spread all my cards on the table.”

He detailed the additional facts in
the case, emphasizing his suspicions
that the machine had been pushed over
the bridge with the victim inside, al-
ready either dead or unconscious.

The sheriff and the insurance man
went at once to Davis, where they
talked again with Chief Ramsey. After
inspecting the scene of the crash, the
investigator wanted to view. the
wrecked auto.

“It’s still in the garage,” said Ram-
sey. “Let’s go over.”

The owner. of the garage, who also
operated an automobile sales agency,
led them to the wreckage-in a corner
of the place and removed a tarpaulin
which covered it.

“She’s just like we brought her .in,”
he said. “Claude said he never wanted
to see it again. I don’t blame him.”

In examining the car the sheriff noted
a circumstance that had been previous-
ly overlooked; he spotted it for an im-
portant clue supporting his theory of
murder. bd

“How could blood flow upward?”
he mused, eyeing the machine.

“What do you mean?” the insurance
agent asked.

“This jalopy was upside down in the
gully,” Johnson explained. “Delia was
pinned on the bottom of the mess. Yet
the seat cushions, the floorboards and
the running board are all bloodstained.
That cinches it. She was bleeding in.
that bus while it was still on all four
wheels—before it went off the bridge.”

The sheriff summoned Deputy Rowe
to make another, and more detailed,
examination of the machine, instructing
him to. be prepared to say without fear
of contradiction whether anything could
have been wrong with the steering
mechanism to have swerved the auto
out of control and off the road into the
ravine. After an hour Rowe reported
that his earlier findings had been con-
firmed; the steering gear was intact.

Picking up additional officers - from
the locality, Johnson led the party to
the scene of the crash. __.

“Let’s go over the place carefully,”
he urged. “Not just the bridge, either.
Spread out a‘ little. There must be
something we »overlooked when we
were out ‘before.

%
%

Bloody. Iron Unearthed
> %

Beyond the bridge in the direction

from which the Olivers’ car. had ap-
roached, a deep ditch paralleled the

road, passing under it through a cul-

_ CRIME
DOES NOT PAY!

O STERNER argument exists
against the fool’s notion that
crime is a profitable business

than the cold, plain figures compiled by
the FBI to cover all types of offenses.
Released by J. Edgar Hoover in a semi-
annual report based on the records of
police all over the country, they prove
that crooks just can’t get away with it.

Take murder, for instance, the worst
crime of all. How can anyone figure
on escaping punishment for murder
when 90.6 percent of all homicides are
cleared by arrests? And of persons
-charged with killings during the first
half of 1943, the FBI reports that 60.1
percent were convicted.

Slayings did decrease in that time
‘over comparable periods in earlier
years, being 4.4 percent under the pre-

“war average. All other oy es <a
creased, too, except aggrava assault
and statutory offenses, which showed
an increase generally attributed to war-
time social bances.
Crimes against property usually are
less frequently cleared up by police
than crimes against the person. For
one thing, they are ordinarily not ‘so
dangerous to society as a whole, and
they are much more frequent; many
reported thefts, for example, are ex-
tremely small.

However, even in this category the
poliee of the nation have proved that
crime is unprofitable. A robber, for
instance, an excellent chance, on
‘the average, of being picked up on his
second job. means that for a
pocketful of change or a few hundred
dollars at best, he faces years in prison.
Figured on a dollars and cents basis,
the wages of crime are low, indeed.

Specifically, arrests were made in 43.3
percent of all robbery, cases, in 31.5
percent of burglaries, 25 percent of
auto thefts and 24.6 percent of larceny
cases. Moreover, of the persons ar-
rested for these offenses, 75.9 percent
were convicted.

Mr. Hoover has frequently voiced his
cohcern over. the increase in juvenile
crime, and the increase in the number
of girls and women jailed. His report
supports his citations.

Male arrests declined 29.3 percent
and female arrests increased 18.4 per-

‘cent in the first six months of 1943.
For male arrests the predominating age
-was 18, followed by 17; for females it
was 19, with 18 second.

Hammering again at the spread of

- crime among young people, the FBI re-
port says, “The increase in delinquency
on the part of girls under 21 years of
age and boys under 18 years of age
again shows the urgent need for efforts
toward greater effectiveness in the
planning and operation of community-
wide crime prevention programs. This
is a problem which no community can
neglect without suffering the conse-
quences in terms of degraded youth and
rising crime costs.” __

EIS. Fo

smasn- The uncle and nephew had ap- got in sight » He insisted he h ‘ i
é \ > : ad been hour’s session he became hopelessly
. 1 — him three times, seeking his threatened with death by the Olivers confused in his answers, and then ad-
takably : $1 jaa “y > staging an auto accident; if he ever told about Delia’s being in mitted his guilt—and his uncle’s.
; rtion : “adh ~ : ‘ the third visit he had the car when they hoisted it into the “Claude got this idea last summer,
is self- — apap e have of $25—to be a deep ravine. And, he added, Claude how to make a lot of easy money in
‘ ess to the phony crash, ‘provided never had paid him the $25. insurance,” he confessed. “I didn’t like
nat was that no one was hurt. They told him . it at first, but he said we’d never be
la mar- Mey seraly wanted to collect insurance Nephew Cracks caught.

— he Pgs wiecked Sara rear si “He flipped a coin to see whether he’d
sad the y ey ; opped on the bridge,” he Within the hour both Claude, 28, and marry Delia, and kill her, or if I would.
st sum- said. : ore I knew what was hap- George Oliver, 16, were lodged in the I said, ‘If it’s heads, I’ll kill Delia,’ but

; pee they just up and shoved the Sulphur jail. However, as word of their it came up tails, so he was stuck.

know, te) — right off’n the bridge. arrest spread there were ugly murmurs “Well, they got married. We all
wndering £ i e said, they had buried some of mob action and a necktie party after worked hard at picking cotton to get
ompany artic my up the road a few yards. That darkness had fallen. Cautious Sheriff enough money to take out the in-
without was e first he had known the true,. Johnson quickly spirited his prisoners surance. Delia worked harder than
to the me pets purpose of the planned “ac- to the Carter County jail in Ardmore, either of us, and gave Claude every
ym Davis. ci he declared. a 35 miles away. penny she made. He treated her awful
mitted to ; 5 Po lying again,” Johnson Although faced with Bob Adler’s good. Wouldn’t even let her go out in
qa suitor ver . “Delia was killed right there, confession, the Olivers denied any guilt the rain. He said he didn’t want her

oved her ; a pany pushed the machine into in Delia’s death. Because he was the dyin’ afore she was worth it.”
iver. ully. : younger, and. seemed usually to follow George said they’d originally pl d
he said. Adler finally admitted he had heard the lead in every undertaking set by to phate the iene in the “Arbuckle
they got a — s scream “up the road a piece, his uncle, George was chosen as the Mountains, where the roads were really
je no ue around the bend, just before the car suspect to be questioned first. After an dangerous, but later chose the gully

. hitched, ee

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near Davis, because it would be more
plausible to have Adler stationed there

‘as a witness.

“Claude told me to climb out and see
if a tire wasn’t low,” the boy resumed
his story. “They got out, too, and he
hit her with the tire iron. I hit her with
the rock, because she kept yelling. Then
we put her in the car, and shoved it
over into the gully.”

Upon hearing of George’s confession,
Claude Oliver tried to lay all the blame
on his nephew, insisting he’d not taken
part in the killing, but had merely
agreed to try to cover it up with the
accident story.

However, the investigators learned

earlier, mysteriously, and he himself
had once thrust an icepick in his eye to
collect insurance. Obviously he had
engineered the murder plot.

The nephew did change his story
later, to say he had struck Delia first.
He exonerated Adler from complicity.

The pair went on trial before Judge

ber 12, 1932. During the hearing Claude
changed his plea to one of guilty. Judge
Long had the uncle and nephew
brought before him on December 18
for sentence.

No mercy was shown them. Judge
Long doomed both killers to death in
the electric chair. Efforts were made
to gain a commutation for George, be-
cause of his age, but Governor William
H. “Alfalfa Bill” Murray refused to
intervene.

Early in the morning of August 23,
1933, the guards padded down death
row, and stopped at Claude Oliver’s
cell. Scarcely able to walk, and talking
incoherently, he disappeared beyond
the little green door. In a few minutes
the solemn-faced officials were back
for George. With his head high, and
-with a firm step, he marched from life
into the eternity into which he had
sent pretty Delia Ringer Oliver.

Eprror’s Nore: To spare possible em-
barrassment to innocent persons, the
names Bob Adler and Dell Pharos, used
in this story, are not real but fictitious.

that his first wife had died five years-

W. G. Long in Circuit court on Decem- -

EMPIRE

(Continued from page 30)

that His Excellency Don James was
really the victim of a new persecution
and nothing more.

And then in rapid-fire order, lke
rifles shooting down a canyon at him,
the federal attorneys began to snipe
at Don James. For a time every accu-
sation they made brought his dramatic
denial. Instantly, though, sworn wit-
nesses and documented proof would
be set up by the federal men, incon-
trovertible evidence of an incredible
fraud. For days the judge had trouble
keeping quiet in the courtroom.

It was Mrs. Reavis—the lovely Dona
Sofia—who broke first. On the witness
stand she suddenly threw her hands to
her face and burst into crying.

“Oh, yes, it’s true, it’s true, it is a
forgery, all of it!” she cried out in
pitiable hysteria. “I see it all now, even
if I never did before. Everything you
have said—I understand it now.”

The court paused until she regained
her composure, then she tearfully but
quietly went on.

“T am not his wife,” the woman wept.
“I realize it now. There never was a
legal ceremony, only a lot of promises,
as you have said. He made me believe
it constituted a marriage. Our sons are
not legitimate, are they? No! He tricked
me. I was not born in Spain. I am not
Spanish, I am Indian. I remember it
now. I recall many of the details you
have mentioned from my early child-
hood. I know that what you say is
true. Everything he did in Mexico, and
in Spain—it is all a terrible lie, a shame
and sinning!”

After the inevitable court recess Don
James came back before the court.
Gone was his imperial’ posture.

The hauteur faded away. The high-
chinned magnifico, the caballero of 12,-
000,000 acres, the multimillionaire
Baron de Arizonac faded and wilted
into a sniveling frame of a man, who
himself broke done into tears and
agreed to write out his confession. The
courtroom sat in awed silence at that
moment.

In a row near the back of the audi-
torium, a quiet printer named Tom
Weedin swallowed hard; it disturbs a
good man’s emotions to have an impor-
tant hand in destiny this way.

Don James’ house of cards now -was
gone forever. And his story’ became
perhaps the most astounding revelation
in the entire history of the federal
courts.

Ne'er-do-wel! Dreams

“His masquerade is so fanciful,” said
William Tipton, one of the federal
,agents who directed the investigation,
“that nobody would ever have believed
it if we hadn’t been able to verify it
at every turn. That man literally stole
‘an empire. It is by “far the -greatest
swindle in American history. No plan
ever was more ingeniously devised,
none ever carried out with greater pa-
tience, industry and skill.”

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—

vert. It was here that Rowe’s searching
eyes noted a spot of ground slightly
different from the crust around it. He
jabbed a probing stick into it, and found
it soft, as if it had been disturbed
recently.

He began to dig in earnest, and with-
in the space of a few minutes bared
for his chief the first definite clue in
a crime which all but succeeded in
baffling detection.

In a shallow pit beside the road was
a large mass of black human_ hair,
thickly matted with blood. Delia Oliver,
the Davis police chief agreed, had had
black hair. °

Ramsey himself, shortly after that,
found other strands of black hair only
about five feet from the end of the
bridge. In a second pit, close beside
the culvert, the searchers dug up an
old auto spring which had been fash-
ioned into a sharply-pointed tire iron.
It was bloodsmeared, and strands of
dark hair clung to it.

The final piece of evidence to be
found at the scene of the crash was a
bloodstained rock which had been hid-
den in weeds a few feet off the road.

“One thing puzzles me,” Johnson
confessed, scratching his stubbly chin
as he surveyed the matted hair, the
stone and the tire iron. “Where does
Bob Adler fit into this?”

“He might have been merely a fortu-
nate coincidence for the Olivers,” Chief
Ramsey suggested. “My guess would be
that the Negro just happened to be in
the vicinity when the car came along.
Perhaps he didn’t actually see it go
over the bridge, but just naturally as-
sumed that the Olivers’ version of the
smashup was correct. They probably
didn’t have much trouble convincing
poor Bob that he really did see what
they said happened.”

“Yes,” said Johnson. “That would be
likely. He had a chance to be important
for the time being, and he grabbed it.
That’s what you had in mind, wasn’t
it? Well, then explain that splintered
board. I tell you, that machine was
sitting still, and was shoved off the
bridge. Adler might have let his imag-
ination stray a little if the auto had
just rolled over on its wheels, but he
couldn’t have kidded himself into
thinking he saw an accident if two
fellows deliberately tipped that jalopy
overboard.”

Johnson, Chief Ramsey and the in-
surance investigator drove out to the
Oliver farm. “We've still got to prove
they were the ones who handled that
tire iron and rock,” the sheriff said.

Claude and his nephew, George,
were in the barnyard polishing an auto-
mobile when the officers arrived.

“Yours?” Johnson asked.

“Yeah,” Claude replied, a trifle hesi-
tantly. “They said the old one couldn’t
be fixed. I didn’t want to see it again,
anyhow.”

“Must be good money in picking
cotton this year,” the sheriff said, “for
you to afford a new bus ‘tight away
after busting’ up the old one.”

“Insurance,” said Claude.

_ “That's what we came out’ to talk
about,” the county official said pointed-

4 ly. “This here’s an investigator from the

company you took that big policy on
Delia from.” ea

The elder Oliver’s eyes widened per-
ceptibly, as though panic had suddenly
run amok in his brain.

“Yeah?” he said huskily after a short

pause. “What’s wrong? Ain’t you going *

to pay off, mister? You were willing
enough to take my dough when I paid
the premium... .”.

“A third of the premium,” the in-
vestigator corrected. “A pretty good
investment, wasn’t it?”

“What are you hinting at?” de-
manded the farmhand sharply.

“Nothing,” said Johnson. “He just
wants to hear your story of the accident
again. After all,.if it was an accident,
his company stands to fork over $10,000:
That’s a lot of money.”

Claude Oliver repeated his story al-
most word for word as he had told it
to Sheriff Johnson the evening of
Delia’s death. Meanwhile Chief Ramsey
had purposely maneuvered George gut

_ PRODUCE SHARE

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4 CONSERVE PLAY SQUARE

‘ , u

oan ee Nai ia

of earshot, so that if Claude invented
any new twists to the story the nephew
would not be able to hear them.

Names Disappointed Suitor

The husband related how he, his
bride and his nephew were approaching
the bridge at a high rate of speed when
the steering ‘gear suddenly failed to
function. He and.George jumped, but
Delia didn’t get out in time. As far
as he knew, he said, that’s all there
was to it. ’

Johnson and the insurance man then
heard George’s version of the mishap.
It was:an ‘almost miechanical echo of
his uncle’s narrative. The two recitals
sounded like they had been carefully
rehearsed.

“Claude, tell me something,” John-
son requested after. the nephew had
finished. “Is there anyone who might
have wanted Delia, and you and George
out of the way? Think hard. Do you
know anybody who might have, let’s
say, fixed that steering knuckle so it
would bust?”

“You mean somebody tinkered with
the car?” the husband exclaimed, al-
most eagerly.

“I might as well tell you, that smasn-
up was no accident.”

Both young men were unmistakably
astounded at the sheriff's assertion.
Claude was the first to recover his self-
control.

“I eould mention somebody that was
mighty all-fired sour when Delia mar-
ried me, if that would help any,” he
said. “Dell Pharos thought he had the
inside track with her, up till last sum-
mer.”

“That's what I wanted to know,”
Johnson nodded. He led the wondering
police chief and the insurance company
representative back to their car without
another word, and drove on to the
Pharos farm, some 15 miles from Davis.

Young Pharos frankly admitted to
the sheriff that he had been a suitor
of Delia Ringer. He said he loved her
even after she wed Claude Oliver.

“T never could figure it out,” he said.
“He never liked Delia before they got
married. And she didn’t have no use
for him, either. But they got hitched,
anyhow.”

“You handy with a car, Dell?”

“TJ wisht I was, sheriff. But, heck, I
wouldn’t know a crankcase from a
suitcase.”

The next stop on Sheriff Johnson’s
circuitous route of investigation was at
Bob Adler’s two-room shack. The
Negro was nervous at being visited by
the officers, and frankly ‘frightened
when Johnson told him he’d have to go
back to Sulphur with them.

“J ain’t done nothin’,” the man pro-

tested, almost whimpering. “Wha’fo’ ~

you want me?”

“Take it easy, Bob,” the sheriff coun-
seled, “You’ve got { tell about the
Olivers’ wreck again for the insurance
man.”

The officers maintained silence until
they were closeted in the sheriff’s of-
fice. The quaking Negro began his tale,
sticking to the story he had told at first.
As he described the crazy antics of the
machine when the steering knuckle
seemed to break, Johnson interrupted
him.

“Now start telling the truth, Adler!”

- he snapped.

“T’se speakin’ the tuth, an’ nothin’
but,” the witness protested.

He bore up for half an hour under
rapid fire questioning from the sheriff
and Chief Ramsey. At last Johnson held
up his hand. ;

‘Ym going to give you one more
chance,” he declared with an edge of
finality in his tone. “If you don’t take
it—well, you can guess what might
happen if you are charged with mur-
der.”” Adler was sweating. His eyes
rolled in his head. The sheriff turned to
a back door. “Rowe,” he called. “Bring
in that tire iron and rock.”

The deputy laid the bloody weapons
and the matted: cluster of hair on the
desk. Bob ‘Adler’s terrified stare fixed
upon the telltale articles, and then he
broke down.

“They done it!” he sobbed. “The
Oliver boys kilt her. But I didn’t have
no part in it, no suh.”

. Johnson quickly became kindly, al-
most fatherly, in eliciting the whole
story from the Negro.

mor

All

You m
Accide:
is issue

KISS THE BRIDE GOODBYE

(Continued from page A9)

3rd, as the day to carry out their plans,
and noon as the time, because a road sfangs
was putting gravel on the road and al-
though the men would be away eating
their lunches when the faked accident
took place they’d return shortly after-
ward and make yood witnesses to the
turned over car.

George and Claude Oliver were con-
vinced they had the perfect murder
planned.

Shortly after noon that Thursday Mar-
shal J. D. Ramsey of Davis was standing
outside his office on Main Street when a
car containing Wilbur McLaren and Burt
Mason, foremen of a nearby highway pro-
ject, came up.

“There’s been a bad auto accident out
on Price’s Falls Road,” McLaren told
Ramsey. “A car went off the bridge
about three and a half miles south of
here. There were two men and a girl in it.
We think the girl is in serious condition.
Better get out there.”

Marshal Ramsey jumped into his car and
drove to the spot. When he got there he
found George Oliver bending over the
prone figure of a irk Her head was cov-
ered with blood and so was the old blanket
she rested on. ‘The town officer recognized
her as Della Riny Oliver, Claude’s bride
of only a few months.

The husband was holding the girl’s head
in his lap and crying.

“Della complained of a headache this
morning,” George told the marshal. “We
thought a ride would make her feel better.
I was driving, and as the car came to the
bridge L lost control somehow, It hurtled
down the hill, missed the right edge of the
bridge and plunged to the creek bottom.”

Claude looked up and said, “We've tele-
phoned Wynnewood for our doctor to
come.”

Marshal Ramsey had been examining the
girl. “The doctor won’t be able to help,”
he said. “Your wife is dead.”

He gave Claude Oliver a comforting pat
on the shoulder and then walked over to
the wooden bridge that was about 15 feet
long and 10 feet wide and looked down
at the Model-'l Ford readster that was
upside down in the shallow creek bottom.
The bridge had no railing.

Marshal Ramsey shook his head sadly

and walked back to where the Oliver boys
were,

“Della was sitting on the right side,”
George told him. “When the car went out
of control it missed the right edge and
went over. It hit on its right side and
Claude’s weight and mine must have added
to the impact when Della was dashed
against the rocky creek bottom. We didn’t
scem to be hurt, but we knew she was.
We lifted her out of the car and took a
blanket out of the back and spread it on
the ground for her. Then I ran all the
way to Gus Doesher’s place and _ tele-
phoned the doctor.”

The town marshal was well aware that
auto accidents were probably more numer-
ous in Murray County than in the average
of its size and population. Highway 77
passes through the county on a direct route
from the point to points in Texas and Cali-
fornia, Tourist travel is also heavy be-
cause Platt National Park, Price’s Falls and
the Cedarville Mountain resorts are in the
county. This, coupled with the natural
dangers of driving the curving, treacherous
roads of the Arbuckle Mountains, increased
the number of fatal accidents,

When the doctor arrived and examined
the wirl he stated that her death was duce
to a fractured skull, received in the auto-
mobile accident. Her body was removed to
Wynnewood and she was buried there
three days later.

All of the people in Murray County who
knew Claude Oliver and his pretty bride
shared the widower’s sorrow, for the Oli-
vers were a well-known family of cotton
farmers, who had lived in the community
for many years.

The town marshal, of course, had made
out an official report. The doctor had said
Della Oliver died of a fractured skull as
a result of the automobile accident. The
coroner agreed.

Everything looked as though it had gone
just the way the Oliver boys had planned
it. An insurance investigator representing
the company that held the $390 policy
came and he approved the payment of the
insurance.

Several days later an investigator from

the company holding the $5,000 policy went

through the same routine.
It was at that point that Town Marshal

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Ramsey began to have doubts about the
accidental death of Della Oliver. $390 in-
surance isn’t too much for a man like
Claude Oliver to carry on his wife’s life—
hut $5,000 is something else ayain. He
didn't want to accuse anyone unjustly, but
he felt it his official duty to look further
into the case. He contacted Undersheriff
J. HW. Samples at the Murray County
Courthouse on Friday, November 11th, and
asked him to come to Davis. All he said
was that it was about the Della Oliver
accident case.

Undersheriff Samples summoned Deputy
Earl Rowe and asked him to ride over to
Davis with him. “It’s something about the
Della Oliver case,” he told Rowe. “Ram-
sey first asked for Sheriff Johnson, but
Bose isn’t heré so he talked with me.”

Deputy Rowe said he’d go along, but
he wondered what could be on Marshal
Ramsey’s mind. “What’s there to investi-
gate at this late date?” he asked. “Every-
body agreed that the death was an acci-
dent.”

Samples said he couldn’t answer that.
“All I know is what Ramsey told me over
the telephone,” he said. “Something must
have come up that has made Ramsey ques-
tion what happened. He wants us to help
him answer those questions.”

The two officers covered the nine miles
of highway that connect Sulphur, the
county seat, with Davis in short order and
found the marshal waiting, for them in his
office,

After Ramsey had explained what had
happened to the two sheriff's oflicers, Rowe

said, “A $5,000 insurance policy doesn't.

make a criminal. What else makes you
think this wasn’t an accidental death?”

“Nothing,” the marshal admitted. “I
just know that $5,000 is a lot of insurance
for a man like Claude Oliver to be carry-
injt on his wife’s life; and T think it would
he a good idea for us to look the situation
over again.

The three men drove out to the wooden
bridge. More than a week had passed and,
of course, the car had been removed from
the river bottom and taken away. They
pulled up a little short of the bridge,
parked their car and got out to look
around.

“Let's try to re-construct exactly how
it all happened,” Samples said. “The car
approached the bridge from west to east.
It went out of control, its right wheels
missed the bridge, and it) turned over
down there.”

Marshal Ramsey said that’s the way
George Oliver had explained the accident.

Deputy Rowe knelt down and examined
the edge of the bridge. The highway de-
partment had put on some new boards
to supplant the worn ones, shortly before
the accident.

“The right side of the bridye shows no
signs of being rubbed or even scratched,”
he said. “When a car hits the edge of a
bridge and goes off, doesn’t it leave a
scarred edge or scratches from the under-
carriage or splotches of oil from the crank-
ease?”

“Pin positive it does,” Sample: answered,
“And I don’t believe that car went off the
bridge the way they said it did. It would
have left some damage behind if, it had
run off the bridge out of control, f think
it must have been pushed olf.”

Since all three men agreed on that point
they decided to examine the road ap-
proaching, the bridge for evidence.

Undersheriff Samples was the first to
come up with something. He called Rowe
and Ramsey and pointed to dark stains in
the sandy road. “That could be blood,”
he said.

Rowe knelt down and studied the dis-
coloration. He said he thought so, too,
and that if it turned out to be Della Oli-

ver'n blood it
“This spot ts a!
the bridge,” he
dark stained dir’
putting it into hi
couldn't have
thing happened
I think the she:
he concluded.

“And the cou
added.

The three of:
Bose Johnson's
County Attorn:
viewed the acc:
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about the insu
Johnson and F:
of earth they 4
30 or 40 feet

“We don’t be
the truth abot
Samples said.
of the bridge
signs of the c.

“And if this '
uty Rowe add
dirt, “we'll }
lying.”

County Atto
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George Olive:
curate story 0
was confused
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be used befor

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U L. V Su ear ide & George ur o - ‘5
LiVin, Glaude & George, whs, elec. OK3P (Murray), 8/25/1933

B* EARLY AUGUST the Criminal Court of Appeals
of the State of Oklahoma had reviewed the case
against George and Claude Oliver and rendered its
decision. ,

Thomas A. Edwards, presiding judge, said: “The facts
here disclosed show a heartless murder, coldly planned
and deliberately and cruelly executed. The motive was
the procuring of money for the life of a victim. The age
of one defendant, George Oliver, 18, appeals to this court,
as it no doubt did to the trial court, but under the ad-
mitted facts, if this crime is not deserving of the death
penalty, then, indeed, few crimes justify it.”

The death sentence was affirmed; and the date of exe-
cution set for August 25th.

When the sultry night of August 24th arrived, more

than 100 state officials, newspapermen, police officers and

other interested parties assembled at the gate of the
Oklahoma State Penitentiary and presented passes issued
by Warden Sam E. Brown. They had come to witness
the execution of Claude and George Oliver.

After the condemned men’s last requests had been
granted a minister entered their cell. The witnesses filed
into the death chamber and took their places in silence.

The prison clock struck midnight.

Convicts in other parts of the penitentiary lay in their
iron-barred cells awaiting the “grapevine” word that two
more men had been put to death.

George Oliver, the youngest man who had ever faced
death in the Oklahoma electric chair, was led down the
narrow corridor from Death Row at exactly five minutes
after 12 on the morning of the 25th. The electrodes were
quickly attached and prison officials stepped back. A man
standing behind a small screen pulled a huge switch.
Minutes later, Dr. J. A. Munn, prison physician, pro-
nounced George Oliver dead.

Claude Oliver followed 10 minutes later. The same min-
ister walked with him down the corridor. The same
attendants strapped him into the chair. Quickly, death
came to another man.

That was the end of it. The beginning was much less
dramatic. It was witnessed by no one. The principals
were two ordinary Oklahoma farmers, who, as far as
anyone knew, had never before been in trouble with the
law. One was 28-year-old Claude Oliver. The other was
his nephew, George, 18. They were talking about

ge.

“I know how we can get married and get some money,
too,” Claude said.

George wanted to know how.

“All one of us has got to do is marry some girl, take
out life insurance on her and then kill her,” Claude said.

George didn’t think it was that simple. ““Wouldn’t we
get in trouble?” he asked.

“Not if we do it right. We’d make the death look like
an accident. Nobody could tell the difference.”

That conversation took place while the Olivers were
picking cotton in August of the preceding year. George
thought Claude had a pretty good idea and went along
with him on it. They started looking around for a girl

JI @

for one of them to marry. Sixteen-year-old Della Ring
seemed just about right for their cold-blooded plans. But
George didn’t want to get married.

“Neither do I,” Claude told him, “but one of us has
got to do it.”

After a long argument, Claude said he’d marry Della if
George would do the killing. “I wouldn’t want to murder
my own wife,” he told his nephew.

There was a short courtship and then Claude Oliver
married Della Ring. Shortly after that the groom took
out two insurance policies on his bride’s life. One was
for $390. The other was for $5000. They were taken out

The Olivers decided that it would be wise to let several
months pass before they carried out their murder plans.

an auto accident at a rickety bridge on Price’s Falls Road
just outside the little town of Davis. —
They chose Thursday, November (Continued on page 60)

ine

yy, “.
ft! itiies

! Hh

George Oliver told investigators the car he was driving went

out of control and missed the right side of the wooden bridge

MASTER. De VECTIIVE

Tha J/7TSS

:
in

Cotton farmer
in mind when

Claud
he

e Oliver (above
16-

asked pretty 40-7’

) had something more th
ear-old

Della Ring ('-

an romance

) to become

and love
his bride

AERTS atta.

about the

$390 in-
man like
ife’s life—
again, He
justly, but
ok further
idersheriff
y County
1 dith, and
stl he said
tla Oliver

wed Deputy
de over to
» about the
ve. “Ram-
fnson, but
ith me.”

along, but
11 Marshal
to investi-
d. “Every-
is an acci-

iswer that.
id me over
thing must
msey ques-
us to help

nine miles
iphur, the
t order and
them in his

| what had
licers, Rowe
licy doesn’t.
makes you
| death?”

linitted, “T
fopMranee
o be earry=
nk it would
he situation

the wooden
passed and,
snoved from
| way. They
the bridge,
cut to look

xactly how

“The car
est to east.
ight wheels
urned over

’s the way
the accident.
id examined
nighway de-
new boards
,ortly before

ge shows no
n seratched,”
re edge of a

it leave a
n the under-
m the crank-

les answered.
went off the
iid. It would
nd if it had
trol. T think
iff
on that point
he road ap-
denee,
the first to
- called Rowe
dark stains in
ld be blood,”

died the dis-
sught so, too,
be Della Oli-

ver’s blood it would be very significant.
“This spot is at least 30 or 40 feet from
the bridge,” he said, scooping, some of the
dark stained dirt into his handkerchief and
putting it into his pocket. “The girl’s blood
couldn't bave been spilled here if this
thing happened as George Oliver claimed.
I think the sheriff should know about it,”
he concluded.

“And the county attorney, too,” Ramsey
added,

The three ollicers first went to Sherill
Bose Johnson's office and from there to
County Attorney I. W. Fagan. They re-
viewed the accident as George and Claude
Oliver had said it happened and then told
about the insurance policies and showed
Johnson and Fagan the discolored particles
of earth they'd found in the road at least
30 or 40 fect west of the bridge.

“We don’t believe the Olivers are telling
the truth about this thing,” Undersheriff
Samples said. “If they were the right side
of the bridge would have shown some
signs of the car’s having gone over it.”

“And if this turns out to be blood,” Dep-
uty Rowe added, pointing to the stained
dirt, “we'll be pretty sure somebody’s
lying.” >

County Attorney Fagan warned the offi-
cers about acting too hastily.’ “It’s possible
George Oliver didn’t give a completely ac-
curate story of what happened because he
was confused,” Fagan. said. “Automobile
accidents happen so swiftly that few pco-
ple are able to remember the exact facts.
A ear oes out of control. The driver trics
to avoid an accident. He’s thinking about
how to save himself and the lives of the
others in the car. Afterwards, he’s likely
to get mixed up when he tries to remem-
ber just what took place.”

He added that the life insurance policies
could not be taken lepally oan criminal
intent and that extreme caution should
be used before any charges were brought.

Sheriff Johnson thought it would be best
to question the Oliver boys in a routine
manner. Then, if anything important and
damning developed from this, the arrests
could be made.

Johnson, Samples and Rowe drove out
to the scene of the accident and together
they made a thorough examination of the
little bridge. The sheriff agreed with the
two deputies on every detail and from
there they drove over to the home of
Claude’s brother, who lived a few miles
west of Davis.

A woman answered the door and in-
formed the officers that the Olivers had
gone to town and would not be back until
late that evening. They thanked her and
started to leave.

It was Deputy Rowe who spotted a
Model-T Ford in the outside yard. “That's
the wrecked car,” he told the others. “Let’s
take a look.”

The top of the roadster was smashed in
and the tires stripped off. No attempt had
been made to repair the wreckage.

After looking - inside, Samples _ said,
“Take a look at those stains on the floor-
boards. They could be blood.”

Sheriff Johnson leaned closer and stud-
ied the discoloration. “They are blood,” he
told the others. “I’m sure of it. The Oli-
vers certainly haven’t tried to destroy any
evidence.”

Deputy Rowe was puzzled, “That car
was supposed to have been turned upside
down when it went over the side of that
bridge and Della Oliver died from head
wounds,” he said, “Blood from those
wounds wouldn’t have been on the floor-
boards. They’d have been either on the
side of the car or on the top.”

“They certainly would,” Sheriff Johnson
agreed,

There was a long silence. Then the
county officer continued. “This blood on

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MORE CLASSIFIED ON PAGE 62

OLIVER,

By ALDO A. PELLIN
Special Investigator For
FRONT PAGE DETECTIVE

HERIFF BOZE JOHNSON sat in
his little office at Sulphur, Mur-
ray County seat, listening atten-

tively to a rapid-fire report which
Chief of Police D. Ramsey of Davis,
Oklahoma, was telephoning in.

“There’s been a bad accident near
here, Sheriff,” Chief Ramsey was say-
ing. “A young married woman was
killed and since it happened outside
the city you’d better come over and
investigate.”

“Tll be there shortly, Chief,” an
swered Sheriff Johnson. “Just detain
any witnesses and the like for ques-
tioning.”

Sheriff Johnson traveled the nine
miles to Davis in as many minutes.
Not that there was any great rush to
investigate this particular case, but
a hunt was on for an escaped killer
and this had kept the doughty sheriff
busy routing his deputies. Thus the
fact that a woman had met death in a
car smash-up was not the cause of the
haste.

; Arriving at Davis, Sheriff Johnson
went to the chief’s office.

“Now, what’s this all about, Ram-
sey?” demanded the sheriff.

“We'll go over and view the body
and ,I’ll explain the happening,” an
swered Chief Ramsey.

“Suspicious of some foul play?”
asked Sheriff Johnson as the two
drove to the Hutchins Funeral Home
where the body lay.

“No.” Chief Ramsey shook his head
slowly. “I just wanted you to have a
look.”

FRONT PAGE DE

George and Claude

whites, elec,

Greatly puzzled at this enigmatic.

answer the sheriff strode into the un-
dertaking parlors with Ramsey at his
heels and an attendant led the officers
to the rear of the building. He stopped
before a large platform on which lay
a figure covered with a rubber blan-
ket.

“There she is,” he said and stepped
back laconically.

Sheriff Johnson gasped as he looked
upon the pitifully smashed body of a
young woman. The face was unrecog-
nizable; none of the features were left
intact. The body, down to the waist,
was still covered with gore and the
sheriff shook his head as he tuemes
back to Chief Ramsey.

“Who is she?” he demanded.

“Delia Oliver,” answered Ramsey.
“Her husband is outside in the wait-
ing room.”

“‘Tll get his report and then go
back,” muttered Sheriff Johnson. The
sight of the woman, hardly more than
a girl, had shaken him. He had known
the family for quite some time.

Outside, in a small ante-room sat
two young men, They stared at the
sheriff as he came in. He noticed
quickly that their faces were haggard
and lined with pain. Claude Oliver,
the woman’s husband, got to his Suet

unsteadily.

“I’m. glad you came, Sheriff,” he

' said. “Chief Ramsey said you would

want a report on just how it hap-
pened. This,” he pointed to his com-
panion, “is George Oliver, my neph-
ew.”

Sheriff Johnson acknowledged the
introduction and then pointed to somé
chairs.

“Take it easy, Claude,” he said. “Sit
down and tell me all about it.”

The husband then told the sheriff
that he had been driving to Davis
accompanied by his wife and nephew
and that the machine, an old model
Ford touring, had gone out of control,

TRHCTIVE, June, 19)0.

Okla,

(Murray) 8=25-1 ‘

plunged down into a deep gully. from
a bridge and turned over. The two
men had leaped to safety but the hap-
less wife, who was sitting between the
men, had become tangled with the car.
Immediately after the accident the
pair were taken into Davis by a col-
ored man, Blair Atkins, who lived in
the vicinity of the scene. Since Claude
Oliver was so badly shaken by this
time that he could not continue, Sher-
ff Johnson asked Atkins for his story.

“I was standing about two hundred
feet from the bridge when it hap-
pened, Sheriff,” answered Atkins. “I

saw the car coming down the road -

pretty fast and stepped to the side
of the road. And then, just as the car
came to the bridge something went
wrong. The front .wheels wobbled
crazy-like and then these two men
jumped out. I come a-running and
heard the woman screaming but by
the time we got to her it was too
late. 99

“What do you think caused the car
to’ go off the bridge?” asked. the
shériff.

“Don’t know correctly, Sheriff,” an-
swered Atkins, “but it appeared to
me like the steering apparatus busted
or something.”

Sheriff Johnson thanked the man
and returned to re-question Claude
and George Oliver who were some-
what more composed by this time.

The sheriff learned that they had
assisted Chief Ramsey and the under-
taker to recover the body. Their cheap
denim trousers and blue work shirts
were stained with mud and in some
spots, blood. Sheriff Johnson pointed
to a crimson spot on the husband’s
clothing.

“How did that get there?” he asked.

“When we got Delia’s body out of
the car—I took her in my arms,” sob-
bed Oliver. “I—I guess that’s how it
happened.”

The undertaker and Chief Ramsey

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Betrayed Bride

[Continued from page 9]

my file, the spring leaf does not belong to
me, and I don’t know: Mr. Oliver.”
Confronted by the chicken farmer who
positively identified him as the man who
got out of the blue car and stared down
at the spot where the file was found,
Alster grudgingly admitted being on the
Price’s Falls road the morning of Nov. 3.
“Jeff and I went out to his house to see
about a hog. But I don’t remember stop-
ping. Maybe I had tire trouble. I can’t
remember.” : ;
Henton had-even less than that to say.
Sheriff Johnson, usually good at getting
balky prisoners to talk, gave up. ‘
“That boy is too scared to talk now,
and Alster’s too stubborn,” he snorted.
“Lock them up. They'll charige their tune.”
An ominously muttering, crowd had
begun to gather around the jail as Sam-
ples and Rowe set out to check on the
stories of Alster and Henton.. Word of

their arrest in connection with the death .

of Della Ring Oliver had leaked out.

“We'd better be right,” Rowe said,

soberly. “Those people mean business.”

An hour’s questioning of acquaintances
of Alster and Henton produced one sig-
nificant fact: Alster was lying when
he said he did not know Claude Oliver.
Karly in September Alster had driven
Claude Oliver to Ardmore in the old Jor-
dan. The object of the trip was unknown.

A quick trip to see the young farmer
confirmed this fact. “Yes, I went ‘to Ard-
more one day with Dave,” Claude Oliver
stated. “He was working for me at the
time and he took me down there to get

‘some parts for a seed-driller. My Ford

wasn’t running, so we went in his car.”

“Ever have any trouble with him?”
Rowe asked. :

Claude shook his head.’ “Not a bit. He
hasn’t worked for me in a month or so,
but we’ve had no trouble.”

“Did Dave work. for you at all after you
were married?” asked Samples.

“Yes, once or twice.” Oliver’s face
darkened., “Say, what are you getting
at? Do you think he—”

“We're just checking up,” Samples par-
ried. He steered the conversation -to
Bennett and Thorpe, but Claude knew
nothing abot. them except that they had
helped around with the fall planting.

The officers drove back to the court-
house in Sulphur. :

Sheriff Johnson met them at the door.
“Bennett’s been asking to see someone,”
he said. “Let’s go see what he wants.”

The stocky suspect was excitedly pac-
ing his cell. “I’ve got it,” he cried. “That
woman’s name. It’s Mangrill, not Gran-
ville. Calfther up, quick.”

A second call to Ringling disclosed. that
there was a family. living there named
Mangrill, After some delay Sheriff John-
son got the woman on the line. She
quickly verified the story of the two. sus-

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pects, stating that she had picked them up
in Davis about 9:30 a. m., on Nov. 3.

“That clears them,” the sheriff said
with an air of finality. “Della was still
alive at 9:30.”

Bennett and Thorpe were released, but
Samples, who had been silent since re-
turning from the Oliver farm, seemed un-
disturbed. He called Rowe aside.

“I've got a lead I want to run down,”
the undersheriff said. ‘While I’m gone,
see’what you can do with Alster and Hen-
ton. I’m convinced: they know the truth
if you can get them to tellit. I'll be back.”

That afternoon the undersheriff drove-
fast and hard, covering a zig-zag course
that took him to Ardmore, the farm of
one of Oliver’s relatives, to Pauls Valley
and back to Sulphur where he arrived at
dusk, The crowd in front of the jail, mean-
while, had been dispersed by a few reas-
suring words from Sheriff Johnson.

Samples- barged into the county at-
torney’s office just as Fagan was closing
his desk. Ten minutes later, the under-
sheriff crossed the lobby to the sheriff's.
office, a square of white paper in his hand.
Rowe was seated at the desk.

“Those boys still won’t talk,” the deputy
said disgustedly. “Henton is so scared
he’s tongue-tied.”

“Never mind,’ Samples said tersely.
“We're going out and pick up Claude and
George Oliver.” He waved the paper.
“I’ve got a warrant for their arrest.”

Rowe stared in amazement. “George
Oliver? I’m not so surprised about
Claude; but why the nephew?”

Samples grinned. “I want to ask George
one question. After that, I’ll be sure.”

A kerosene lamp cast flickering shadows

over the living room of the Oliver farm-

house as Rowe and Samples entered.
Claude eyed them dully, his face pale and
sorrowful in the half-light. George sat
back in his chair, his eyes hard and bright.
Members of the family hovered in the
background.

“George,” said Samples without pre-
liminary, “who were the men who came
by and told you and Claude about Della?”

The boy glanced at his uncle a moment.

“I don’t know,” he answered. “They
must have been tourists. I’d never seen
’em before.”

Samples nodded as if satisfied. “I think
you and Claude better come into Sulphur
with us.” Et

“Why?” Claude demanded. “What’s

:”

“You'll find out when we get there,”
Samples said quietly. “Let’s go.”

Half an hour later Claude and George
Oliver were locked up in separate cells.

Samples entered the tank on the other
side of the jail, followed by Rowe. Jeff
Henton was asleep but a hand on his
—— brought him stumbling to his

eet.

“Jeff,” Samples said firmly, “did you
hear that crowd in front of the jail this
afternoon?”

Henton nodded, fearfully.

“They'll be back tomorrow,” the under-
sheriff warned. “You'd better tell us the
truth. Claude and George Oliver are in
jail now, so you can talk.”

Henton hesitated. Then, slowly, an ex-
pression of relief came over his face. “I'll

talk,” he said eagerly. “Now that the-

Olivers are locked up I’m not afraid.”

—————————————————

Accord
of the me:
the chick
half a mv

“Who
manded.

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Claude a
turned th
up by t!
Pretty so:
stopped i
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got out a:
Oliver,”
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get out
looking c

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they put
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to my h
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overhear
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he insist
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me $25 t:
so they c
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all right.
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says he
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drove-
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According to Henton, on the morning
of the murder he and Alster drove past
the chicken farm and met the Oliver car
half a mile west of thé culvert.

“Who was in the car?” Samples de-
manded.

“Claude, George and Mrs. Oliver.”

“Just as I thought. Go on.”

“Alster got out and whispered with
Claude a while,” Henton said. “Then he
turned the car around and we went back
up by the chicken farm and _ stopped.
Pretty soon the Oliver car came along and
stopped in the road on the other side of
the creek. The two men and the woman
got out and the men started beating Mrs.
Oliver,” Henton mopped his brow. “I
got scared and yelled to Alster for us to
get out of there. But he stood there,
looking down into the hollow.”

“Which one hit Della?” Rowe asked
tensely.

“Both of ’em,” Henton declared. “Then
they put her back in the seat, pushed
the car down onto the bridge and tipped
it over sideways.” He looked at the of-
ficers appealingly. “I didn't have any-
thing to do with it. Honest I didn’t.
When they pushed the Ford over, we
tore out of there and went back to Sul-
phur. Alster told me to keep my mouth
shut. That night Claude and George came
to my house and said that if I told on
them they would kill me.”

In an adjoining cell Dave Alster had
overheard every word. No longer defiant,
he corroborated Henton’s story in every
detail.

“Jeff didn’t know what was going on,”
he insisted. “I told him we were going
out to look at a hog of his.” Alster shook
his head dolefully. “The Olivers offered
me $25 to witness an automobile accident
so they could collect some insurance. But
they didn’t say anything about murder.”

“Insurance,” Rowe exclaimed, “Did
you hear that, J. H.?” P

Vhe undersheriff grinned. “I heard it
all right. You call Mr. Fagan and Sheriff
Johnson.: I believe we can sew this case
up within the hour.”

i WAS then 7:00 p.m. A few minutes
later George Oliver was brought into
the county attorney’s office. Confronted
by the grim faces of Fagan, Sheriff John-
son, Rowe and Samples, the boy sank into
a chair and tried to manage a grin.

Samples ignored the youth and ‘ad-
dressed Fagan as if he were closing a con-
versation. “Claude and George, here, were
in the car with Della. They weren’t
working as they claimed. When Claude
went to Ardmore with. Alster, it wasn’t
to get parts for a seed-driller but to buy
insurance. Not insurance on the car,
either; but on Della’s life!

“I discovered that he couldn’t get it
there, so he took out two policies with

an agent in Pauls Valley. The other half -

of the bloody spring leaf, which Claude
says he never saw before, is under the
seat of the Oliver car where both pieces
were kept as tire tools.” He spun on the
quaking George. “That’s all true, isn’t
it?”

Livid with fear, the youth clutched at
his throat as if he were strangling. “Yes,”
he gasped. “Yes, it’s true. But I had to
si it, It came up heads, so I had to kill

er!

Fagan leaned forward. “What do you
mean?” :

“We flipped a coin to sée who'd kill
her. The other one had to marry her!”

As the officers stared at each other in
amazement, George burst suddenly into

tears. The boy was taken back to his
cell to compose himself. As he entered
the cell-block, he sobbed. “I’ve told ’em,
Uncle Claude. I’ve told ’em.”

Claude was nonchalantly chewing gum
as he was led into Fagan’s office. He
seated himself and looked at the officers.

“Well, I might as well get it off my
chest,” he said coolly. “It all began last
summer when George and I were looking
for a way to make some easy money.
hit on the idea of marrying some girl,
taking out insurance on her, then killing
her.”

He grinned crookedly. “We didn’t even
know then what girl we were going to
use. Anyway, we flipped a coin—I guess
George has told you about that—and
along in August I picked out Della Ring
and married her.” . -

They had first selected Horseshoe

‘Curve in the near-by Arbuckle mountains

as the site for the killing, he said, but be-

cause of heavy traffic abandoned that ,

point in favor of the lonely spot to which
they had taken his bride of a few weeks.

“T let on like we had a flat tire. We all
got out so I could get the tools from under
the seat. When Della wasn’t looking I
handed George the old file and gave him
a wink. He swung on her but not hard
enough. She screamed and ran to me and
I let her have it with the tire tool.”

A mad gleam flickered momentarily in
the killer’s eyes. “She fell like a rag doll.
She wasn’t dead, though, and I finished

her off with a rock after we tipped the

car into the creek. Then I cleaned up the

blood in the road as well as I cquld. We

hid in some trees up the hill until there
were a lot of people around and cars
parked along the road. Then we ran up
as if we had just come in a car.”
Appalled at the callous nature of the
love trap into which the young bride had
been lured and later betrayed, County
Attorney Fagan filed: murder charges
against them before leaving his office

' that night.

Next morning, Nov. 14, 1932, both
Claude and George signed detailed con-
fessions in which they stated that no
other persons were in any way involved.
On Dee. 10, District Judge W. G. Long
sentenced the Olivers to die in the elec-
tric chair on March 10, 1933. An appeal
postponed their execution.

On May 8, 1933, Dave Atster went on
trial charged as an accessory in the mur-
der. Alster, while frankly admitting that
he was hired to witness a purported ac-
cident, convinced the jury that he had no
part in the murder plot. As a result, he
was acquitted. No charges were filed
against Jeff Henton.

In subsequent civil actions the policies
issued to Claude and Della were voided
on the grounds that they. were procured
with criminal intent to defraud. The
murderous plot thus failed completely.

The Olivers’ death sentence was af-
firmed on Aug. 3, and the date of execu-
tion set for Aug. 25. On that date, exactly
a year and a day after Claude’s marriage
to innocent, unsuspecting Della Ring,
both men walked to their death.

The youngest man to die in McAlester
penitentiary’s electric chair, 18-year-old
George was pronounced dead at 12:05
a.m. Exactly seven. minutes later, at
12:12 a. m., the nerveless inhuman Claude
was dead. The law had taken its inevita-
ble toll for the betrayal of pretty Della
Ring. ;

(Editor’s note: The names Tce Bennett, Everett
Thorpe, Jeff Henton and Dave Alster as used in this
story are fictitious to protect the identity of innocent
persons.)

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—

nodded to this statement and then
the sheriff queried the man on the
accident.

“I don’t know what happened,
Sheriff,” said Oliver. “The old liz-
zie was going fine and all of a sud-
den the steering wheel jerked
from my hands. We were just
starting across the bridge and I
saw that the car was heading for
the crash-rail. I yelled for my
wife and George to jump. The
next thing I knew George was
standing by me and we were lis-
tening to Delia’s screams down
in the gully.”

HERIFF JOHNSON saw quick-
ly that it would be useless to
question the man further in his
‘present state and he turned to the
nephew. But even here, George
Oliver could shed no light on the
accident. He stated that when his
uncle had screamed out the warn-
ing he had leaped over the door,
landing on the edge of the bridge.
- “I barely missed falling into
that gully myself,” he said. “That
colored man, Atkins, who brought
us to Davis said something about
the steering column being broken.
That’s all I know about it.”

Why, mused Johnson, did At-
kins place such stress upon that
steering apparatus? Why was it
that both the Olivers had repeated
the same statement?

He studied the two men for a
time and then after several more
routine questions stated that they
might return to their home.

Chief Ramsey then acquainted
Sheriff Johnson with details of the
home life of the two men. George
Oliver was working on his father’s
farm some six miles west of the
city. Claude Oliver had been stay-
ing with the Oliver family, assist-
ing them in their farm work.

The Demons of Death twice
used a coin to map the fate of
pretty Delia Ringer Oliver.

Delia Oliver was happy with her new
home and husband; but a horrible end
awaited the girl on a lonely bridge.

Blair Atkins agreed to a strange pact
with two mercenary fiends and was wit-
' ness to a queer accident. .

Louisviclé, Ky.
f-9-9| CURIE R-TOuRNA |
Appeals court calls for a simpler way

to ensure lawyers for poor defendants

By MARK R. CHELLGREN
Associated Press

FRANKFORT, Ky. — The state’s
complex system. of providing legal
counsel for indigent
prompted the Kentucky Court of
Appeals to call for a simpler system
yesterday.

State law sets out seven ways for
State and local governments to pro-
vide and pay for attorneys to repre-
sent indigent defendants.

The court used the trials a two
men facing the death. penalty’ to
point out the pitfalls of a_system
that tries to balance the will of thr
branches of government, the
will of individual attorneys and t
constitutional guarantee of a right
to effective representation

Judge Anthony Wilhoj
up the frustration. “Thi budding
problem presented by the cases be-
fore us needs prompt attention ...
lest a full-blown crisis develops in
criminal prosecution,” he said.

a en

emer mmammne Fe Oe

In one case, attorneys Theodore
H. Lavit and James H. Abell dev-

fended Michael Dean, who was
charged in Washington County with
robbery and murder. Dean was ac-

quitted in his 1988

The attorneys submitted a bill for
$8,854. The trigcourt eventually di-
rected that the two be paid $2,500
— $1,250 each, the amount set out
i stateAaw for felony cases. But
1 and Lavit argued that the case
ied as a “special-circum-

The other case
cession of attorneys
ed Clawvern Jacobs, who
victed of the 1986 kidnappin
murder of an Alice Lloyd College
student. Jacobs, who was uncoop-
erative with his attorneys, is on
Death Row.

The trial court found the $1,250

stitutionally arbitrary and ordered
the Department of Public Advocacy
to_pay some of the attorneys mare,
as much as $10,234 in one case,
After dealing with the technical
aspects of the cases, the three
judges on the panel criticized the
legislative and executive branches.
Each judge wrote his own opinion.
“We do not know how the legisla-
ture expects the state to fulfill jts
obligation to indigent defendants
with competent, effective represen-

. tation, especially in capital cases,

with the meager limits of compensa-
tion it iS authorized-topay,”” said
Judge Michael McDonald.

“It is, of course, the responsibility
of the executive branch to see that
Counsel are adequately paid,” said
Judge John Miller. “Whether the
executive branch fulfills this re-
sponsibility through the department
or extraneous means is of no con-
cern of the judiciary; the fact is, it
must be fulfilled.”

limit on attorney’s fees to 'be uncon-

-[%. Hl

know whether a lawyer
i investigation
ociation before
appear to be

af ee UCKIANS who be-
lieve they’re entitled to

out of luck. The pu
have that informatio
Kentucky Bar Associati
of governors.

The board is wrong.
need such information to
formed decisions, and
in other states. In 22 states, cdOm-
plaints are made pubjic once proh-
able cause is found/An America
Bar Association
urged Kentucky t@ make it 23, but
its advice was ignored.

Before asking a lawyer to handle
estates or truSts, citizens have a
right to know whether that lawyer
is being investigated for possible
theft. But they don’t have that as-
Surance in Kentucky. Before ask-
ing a lawyer to represent them in
court, citizens have a right to

Too confidential

the lawyer is being
for professional mis-
But not in Kentucky.
TheSe aren't hypothetical situa-

—_—=a

not enough protection to allay the
basic problem — too much goes on

ehind closed doors. The Ken-
ky Supreme Court could reject
the recommendations, but that’s
unlikely: It isn’t known for buck- |
ing the wishes of the KBA. |

What the bar seems not to real-
ize is that handling complaints of _|,
lawyer misconduct in secret hurts
its credibility more than the few
bad apples that rolled out.

—- Statt Photo by Paul B. Southerland

Bobby Battle and Clara Luper lead a vigil at Pardon
and Parole Board offices to gain a stay of execution
for Robyn Leroy Parks, scheduled to die Dec. 6.

Death Penalty Foes @

Hold Demonstration

By Don Mecoy
and Paul English
Staff Writers
About 25 death penalty
opponents pleaded for
clemency Wednesday for
convicted killer Robyn
Leroy Parks at a demon-
stration outside the state
Pardon and Parole Board
Offices in Oklahoma City.

Meanwhile, Gov. David
Walters hinted strongly
that he would not delay
Parks’ execution to give
the board additional time
to consider his case.

Sister Pat Keefe, of the
Oklahoma Coalition to
Abolish the Death Penal-
ty, criticized Oklahoma
County District Attorney
Robert Macy for seeking
public support for Parks’
death by misrepresenting
the facts of the case.

Macy on Tuesday la-
beled Parks’ attempt to
obtain a last-minute re-
prieve from his scheduled
Dec. 6 execution date
from the parole board as
a stalling tactic.

However, the parole
board last year told
Parks’ attorney that no
clemency hearing would
be scheduled until an exe-
cution date was set by the
state Court of Criminal
Appeals.

——

The parole board has
scheduled a clemency
hearing for Parks on Dec.
2, four days before the
scheduled death date.

The board could ask
Gov. Walters either to
commute Parks’ death
sentence to a lesser pun-
ishment, stay the execu-
tion, or take no action.

While admitting the
composition of the parole
board does not appear to
be favorable for Parks,
death penalty opponent
Mike Johns said he was
encouraged by the
board's willingness to
grant a clemency hearing.

“We hope they will start
to pay attention to the
facts and not pay atten-
tion to the political rheto-
ric uttered by Bob Macy,”
said Johns, Oklahoma co-
ordinator for the Cam-
paign to Abolish the
Death Penalty.

Parks, 37, was convicted
of the 1977 shooting death
of an Oklahoma City gas
station attendant.

Board member Carolyn
Crump has asked for a
two-month delay of the
hearing and the execution
to allow the five-member
panel to make an “‘intelli-
gent, ethical” decision.

Walters said each side

will have an hour to
make its presentation and
that Parks “will have an
opportunity to make a
personal presentation.”

“1 think given the crite-
ria within which they op-
erate and the parameters
within which they oper-
ate ... the board is going
to have ample opportuni-
ty to review the data,” he
said.

Walters said it is ‘not
really within their pur-
view” to reinvestigate the
case.

“T’ve got a lot of faith in
(board president Jari As-
kins) and the Pardon and
Parole Board, and so my
principal concern is that
we not denigrate the pro-
cess by having it turn in-
to some kind of a circus
and that he is given every
opportunity to make his
case here in the final stag-
es of the process,” Wal-
ters said.

Johns said the coalition
plans to hold vigils at the
parole board offices in
support of Parks each
Wednesday.

Amnesty International
groups at several univer-
sities and high schools al-
so plan demonstrations,
Johns said.

The Daily CMake mar Thues., Nov, wth 9/

Judgment
call

Local media struggle
with some important
issues as a condemned
man ‘s.execution nears

BY MARION FEATHERSTONE

n thirty-two days, at one minute after the stroke of midnight as ts

traditional procedure, Robyn Leroy Parks — convicted of the 1977
murder of Abdullah Ibrahim, a gas station attendant — will be put
to death by lethal injection, the second man in the state to be
executed since Oklahoma reinstated the death penalty. P

As the condemned inmate's attorneys continue to explore the
sitm-to-null possibility that there are any further avenues to explore
to prevent their client's scheduled death, Parks himself has invited
members of the media to interview him as his apparent last days
play out.

Under guidelines structured by his lawyers, each application for
an interview must include topics to be covered and the time or space
each organization would devote to the interview — begging the
question for many journalists, ts this story newsworthy or ts it a
subtle form of high-stakes manipulation?

In a rare caveat to an article, the Feb. 2 issue of the Sunday
Oklahoman ran excerpts frim an interview with Parks accompanied
by a sidebar that clearly stated the steps the paper had to take in
order to be granted an interview. The story said the paper’s
proposal had been rejected until it had been purged of topics
relating to Parks’ many appeals and the Oklahomans representative
agreed to ask him questions that would lend some perspective on
Parks.

Both applications, the story said, made no promises conceming
the ultimate shape of the story. The article itself ran on Page 14, a
few pages behind a story concerning annual groundhog traditions.

Ziva Branstetter, managing editor of the Tulsa Tribune who
agreed to the guidelines and subsequently ran a large story ani the
interview several weeks ago, says that she understood from the start
that her paper and Parks had two entirely different agendas.

“Naturally, his attorneys were hoping that we would humante
him and perhaps swing a few votes on the parole board,”
Branstetter says. :

“The way we approached it, however, was not to present any
particular view, but to get inside his head.”

Sull, Branstetter says that from the very beginning the story was
knowingly censored.

“We were very aware and did take into’ consideration that his
attorney only chose organizations that they wanted,” she says.

“From the start they censored the whole picture by making us
list the topics we were to cover, and that was uncomfortable, but I
don't think we really were manipulated because ultimately we didn't
bave to run this. We didnt make any promises.”

Because Parks’ case has been scrutinized closely by those who
argue race discrimination {s a large factor in his sentence and
because he and his lawyers maintain his innocence to this day,
Branstetter says that this particular case does make a story.

“We've got to consider public interest because of the sheer issues
of this execution,” she says.

‘It's really a point of discussion, especially when he has so many
advocates who say that the minority issue is important in his death.
A lot of people really think that he is innocent, and that 's a big part
of the story.”

Mark Toney, news director with KFOR-TV Channel 4, disagrees.
He says Parks has had his opportunities for justice through the
legal process, and the media has no role in trying to sway an
outcome.

“Frankly, my position is this ts the second person to be given
lethal injection,” Toney says.

“We are all clear on why we covered the first one — because it
was historical. But we have, what, about 140 to 150 on death row.
Are we still going to be covering this for the fourth person to dle or

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the fifth person? At this point, why is this really news? I am just not
certain that it is. He has had his day in court.”

Representatives of KFOR have yet to apply for an interview.

T certainly think that Parks’ attorneys are trying to highlight his
client and keep him out in front for everybody's notice, including the
governor who can commute the sentence,” says.

“But the way this (story) has come out has little to do with the
execution or the man and more to do with thts interview process,
which fs a little strange to me right now and has taken on a life of
its own.”

Toney admits, however, that as a human-interest story, the
Parks execution may hold some value, though it would probably
have the most mpact 24 hours before Parks’ scheduled execution —

Oving the story very little time to swing prevailing opinion.
“There may be an interview there if it's human interest like that,”

“But I am not really positive that's in our best interest or our
viewers’ interest to dee something Ifke that. It comes down to what is
and fs not news.” ;

Rev. Maurice Harper, a self-proclaimed radio from
Muskogee, insists that the public be exposed to Parks. Harper, who
conducted a live interview with Parks — the first of its nature — on
KTOK-AM last week, says despite the possible political intrigue and
maneuvering, the death-row inmate can still serve as a valuable
resource.

“Let me put it like this,” Harper says.

‘T can say there ts a social redemption to this. I think in America
for so long we have listened to professionals. Maybe, despite the fact
that he ts a condemned man, we can lear a new perspective from
him.* .

Herper, who befriended Parks last October, says Parks can offer
Insight on escalating gang tensions, drug problems and rising

racism, altbough he has not moved in society's circles for 14 years.

“He has been a strong observer of our society, and | think he
could teil us a jot about 2 young black man growing up in
Oklahoma City only to end up scheduled to die,” Harper says.

“Oh my God, it's got to have some sort of impact. ] believe his
message is worthy because of hts life experience totally. There are
potential Robyn Leroy Parkses out there. They are out there now.
They just haven’ got caught yet. | believe this just adds to the
validity of anything be has to say.” mye TAS

Parks himself has taken pen in hand to contact members of the
media personally, presenting what he says he hopes will be his
“final message to the children.” Much of Parks’ writings focus on his
Islamic faith and encourage children to “grow up to be ‘Liberatorsf *

He further writes that “It's immorally wrong for anyone to take
the life of another human without question, but for a society

‘ Supposedly civilized to plan and state executions like it’s the norm is

an horrifying cample that the ethics and morals of this Country ts
coming apart at the seams. - ;

“The ‘Death Penalty’ ts only a political instrument — a toal of
avengement written out of despair and modelled on 4 society that is
Clearly disturbedP! =. :

Parks closes, saying “I eave you as I came, in Peace! As Salaam-
Alatkim a.k.a. Robyn Leroy Parks #91895.”

Ultimately, Harper says that ff fs up to the individual reader or
listener to decide the value of Parks’ execution as a news story and
to determine to what extent — if any — his attorneys hope to use
the media to elicit sympathy for their client.

“This sort of interview, of course, is going to be very interesting
to the public, but they are the ones who have to decide what to do
with the message. In the end, if's up to the living.”

Parks attorneys continue fo schedule media interviews and have
declined comment on the nature of the procedure. a

FEBRUARY 6, 1992 OKLAHOMA GAZETTE 13

‘Murcgrer’s Case Mostly

ter. Oklahoma City murderer
Robyn Parks is scheduled for exe-
cution March 10.

Although Parks has had a pub-
lic clemenc

By Wayne Greene
World Capitol Bureau

OKLAHOMA CITY — Olan
Randle Robison has almost be-
come the forgotten killer.

But Tony Burns says he'll never
forget.

Robison, 46, goes before a Ste-
phens County sedge Thursday and
will likely again sentenced to
die for two 1980 murders.

Prosecutors have asked for a
March 13 execution at the Oklaho-
ma State Penitentiary in McAles-

Stephens

trolling people.

: penalty decision b
,; County jury in 5¢

| aggra

hearing before the

Robison. “He was

.. .Killer

Continued from A-13
Bourque’s body. _
-Robison and Gillum went to
trial. Jordan pleaded guilty. Gil-
lum and Jordan were sentenced to
three consecutive life sentences.
.-A jury convicted and con-
demned Robison, finding his
crime was aggravated by a prior
violent felony conviction, by his
putting more than one person at
great risk of death, and by being
especially heinous, atrocious and
cruel in the killing of Bourque.
- The case was the first_dé

ears.
Higher coy overturned the
ing circumstances in the
seurque case, but Robison stil!
faces two death sentences.

. Burns said it had been “very
frustrating” waiting for Robison’s
execution to be carried out.

. State and federal judges have
beard numerous appeals alleging
a-variety of failures in the Ste.
phens County trial, but the .con-
victions have held up and the ap-
‘peals appear to be running out,

“:The U.S. Supreme Court re-
fused to rehear Robison’s case
Jan. 13,

. His latest execution date, how-

_ ever; had already passed. This

‘meant that the state had to re-

“That's Certainly not an accu-
rate description of the Randle Ro-
bison I know," Bauman said.

Robison was convicted with

quest a new execution
the Stephens County
determine Thursday. :
Attorney Bauman maint}
Robison is innocent.

police work, he said.

One witness who claimed to put
Robison at the scene of the crime
only remembered what she saw
after being hypnotized, Bauman
said.

Robison’s trial attorney was in-
experienced and failed to put on

witnesses to try to mitigate the

death sentence attempt, although
such witnesses were available,
Bauman said. Sa ee
Those witnesses, he said, could
have included relatives of the vic-
tims who were willing to say they

didn’t believe Robison was guilty -

and that he should not be execut-
ed.

But Burns said Robison re-
ceived a fair trial, and was guilty.
“There's not any doubt about it in
my mind,” he said. - |

Robison had met Bourque in a
bar about a month before.
Bourque; a native of England, had
been flashing gold jewelry and
bragging about its valuc.

A few days later, Burns said,
Robison gathered his gang tosteal
“He's one of the most pleasant: the jewelry and leave no wit-
nesses. The gang arrived at Swin-
. ford’s house about sundown.
Robison and Gillum broke into
lating and con- Johnny Gillum and William Starr the house while Jordan acted as a
Jordan of the June 12, 1980, mur-

nearby

lookout, Burns said. ce

using and tainted with prose-
cutorial misconduct and sloppy

Visible @ Prosecutor, Defender

With steel-blue eyes and scrag- ders of Averil Joan Bourque, Julic
gly long brown hair, Robisoneven Sheila Lovejoy and Robert Leon
resembled Manson at his trial, Swinford.

Burns said. :

i Unfair, says attorney Randy
parole board, a series of well-cov- Bauman, who represents Robi-
ered final-days court battles and son.
several interviews, Robison's
case has passed largely unnoted.

Burns remembers.

“I think he’s right there with
Charles Manson,” said Burns, the individuals you're ever likely to

unty district attorney meet.”

Robison killed Lovejoy with aa fatal shot into his side.
Single shot to the head from a Robison apparently held <
-380-caliber pistol, Burns said. to Bourque's mouth and den

seo and Swinford tried to ed she tell him where the jev
barricade themselves in a bed- was while Gillum Phncackes
room, but Robison and Gillum house.

broke in.

: b
According to Robison’s ac- hee pati ath gud
counts, Bourque Apparently had a apparently sent Gillum int

Small pistol pointed at the air,
Wai ci Pp room later to finish off the ki

rehe bitch didn't have the With 4 .22-caliber pistol, E
nerve to shoot,” Robison bra ged, :
Burns said testimony showed. Ironically, the gold jewelr:
Swinford wrestled with Robi. 8&4" wanted was found u

son, but the killer managed to fire See Killer on A-20

Robison’s
Death Set
March 13

: By John Greiner
: Capitol Bureau
* A Stephens County
udge Thursday or-
dered Olan Randle
Robison to die on Fri-
day the 13th of March
for killing two women
and a man whose bod-
ies were discovered
Friday the 13th of
June 1990.
’ District Judge
George Lindley set the
execution for 6 a.m. at
the state penitentiary
.at McAlester,
Robison, 46, was con-

victed of first-degree

‘murder and sentenced
to die for the shooting
deaths of Averil Joan
Bourque, Julie Sheila
‘Lovejoy and Robert
Leon Swinford during
a robbery near Velma.
After the U.S. Su-
‘preme Court rejected
Robison's latest ap-
peal, an application to
set a new execution
date was filed with
Lindley by Attorney
General Susan Loving
‘and District Attorney
Gene Christian.
3 They asked the judge
to set the date on
March 13, which is 60
days from the time the
high court denied Rob-
ison’s request to re-
— his case on ap-

peal.
When the application

“sto set the execution

‘date was filed Jan. 29,
Loving said Robison
brutally murdered two
women and a man.

“It was a ruthless
and senseless crime,
certainly one deserv-
ing of the death penal-
ty,” she said.

The presiding dis-

trict judge Thursday
morning rejected a de-
fense motion that
Lindley be removed
from the case,
- Although Robison’s
attorney has an.
nounced his intent to
file appeals to the
death sentence, Chris-
tian said the inmate is
entitled to no further
consideration.

1520 840 FEDERAL REPORTER, 24,6

In this case, as j ,
is , 4S in others, the test i
settee of the evidence to ial
an instruction: “th i j
odious toe. e defendant is enti-

: iction on a lesser j
offense if the evidence would craig

; potetien » find him guilty of the lesser
€ and acquit him of the ~

becee v. United States, 412 US. tos a

_ GE St 1998, 1995, 36 LEa.2d 844 (1979)
= oo added). The purpose of constitu-
i y requiring a lesser offense instruc-
pec when the evidence so warrants is to
Eine nen: the ‘Tationality and reliability of
Jury’s deliberations. Spaziano v. Flor-

ida, 468 U.S. 447, 455
<a ? ? 104 S.
82 L.Ed.2d 340 (1984), Ge.

the evidence in its entiret
cient evidence to warrant
instruction, the defendant

ti :
ne — an instruction because the
Tr Olfense option would diminish, rath-

er than augment, the rationali
rati i
iutel: Sea oe onality of the jury

If, after viewing
, there is insuffj-
a lesser offense
would not be en-

~ Thus, I cannot a with
» T car gree with the dissent’
characterization of our holding on this ia

sue. I fail to see how any reading of the

3. ~ se .
5 : ak tip with the defendant's license num:
parce = = aa was introduced into
A -VOl. V, ct. ex. 17. The slip j
tal of Travel Card iiwtiera”
es charge slip, rather, it is a
whereby a dealer assigns credit

it is not a credit
three-part form

~ pad, primarily for a

teen minutes, and the defendant w. es
ieetsh te deik : ) as sen- pr ee? fap permit an implica-
Only afte , ae Pee ee -or there to be an instruc-
‘ply ster detentnte mots f."B ded ttn, ein
ees ¢ id defers 2 PY s 4 an instructi
his attitude ee = a ee ction must’ come
bama pan sr oe ¥ € oF v Aendant himself. Further, a
tenced we Se FQ may deny participation j
to dere Fo Se d still =o
shortly tt rey re a 2 — © Xx ES ‘ , be entitled to a lesser of-
Ber! &© & $s SS - snstruction provided the evidence
S32 ae f 2 & 7: whatever source, would enable the
- ¢ & hi € as Ba rationally convict the defendant of
= ied 2 4e lesser offens : ;
SLX @ : tense. The evidence ;
= - = b.. < case simply is insufficient. to sie Da
Cleg ~ > Ex ; = a the offense of second-degree
e F 6 r in the seas
M gi Secon. av “Y card felony. Sourae’of committinga credit
ajority Opinio é
ae ig As a reli °
purport to adopt _ Adnot — 48 4 preliminary matter, I n
ee re Fah < -eetly or trial judge’s concern about a we a
fendant. to testif eae dire a de- physical evidence supporting a ] $ :
_ - lesser off ity In order , receive a fense theory. Foi : cee
offense instruction. or example, no credit card

= Sept vers charge slip was introduced3
einiind ee any evidence in the record
pa a3 t i Sea, iteonng of such a
; card. ack of evidence j
i he a because the defense sade hon
a pps’ to pursue an alibi defense and
riage uce any evidence tending to
w that a second-degree murder in th
course of possessing a stolen credit aa
occurred. Neither did the defendant elicit
oe information from the state’s iu
neerning this theory. Question i
_— counsel, the defendant seothe
convince the jury that he was uninvolved

with any credit i
heheater. card transaction, stolen or

Mr. Hood: Okay, Now have you ever
used @ credit card to do busin
retail business at all?

Defendant: No.

ess, any

Mr. Hood: Have i
credit cocks you ever applied for a

- Defendant: No.

Mr. :
Hood: Have you ever had one in
your possession?

Defendant: No.

card invoices to the oil

company fi
—— the columns of figures sunetarioe ee
. y on the front and back of the form 7 is
pparent that the form was used asa itech

: dditi i
warliud gomauie ion and subtraction of

PARKS v. BROWN 1523
Cite as 840 F.2d 1496 (10th Cir. 1987)

_ Mr. Hood: Have you ever used any oth- element which is not required for convic-
er person’s credit card to make a pur-_ tion of the lesser-included offense.”)

chase?
Defendant: No.

I have listened to the tapes and reviewed
the transcripts, and where the tapes and

Mr. Hood: All right. When you bought transcripts differ, I have relied on the

gas, did you pay cash?
Defendant: Yes.

tapes themselves.‘ In my view, only one
tape furnishes an arguable basis for a sec-

Ree. vol. VI, tr. vol. III at 486, 524. Only ond-degree murder instruction. The de
the defendant’s taped statements would fendant told Clegg that the victim was
possibly furnish the basis for aclaim thata standing straight up when he shot him and

lesser offense instruction is warranted;
however, a close look at the statements
indicates that they are totally consistent
with the first-degree murder conviction.
The state’s theory was that defendant
committed murder with malice afore-
thought, malice being defined as the “delib-
erate intention unlawfully to take away the
life of a human being....” Okla.Stat. tit.
21 § 701.7 (1981). - Defendant claims the
evidence warranted an instruction on the
theory of a second-degree murder, Okla.
Stat. tit. 21, § 701.8 (1981), during the com-
mission of the felony of taking or receiving
a stolen credit card, OklaStat. tit. 21
§ 1550.22 (1981). An important distinction
between the state’s first-degree theory and
the defendant’s second-degree theory con-
cerns defendant’s state of mind. The de-
fendant’s second-degree theory envisions
murder without malice aforethought (or
unintentional murder). during the commis-
sion of the felony of unlawful possession of
a credit card. But the defendant's taped
statements to informant Clegg do not sup-
port such a second-degree theory—to the
contrary, these statements are completely
consistent with a deliberate killing. Stated
another way, the defendant's statements,
although they mention a stolen credit card,
do not rise to the level of creating a factual
dispute concerning whether the murder
was deliberate or unintentional. See San-
sone v. United States, 380 US. 348, 350, 85
S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) (“A
lesser-included offense instruction is only
proper where the charged greater offense
requires the jury to find a disputed factual

4. The transcripts of the tapes are not completely
accurate as became evident in the trial, rec. vol.
VI, tr. vol. III at 492-96. The jury was instruct-
ed that the words on the tape prevail. Rec. vol.
VI, tr. vol. II at 344-45. Although the words on

that the victim had not sounded any alarm.
The conversation continued:

Defendant: I went there with a credit
card, a gas credit card. You see what
happened, he come, after I give him the
credit card he comes out the booth and
comes back and look at my tag number.
Clegg: Uh-huh. _

Defendant: So I know then that if he
get the tag number, as Soon as I leave he
gonna call the law.

Clegg: Oh.
Defendant: . Alright?
Clegg: Uh-huh.
Defendant: O.K. he gonna call the law,
I got them guns, the dynamite and every-
thing in my trunk, right?
Clegg: Yeah, I didn’t know that.
Defendant: I ain’t gonna get too far
before they get on me ...
Clegg: Uh-huh.
Defendant: So I said the way to do that
if he don’t be around then ain’t nothin he
can tell them no way. '
Clegg: So you took—
Defendant: I wasn’t going there for
what people thought it was.
Clegg: Oh, is that right?
Defendant: Right, I was there to use
that credit, that gas credit card.
Clegg: Damn boy, boy you somethin’
else, you somethin’ else man.
Defendant: No, but see, that’s what
people fail to realize. See if he’d a told
on me, see I woulda went anyway. See
what I’m sayin’?
the tape are not identical to the transcribed
version used in the state district court, we do

not perceive any material variance. For the
sake of accuracy, statements from the tape have

been included.

1524

Clegg: Yeah.

Defendant: And, I just looked at it I
might as well, if I’m go, let me go for
being a dumb son of a gun, you know a
little funky gas credit card.

Defendant: I didn’t take a dime. You
know, cause I didn’t come there to take
no dime, I come there'to get me some
gas and then when he got my number I
said man, if I leave, I say, I won’t be two
blocks before they be on me cause he
goin’, he goin’ tell it that I got, you know
a hot credit, gas credit card. I say ...
Clegg: An’ you did, I say one thing, you
did it without witnesses and I guess
that’s the way ... |
Defendant: Huh?

Clegg: I guess if you goin’ to kill some-
body, I guess that’s the way to do ’em.
Defendant: Yeah, let you and them be
there. You know, you don’t need no ten
niggers with you to do nothin ...
Clegg: No.

Defendant: Just you and them and then
you ain’t got nothin’ to worry about.

Rec. vol. V, ct. ex. 89; see also ct. ex. 1 at
2-3, 12. These statements, which were la-
ter disclaimed by defendant at trial as com-
plete fabrications, indicate that the defend-
ant contemplated the murder. Twice he
remarked that he was going to leave the
station after using the credit card. His
concern was to avoid apprehension after he
left the gas station, and to that end he
made a calculated decision to kill the at-
tendant. These statements fully support a
deliberate murder, notwithstanding that a
credit card may have been involved.

The dissent maintains that the jury
should have been allowed to determine
whether the murder was committed in the
course of the felony of possessing a stolen
credit card and that the majority has invad-
ed the province of the jury by evaluating
the evidence and accepting only that evi-

5. At trial, the defendant claimed that he talked
to James Clegg by telephone in order to. obtain
various Oklahoma telephone numbers from
him. Rec. vol. VI, tr. vol. III at 475. The
defendant said that at the time of the taped
conversations he “was fully aware that James

840 FEDERAL REPORTER, 2d SERIES

dence tending to support a first-degree
murder. Dissent at.1518-19. I must dis-
agree with this characterization. I have
searched the record and simply have found
a lack of evidence from which a jury could
rationally conclude that an unintentional
murder occurred, even if a credit card was
involved.

The dissent also suggests that the deter-
mination that defendant was not entitled to
a lesser offense instruction on his second-
degree murder theory is inconsistent with a
penalty phase instruction on the aggravat-
ing circumstance of killing to avoid or pre-
vent a lawful arrest or prosecution. But,
the facts needed to suggest second-degree
murder are not identical with those sug-
gesting the aggravating circumstance.
The state’s theory, supported by defend-
ant’s own admissions on the tapes, was a
deliberate murder to avoid arrest for pos-
session of a stolen credit card, weapons and
dynamite. The aggravating’ circumstance
allowing the death penalty was that the
murder was committed to avoid or prevent
lawful arrest or prosecution. In marked
contrast, the second-degree murder theory
advanced by defendant envisions a non-de-
liberate homicide committed during the fel-
ony of possessing a stolen credit card.

‘Such a theory was not defendant’s account

on the taped telephone conversation and it
was not his account at trial. The state did
not attempt to “have it both ways in the
same case.” Dissent at 1519-20 (quoting
Kennedy v. Mendoza-Martinez, 372 US.
144, 195, 83 S.Ct. 554, 581, 9 L.Ed.2d 644
(1963) (Brennan, J., concurring)). Accord-
ingly, I vote to deny rehearing.

sayume

was the informant on the case.” Jd. at 476.
Defendant testified that the reason for inventing
the story on the tape was to shift police atten-
tion concerning the homicide away from his
family and friends and onto himself. /d. at
477-78.

1406 823 FEDERAL REPORTER, 2d SERIES

3. Criminal Law ¢@723(1)

Prosecutor’s statement to jury during
penalty phase of defendant’s first-degree
murder prosecution, which indicated that,
in assessing death penalty, jury would
“just have become a part of the criminal
justice system” and was not itself putting
defendant to death, did not improperly lead
jury to believe that responsibility for deter-
mining, appropriateness of death penalty
rested elsewhere, and did not minimize im-
portance of jury’s role in fixing penalty.

4. Homicide 311

Trial court’s antisympathy instruction
during penalty phase of first-degree mur-
der prosecution, which indicated that. jury
should avoid any influence of “sympathy,
sentiment, passion, prejudice, or other arbi-
trary factor when imposing sentence,” did
not improperly mislead jury into believing
that mitigating evidence about defendant’s
background or character also must be ig-
nored so as to render defendant’s sentence
constitutionally infirm;- instruction indi-
cated that jury should not consider extrane-
ous emotional factors, and jury was further
instructed that it must consider statutory
mitigating circumstances and that it could
consider any other mitigating circumstanc-
es it could find from evidence. U.S.C.A.
Const.Amends. 8, 14.

5. Criminal Law €778(2), 796

Oklahoma death penalty instruction,
which permits imposition of death penalty
only upon determination that there are ag-
gravating circumstances and that such cir-
cumstances outweigh any mitigating cir-
cumstances, is not constitutionally defec-
tive, and does not improperly cast any bur-
den of proof on defendant. U.S.C.A.
Const.Amends. 8, 14.

6. Criminal Law €641.13(7)

Defendant failed to establish that he
was denied effective assistance of counsel
during penalty phase of first-degree mur-
der prosecution, notwithstanding defend-
ant’s claim that there were at least 25
witnesses who could testify favorably con-
cerning defendant’s personal history; deci-
sion not to call such character witnesses
could have been based on concern that such

witnesses would be subject to cross-exami-
nation and rebuttal regarding defendant’s
possible involvement in other crimes and
trafficking in drugs. U.S.C.A. Const.
Amend. 6.

7. Habeas Corpus ¢=90.2(10)

Federal habeas court properly refused
to hold evidentiary hearing on petitioner’s
claim that Oklahoma death penalty statute
was applied in racially discriminatory man-
ner against defendants charged with killing
white victims; although study upon which
petitioner based his claim indicated that it
was color of victim, rather than color of
defendant, that impelled jury to more readi-
ly return death penalty rather than life
sentence, petitioner’s victim was native of
Bangladesh and was very dark-skinned,
and petitioner failed to demonstrate consti-
tutionally significant risk of racial bias in
his case. U.S.C.A. Const.Amends. 8, 14.

Vivian Berger, New York City (Lewis
Barber, Jr., Oklahoma City, Okl., with her
on the brief), for plaintiff-appellant.

Robert A. Nance, Asst. Atty. Gen., Depu-
ty Chief, Federal Div. (Michael C. Turpen,
Atty. Gen., Okl., and Michael W. Elliott,
Asst. Atty. Gen., with him on the brief in
chief, and Robert H. Henry, Atty. Gen.,
Okl., with him on appellees’ supplemental
response brief), Oklahoma City, Okl., for
defendants-appellees.

Before McKAY, BALDOCK and
McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a proceeding in the District Court of
Oklahoma County, State of Oklahoma, a
jury convicted Robyn Leroy Parks of the
first-degree murder of Abdullah Ibrahim, a
Gulf gas station attendant, and the same
jury, after further hearing, sentenced
Parks to death. Parks’ conviction and sen-
tence were affirmed on direct appeal by the
Oklahoma Court of Criminal Appeals.
Parks v. State, 651 P.2d 686 (Okla.Crim.
App.1982), and the Supreme Court of the
United States denied certiorari, Justice
Brennan and Justice Marshall dissenting.

PARKS v. BROWN 1407
Cite as 823 F.2d 1405 (10th Cir. 1987)

Parks v. Oklahoma, 459 U.S. 1155, 103
S.Ct. 800, 74 L.Ed.2d 1003 (1983).

Parks then sought post-conviction relief
in the state courts of Oklahoma. The state
district court denied relief and the Okla-
homa Court of Criminal Appeals affirmed
in an unreported order and opinion. There-
after, the United States Supreme Court
denied certiorari. Parks v. Oklahoma, 467
U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356
(1984).

On June 29, 1984, eleven days before he
was scheduled for execution, Parks filed in
the United States District Court for the
Western District of Oklahoma a petition
for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The district court stayed
execution, and, on November 5, 1985, in a
33-page opinion, dismissed all of the claims
asserted by Parks in his petition except the
claim of ineffective assistance of counsel at
the penalty phase of the state criminal pro-
ceeding. Before ordering an evidentiary
hearing concerning the claim of ineffective
assistance, the district court determined to
first propound interrogatories to the peti-
tioner, Parks. Based on the answers there-
to, the district court, by order of February
28, 1986, denied relief on the claim of inef-
fectiveness of counsel and dismissed all
claims. This appeal followed. We are ad-
vised that the parties have agreed that no
new execution date will be set pending
disposition of the present appeal.

booth with the letters and figures “XZ- -

5710” written on it and circled. The police
checked out this alpha-numeric combina-

tion, and ascertained that it corresponded
with the license number of an automobile
in which Parks had an interest, possessory,
at the least, if not strict legal title thereto.

Parks at this point in the investigation
became either a prime suspect or a material
witness, and it was ascertained that Parks
was then in California. In the meantime
the police had contacted a friend of Parks’,
one James Clegg, and enlisted the latter’s
aid. Clegg, in Oklahoma, called Parks, in
California, on several occasions, and, with

were tape recorded. In the first of these
two recorded conversations, Parks told
Clegg that he went to the Gulf station
intending to get gas with a stolen credit
card and that the attendant came out of the
booth and’ appeared to write down his li-
cense number. Fearing that the attendant
would “call the law” and also fearful that
if the police caught him they would find
guns and dynamite which he had placed in
the trunk of his car, Parks decided to kill
the attendant so that if “he don’t be around
there ain’t nothing he can tell them no-
way.” In this setting, according to Parks,
he went to the station booth and shot and
killed the attendant. Apparently, the door
to the station booth was partially open and
Parks fired one shot which struck Ibrahim
in the chest.

In Parks’ second taped telephone conver-
sation with Clegg, Parks, still in California,
described where he had disposed of the
murder weapon. Thereafter the police, ac-
companied by Clegg, went to the described
location, which was miles away from the
gas station, and recovered a .45 caliber
revolver, together with a holster and am-
munition, hidden under a bush. One shot
had been fired from the revolver, the other
five cylinders containing live ammunition.
Parks was later arrested in California and
extradited to Oklahoma. Both of the taped
telephone conversations were played for
the jury.

At trial, Parks testified in his own behalf
and denied killing Ibrahim. He testified
that at the time of the killing he was in
another place, and a witness. corroborated
his alibi. Parks explained the fact that the

fanas, Nobyn Lekoy, black, leth. inj. Okla. 3/10/1992

eKecunmern, Sef Fra-

/2-£-9/
PARKS v. BROWN

OKA) OnMn, oO
1405

Ir)

Cite as 823 F.2d 1405 (10th Cir. 1987)

jurisdictional sense, the state claims should
be dismissed as well.”); see also Dezell,
796 F.2d at 328-29.

Accordingly, the district court’s grant of
summary judgment as to the false arrest,
false imprisonment, abuse of process, and
malicious prosecution claims is VACATED,
and the cause is REMANDED for dismis-
sal of those claims without prejudice. The
judgment of the United States District
Court for the Northern District of Okla-
homa granting summary judgment on the
§ 1983 claim and dismissing two pendent
state law claims without prejudice is AF-
FIRMED.

aAYmM=s

ait LA

—

Robyn Leroy PARKS,

Plaintif- Appellant,
John N. BROWN, Warden, Oklahoma
State Penitentiary, McAlester, Okla-
homa; Larry Meachum, Superintend-
ent, Oklahoma Department of Correc-
tions; and Michael C. Turpen, Attorney
General of Oklahoma, Defendants-Ap-

pellees.

No. 86-1400.

United States Court of Appeals,
Tenth Circuit.

July 15, 1987. -

Circuit Judge, held that: (1) instruction on

lesser-included offense of second-degree
murder was not warranted; (2) error, if
any, was harmless in admission of petition-
er’s prior conviction of robbery by force

and fear; (8) prosecutor’s comment to jury
during, penalty phase did not improperly
minimize importance of jury’s role in fixing
penalty; (4) trial court’s antisympathy in-
struction was appropriate; (5) instruction
regarding aggravating circumstances and
mitigating circumstances was not constitu-
tionally defective; (6) petitioner was not
denied effective assistance of counsel dur-
ing penalty phase; and (7) district court
properly refused to hold evidentiary hear-
ing on petitioner’s claim that Oklahoma
death sentence statute was applied in ra-
cially discriminatory manner.

Affirmed.

McKay, Circuit Judge, concurred in
part, dissented in part, and filed opinion.

1. Homicide €308(5)

First-degree murder defendant’s state-
ments to friend after defendant had killed
gas station attendant, indicating that he
went to gas station intending to get gas
with a stolen credit card and that, because
attendant subsequently appeared to write
down his license number and because he
was afraid that attendant would call the
police, who might discover guns and dyna-
mite in his car, he then killed attendant,
was not entitled to instruction on lesser-in-
cluded offense of second-degree murder
during course of felony of using stolen
credit card; defendant’s statements to
friend indicated that defendant killed at-
tendant after he had used stolen credit card
for payment, and indicated that he killed
attendant because he was concerned not
only regarding stolen credit card, but also
regarding small arsenal which he had in
trunk of his car.

2. Criminal Law 1169.11, 1177

Error, if any, was harmless in admis-
sion of fact of defendant’s prior robbery
conviction during guilt phase of first-de-
gree murder prosecution, and subsequent
admission of facts underlying prior convic-
tion during penalty phase; evidence
against defendant was overwhelming, and
included defendant’s tape-recorded confes-
sion to crime.

Jot Ys Cyreurt jn Denver afarn L farhks!
deat, Senknte. US. Supreme Coat denied appeal Och Ff

until I discovered Patton’s where-
abouts.

The longed-for break came sud-
denly, and quite unexpectedly. An
excited farmer, whose name need not
be disclosed here, came to the office
and gave some startling news. Ted
Patton was alive! He had written to
his sister, in care of a friend, and had
asked her to send him some money.
This letter had been opened by a natu-
ral mistake, and the reader realized at
once what was up. Patton directed
that the money be sent to “Fred An-
derson,” General Delivery, Dallas. |

‘All the officers gathered at once in
the Sheriff’s office to map a plan of
action, enlisting the aid of W. oO.
Peters, Sallisaw postmaster. Peters
and Drake left at once for Dallas.
There they asked the cooperation of
local post-office officials in apprehend-
ing Vera Frazier or Ted Patton, should
they come in and ask for their mail.

Sheriff George Cheek, County Com-
missioner George Mitchell and I went
to Sherman, Texas, where we learned
Patton had relatives. Sherman is only
65 miles from Dallas.

We figured that Saturday would be
the logical day to catch him. He
would feel safer in emerging from his
place of hiding, among the thronging
week-end crowds.

Our trip to Sherman was a water-
haul. The bottoms had gone out of the
roads in a big rain, and we had to en-
gage a man to take us to town with a
team and wagon. However, in Dallas,
Drake and his companion were having
better luck. Working in shifts with
two local detectives, they covered the
post office at all hours. On Saturday

And the Killer Died With Him (Continued from Page 27) ogrici

so quickly that I didn’t have any time
to get a good look at him.” He said
the man was dressed in woodsman’s
clothes—a wool hat, red plaid mack-
inaw and lumberman’s rubbers.
Stevenson, who was guarding the
garage and back yard, was called in
and he verified Sergeant Milliken’s
story, but could add nothing to it.
Immediately Chief Spear called
Headquarters to give a description of
the prowler as reported by Baker. He
ordered a warning flashed to all po-
licemen to watch for a man fitting that
deseription and hold him) for ques

morning, about nine o’clock, a short,
dark youth walked up to the general
delivery window. :

“Anything for Fred Anderson?” he
asked.

In accordance with a prearranged
signal, the clerk reached up and took
a red card from the window. Drake,
on duty, came to instant attention, but
before he could reach the youth’s side,
“Anderson” had left by a side door.
Drake dashed outside. The youth was

. standing on a street corner, waiting

for a light to change. The Deputy
walked up to him, put a hand on his
shoulder and said, “Hello, Mr. Ander-
son!”

The boy turned, startled. It was Ted
Patton.

He stammered, “W—why, hello—
what are you doing here?”

“Looking for you.” Deftly Drake
slipped manacles over the youth’s
wrists. “Where’s Vera Frazier—and
where’s the gun?”

“Qut in the country,” muttered Pat-
ton. There was no fight in him. He
accompanied the officers about eight
miles into the country. There, on an
abandoned highway, in a_ secluded,
timbered spot, sat the Wall car. Vera
Frazier was sitting inside.

The machine was laden with bed-
ding and miscellaneous articles. The
girl had washed out some clothes and
they were strung about on bushes to
dry. In a side pocket Drake found a
Sheaffer fountain pen, a pair of
glasses, and a .22 caliber pistol.

Drake looked at Patton. “So you
killed your friend?”

Patton stared at the ground. His
lips twitched. “Sure, I killed him.”

The flood-lights arrived from Head-
quarters and were set up quickly.

Carefully the investigators combed
the garage, seeking anything that
might look like evidence. But they
found nothing. The back yard, drive-
way, front yard and the street in front
of the house were gone over. Again
the search was fruitless. The snow and
ice which covered the yards had been
tramped on by too many persons for
the officers to tell if a fleeing killer
might have left his tracks.

“Tt don’t understand the shotgun
being under Baker’s body,” Prosecutor

The astonishing youth told two or
three conflicting stories, although in
all of them he admitted killing Wall.
Vera Frazier, the pretty farm-girl,
stanchly denied knowing ing
about the crime. The gist of the boy’s
tale was this: “Haney and I had been
drinking beer. We decided to get some
liquor. We drove out and stopped
about a quarter of a mile from a place.
I left Vera and Haney in the car and
walked after the liquor. While I was
gone, he tried to attack her. I heard
her screaming and ran back. Haney
jumped out of the car, picked up a
big rock and threw it at me. We
started fighting. He got me over the
fender and was choking me. I had the
gun in my pocket, and I pulled it out
and shot him. He fell in the road. I
got him into the car and took him
over to Wild Horse and left him there.
Then we beat it out of the country.”

Then the Frazier girl switched her
denials, and said that Patton was tell-
ing the truth. “Hayne was drunk and
tried to attack me,” she insisted.
“That’s why Ted shot him.”

I was certain that Patton was lying.
Hayne’s clothing had borne no signs
of a struggle. His shirt was immacu-
late, his tie and clasp intact. The flesh
of his hands was free from bruises or
dirt and his nails perfectly clean.
There were no marks on his clothing
to indicate that he had fallen to the
ground. Furthermore, the downward
angle of the bullet wound proved con-
clusively that Patton and not Wall had
been leaning over. All indications were
that the boy had been killed as he sat
beside Patton in the seat, and then
carried from the car.

Chief Spear sighed. “TI still can’t see
why the gun was fired so close to
Baker’s head. Either the murderer
was someone well known to Baker
or-——”

County Attorney Knudsen disposed
of the alternative before it was ut-
tered: “How could it be suicide?
We've looked all over and the gun that
killed Baker is not in the building!”

“Anyway, the bullet that went
through Baker’s head must be in the
garage,” offered Spear. “Let’s find it.”

JT WAS bitter cold work but the in-

r fhe con

Vera Frazier was charged with con-
spiracy. On September 29, 1932, after
a brief trial, Patton was found guilty
Pee sentenced to death in the electric
chair.

Public sentiment ran high against
the story told by the girl. Friends and
neighbors of the murdered boy’s fam-
ily refused to believe that he had been
the sort who would stage a brutal at-
tack, and demanded that his name be
cleared. After Patton’s death in the
electric chair, Vera made a voluntary
statement saying that she had lied;
that she had never been in a car with
Hayne Wall; and that her only knowl-
edge of the crime was what she had
been told. Ted, she disclosed, had
come to her home about midnight to
take her away with him.

“JT was in love with him, and told
those things to try and save him,” she
confessed. “I memorized my _ story
from directions Ted wrote and slipped
to me while I was in jail.”

T= new version was more as I im-
agined the truth to be. Madly in
love with Vera Frazier, Ted Patton
had desired a car and money so that
he could go away with her. He had
brutally killed his friend to obtain his
possessions, taken the girl and fied,
callously leaving his mother to mourn
him for dead.

Charges against Vera Frazier ulti-
mately were dropped and she was al-
lowed to go free.

The name Frank Estes is fictitious
to protect the identity of a person who
had no part in this crime.

ead It First in

AL DETECTIVE STORIES

Spear directed several squads to search
the neighborhood in which Baker
lived and to question neighbors.
While this was going on_ Spear,
Prosecutor Knudsen and_ Sergeant
Milliken again questioned Hilda Baker
in an effort to learn more about her
father, and possibly turn up a lead.
Baker, they were told, was 63 years
old, Recently he had sold out his part
interest in a local lunchroom. His
wife had been ill for some time.
“Since you’ve had a little time to
think things over, do you recall any-
one with whom your father quarreled,
or someone who might have had it in

saic she =a
shot
That =gl
these fazcs
“Was Hil
thing?” Pr

persons sj
questiom2
from he f
chased =e
ever, seer
holster s:u

standings
exactly ¥
gatnerinz:

investigztil
died a:
plot.”
The sthe
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cocside> ¢
sezibec 35
weoodsr an
paid =

“ ch \ ~~ “4
SP (Sequoyah) October

~ SLAIN YOUTH’S BODY FOUND HERE— ,
Section of the rugged, thickly wooded Cookson Hills,
where the corpse of Hayne Wall was discovered. Was
his, killer hiding out in some gully, ravine or cave?

‘By EDDIE BURK

Murder plays a return engagement in the Cookson Hills,
the former home of frontier badmen like Cherokee Bill,
the Daltons, and Belle Starr, and the hide-out of modern
public’ enemies like ‘‘Pretty Boy’? Floyd and Alvin Karpis

TEADOITADTEDG NVTMOMTYVUY
HEADQUARTERS DETECTIVE,

October, 1948

less, w
gray s
cut ‘
sharp-
one bi
heart,
much,
quick]
Tom
farme)
Deput:
found
got in
to not
Dep
first wv
“There
tain.”
Dep
body, 1
sible f
of the
Mount
Cooks:
Sallisz
oppre
of a «
scrub
been
Belle
Boys
mous
South
new
those
cover:
But
The
bandi

over the body of the dead youth,
who was young, barely in his
twenties. His, fate was’ swollen
and blue, and he lay: across the
rock as if somebody had thrown him
there. He was slender of build, coat-

gray shirt. His shoes were the low-
cut “cowboy” type, © high -heeled,
sharp-toed Oxfords. There was only
one bullet wound, directly over the
heart, and the wound hadn’t- bled
much, showing that he had died
quickly. .- A

~ Tom Tanner, a tall, rangy Oklahoma
farmer, wearing overalls, stood with
Deputy Byrd. Tanner said: edt
found a body a half an hour ago, I

to notify you.” °
Deputy Byrd remembered Tanner’s
first words upon entering his office:
Abe aa a stiff an Wild Horse Moun-
ain.” a
Deputy Byrd walked .around the
body, taking care not to spoil any pos-
sible footprints or marks. The silence
of the dense woods of Wild Horse
Mountain, in the heart of the famous
Cookson Hills, twenty miles north of
Sallisaw, Oklahoma, was tense and
oppressive. For nearly three quarters
of a century those rolling hills, with
scrub oak and dense underbrush, have
been haunted with the memory of
Belle Starr, Cherokee Bill, the Dalton
Boys and the entire roster of the fa-
mous bandits of Oklahoma and_ the
Southwest. Swift death is nothing
new there; thousands have died in
those mysterious ravines and brush-
covered hills. © ~
But this was something different.
The youth- that lay there wasn’t a
bandit. He was too well dressed: to

EPUTY SHERIFF Bill Byrd stood

less, wearing dark trousers and a light~

got into Sallisaw as fast as I could |

-on this.

be a native ofthe Hills. The pockets
of his: trousers were turned inside out

-and.empty. —: . pape
“Who. is he?” Byrd asked Tanner. .

The rangy farmer shrugged. “He
looks mighty familiar—at least, those
cowboy: shoes’do, but damned if I can
place him. His face is so swollen that
it ain’t natural.’

Tanner was nervous and a little
jumpy, and Deputy Byrd took note of
this.. Tanner lived five miles south of

-Sallisaw and twenty miles from Wild

Horse ‘Mountain, which was in the
center of the Cookson Hills, reached

only by, an old'trail used by woodcut-
ters in the winter and seldom traveled

in the summer. 'This was a warm
spring day—April 26, 1932, and’ the
old ‘trail was almost itnpassable, ~

It was a country where few humans
ever. ventured, and it struck . Byrd
strange that Tanner would have been
in that section, as there was no reason
why ahybody would want to go there.
But the deputy didn’t question Tanner
e knew the farmer to be a
man who had had several brushes
with’ the law, although he had never
been in any serious trouble, So he
made certain mental ‘reservations
about how Tanner had come to be. on
this lonely- mountain to find the body.

“One thing is mighty certain,” Tan-
ner said. “The vn didn’t, walk in
here with those high-heeled shoes. A
man with flat heels might have made
it and not left. any tracks, If the
kid could have gotten here on his own
feet, his sharp heels would have left
some. deep marks in the ground. He
was killed somewhere else and car-
ried here. No car could come. up the
old road bed.”

“How did you get up here, Tanner?”
Byrd questioned. ,

Tanner jumped as if somebody sud-
denly struck him with a knife. He
got pale and looked nervously at Byrd.

‘“Well—well—all right—I knew Td '
be suspected if I reported the body,”
he stammered. “I was up here on
something that’s a little embarrassing,
and I don’t see why I have to spill
everythi just because I reported
this body.” / é ;

“T think,” Byrd said, “you will be a
lot better off if you tell me why you
were up here. Murder is a serious
charge.’ é

Tanner hesitated, looked at the
ground. “Heck,” he exclaimed, ‘“‘do
you suppose I would have told you
about this kid if I killed him? You
want to know what I was doing up
here. Okay, here it is. I buy moon-.
shine from a fellow who meets me up
in these parts. I came up here today,
but he wasn’t here, and while I was
walking around waiting for him, 1
found the body. And that’s the whole
damn truth.”

“That story can be checked,” Byrd
answered. “You said this boy looked
familiar—at least, the shoes he wears.
Who is he?”

ANNER walked around the body,

studying the swollen face. Sud-

denly Deputy Byrd stiffened.
“Those cowboy shoes,” he exclaimed.
“T know who wore them. Hayne Wall
did, the-son of Judge Wall. My God,
this can’t be young Wall.”

Hayne Wali was a popular youth of
Sallisaw—clean-cut, .with excellent
habits and an excellent reputation.
His father, Baker Hall, was a judge,
and his mother was a prominent news-
paper woman who had been covering
the Cookson Hills area for many
papers.

MYSTERIOUSLY. DISAPPEARED FROM TOWN—
Officers feared for the safety of Ted Patton (above),
who was last seen with Wall before they both. vanished.

HANDSOME, POPULAR, YOUNG VICTIM—
Why had Hayne Wall (above) gone to the Cookson Hills
the night he was murdered? Who had accompanied him?

PI Ae OO CNET

eee euen,

MISSING CLUE—
What had become of young Wall’s watch
as well as the rest of‘his possessions?

The news of Tanner’s story of the
body on Wild Horse Mountain had
traveled fast in Sallisaw, and cars
were stopping at the foot of the old
trail. A crowd had gathered there,
watching Tanner and Byrd. ‘

Byrd walked down to the crowd,
asked several men to assist in taking
the body into Sallisaw. The body was
loaded in a car, and the parade of
automobiles followed.

In_Sallisaw the body was taken to
the Sallisaw mortuary, where Coroner
R. C. Burns took charge and enlisted
the services of Doctors J. A.- Cheek
and: J. H.: Morrow to perform the
autopsy.

Byrd then went to the office of
young and aggressive County Attor-
ney Fred Green. There he told Green
of the discovery of the young man’s
body.

“His face is bloated and swollen al-
most beyond” recognition,” Byrd con-
cluded. . ‘I’m only guessing, but I
know that Hayne Wall wore those
same type of cowboy shoes. I never
knew him very well, and naturally I
can’t be sure. But I got a feeling it’s
young Wall.” ma

County Attorney Green reached for
the telephone, called Judge Wall.
Green tried to break the news of his
suspicions as easy as he could. He
asked the Judge where Hayne was,
and when the Judge answered that his
son had used the family car the night
before and hadn’t returned home
Green asked the Judge if he would
come over to his office.

Judge Wall was at the office within
a few minutes. “We’re not sure,
Judge,” Green said, “but we would
like to have you look at a body at the
undertaking parlor.”

The Judge’s face paled and he
gasped, “You—you—mean that body
found on Wild Horse Mountain? J]
heard about it. You don’t believe it’s
Hayne, do you?”

“T think
the body,” Green replied.

Judge Wall accompaned the. County

0 Attorney to the undertaking parlors.

_ at the body.

ou better take a look at

He took one look at the body on the

slab, swayed a little, and muttered:
“Yes—yes—that’s Hayne—my son—”

Green led the Judge into another
room. Because the Judge was too
broken up, he didn’t ask him any
questions. ‘

“Tf you don’t mind,” Judge Wall
said, “I’d like to go home. [I'll have
to break the news to Hayne’s mother.”

As the Judge walked out of the
building alone, James Cantor, assist-
ant at the undertaking parlor, asked
County Attorney Green, “Is it Hayne
Wall?”

“His father,” Green replied, “iden-
tified him.”

“That’s tough,” Cantor said. “Mrs-
Wall was just here.”

“Did she view the body?”

“No, she came here for a story to
send to the Fort Smith paper. ‘She
had the story of the finding the body,
and she wanted a description. I asked
her if she wanted to see the body. She
said she didn’t have time and to just
give her a description as she: had to
phone the story in right away.”

Cantor gave a low whistle. Then
added, “I’m sure glad she didn’t look
I’'d been in there with
her, and she worshiped her son.”

URING the next three hours County
Attorney Green. tried to gather

» what thin threads of clues he could
in the strange rey of the shooting
of the 19-year-old Hayne Wall. There
wasn’t much he could learn. The
ba had never been in trouble and

ad never associated with any ques-
tionable characters. To Green and
Byrd, robbery was the most obvious
motive. Yet this, didn’t seem overly
convincing.

The father, when questioned several
hours after viewing the body of his
son, wasn’t able to give any important
information. His son, he sald, had
asked to use the family car the night
before, saying he would be in early,
At ten o’clock he had telephoned home
to ask if he could keep the car a little
longer as he was going to a party.
When he didn’t return, the father and
mother had decided that he was stay-
ing at the home of a friend.

When asked if Hayne had ever had
any girl trouble, the father shook his
head. Hayne, he explained, was too
young to take any girl seriously and

bad
»
Cay -
a

ahs

Byte ABS M ae tet

had only a passing interest in them.
At the time he left home, he carried
an expensive 21-jewel watch, a foun-
tain pen, and a billfold with not more
than three or four dollars in it. The
father didn’t' know, or have any idea,
who his son had been with the night
before.

Doctors. Cheek and Morrow had
completed the autopsy. They found a
.22-calibre bullet lodged against the
backbone of the youth. It had passed
through his heart. As far as the doc-
tors could tell, he had been dead
anywhere, from eight to ten hours
when the body was found. The gun
had been fired at a very close range
to the body; there were powder burns
on the clothes and the flesh surround-
ing the wound.

Tanner was given a severe hour’s
grilling by County Attorney Green and
Deputy Byrd. He stuck to his story
that he had gone to Wild Horse Moun-
tain to buy some moonshine liquor
from a bootlegger, just as he had done
every week. His stubbornness in
sticking to this story caused County
Attorney Green to half believe his

story, but he was held for further
investigation.
“In the first place,” Green said to

Byrd, “I’m inclined to believe Tan-
ner because I’m convinced that young
Wall was killed some place else and
taken to Wild Horse Mountain. Tan-
ner might have killed him and robbed
ie of the watch and the pen and the
billfold, which are missing, but it
just doesn’t click.”

“Anything is liable to happen in

those hills,” Byrd replied. “And a
hell of a lot has happened.”
Green nodded agreement. Living

in the shadow of the Cookson Hills
all his life, he knew of the human
vultures that hid in daytime in the
ravines and caves and crept out at
night to pry on any victim that might
be found near that fastness of scrub
oaks and dense underbrush. It was
the country that had bred the famous
outlaws of old, and in recent years
had seen such characters as “Pretty
Boy” Floyd, Alvin Karpis, and a score
of other modern killers.

Only a few. years before conditions
had become so bad that “Alfalfa Bill,”
then Governor of Oklahoma, had

called out the militia to clean out the
hills. Road signs had been posted,

SEARCHING PARTY TURNED UP THESE BITS OF EVIDENCE— .
A pair of broken eyeglasses and a briar pipe were discovered not far from where
the corpse was found. These were identified as having belonged to Hayne Wall.

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once more. The two guards at the
gate, George Woods and Clark
Brewster, blocked the way uncer-
tainly, their rifles half-raised. After
the ’36 break, Warden Dunn had
issued strict orders.

“If there should be another break
and the convicts get hostages,” he
had told the prison personnel,
“. .. even if they get me and IJ tell
you not to shoot, go ahead and
shoot!”

George Woods and Clark Brew-
ster remembered those instructions
now, as the convicts and _ their
hostages bore down on them and
Claud Beaver commanded:

“Throw down those guns and
open the gates, you... !”

ESS DUNN was as fearless a
man as ever lived. He had
come to Oklahoma from Texas
when that portion of the southwest
was still Indian territory. He had
seen scores of men live and die by
the gun. He had fought as a peace
officer through the “Carter County
Wars” with the famous two-gun
Sheriff Buck Garrett and his fast-
drawing deputy, Bud Ballew.
But now, 20 years later, on this

bright Sunday morning, August 10,
1941, not only his own life was at
stake. Beside him, held in the
merciless grasp of two desperate
convicts, was J. Herschell Fentriss,
an electrician who had_ nothing
whatsoever to do with the prison
and its inmates.

Woods’ and_ Brewster’s rifles
pointed at him, the sharp edge of
Beaver’s razor bit once again into
his throat and Anderson’s knife
stabbed him. But those who know
Jess Dunn say he would never have
done what he did then, if he had

only his own life to consider.

“Drop your guns, boys,” he said.

And as the guards followed his
orders and started to open the huge
East Gate, Dunn shouted to Deputy
Crider:

“Don’t let anyone shoot,
There’s an innocent man here.”

No one fired a shot. As the killers
picked up the guns the guards had
dropped and herded the warden
and the electrician out ahead of
them, Crider ordered the escape
alarm sounded. It wailed out of the
throats of the amplifiers like the
moan of a thousand banshees, eerily
heralding sudden and violent death.

Ben.

BOB POLLOCK, for-
mer prison guard, a
volunteer posseman,
suffered a bad hand
wound after a bor-
rowed gun proved
to be unloaded.

Just outside the East Gate a
Negro attendant was languidly
washing down Guard Brewster’s
Ford. The scream of the sirens
jolted him out of his reverie and he
turned to see Warden Dunn, his
shirt-front now blood-stained, be-
ing shoved toward the car by two
wild-eyed desperadoes. Fentriss
was right behind them, covered by
the two other convicts. The Negro
turned and ran.

Prather dragged Fentriss into
the rear of the car with him. Mc-
Gee leaped into the front seat and
got behind the wheel. Anderson
roughly pushed Jess Dunn ahead of
him into the front seat alongside
McGee and climbed in after him,
holding the .38 he had -picked up
against the warden’s head. Beaver
climbed into the rear seat. He
tossed a rope he had ripped from
the gate to Prather.

“Tie that — — — up,” he said,
indicating Fentriss.

As Prather started to bind the
electrician, Beaver leaned over the
back seat and placed the razor in
his left hand once more against
Dunn’s throat. In his right hand
he now held the other guard’s .38.

TN,
: M. is

ONLY SURVIVOR of the grim deoth battle is —
HIRAM PRATHER (top) but his pal Bill Anderso” ©
(bottom), believed to be the killer of Warder

‘Jess Dunn, paid his debt to the law and nature.

th Ae
ee

and the car rocketed forward. But
less than 200 feet ahead, the criminals
came to the point where the road met
the road running north from the
prison.

Deputy Sheriff Bill Alexander, Tab
Ford and Bob Pollock arrived at the
point perhaps five seconds before the
killers did. Alexander swung the car
sharply around to block off the road.

Alexander and Pollack leaped from
either side of the front seat. Alex-
ander had a gun in either fist and
Pollock held his army revolver before
him. In the convict’s car, Claud
Beaver pressed the razor _ tighter
against Jess Dunn’s throat. He said
something to the warden.

“Let us pass, Billy,” the warden
shouted out to Alexander.

“T’ll let you pass, Warden, but those
prisoners are piling out right here,”
Alexander answered.

Suddenly McGee again threw the
killers’ car into reverse and it backed
crazily away from the officers. As it
kicked up a dust-cloud, the convicts
started to fire. From behind him and
off to the sides, Alexander heard the
staccato answer of rifles, pistols, and
shot-guns. Other officers and guards
had come up and were opening fire on
the convicts from behind the nearby
home and garage of another of the
prison guards, W. H. Gage. It was a
mad cacophony of sound, a symphony
in hell and the air was thick with the
smell of cordite.

Alexander and Pollock rushed back
into their own car. As Alexander
looked up again, he saw Jess Dunn
struggling with Beaver and Anderson
in the convicts’ car. Bright orange-
yellow flame, paled by the sunlight,
blossomed and died fitfully in the
mouths of the fugitives’ guns as they
fired shot after shot. Alexander saw
their still-backing car veer crazily
as two of their tires, pierced one after
the other by bullets, went flat. Rich
Owens, the prison executioner, had
shot the tires.

Then the windshield of Alexander’s
car spider-webbed before his eyes
and there was the sharp, brittle sound
of cracking glass and one, short quick
gasp from the rear of the car. Alex-
ander and Pollock turned and saw
Tab Ford slumped on the back seat.
Blood oozed thickly from an ugly hole
in the middle of his forehead.

As Alexander turned back he saw
a black, glittering hulk move by and
realized that the convicts had brought
their car around and were once again
swinging past him, bouncing over the
uneven edges of the road. He threw
his own car into gear, heard Pollock,
beside him, shout:

“They’ll be stuck again, Bill.
There’s another bridge washed out,
just up this road a piece... You know,
my damn gun doesn’t shoot.”

Pollock hadn’t had a chance to tell
Alexander before, but when the
battle started he had discovered that
the army revolver he had borrowed
was useless.

“Grab Tab’s shot-gun,” Alexander
gritted, keeping his eyes on the
convicts’ automobile. He wasn’t 20
feet behind the car as it bounced up
the road like some berserk mechanical

FACTS FROM OFFICIAL FILES

HELL BREAKS LOOSE AT McALESTER

(Continued from page 35)

beast. They turned suddenly on their
flat tires and headed East again and
300 feet farther up the road came to
the second washed-out bridge.
Alexander was right behind them.
And he was fighting mad now! They
had killed his good friend Tab Ford
and he suspected they had already
murdered Warden Dunn, too. If it
was the last thing he did on earth, he
was going to make them pay for it.
He jammed on his brakes, but before
his car even slid to a complete stop,
he was out in the open road. There
was no cover. But Bill Alexander

each, a convict leaped forth. They
turned as they hit the ground and
fired several quick shots straight at

‘Bill Alexander. He charged on,

oblivious ...and lucky... so far.
He kept advancing, continued firing.
And then suddenly the hammers of
his guns clicked on empty chambers.
The two convicts who had leaped out
of their car, Claud Beaver and Roy
McGee dove headlong into a ditch not
three feet from the washed-out bridge
which had halted them. They
stretched prone in the mud and the
slime and cautiously raised their heads

Diagram showing route followed by desperate crush-out bandits of McAlester.

didn’t want any cover.

All he wanted was a chance to shoot
it out with these killers.

He drew both the guns from his
holsters as he leaped from his car
and charged directly toward the
convicts’ car, firing as he ran. Bullets
from the killers’ guns kicked up the
dust at his feet, hummed menacingly
past his ears. But he continued to
charge in, both guns barking and
blazing.

A surge of triumph went through
him as he saw the killer in the front
seat slump beside the blood-bathed
body of Warden Jess Dunn. He
plunged ahead and was almost on the
killers’ car. Other officers and guards
had come up now but they were
carrying on the fight more sanely than
Bill Alexander. They were firing
from behind various natural and man-
made barricades not too close to the
convicts.

As Alexander neared the car, the
left front and the right rear doors
whipped suddenly’ open and from

to draw a bead on Bill Alexander.

Alexander was just about to start
back to his car for another clip of
shells, when Bob Pollock reached him.
Bob had several clips in his hands.

“Here you are, Billy boy. Give ’em
hell,” Pollock shouted. ;

A burning pain knifed through his
right hand and he realized he’d been
hit by one of the killers in the ditch.
He made it to the car, staggered in
and slammed the door behind him.

And Bill Alexander stood calmly
out there in the middle of the road
and reloaded his revolvers. Then he
looked up and saw a head come up
out of the ditch. He snapped a shot
from his hip and blood spurted, for
an instant like a burst tomato where
the head had been and then the head
one the blood both disappeared from
sight.

Alexander charged toward the
ditch with hot lead still singing around
him and biting into the powdery dust
at his feet. He fired three more shots
and then there was no further answer

—_

from the ditch. Now he turned and
raced back toward the convicts’ car.
There was still one more killer in
there.

But as he came closer to it, the
door opened and Hiram Prather the
last of the four killers, stumbled out,
blood seeping from a slight wound in
his head. His knees were shaking
and he held his trembling hands high
above his head.

“Don’t shoot any more,’ he
whimpered. “I surrender.”

And then there was a full moment
of hushed, awed silence, followed by
the sound of running feet and the
shouting of men congratulating Bill
Alexander on his brave, mad fight.

church or sitting down to their Sun-
day dinners. Regret was generally
expressed over her tragic passing, for
the young woman was well liked, and
there was widespread sympathy for
her bereaved husband.

Dolda Brewer was ten years her
husband’s junior, gay and vivacious.
The stolid, ill-kempt lobsterman could
never keep up with her socially. Her
friends were many, including mem-
bers of the opposite sex, and she had,
on several occasions, left her home
for days without apprising her hus-
band of her whereabouts.

On one of these occasions Greenleaf
had received a call from Brewer, re-
questing a search for his wife. Be-
fore the sheriff could act, Brewer
called again to say she had returned
home.

HE death of Dolda Brewer oc-

curred on April 19, 1936. Sheriff
Greenleaf, finishing his Sunday din-
ner, walked slowly down to the un-
dertaker’s morgue, his mind tortured
with doubt.

Although the note and the coat on
the pier indicated suicide, the sheriff’s
alert eyes had glimpsed several con-
tradictory facts. What would the
autopsy tell?

Dr. Gregory greeted the officer
grimly.

Greenleaf sensed that the medical
examiner had something important to
say to him.

Gregory wasted no time. “Sheriff,”
he said, “You and I and Brewer are
of the opinion that this poor woman
took her own life.”

Greenleaf nodded, but it was not a
nod of acquiescence. Rather, he was
already agreeing with what he knew
the doctor would next say.

“We were wrong,” Gregory pre-
ceeded. “Mrs. Brewer was mur-
dered!”

Although his suspicions were con-
firmed, Greenleaf was profoundly
shocked. He could say nothing.

Gregory, taking his silence for skep-
ticism, walked over to a slab and
threw back the sheet from the wo-
man’s face.

“This woman was killed by a blow
on the head made, probably, by some
flat instrument. Here is the bruise.”
He indicated an indentation under the
hair. “The upper lip has been cut,

COMPLETE DETECTIVE CASES

“Look after the warden,” Alexander
shouted back. He stood at the ditch
and looked down, for a moment, at
the dead bodies of Claud Beaver and
Roy McGee. Then he lead Hiram
Prather over to the convicts’ car
where the officers had _ gathered.
Herschell Fentriss, the electrician who
had been bound and thrown on the
floor of the rear of the car when the
break started, was unharmed. He had
stayed right there on the floor through
the entire chase and the gun battle.

Anderson, the prisoner who had
sat beside the warden on the front
seat was shot through the abdomen
and the liver and was taken to the
Prison Hospital in a critical condition.
But Warden Dunn was dead.

ae Cr ee mee cen en eee

Bill Alexander stood there by the
car and looked at the dark, jagged
circles from which the warden’s life
blood flowed. One was_ beneath
Dunn’s right eye, the other in_ his
forehead. Both bullets had been fired
into his head from behind the right
ear and had come out in front. He
had also been shot in the thigh and
stabbed and cut in many places.

Jess Dunn had finally followed those
peace officers of the old Southwest
who had gone before him. He had
died with his boots on! And his friend,
Bill Alexander, who had killed two
and wounded the other two of the
four thugs who had murdered Dunn
stood there and paid silent tribute to
the warden, and his eyes moistened.

STRANGE CASE OF THE TELL-TALE

SKULL

the lower lip bruised and discolored.
The nose is swollen and the left eye
discolored. It is my opinion that if
she struck a rock sufficiently hard to
cause death, the skin would be broken
more than it is. Or she would have
fractured her skull.”

Greenleaf had not noticed the
bruised condition of the face before.
He merely shook his head sadly.

“Furthermore,” continued Gregory,
“there isn’t a trace of water in this
woman’s lungs.”

Gregory advised the sheriff to send
Mrs. Brewer’s vital organs to State
Pathologist Dr. Julius Gottlieb at the
Augusta General Hospital.

“There may be a lot more to this
than appears on the surface,” he
added significantly.

Greenleaf, considering the matter
overnight, reached a_ decision § by
morning. He went to Wiscasset, Lin-
coln county seat, ten miles away, and
laid the facts before County Attorney
Weston M. Hilton.

Two steps were immediately de-
cided upon. The vital organs of the
dead woman were to be sent to Gott-
lieb at once and Greenleaf was to
receive carte blanche to conduct a
complete investigation into her death.

$], suggest you proceed with utmost
secrecy, Hilton told the sheriff. “If
the news that this is a murder gets
out, we might frighten the killer
away.”

Greenleaf, returning to Boothbay
Harbor, took only Dr. Gregory and a
deputy sheriff, Harvey Sprague, into
his confidence. Gregory agreed to
prepare the vital organs for ship-
ment to Gottlieb. Sprague was as-
signed to check the names of every
person at Ocean Point who knew the
Brewers.

That same afternoon Greenleaf
went to Ocean Point himself and
called on a New York woman who
had just opened her summer home.
She was, the sheriff had learned,
Dolda Brewer’s closest friend.

The sheriff showed her the suicide
note. “Do you think thts was writ-
ten by Mrs. Brewer?” he asked.

The summer visitor, -a large, gra-
cious woman past middle age, studied
the writing. Then she said:

“It could have been. The writing
is similar to hers. The only thing
that leaves me in doubt is a mistake
in spelling.

(Continued from page 39)

“Of course, Mrs. Brewer could have
committed this error under the stress
of circumstances.”

The woman left the room and re-
turned with several letters.

“T received these from Dolda Brew-
er during the winter,” she said. “The
last came on Easter Sunday, just a
week before her death. There is
something in that letter you should
know about.”

Greenleaf began reading. His eyes
widened as he saw several significant
phrases.

“lve had some trouble with a
man,” Dolda Brewer wrote, “but it’s
all over now.” Again, “I am very
happy now. I’m sure everything is
past.”

Greenleaf turned and asked: ‘Who
is this man?”

The woman shook her head. “Dolda
never confided in me. But last sum-
mer she came over here, telling of
trouble. She came to us in great
fear.”

Greenleaf received the woman’s
permission to keep Dolda Brewer’s
letter. He left, his mind perplexed.

Had Mrs. Brewer gone down to the
lobster pier to keep a rendezvous and
met her death at the hands of some
vengeful killer? Possibly the man
she feared? If so, how could the
ae found in her room be accounted

or?

That night Deputy Sheriff Sprague
reported to his superior that Mrs.
Brewer had been friendly with two
East Boothbay men. One was a store-
keeper, the other an elderly profes-
sional man.

“IT heard that Reuben Brewer once
caught his wife parked with this pro-
fessional man on a lonely Ocean Point
road,” said Sprague. “He ordered her
out of the car and made her walk
home. He threatened to give her
escort a beating, but didn’t.”

Greenleaf made a note of the
names. That night, sitting well into
the morning hours, he studied Dolda
Brewer’s suicide note and the letters
written to her New York friend. In
the letters, the woman referred sev-
eral times to her husband, always af-
fectionately. Yet, in comparison, there
was an important discrepancy that
raised doubt in the sheriff’s mind.

The following morning he obtained |

several more specimens of Dolda
Brewer’s handwriting. Most of these

This is an official aX,

ture of the riddled con-
vict car photographed
immediately after the

death duel between
the escaping convicts
and their pursuers.

McGee and Prather had picked up
the rifles.

“Now we're going places, War-
den,” he rasped. “You’re not bring-
ing us back this time!”

McGee found the ignition key in
the lock and turned it. He released
the brake and jammed his foot
down on the accelerator. The roar
of the motor vied with the still-
screaming sirens and dust whirled
up from the road in angry clouds
as the car jerked into motion, raced
some 20 feet, swung into a crazy,
leaning-turn with tires shrieking
and headed .up the road running
parallel with the East Gate.

The wail of the alarm moved
everyone in the prison, as well as
in the vicinity of the prison, into”
action. Bob Pollock, a former em-
ployee of the prison, now retired,
was in a store just about a hundred
feet from the East Gate. He ran
out just as the fugitives’ car
roared by. He raced back into the
store and borrowed an old army re-
volver from the storekeeper.

WALTER HAGGARD, sheriff
of Pittsburg county, is

shown here’ holding

the

razor which a convict
pressed against the throat
of Warden Jess Dunn.

As he rushed out of the store
once more another car screeched
to a stop before him. He saw Bill
Alexander and Tab Ford in the car.
Alexander’s six-gun was in _ his
holster and Ford had a sawed-off
shot gun in his lap. Alexander had
formerly served as a guard in the
prison under Dunn and was now
Deputy Sheriff of Pittsburgh County.
Ford, too, had once been a guard at
the prison and was now retired.

“Climb in, Ben,” Alexander said,
flinging open the door. “I just got
the call over at the office a minute
ago.”

“We'll catch up with ’em sure,”’
Pollock said as he clambered into
the car. “They have to turn left
on this road here and just about a
block up the bridge is washed out.
Then they’ll have to cut back and
turn southeast. If we cut right
through here we can beat ’em to
the intersection where the road
they’ll have to take meets this one.”

Alexander swung his car around
in a sharp turn and sped up the

road that Pollock had _ indicated.
In the meantime, the convicts
had come upon Henry Norris, an-
other former guard of the prison
who lived nearby. He was unarmed
and the cons called for him to halt.
He started to race for cover, as
the fugitives fired at him. A bullet
pierced his straw sombrero and he
belly-whopped into the side of the
road. The convicts fired a few more
shots, which missed, and sped on.
Fifty feet from where they had
fired at Norris, McGee jammed on
his brakes and the car jerked to a
halt. They had come to _ the
washed-out bridge Pollock had
mentioned to Alexander. The gears
grated harshly as McGee threw
the car into reverse and backed
away from the bridge. The tires
spun miniature cyclones of dust
from the road as he twisted the
wheel to make the turn into the
lane leading southeast. Gray-blue
smoke roared from the exhaust as
he jammed his foot to the floor-
boards (Continued on page 59)

THE SIGN OF THE SPLINTERED BOARD (Continued from page 5)”

“And why did you say that?”

“Because Delia was going with Woods
just before she married Oliver.”

Sheriff Johnson was silent as he di-
gested this news. “And did he crawl on
Woods about it?” he asked. -

“I don’t know, Sheriff.” ~°

Johnson, Ramsey, Sample and Lowe
hurried over to the Oliver farm. After
a few desultory remarks to the family,
the sheriff drew Claude aside, “What
about Lester Woods?” he - inquired.
“Rance Hardy says Lester was after
your wife.” ;

“That’s Hardy’s idea,” Claude exclaim-
ed. “Frankly, I don’t think. much of it.”

“According to. Hardy, Delia was going
with Woods -before she married you,”
Johnson reminded him. —

Oliver nodded. “That’s correct. But
when Lester found out how it was be-
tween Delia and me, he stepped aside,

promised not to make trouble. Weve |

been great friends ever since. That’s
why I couldn’t figure him trying to get
Delia back.”

Blair Atkins aided the authorities

‘in the Oliver case.

“All the same, I think I'll have a
talk with Woods. Any objections?”

“None at all,” Oliver replied. “If
_there’s anything irregular about the. ac-
cident I want it cleared up as soon as
possible.” i

A SHORT. time later, Johnson was

putting Lester Woods through the
same routine. Where Hardy had been
incredulous, Woods was indignant. “I
had nothing to do with Delia,” he ex-
oor “Whoever said I did, is a dirty
ar ”

“What happenéd between you and
Delia? Why did you step aside when
Claude Oliver came courting?” Johnson
asked him.

Woods shrugged. “It was just one of
those things, Sheriff. Delia and I could-
n't get along, fought all the time. Even
though I loved her, I figured she’d be
better off with Claude.” -

“You and -Claude: are good friends?”

“That’s right.” -

. “I suppose Claude loved her deeply?”

Woods shifted uncomfortably in his

chair. “I wouldn’t say that, Sheriff. I
don’t think he really loved her to begin
with—” ; ;

“Then why did he go to the bother
of marrying her?” Johnson demanded.

Woods. was plainly flustered. ‘Delia
was pretty, and a good cook,” he falter-
ed. “Isn’t that, reason enough?” :

“Maybe you gave him a reason,”

‘Johnson countered. “Maybe you paid
him to:take her off your hands—”

“That ‘isn’t true,” the young man

‘cried. “I loved. Delia a lot, but we just
- couldn’t get along.”

“And how did the marriage seem
to turn out?”

“Tt was okay, as far as I could see,”
Woods replied. “I figured love would
grow between them. And when I saw
how, good Claude was to her I figured
that he loved her more than he had
pretended.” :

“How are you going to prove that
you didn’t tamper with his car?” John-
son asked him point blank.

Woods deliberated over this problem

for a long time. Finally, he shrugged,
spread his hands helplessly. “I don’t see
that I have an alibi,” he replied. “I

was in Davis the night before the wreck, -

but I went home early—”

“And it would have been easy for
you to get up in the middle of the
night, walk across the fields to the
Oliver farm.” .
“Dead easy,” Woods replied. “I sup-
pose you'll have to take me in until you

find out what really happened to that.

car. ”
“No, I won’t make a formal arrest,

Woods, .because I still haven’t got all.

the answers. Maybe you know them and
maybe you don’t. But I’m keeping you
and Rance Hardy under strict surveil-
lance, so don’t try anything funny—like
trying to skip out.” * .
‘Woods nodded. “I understand. I'll be
right here whenever you need me.”

As the Murray County sheriff left.

the Woods farm, he pondered over the

_ next step. He was convinced, now, that

the auto wreck was not entirely acci-
dental. He was convinced that some-

Delia Oliver, the lovely murder victim.

one had deliberately maneuvered. that
accident, had deliberately planned to
kill one or more occupants of that car.

—men who might have been in love
with Delia Oliver, who might have want-
ed Claude Oliver out of the picture.
But how was he’ to prove either one of

‘them guilty? Where was he to start?

As he turned: these matters over in
his mind; Johnson figured that the most
logical place to turn for positive proof
was the wrecked car. He drove to the
garage in Davis, after having ordered
Deputies Sample and Rowe and Chief
Dee Ramsey to meet him there.

When the four were assembled around
the mass of broken steel and glass,
Johnson summoned a mechanic. “Did
you find anything wrong with the steer-
ing column?” he asked.

“Tt had snapped in two,” the me-
chanic replied. “That probably happened
when the car plunged into the ditch.”

“And what ‘about bolts—connecting
parts? Were any of these missing?”

The mechanic was plainly puzzled. “I
don’t get you,” he said. “What are you

trying to ask me?”

Johnson paused, took a deep breath.
“We're trying to find out if the car
was tampered with, prior to the wreck.”

The mechanic was silent for a long
moment. “There were no bolts missing
from the steering gear,” he replied. “And
as far as I could make out,: nothing
was wrong with it before the wreck.”

“What about the front wheels?” quer-'

ied Johnson.
“They're okay.”

“Then how do .you explain the ac-

cident?”
“J don’t, Sheriff. The car must have
hit a bump, or something—”
Thanking the man, the sheriff dis-
missed him. Dee Ramsey said, “Well,
there goes one theory, at any rate. Still
think it wasn’t an accident?”
-“Y'm afraid I. do,” Johnson replied.
“There’s too many puzzling angles.”
“For instance?” - -
“T can’t put: my finger on them at
the moment,” Johnson replied. “Yet I

ry sees

This criminal was smart but not

know as sure as I’m living, that there’s
more than meets the eye in this acci-
dent.” .

“Still think Rance Hardy or Lester
Woods had something to do with it?”
Ramsey persisted.

““T wouldn’t be surprised,” Johnson
said. “There’s a lot of ways other than
tampering with the steering gear.”

The Davis police chief nodded.
“What are you going to do now?”

Johnson stared hard at the opposite
wall. He said. “I’m not much of a
mechanic, but I’m going to look that
car over myself. Maybe’ I'll see some-
thing the garage men missed.”

An hour later, Johnson and Ramsey
were again examining the wreck, going
patiently over every square inch of the
battered metal, shattered glass and punc-
tured upholstery. Presently, Johnson
nudged Ramsey. “Blood on the front
seat,” he murmured. 2”

“Uh, huh, that’s where the girl’s body
was found,” Ramsey answered.

After an exhaustive study of the

TAT ‘ag

quite smart enough.

wreck, Johnson shook his head somberly.
“Tf anything was tampered with, I can’t

find evidence of it,” he growled.

“Then where was the dirty. work
done?” :

“There’s only one possible alternative.
Someone either placed an obstacle in
the rough road near the bridge or else
did something to the bridge itself to
make the car go haywire.”

Ramsey shook his head. There was
a puzzled expression on his face. “It’s
all Greek to me,” he said.

Ramsey, Johnson and Deputies Rowe
and Sample again sped to the scene of
the wreck, explored the road and the
bridge carefully. Johnson. again exam-
{ned the thick, splintered board where
the car had gone over the side.

He went down under the bridge, ex-
amined the damp earth there for signs
of footprints where someone might have
waited for the Oliver car, and seeing it
coming, might have rushed out into the
road with a heavy boulder, a plank or
a-piece of iron with which to deflect the
speeding machine from its course.

Another hour passed. Still nothing of
significance was turned up in the rocky
soil. Finally, Johnson threw down his
shovel,. started running his fingers
through the up-turned earth. He extend-
ed his operations up the side of the
gulley. ,

More than two more hours passed.
Rowe, Ramsey and Sample had lain
down their shovels, sat. down on the
bridge to rest. Presently, Sheriff John-
son stopped too, uttered a sharp ex-
clamation, spread something out in his
palm.

“What have you got there?” asked
Ramsey. :

Johnson pointed to his palm. A -long
black hair lay there, Ramsey drew his
breath in sharply. “Delia Oliver had
long black hair,” he exclaimed. “Where
did you find that?”

“At the end of the bridge,” Johnson
replied. :

“But how did
he asked.

“That’s what I’m going to find out
right now,” Johnson old him. He re-
newed his digging at the spot where he
had found: the hair. Seconds later, John-
son’s shovel brought up more hair. He
sank the instrument deeper into the
ground, felt a jar as it struck something
hard. A moment later, he was groping
with his hands, brought up a long piece
of metal, a tire tool.

The sheriff examined the tool minute
ly, noted that beneath its crust of sand
and clay, it was smeared with a dark
pearing substance, matted with long black

airs,

The others helped Johnson dig fur-
ther, excited by their. gruesome find. A
few. moments later, a blood-stained,
hair-matted rock was brought to the
surface.

The sheriff nodded his head grimly as
if in agreement with the thoughts that
raced through his mind. He said: “She
was dead before the car struck the
gulley.” £

Instantly, the others asked a score of
questions. The sheriff shoved the toe of
his shoe into the rocky soil as he de-
liberated. “I’m not certain yet about
anything. There’s a lot of angles yet to
be checked on. I think I’m going to
start with Blair Atkins,”

The officers left the gulley. Johnson
wrapped the precious evidence in news-
papers. The quartet proceeded to Davis,
sought out the burly Negro.

Johnson eyed the Negro. with intense
speculation. Finally, he asked: “What
would you say, Atkins, if I told you
Delia Oliver had been murdered before
the car hit the ditch?” .

Atkins replied; “That’s not possible,
Sir. I saw the. accident..All three were in
the front seat. I even heard Miss Delia
scream.”

Johnson scanned the Negro’s face anx-
iously, decided the Negro was telling the
truth insofar as he saw it. Yet the
sheriff did. not believe Atkins was telling
the whole truth. He said: “It was mighty
convenient for the Olivers that you were
on -hand to -witness that accident.”

Atkins said: “What do you mean,
Sir?”

“I mean that the Olivers might not
have gotten any insurance if there had
been no one to corroborate their. state-
ments.” A \

Johnson allowed that statement to
sink in, then snapped: “Atkins, you were
hired to be at the bridge the morning of
the accident weren’t you? Didn’t some-
one promise you some money if you
acted as witness to the scene?”

Relentlessly, the sheriff pounded away.
Finally, he used his last ace. “Atkins,
if you don’t tell us what you know I'll
have to hold you as an accessory to
murder.” —-

the hair get there?”

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The Oliver home where a murder plot was hatched.

“Murder?” Atkins echoed.
“Yes. Delia Oliver was murdered be-

’ fore that car went over the side. Mur-

dered for her insurance. You'd better
tell me everything you can.”

The Negro hesitated a moment, then
cried: “All right, I’ll tell. They forced
me into it. I thought it was for the auto
insurance. I’d have let them kill me if
I'd known they were planning murder.”

This testimony was enough for the
sheriff. With Ramsey, Rowe and Sample
he departed at once for the Oliver farm.
Ramsey said: “You're going to arrest
Claude and George?”

Johnson nodded. “They’re as guilty
as hell.”

Ramsey said: “I figured you had
something up your sleeve all along.
What started you suspecting them?”

“Remember the splintered board in
the bridge?” Johnson asked. Without
waiting for an answer, he continued:
“That could have been made only by
an enormous weight.”

“The weight -of the car as it plunged
over the side,” Ramsey put in. “What
does that prove?”

“Wait a minute,” Johnson said. “You
will remember the rubber from the tires
in the splintery planks. There was quite
a lot of it.”

“So what?”

“From the amount of rubber worm off
I'd say some violent rubbing had gone
on at that point.”

“And—?”

“T’ve been thinking about this a long
time, Ramsey. I wouldn't say anything
until I had positive proof. That rubbing
took place. when the car was pushed off
the bridge.”

“Did you say ‘pushed’?” Ramsey de-
manded.

up in the Oliver
barn Jot. George and Claude Oliver were
lovingly polishing a new car. The offi-
cers circled the car casually, as if to
admire its shining newness. Johnson said
to Claude: “Spending your insurance
money?”

Claude’s face was sullen, defiant.
“What of it?” he flug back.

“J don’t think I'd spend something
I didn’t have,” Johnson said evenly.

“The investigator is doubtful as to
whether the company will pay.”

“And why won’t theecompany pay?”
Claude replied savagely. “The premiums
are up to date—” .

“And for a poor farmer they're pretty
big premiums,” Johnson replied. “You
might have allowed the body to get
cold before plunging into an orgy of
spending.” .

There was a queer light in Claude
Oliver's eyes. Sheriff Johnson braced
himself for a possible attack. Oliver
snapped out: “What are you driving at,
Sheriff? Are you insinuating that I killed
Delia?”

“Well, didn’t you?” the sheriff replied
calmly. A second later, he rasped out:
“The jig is up, Claude. You may as
well confess. We’ve got the whole thing
in the bag—the tire tool and rock you
killed her with, and Atkins’ confession
that the wreck was framed—”

“You're crazy,” Oliver cried. But his
face was deathly pale. His hands trem-
bled so violently that he dropped the
polishing cloth.

For answer, Johnson reached out and
snapped a pair of handcuffs around
Claude Oliver’s wrist, motioned to Ram-
sey who took George Oliver in custody
at the same moment.

In the county jail at Sulphur both
men were questioned rigorously. They
were confronted with the Negro who
recited his part in the plot in their hear-
ing, but still they refused to confess.

Claude Oliver did not weaken through
the long gruelling examination. But
George Oliver, younger and more im-
pressionable than Claude, began to show
signs of breaking after a few -hours.
Sheriff Johnson took advantage of this,
fired an even heavier barrage of ques-
tions at the flinching farm youth. Even-
tually, George did break down and sob-

‘bed out his story to the officers.

“Claude planned the murder even be-
fore he married Delia,” George Oliver

began.

The officers gasped audibly at this be-
ginning. Oliver went on: “He kept after
me until I said I’d help him. He wasn’t
particular about which one of us mar-
ried her.” 5 y

“Then how did you decide that?”
asked Johnson.’ :

“We tossed a quarter. Claude won.
He married Delia. But when we flipped

to see.which one would kill her—” he
paused, scanned the circle of grim faces
anxiously.

Sheriff Johnson leaned forward.
“Which one got it this time?” he urged.

“I did,” George Oliver replied. “I was
supposed to kill her. Then Claude got
Atkins to pose as a witness. But I didn’t
kill her after all. I couldn’t. Claude had
to do it when it came right down to it.”

George Oliver stated that Delia Oliver
was killed at the bridge, the murder
weapons buried, and then the three of
them had pushed the rickety Ford over
the side of the wooden structure.

Sheriff Johnson faced Claude Oliver
with George’s confession. The older man
promptly branded it as a lie.

“George is sore because he had to
work so hard on the farm,” Claude
Oliver maintained. -

And no amount of questicning could
budge him from this stand.

A guard was thrown around the jail
that night when news that a crowd of
enraged citizens were forming to lynch
the trio in jail. Frightened at the pros-
pect of being handled by the mob,
George Oliver made still another con-
fession, but this time he placed the
burden of the blame on,his uncle, Claude
Cliver, declared that Claude had forced
and threatened him into the plot.

Also, he told Johnson that Atkins had
no part in the actual killing, but had
been coerced by Claude Oliver into testi-
fying that the wreck was an accident.

This second confession was in line
with the Negro’s story, that he was paid
to help wreck the car, that he knew
nothing about Mrs. Oliver's murder.

Claude Oliver changed his tactics,
then. He decided to plead guilty and
throw himself upon the mercy of ‘the
court. George Oliver signified the same
intention. On December 12, 1932, they
entered their pleas, and on December
18, Judge W. G. Long sentenced. both
of them to death in the electric chair. -

On August 23, 1933, the sentence was
carried out in the Oklahoma state -capi-
tol. Following the sentencing of the two
Olivers, Blair Atkins was released be-
cause he was obviously innocent of any
intentional wrong doing.

NOTE: Names Lester Woods and

‘Rance Hardy are fictitious ta. protect

the identity of innocent persons.

~of the slab, fixed his gaze upon the
scarcely recognizable features of the-
-corpse. “I hardly know myself,” he re-

Sheriff.-Can’t get help these days that
don’t have some kind of a bone to

“How about your present help—have
any trouble with any of them?”

Oliver’s hesitancy was obvious. “Sher-
iff,” he began, “I don’t like to accuse—”

“No one .will ever know. we've “had .

this little talk. Tell me what you can.”

“Well, Rance Hardy and.I had some
words yesterday.. He’s a hot-headed
sort.”

_ “What was it all about?” the sheriff

asked.

“And ‘you didn’t fire ‘him?”

“No. I.could have been mistaken, and’
Hardy's a good worker.” .. ‘
~“Did-Hardy “have a~-chance to fool
with the car?” ;

“Yes. He was in the. barn lot ‘this
morning for quite some time before we
left.” Oliver shifted in his chair. “I hate
a think Rance would do a thing like

Sheriff Johnson wrote Hardy’s name
down on a:slip of paper, made a mental

note to investigate this possibility at.

once. He glanced again at the shaken
Oliver, pointed to a dark brown stain
on .his shirt front. “I suppose you got
that blood on you when you tried to ex-
tricate your wife from the wreck?”

Claude. Oliver nodded. “That’s right.
But she was already dead. I couldn't
help her any.”

After a moment’s pause, Johnson
said: “All right, boys. Go home and
make arrangements for the funeral. But
keep -yourselves available. I may want

to. question all of you again.” .

WHEN the trio had left the mortuary,
Ramsey shot a quizzical glance at
Johnson, “What you got up your sleeve,

Boze?” he asked.

Johnson walked around to the side

plied. “I’ve a hunch. there might be

some dirty work in connection with

that accident.”

“But if Rance Hardy was fooling
around after Claude’s wife why would
he try to hurt her?” Ramsey objected.

“He might. not have known Delia
planned to go to town with Claude and
George,” Johnson ‘replied.

“Then you're going to investigate
from that angle?”

“And how!” Johnson replied fervent-
ly. “I smell a rat and I’m going to
smoke him out of his nest.”

-At. thé sheriff’s request, the pair stop~
ped at Ramsey’s office long enough to
telephone his office in Sulphur, the
county seat, request~ Deputies J. H.
Sample and Fred Rowe to meet him at
the accident scene. ‘ .

‘An ‘hour Jater, the four men were

’ Jooking over the twisted -wreck of an
old Model A touring car which lay on!

its back in the ravine below the bridge.
Johnson: tuned to Deputy Rowe.
“You're a good hand with automobiles,
Fred. Get down there:.and see if you
can find out.what happened to put that
steering wheel on the blink.”

Johnson paused, then addressed Ram-

sey and Sample. “We'll look over ‘the

road and the -bridge while Fred does
that.” :

Rowe descended into the gully, pulled.

off his coat, went ‘to work. Sheriff John-
gon,: Chief Ramsey and-Deputy Sample
explored the wooden planks of the bridge
carefully. Johnson sauntered over to the
edge néarest the wreck, murmured:
“This. is-where she went over. Look—
the tire marks are’ still visible in the

The bridge where Delia Oliver mad the fatal plunge. Note the ‘splintered top rail.

‘spot. “Looks like the car skidded at

this point—a lot of rubber in those

splintery boards.” ’ :
The sheriff nodded. “Not only that,

‘but the impact split one-of the planks.” °

He examined the ‘broken board care-

‘fully, noted that it was heavier than the
rest of the planks, ‘that it was fully”

S22h. is

three inches thick:*** .*"! i

At this time; Deputy Rowe scrambled
up out of the ditch, dusting his hands,
pulling on ‘his coat. His face was the
.picture of dismay. ea ;
“ “What did you find?” asked the Mur-
ray County sheriff. .

Rowe slapped’ his hands together
vigorously. “Not a thing, Sheriff. That
car’s in such a mess that it will take
a better mechani¢ ‘than me to discover

_ what went. wrong, You'd better ask

somebody in Sulphur to look it over.”

“Okay,” said Johnson. “I'll order. a:

tow car at: once.” ;
“The-officers left the scene and stopped
at the nearest farmhouse-where~Sheriff

out for him, then banged up the receiver.

“Where to now?” asked Ramsey as’ them all?"

vu
they slid into their machine. ~
“T think we'd better ask Rance Hardy -
a few questions,” Johnson replied.
In order to throw Hardy off .guard,
Johnson arranged with one. of the Oli-

ver’s neighbors to summon the hired

hand to the adjoining farm. When Hardy
had seated himself -:in the’ neighbor’s
living room, Sheriff. Johnson entered,

“began a casual “conversation with the

man, ,
Skillfully, Johnson ‘brought up ‘the
subject of the accident. The hired hand

-was “immediately “sympathetic. “Tough

on Claude Oliver, the way Delia died,”
Hardy commented... Nit

Johnson nodded. Then he decided to
take a long shot-in the dark. Watching

- the man’s face-for a-tell-tale reaction,

he said: “It’s going to be tougher on:
him when he finds. out that it wasn’t
entirely an accident.” ~ :

. The sheriff could see Hardy’s spine
stiffen as he straightened in his chair.

that car,” Johnson i a
“You mean someone wanted to kill .

“Looks like it. Have any ideas about
who could have done it?” .

Hardy shock his head, his eyes filled
with disbelief. "“I. can’t imagine anyone

being mean enough.”

Johnson allowed a long. silence to
lapse. Then he asked, casually: “By the
way, Hardy, you know quite a lot about

my life—” suddenly the man broke off.
bit his lip, then -burst out: “Surely you
don’t think I had any hand in the acci-
it!”
“You had good reason, Hardy. You
were fooling. around with Delia Oliver.”
‘Hardy jumped out of his chair.
“That’s not true. I was nice to her—
yes. But if you want the guy who really

- coveted her—”

The sheriff leaned forward. His eyes
held Hardy’s. in an interested gleam.

‘The hired hand said; “Lester Woods
‘ was:the fellow after Delia.”

.-“But Claude thought it was you.”
“J know he did, and I tried to clear
myself with him. I told him I thought
Lester Woods was the one who wanted
Delia—” Hema
(Continued om page 22)

He found no such evidence under the
bridge, however.

Accompained by Ramsey, Rowe and
Sample, Johnson paced up and down the
road, looked for evidence -of sabotage.
An hour of. painstaking effort revealed
no signs of any.

Ramsey said to Johnson: “Looks te
— you’re stymied. Do you give
up?” ‘

_The sheriff shook his head. “This
mystery is just getting interesting,” he
replied. :

Ramsey shot him a quizzical glance.
“What so. you mean?” he queried.
“Have you found something you haven't
told us about?”

. “Maybe,” the sheriff replied cryptical-
ly. “But I’m not saying until I know
for certain I’m right. I don’t want you
fellows to laugh me out of Murray
County.”

Sometime later, as Johnson was again
examining the wreck of the Oliver car,
an attendant said: “This thing is headed
for the junk heap as soon as you are
through with it.”

“That so?” said the sheriff. “How.

come they’re not having this one fixed
up?”

“George and Claude have ordered a
new one. They’re trying it out now at
the farm.”

Johnson digested this information,
then asked: “What are they using for

money? I thought they were just poor ,

dirt farmers.”

“Oh,” the attendant explained:
“They’re buying it with the. insurance
money.” ;

JNSTANTLY, several items clicked to-

gether to form one complete whole
in the sheriff’s mind. He .raced to the
home of Blair Atkins, questioned him
again. The Negro recited the same story
he had told in the beginning of the in-
vestigation.

Jchnson said: “How long have you
known the Olivers, Atkins?”

The Negro thought this over. “Oh,
for a couple of years, I reckon,” he re-
plied. “Nice folks, the Olivers.” ?

Johnson asked: ‘“Didn’t anything

.about the accident occur to you as

strange at the time?”

Atkins was thoughtful. “No suh. It
just looked to me like Mr. Claude was
fighting the steering wheel to keep the
car on the bridge. I didn’t see anything
strange at all.”

“You don’t know whether or not their
car was insured?”

The Negro shook his head. “J don’t
know- anything about their private af-
fairs, Sir.” _ . .

Johnson immediately. checked on the
car insurance angle, soon learned that
the Olivers had no insurance on the
old Ford. The sheriff-raced back to the
garage attendant, asked him: “What in-
surance were you talking about when
you told me the Olivers were buying
a new car?” ‘

“It was Delia Oliver’s insurance,” the
man said. ~

“You don’t happen to know how much
it amounted to?”

The man shook his head. “You might
check up on the agency at Davis. They’d
know.” | :

The sheriff did check, as fast as he
could push his car over the road from
Sulphur to Davis. He learned that Delia
Oliver’s life had been insured for $5,000,
with double indemnity in case of acci-

‘dent. Therefore, the insurance company

was due to pay Claude Oliver $10,000
for the death of his wife.

“How old is that policy?” Johnson
asked the insurance agent.

“About. two. months.”

“And will you tell me how: a poor

Oklahoma farmer managed to scrape

up the premiums for such an enormous
amount?” Johnson demanded.

The agent shrugged. “It’s my business
to sell insurance, not figure out how the:
premiums are being met. They’re all
paid up, cash on the. line.”

“I suppose the beneficiary is Claude
Oliver?”

The agent nodded his head. “Delia
insisted upon that.”

A quick probe around the county re-

‘vealed that another company had al-

ready paid off a small claim to Claude
Oljver on his wife’s tragic death.

here had Claude Oliver obtained
the money.to purchase the large policy?
Johnson delved into this matter thor-
oughly, learned that every member of
the Oliver family, including Delia, had
worked from dawn to dark in neighbors’
cotton fields to earn extra money aside
from what they made on their own.
farm. Delia had pooled her money with
that of her husband and his nephew.
Thus had the large outlay of cash for
the insurance been possible.

At THIS time, Johnson, accompanied
by

Deputies Rowe and Sample

drove to Davis, urged Ramsey. to. ac-
company him again to the scene of the
accident. As Johnson parked his car
near the bridge, he threw four shovels
onto the shoulder of the road. Ramsey
asked: “What are you up to now?”,
The sheriff pointed to the shovels,

picked up. one himself. “Start - digging,” ;

he said laconically. :

The men did as Johnson requested,
started turning the earth at the spot
where the Oliver car had come to rest
from its plunge off the bridge.

An hour later, Deputy Rowe wiped
perspiration . off his forehead, said: “I
don’t see where this is getting us!”

“Keep digging,” the sheriff advised.

The lethal weapon was fou

Sheriff Boze Johnson of Oklahoma. He knew murder
when he saw it.

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: 56
ON Se
Fede vaaiiacubie Miles (9 tak

SS" (Continued f

anything wrong with it. People say

it ‘wasn't safe to drive, but I know |

better.”
.“*¥You needn’t worry, son,” Sam-

ples told him with a reassuring

smile. “A mechanic went over it
and found it okay.-But tell me one
thing. Did your aunt usually go

‘out “‘in.it on that particular day

of ‘the week?”

“Yes, that was her day for shop-
ping and doing errands.”

“And she usually left about the
same time—around 9:30?”

The boy nodded, plainly wonder-
ing what the officers were driving
at. ¢

“Did anybody know that except,
you and your uncle?”

George Oliver thought for a mo-
ment. “No, I guess not—unless it
was Mack.” :

Mack, he explained, was a hired

‘man who had helped them on the

farm for awhile two months earlier
—shortly after Claude Oliver had
brought his bride to live on the
farm. ;

“Where’s Mack now—and what’s
his last name?” the marshal in-
quired. :

“J don’t-know his last name, and
he left this neighborhood.a month -
ago. Said he. was taking a job in
Kansas City for the winter.”

“All right. How much money did
Mrs. Oliver have with her?”

She had taken only ten dollars,
the youth said, to buy the chickens.
She never carried much with her.

“Now just one more question. The
field where you were working that
morning lies next to the road. Did
you see anyone walking along the
road?” .

George scratched his head, try-
ing to remember. “Yes,% he said
finally, “I remember three fellows
going past our place about half
an hour before she left. I didn’t
recognize any of them. Guess they
were hitch-hikers.”

A glance passed between the offi-
cers. “Three, you say?” repeated
Samples. “How old?”

.“A couple were just a little older
than I am. The other was maybe
thirty-five.”

Footsteps sounded behind the un-
dersheriff, and he turned to see
Claude Oliver standing at the
kitchen door. The man _ looked
tired; the circles beneath his eyes
suggested loss of sleep.

“T heard what you said just now,”
he announced, sitting down.
“Sounds like you suspect somebody
may have wrecked the car.”

Ramsay..drummed the kitchen

rom page 21) Sa

' gent out a teletype alarm. That %&

3
table-top with his fingers. “I’m
afraid there’s: been foul play of
some sort, Claude. In fact, the un-
dersheriff and-I have about con-
cluded Della was murdered.”
“Murdered!"'The man, half-ris-

ing from his chair, looked stunned. -. - SELECT

Then as he sank back again, he BEST

stammered, -“B-but who? Good

Lord, why didn’t you tell me?” FOR /
As the marshal described their

DELIGE
discoveries of ‘the afternoon, the fst,
young farmer sat with his head in
his hands, weeping softly. :
“That’s why. we came_ here,”
Ramsay concluded. “Do you know
anybody who’d have wanted to do
her harm? Some admirer, for ex- -

“ample, that she jilted when you i:

married her?”*" a a ;

“She always had plenty of beaux,
and I guess some of them were
disappointed. But, Lord! What a
thing to do! Anyway, you’d have
to investigate around Wynnewood
to learn about that. That’s where
her old boy friends all lived. And:
I’d sure appreciate having you tell
me if you find out anything.” an

As they departed, it appeared ~~

improbable to Ramsay and Samples vivid, exciting
that any rejected suitor from “ie gram of male
‘Wynnewood, a town 10 miles north, ~~“ @Re collection abou
could have been lurking in the. 7#- |. FOR MALES
neighborhood ‘at the-time of Della. - er. we
Oliver’s death: i + «You'll: Enj

“Those ‘hitch-hikers—if that’s 7 Bewitchin:
what they were—seem more likely,” ~} 2 In “Tales

the marshal said. “They must have .~
showed up a short timé later. Let’s 7
see if we can pick up their trail.”. 4
They were successful almost im- ~%
mediately. Three men fitting the. ~
description furnished by young — 3
George Oliver had been noticed-on |.
the~ outskirts of town, trying to —|
thumb a ride westward toward @
Lawton on State Highway No. 7.
Immediately “Undersheriff Samples -.

done, he and the marshal sat down ¥
to a belated dinner. J

Half way through the meal, Dep-".%
uty Rowe walked in. “I’ve got news.
Our mysterious friend, the passing
motorist, showed up at a filling =
station just a mile away from the ~
murder scene about 10:15 that ~

morning. He was on foot. Said his - made oe CONT!
car had run‘out of gas after he'd © _ EVERY M
_turned off onto a side road. He e THe L

carried a gallon back with him, — eA OT Willnes
then returned about three quarters mas we

of an hour later and tanked up.
But the queer thing is this: he
didn’t mention the accident.”
Instantly Samples forgot his din- ~
ner. “Good work! Which way did
he go from there?” :
“East. The same way he was .
headed. But that isn’t all. I think |j
ea ;

4 i ee:
2 HE WAS

MER.” Prone
WHAT EVERY y
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James T

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ETECTIVE. CASES: sn SY .
he’s still int the vicinity. The filling say. “gock him up.
station man had seen him several ~ than he’s telling.”
days before and he mentioned that... Pettit was the only man, appar-
he was orking: on & farm near «. ently, aside “from Claude and
Sulphur. ’'m leaving for there right George Oliver, who knew that the
away.” ee victim would léave the farm that
ye . morning on her weekly shopping

‘was not quite 9 o’clock the fol- . and errand tour: That alone placed

B&B lowing: morning when Rowe, him under grave suspicion. Anoth- '
tired but triumphant, led @ wiry, er fact throwing doubt, on his
lean-jawed - man “with pale blue truthfulness was that young George
eyes into the town marshal’s head- had referred to him as “Mack,”
quarters. “Pere’s your man,” he whereas he had told the officers _
announced. “ye had his story all his name was George.
ready when I found him, but it Samples decided to drive out to

- The man gave his name as young farmer further. He might
George Pettit, 31, @ farm hand who recall something suspicious in Pet-
had worked recently on various tit’s behavior toward Mrs. Oliver.
farms in southeastern Oklahoma when. he arrived, however,
and, western Arkansas. He was ob- George Oliver said his uncle had
viously nervous as Samples began left for Ardmore an hour earlier.
firing questions at him. His story He intended to purchase @ car to
poiled down to the following: replace the™ wrecked Ford, and

He had not seen Della Oliver’s would not be back until late in the
car topple over the culvert, but had day. #

come along immediately afterward Samples returned to town and

and stopped at the roadside. No paced the marshal’s office fretfully. as «

one else was around. As soon a5 Meanwhile -his deputy, who h see

he discovered @ woman was under brought fingerprint detection ma-~ . . a :

it, he had dashed back to. his own terial from the sheriff’s office in

automobile with the intention of Sulphur when he went for Pettit, =~ vi :

summoning aid. It was at that was trying vainly to pring out im- | a

moment the other car drove up. pressions on the file and tire fron. — a ‘

- When the motorist and the farm- Finally he gave up in disgust. : ,

er’s wife suggested he g0 to notify Samples strolled out to the jail oa =

Oliver, he had traveled about @ cell where. Pettit was confined. - aie. sea

mile, then run out of gas. He turn- “why,” he asked, “did you call ‘a ‘-

ed his car into a side road and yourself Mack when you worked ~ 7am SAFEG

started off on foot. By the time for Oliver?” a j ENTIR

he returned, refueled the car and. — The man’ shook his head puz- 4 E

started off again, it was past 11 zledly. “I never called myself Mack, ; ‘

a. m. Arriving at the Oliver farm, and nobody ever called me by that 3

he could find no one around. So name.” «> I

he presumed, he said, that some- The phone interrupted their con- ;

one else had already notified the versation. ‘The police at Lawton. | 4

woman’s husband. He was overdue were calling: _— 4 ANY

at work by that time, So he pro- — “we've got two of those fellows 4

ceeded to the farm where he was you want,” the officer at the other =.

emoloyed. end said. “The third one parted. Bf it’s Now! |:
“Funny you didn’t mention the company with them. They admit be- | xa give you th

ment for sic
any Hospite

accident to that station attendant.” ing in your neighborhood the day
the undersheriff remarked. “Ever Mrs. Oliver was killed, put natural-

une these before?” He reached-in iy they won't admit knowing any- Snoeeligely
vk drawer and pulled out the thing about it.” tiie wheter
ploodstained file and tire tool. “Pine!” yelled the undersheriff. .
“Someone Was carrying these in “we'll pick them up within an Indiv
a car, obviously.” ; hour.” Why is it ¢!
Pettit stole a sidewise glance at Rowe was immediately rushed to so little fee
them and shook his head. “No, Lawton to get the prisoners. While - ; family grou;
no. I never saw them before. waiting for his return, Samples. 1 S._ benefits as |
They're not mine.” . and Ramsay discussed how they -death bene!
wmhey could be,” Rowe said. “He should interrogate the two hitch- p aame Compe
didn’t have either a tire tool or hikers. Ramsay felt none too op- xan
a file in his car when I searched - timistic about the prospect. ponent
mR “we still haven't discovered any ae No f[
“pver work for Oliver?” Ramsay plausible motive,” he contended. “I dg al
asked: asked Dr. Robberson whether W6 = ante volvable >

yeur savings {
at once ter 2

: Pettit gulped, moistened his lips.
Just a short time. It was about attacked

two months ag0- " “necessary. Said he was positive she
Samples’ eyes narrowed. “Then had been unharmed except for the ~
why didn’t you recognize Mrs. Oli- fractured skull. And the undertaker «7

ver? Why didn’t you recognize the is equally positive. I, for ont, 4
oer take their word for it. If they're -
“I was too excited. I couldn't see right, what have we for a motive?
her very well under there.” Samples’ brow furrowed. “I didn
The undersheriff turned to Ram- = realize... ;

they were ‘that certain. tf
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CONFIDENTIAL DETECTIVE “CASES

that’s the case, we= haven’t any
justification for disinterring the
body.” He shrugged. “The woman
wasn’t robbed. :I guess: I’ll have

to agree with you. Why: was. she"

killed?” 2°" Eee

_ He paced the room for a few
minutes in silence, then put on his
hat. “I'm going out to see where
a crazy hunch’ will ‘lead me. Be
back in an hour or so.” :

“Shall I question the two guys
Rowe is bringing in? Where can
I reach you?”

“At, the bank.” The undersheriff
closed the door behind him.

An hour and a half later, while
Ramsay was still. idly wondering
what kind of hunch his colleague
was following, Rowe walked in with
the two hitch-hikers. They were
dirty and rumpled from traveling,
and sullenness clouded their faces.

Vehemently they denied any
knowledge of Della Oliver’s death.
They remembered the culvert and
dry creek bed where the body had
been found, but they insisted the
wreck must have occurred after
they had passed the spot. Further
than that, they had nothing to say.
The marshal gave up trying to in-
terrogate them and decided to hold
them for the undersheriff, who had
more experience in such matters.

T was mid-afternoon when Sam-

ples walked briskly from the
local bank.and placed a telephone
call for Ardmore. He spoke for ‘a
few minutes then called County
Attorney E. W. Fagan at Sulphur.

“Sure, go ahead,” Fagan told him
at the end of their conversation.
“I think you have-sufficient evi-
dence.” .

Beaming, Samples hung up and
walked back to the marshal’s head-
quarters. There he placed another
call for Ardmore—this time to an-
other number. Listening, Ramsay
and Rowe soon knew he was speak-
ing to the Ardmore. police.

“Claude Oliver may _ still be
around town,” he said. “If you can
find him, hold him on a charge
of suspicion of murder.”

The other two officers gasped.
“Ojiver?”

“Yeah,” the undersheriff replied.
“And I want you to go out and
bring in the nephew, too.” .

Rowe presently returned with the
dark-haired youth and placed him
in a detention cell. Ardmore phoned
that a man believed to be Claude
Oliver had just left for his home
in a newly purchased car. Late in
afternoon the officers nabbed him
as he drove into his farm. He was
lecked in a cell by himself.

“Tl question the nephew first,”
Samples said as Rowe went to get
the youth.

George Oliver. was obviously
frightened as he faced the under-
sheriff. He ran his fingers through
his black hair nervously and twist-
ed in his chair.

nT ER dtl, RNIN cas so

Heer y

-. “Ready.to confess, George?” ask- —
ed Samples quietly. He waited for
‘a moment, but receiving no an-

>“ gwer, he went on: “You may as

“ well. Everything’s plain as day now.

You two might have gotten away
with it if your uncle hadn’t been
so anxious to buy that new car.
You know what I'm talking about.
Rowe, bring Pettit in here.”

_ Pettit was ushered in. Young Oli-
ver turned a shade paler. Samples
addressed the farm hand.

“You have nothing to fear now,
Pettit,” he said. “We have both
young Oliver and his uncle under
arrest and we're going to charge
them with murder. I want you to
tell us exactly what happened when
you arrived at the scene of the
murder that morning. I’ve been
sure all along that-you were hold-
ing something back. You thought
that if you slipped away, nobody
would know you’d been there be-
cause those people didn’t know
you. The simple truth is, you did-
n't want to talk, We’re giving you
a chance now—and you'd better
take it!” :

Pettit eyed' him warily. “You're
not kiddin’ me? You've got Claude
under arrest too?” Assured that he

was, Pettit sighed and said, “Okay,

here it is.”

On the fatal. morning he had
turned a bend in the road leading
to the scene of the accident and
seen two men pushing the ancient
Ford over the edge of the road.
He had stepped on the gas and
arrived just as the car crashed into
the river bed... .

The Olivers, uncle and nephew,
started running. But suddenly they
knew they had been caught in the
act by someone who recognized
them. Hastily Claude had shoved
$25 into the hand of the bewildered
farmhand and*blurted, “Don’t say
a word until we see you tonight!
Come around to the place.”

Then they had darted off across
the fields toward their farm. Pet-
tit got out of his car and looked
into the wrecked Ford. For the
first time he saw that it contained
the body of Mrs. Oliver. He be-
came frightened: and decided to
seek aid. But when the couple came
up a minute later, he pretended to

_know no more.than they.

That night, he said, he met the
Olivers. They threatened to kill him
if he informed on them. He was
planning td leave for the south,
anyway, and did not relish becom-
ing involved. He decided to keep

* his mouth shut.

During his recital, George Oliver
sat speechless. Finally he mutter-
ed, “He’s right—but I can’t figure
how you suspected. What did the
new car have to do with it?”

Samples grinned. “It was com-

mon talk around here that you . a

folks were hard up. You’d have
bought a new,.car long ago if you

io matter what your
Neate or Buniness the

bat luck, ¥
will vou t
change your Ne

with t
FRE Gumes: re
tha mets

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**Evidence’’ books F
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CONFIDENTIAL FACTS FROM POLICE RECORDS

q HUNTING a

’

for
t. VED.
. Chicago ri um

él

é Ba —= Fisning | could have afforded it, instead of
ir aS A 4 HUNTING in a ‘monthly ine erame patching up that old Model 6 fe
\- 3 phe! camping. of hunting, febing» | When I heard yesterday that
iS 3 2 FISHING carien end pete en Claude had gone to Ardmore to
v. cm | rE ete tackle, game | lew get one, I -wondered where he’d
iy a ei” Pen and fun ogni mien raised the money. The bank here
n Lt cad ave wae | said he was in debt up to his ears |.
i. rs, a See Trial ofter | | and they wouldn’t lend him a cent.
it. = andre wil wend you, Hunting There was only one answer—in-
Pe, HUNTING AAginins. surance. Della’s insurance.: ait is
li- os raged ae wore»: spl “I figured he must have taken:
les ae - _27 Seertuman's Building | it out. I was right. He had. gone
~ - -| to Ardmore in September, just a
wW, | W ANT 6000 LUCK FAST? month after his wedding, for that
th aa ANE UU wis. | purpose. An agent there verified
der BF heal pee Muntneke, enande, na ihe Satare Searee ers that on the phone this afternoon.
rge ey Pris hays tain nt the tremmcintt. “eal rover failing: The- claim had been okayed, so
i to ee , eerywherenand Tf believe will help you, aay Claude was able to buy 4 car from
: The Master ee is inecrifbeal indelibly on tnayeimmalty Ard
hen BSS RNs Cae meuirchergy time | an Ardmore motor. dealer.
the a a ERE E Mn Pama hitin goles gated oat sine yg then that he must have
een ne. -F with cach onder, tent 6 aed PRS cm Pace e er. But I was also con-
old- i pax co..Dest Terai porvenme, Fone gee ee Y vinced that more than one man COUPON FOR FACTS sbout
ight eo _ ' hes gr nora Two weapons were SHOP M ETHOD
ody " | used—three if you count the stone. . cs
ia a DDING MACHINE So'I knew you must have been He OME. at RA iN! NG
now = staat sanstration few Utetione nowy 66H the other killer, George. Then, too, i Rocio Serie eee ae one Po Rete,
did- J egy ge oe Coney 8. 1 you referred to your hired man as | phases. seioti Hadto. seta are in use—they weal wats.
an Tounnds of watitat woe, Sond cane and | ‘Mack,’ That was to divert sus- | ‘susy” even ropale, Mast, ART me, Scan tink yeat
atter Ser pestanem 82.50 (phus ¢ oD. ons wostene’ picion from George Pettit, to keep | spertunty, © ie eee een in business
4 Free $9.50 dana). Umwes 2seim’ | ys from questioning him. Just a | LEARN BY DOING
ine a ai °2 Suan Semin ioe | small thing, but it fitted in with Pai a eigen
iaude " : money if nee satisfied. ‘ the rest.” ? National Training to build cir-
at he Sian... CANELAA Sha 09 24-004 Wet atne BS Ven = Suddenly the 18-year-old youth Re Sus tall hinds, Learn, form
okay a was sobbing. “But I had to do. it. the ground up the ppencein practical
ies 4 May 5 DRESSES I lost the toss. We flipped a coin Way. Get tne ed, Shop. method of
. had ake to see who'd kill her. The other Comer fo you from the
cading Ses used one had to marry her!” (v Dent g
reore Be Pa 7, » Bises 108 Wo dy "target. alges Bier rae “what!” exclaimed Samples. — Samet “i | the ors afenten
neient # vnaor EG, lis We chops. you, will, te The boy was weeping so hyster- | S°AL:RERNn—"e perm alg 9%
orn ‘ Ne ene ania | pe oe that he could talk no || Made tt modern gadio, television, 3, ene Gotiesatee!
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L looked Ley my dhcngy esd bene egy er | tah, Mota Mant ORD iver, Weshinaton, D.C.
r :. NE: » > Winans Soooe Read what hundreds of other enthustastic students have
yntained of mrs? Recordings mode, Send for free August I married Della Ring. pe iy erly i ‘abou: bs
sided to y op., | Stage the accident at Horseshoe retquaniy for a teccinat:
ents TIP TOP af hs " BF oo! Beed in the Arbuckle ‘Mountains, | {s¢.prsk 22,"
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met the Suffer Varicose | into the gorge. But we fn re Bota a
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- ad oe tee hs the spot near the culvert | Fi cut te “coupon Eo
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; 5 Og ee tended he had a flat, Della got out
; _S-'7> | of the car so he could get.the tools— :
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pg sarttad : ie from under the seat. That was he ee ae IB
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m<*: 2 Seay cite Greater onsartuniticenow than ever before, screaming and running toward me. | 4 NAME .....ee err AGE... seers 8
was cOm= — : Ability: More Prestige: More Money 15, i stee, You I grabbed the tire iron and hit her | § , ,oness Hy
that you | geagenin at tore during "Pt olumes, ine Latenry: etomnat'| a good one. That didn’t kill her : Ce ee ae aan ty :
‘ou’d have 5 tore ce, ee as “ta LLstanto” | so J grabbed a heavy rock’ and fin- ferry soe ‘nice’ 'ie Seta MTATE. “it
ago if you a Papal eivension univer: and jshed her off. Then we put her fo eee Lanneseeosansnessiets

hunch,” he said. “But maybe that fall you just took makes
it more than a hunch.”

@ ONCE INSIDE headquarters Ramsey pressed the county
officer for more information about the so-called hunch. ~

“I stayed behind and mended that railing,” Johnson
began. “Then I went down near the car. I got a different
view of things from down below. Now I’m going to ask you
something. If a car’s coming lickety-split déwn a hill
toward a bridge and goes over the side at high speed.
would it fall almost straight down or would it hurtle
through the air and land some distance away?”

Chief Ramsey scratched his head. ‘‘Well,” he said. “T
suppose it would land some distance away. The speed
would carry it.”

Beside this culvert investigators found a bloody tire iron,
and in the water, a boulder likewise visibly bloodstained.

“That’s what I think. But the Oliver boys’ jalopy is di-
rectly below the spot on the bridge where the railing
broke.”

Chief Ramsey whistled softly.

“Another thing,” Sheriff Johnson continued. “I wanted
to see Delia Oliver’s body for a reason. I didn’t know you
were going to slip and fall but that helped, too. Did you
notice there were no scars on her arms or hands?”

The policeman remembered there weren't.

“There were plenty of scars on her face,” Johnson told
him. “Now, when you fell you threw your arms and hands
up to protect your face. Delia Ringer would, have done the
same thing, only more so. She was in a car hurtling for-
ward out of control. She knew she was going to be in a
smashup and that she’d be thrown forward. Instinct would
have made her protect her face. But she didn’t.”

Chief Ramsey wasn’t missing a thing. “Then you think
Delia Ringer must have been dead or dying before the
car went over the bridge?” he asked.

“T think there’s something mighty fishy about this whole
thing,” Sheriff Johnson told the chief. “We know the Oliver
boys aren’t bad mechanics. Claude is 30 years old. He’d

. have better sense than to speed in that old jalopy.”
48

TEE VOLS ae i PUES 2

The county officer went on to detail the facts as he saw
them. “If things had happened as Claude and George
Oliver claim,” he said, “the car wouldn’t have fallen al-
most straight down. And if Delia Oliver had been able,

she’d have thrown up her arms and hands to protect her

face. Any man would. A woman thinks about her face
first of all. She certainly would.”

Johnson added that he’d contacted his office and assigned
two deputies to guard the bridge and wreck. “One of them’s
J. H. Sample,” he said. “The other one’s Earl Rowe. Earl’s
an expert mechanic. If the steering knuckles on that jalopy
went haywire, he’s the man who can tell us about it.”

On the way out Price Falls Road Chief Ramsey asked
Sheriff Johnson about Sam Mason, the man who said he’d
seen the accident.

“That’s the puzzling element,” the county officer said. “I
can’t figure out why the man would lie about what hap-
pened.”

Deputy Sheriffs Sample and Rowe were at the scene
when the two officers arrived. Nothing was said at first to
indicate the affair was anything but an accident.

The four officers waded into the water and managed to
maneuver the jalopy over to its correct position. Then
they hooked up a tow-line and pulled it onto dry ground.
It looked like something out of a second class junk yard.

“Take a look at the steering apparatus, Earl,” Johnson
told Deputy Sheriff Rowe. “Tell us what condition you
figure it’s in.” ,

While the officer was doing that the sheriff and Ramsey
examined the rest of the car. The Davis ch 2f of police
noticed something and called it to Johnson’s attention.

“Took at the blood spots on the floor of the car,” he told
the sheriff. “That’s where most of them are. Now look at
the inside top. Almost no blood.”

Ramsey got the point. If Delia Oliver had been alive when
the jalopy hurtled over the bridge and turned over in the
air, blood from the gizl’s body would have been on the
top inside for the most part. It wasn’t. True, there were a
few spots on top, but the floor boards were soaked with
crimson stains.

The sheriff told Ramsey not to mention that fact. ‘“Let’s
see what Rowe says about the steering gear,” he said.

m@ DEPUTY ROWE didn’t take long with his examination.
“The blame thing’s in such bad condition it’s hard to tell
about the steering knuckles,” he said at last. “But as far
as I can see there’s nothing wrong with them any more
than the rest of the car. The impact of the crash was bound
to damage everything. My guess is the steering apparatus
was in working order before the car went over the side.”

“That’s what I thought,” Johnson said. “Now let’s try
to reconstruct this whole thing just the way it really
happened. :

The sheriff led the way up to the bridge.

“The car was coming from the west,” he began. “It was
supposed to have gone out of control as it approached the
bridge. Its right wheel hit the railing first. Then the whole
thing went over. The impact of the car weight against the
railing should have caused oil to drop from the under-
carriage. There’s none here on the bridge.”

Deputy Rowe pointed out that a car traveling at high
speed and hitting the railing could be in the air before
spurting oil could land anywhere.

“True,” Sheriff’ Johnson said. “But let’s back-track up
the road and see what we can find.”

There were a few scattered dark spots. That was all the
investigators found at first. Those spots could have been
blood. Nobody knew for sure.

The officers continued examining the road, working
away from the bridge. Finally (Continued on page 78)

he insisted, “It was
Both detective:
story sounded a li:
had nothing to di
and took the Whe
Amos Wheeler an:
the 134th Street ad:
vine and Haggert:
assured Mrs. Whee
tinue the investig:
tery of Ruth Whe
was solved. Then
their station house
By then it was ea:
March 25, 1910.

@ CAPTAIN HUC
report and talked
gators about the
caught a little slec
“This man Wolt
true,” the captain ;
could have gone to
one there and beer
body else. You'll h
erybody in the buil
ter’s partner, Karl
I'll also see to it the
his wife don’t run
be kept under su
case is cleared up.’
Sherman Estey, 6
tarial school, was
Ruth Wheeler that
trip to police headq
sending her out on
Devine and Hag;
to talk with the
tenants at the East
building. Nobody «
to help. As far as -
learn, Ruth Wheel

thin air.

Frank Mohl, the
Albert Wolter and
work. “They usual
o'clock,” he told thi

Devine and Hagg
a room across the w
could watch the ec
222 East Seventy-
made hourly report
The Wolters didn’t
after 7.

Mohl hurried ac
7:30.

“The Wolters a
move,” the superint
and Haggerty. “The
set by you people.
them to stay, but tl
Said they got no s]
don’t want to live in
have no privacy.”

The detectives
leave by the front «
They had started to {

didn’t know
was ready to
it was going
_ ‘Jump!’ It
jumped out
aer. The girl
it the railing
side. I knew
Aister Claude
wn the creek
from beneath

x what went

robbling,” the
a for dear life
‘ring gear, all

ve had better.
yusiness riding
vard, in a ges-
e said. “But I
ps death traps
ig to be tough

done.” Then,
ce these people
ut an accident
iail that railing
of my men fix
ts like this one

and Sam Mason
-ds and mended

up the job he
below. It was a
ow water. The
oned the Oliver
th to pull Delia
closer look.

. shallow water,
n he stood there
ae had fixed. It

~uliar. It didn’t
xed and crashing
rd more. Maybe
y ground.

think. Everything
The Oliver boys
ragedy. A witness
sle the jalopy had
yrong.

uld be done about
% be moved until
fe started driving
ef Ramsey would

ught about all the
It had more than
the county on a
‘hern California. A
inty because Platt
adarville Mountain
ie Arbuckle Moun-
county officer had

seen too many fatalities in and around his bailiwick.

By the time the sheriff reached Davis word had spread
throughout the community about the latest mishap. The
dead girl’s family had been notified. Everybody felt sorry
for Claude Oliver. It had taken him a long time to find the
right girl. Now she was gone.

Sheriff Johnson didn’t let on to Chief Ramsey that he
thought anything was wrong. He did contact his own office
in Sulphur and order two men to go out on Price Falls Road
and see to it that nobody disturbed either the car or the
bridge railing.

Then he and Ramsey went over to the undertaker’s es-
tablishment that served as the morgue.

“I just want to take a good look at that girl,” the county
officer said. ;

Photos at left: George Oliver (top) and his uncle Claude
Oliver (below) told police how the accident occurred.

Claude Oliver's ramshackle house (shown) didn't look
like that of a man who could afford heavy insurance.

“Something special on your mind?” Ramsey asked.

Johnson.said, “Nothing definite. Just a hunch.”

Delia’ Ringer Oliver’s body lay beneath a rubber blanket
on a table in the rear room of the mortuary. Johnson lifted
the covering and studied the corpse for several minutes.
He paid special attention to the face, hands and arms.

Chief Rarhsey didn’t say anything. He’d been over to
view the corpse after making out the accident report. He
didn’t even want to look at the mangled figure any more.

Sheriff Johnson replaced the sheet. “All right,” he said,
“let’s go.”

_ They left by the back door, Ramsey in front. As the chief

went down the steps a loose board gave way and the chief
pitched foward. He fell with his face to the sidewalk, but
broke the fall by throwing his arms and hands up to pro-
tect his face.

™ The sheriff rushed over and helped him up. “Hurt your-

self?” he asked the chief.

“No,” Ramsey said, getting up and brushing himself off.
“But they should fix that loose plank before somebody
kills himself.”

On the way back to police headquarters Johnson told
Ramsey that he’d certainly been fast getting his arms and
hands up when he fell.

“Wouldn't anybody?” the chief asked.

“Yes, they would. Anybody who was going to plunge
forward so his face was going to get hurt would try to
protect it with his arms and hands.”

Ramsey sensed Johnson had a special reason for dwelling
on his fall. He knew the sheriff quite well. Something was
up.

“What’s on your mind, Boze?” the chief asked. Let me
in on it.”

Sheriff Johnson chuckled. “Just a hunch, Dee. Just a

stub of the key and turn it. He could
not get his fingers on it. Vainly he
battered at the door. It was solid oak,
three inches thick. At that moment it
seemed that three months of planning
had gone for naught because of his
folly in twisting the key so hard.

@ JUST THEN GUARD HOSKINS ut-
tered a faint yell. The two cons were
having trouble getting an improvised
gag around his mouth. Fearing discov-
ery by the other night guard, Teller
raced back and struck Hoskins on the
head with the iron bar. The guard
collapsed. The three felons then cén-
ferred in whispers as to what to do
next. They went to the-door again and

‘Reynolds tried to get the broken key

out of it. His locksmith’s skill was of
no help at all. Johnson brought out a
spoon he had in his pocket and at-
tempted to work out the broken key
with that. Then Teller made an effort
to use his iron bar as a lever to pry
at the door, but it was too thick to get
into the crevice.

“You've fixed us for fair!” Reynolds
whispered to Teller.

“Why’d you make the key so damned
fragile?” Teller snapped back.

It was Johnson who walked back and
looked at Guard Hoskins. “He’s dead!”
he quavered.

The other two rushed back and ex-
amined the prostrate man, feeling for a
pulse. He was dead—no doubt of it.

they came to a spot about 50 feet away
from it. There was quite a collection of
dark spots at that point.

Sheriff Johnson knelt down, collected
some of the discolored gravel in his
handkerchief and put it in his pocket.

Neither he nor Ramsey had explained
what they were driving at to Deputy
Sheriffs Rowe or Sample. Johnson
knew these men were puzzled. d

“If you’re wondering what this is all
about,” Johnson told his deputies, “it’s
that we think we’ve got more here than
the Oliver boys told us. If this is Delia
Oliver’s blood we’ve got a cold-blooded
murder on our hands.”

Rowe and Sample exchanged know-
ing glances. Both of them knew about
Claude Oliver’s reputation as a hell-
raiser before his marriage, but neither
one thought he’d murder his pretty
wife.

“What’s the motive, Sheriff?” Rowe
asked.

Boze Johnson shook his head. “We
don’t know,” he said. “There are sev-
eral puzzling points about this thing.
There’s a witness who says he saw the

“T hardly hit him more’n a love tap!”
Teller groaned.

“You and your love taps,” Caesar
Reynolds growled. “Man, you queered
everything!” ”

Now the trio knew they had not only
failed to make their escape. They were
also faced with a murder charge, which
meant the noose, unless they could find
some way out. For a solid hour Reyn-
olds worked on the door while Teller

and Johnson looked vainly for some’

other means of egress. That was when
the other night guard, a man named
Blakey, came to find his partner
stretched out on the floor. In a trice
Blakey had his pistol out, forcing the
three prisoners back in their cells.
Next day all three were charged with
murder.

When they went to trial on May 15,
Reynolds and Johnson sought to put
all the blame on Teller for striking the
fatal blow. Teller admitted hitting Hos-
kins but swore he intended merely to
stun him.

“As God is my witness,” he said, “it
was farthest from my intentions to do
more than knock him unconscious.”

That appeal, though it was undoubt-
edly true, got him nowhere. He had
killed a guard during an attempt to
escape, and no amount of argument
could change that fact. Because blood

- was found on Caesar Reynolds clothes,

he was found equally guilty with Teller
and both were condemned to the gal-

$10,000 ON DELIA’S HEAD

(Continued from page 48)
.
whole thing and that it happened just
as the Oliver boys claim. Maybe it did.
We have no motive at this point. But if
it is murder we’re going to get to the
bottom of it.”

@ THE SHERIFF went on to tell Rowe
and Sample about the evidence they
had. Both men agreed the whole thing
looked mighty suspicious.

“But Delia Oliver was such a pretty
girl,” Deputy Sample said. “She was
a better worker than most men. Claude
Oliver never had it so good. Why
would he want‘to kill a girl like that?”

“It’s up to us to find out,” Sheriff
Johnson told him. “I’m going to have
a talk with the county attorney. But
I don’t want any of you men to say a
word to anybody else. I don’t think
the Oliver boys will run out on us even
if they are guilty of something. Just
the same, let’s not take any chances.”

Sheriff Johnson and Chief Ramsey
did have a talk with County Attorney
E. W. Fagan that night. ;

“We think Claude and George Oliver

lows. Johnson, regarded as something
of a tagalong in the plot, got off with a
life sentence instead of the ten-year
term he was serving.

It had to be admitted that Teller ac-
cepted his fate bravely. “When asked
to listen to the verdict,’ reads an ac-
count of the day, “he rose and held up
his hand in a firm and unflinching man-
ner. He did not quail, and he resumed
his seat after his doom was pronounced,
to all appearances as unconcerned as
before.”

It was ten days later that a writer
for a religious periodical entered his
cell and he made the long, detailed
confession that has been quoted par-
tially in this narrative.

“T can say truthfully that I do not
fear the gallows,” he declared. “It is
far better than rotting in prison the
rest of my days. The thing that bothers
me is:that I have Hoskins’ blood on
my hands. He was a kind man, and
before God Almighty I repeat that I
had not the slightest intention to kill
him and repent his death bitterly.”

He also admitted—a bit late in the
day—that a life of crime was the worst
possible career to follow.

On June 3, 1833, Teller wrote a last
touching note to Anne Evans, saying
in part, “Goodbye, my sweet—you were
right and. I was wrong.” The next
morning he and Caesar Reynolds
marched up the scaffold and were
hanged.

are lying,’ Johnson said. “We don’t
know why they’d want to do away with
Delia. But there’s something rotten in
Denmark. We intend to find out what’s
making the smell.”

The sheriff showed Fagan the dis-
colored gravel he’d taken from the
road 50 feet from the bridge. “This is
going to be analyzed. If it’s human
blood of Delia Oliver’s type I think
we've got a case.”

County Attorney Fagan reasoned the
way the police officers did. But he
warned them to go easy.

“The Oliver family has a good name
around here,” he cautioned. ‘You

‘haven’t got a motive. Don’t be hasty

and jump at conclusions. Auto acci-
dents take place so quickly that not
many people can remember exactly
what happened when they’re ques-
tioned. There’s the element of shock.
A car goes out of control. The driver
tries to avoid an accident. He wants
to save his own neck and those of the
people in the car. It’s only natural he
doesn’t remember exactly how’ things
happened in a matter of seconds. Go

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Sheriff Boze Johnson—he smelled a rat,
wondered if his smeller was working right.

The colored man turned away, shaking his head sadly.

mw RAMSEY DIDN’T QUESTION the men right-then. He
knew they were shaken up badly, lucky to be alive. He
did ask the Negro if he had seen what happened. The
man said he had.

The chief walked over to the wooden bridge and looked
down at the overturned jalopy in the creek. “There ought
to be a law,” he muttered. :

Ramsey was standing there looking at the wreck when
Sheriff Boze Johnson and a doctor arrived. . The doctor
pronounced Delia Oliver dead. “Skull fractures,” he said.

After the body had been removed to the morgue Ram-
sey and Johnson questioned the Oliver boys.

“l was driving,” George told the officers. “Claude was
on the outside with Delia in the middle.’ The steering
gear had been acting up, but I thought I’d fixed it. Maybe
I was driving too fast. We came over the hill at a pretty
good clip. I felt something go wrong just before we hit
the bridge. I yelled, ‘Jump!’ Claude did. Delia didn’t.
She was in the middle» Maybe she didn’t have time. The
car hit the railing and went over. I was out and so was
Claude. Delia was pinned underneath. We ran down
and pulled her out. It was too late.”

Claude Oliver hadn’t uttered a word. He appeared to
be in a daze, stunned by the tragic accident that had taken
his young wife’s life.

The police officers shook their heads.

“Didn’t you. boys know you were taking a chance rid-
ing in an old crate like that?” Sheriff Johnson asked.

George Oliver said he thought he’d fixed the blame
thing. Then he motioned toward the Negro. “That’s Sam
Mason,” he said. “Sam saw the whole thing.”

The officers turned to Mason. Chief Ramsey asked him
to tell them exactly what he’d seen.

The man was ill at ease. He knew Chief Ramsey and
Sheriff Johnson by sight, but he’d never spoken to either
of them. ;

“It was like Mister George told you,” the witness began.
“J was walking along the road when I saw this old car

a ae PA 7 ,
2 ana lS inet conan

coming lickety-split toward the bridge. I didn’t know
who was in it. But it sure was shiverin’. I was ready to
get out of the way. That thing looked like it was going
to fall apart. Then I heard somebody shout, ‘Jump!’ It

one side and the driver jumped out the other. The girl
was screaming something awful. The car hit the railing
like a bat out of hell and toppled over the side. I knew
the girl was still in it. Mister George and Mister Claude
picked themselves up and went running down the creek
bank. I helped them pull that poor girl out from beneath
the car. That’s just the way it happened.”

Sheriff Johnson asked Mason if he knew what went
wrong with the car.

“It looked like the steering wheel was wobbling,” the
witness said. “Mister George was holding on for dear life
before he jumped. Id say it was the steering gear, all
right.”

Claude Oliver spoke at last.

“It’s all my fault,” he said. “I should have had better |
sense than to use that old car. We had no business riding
in it in the first place. Now Delia’s dead.”

Chief Ramsey lifted his hands, palms upward, in a ges-
ture of futility. “Accidents ‘will happen,” he said. “But I
hope someday they’ll have a law that keeps death traps
like that one off the road. It sure is going to be tough
telling the Ringer family Delia’s dead.”

Sheriff Johnson said, “What's done is done.” Then,
turning to Chief Ramsey, he said, “You take these people
into Davis with you and have them fill out an accident
report. I’m going to get some boards and nail that railing
back where it belongs. Then I'll have one of my men fix
it right. We don’t want any more accidents like this one
around here.”

uw CHIEF RAMSEY took the Oliver boys and Sam Mason
into Davis. Sheriff Johnson got some boards and mended
the broken railing the best he could.

While the county officer was finishing up the job he
studied the wrecked car in the creek bed below. It was a
good 40 feet from the bridge to the shallow water. The
car was still upside down. Johnson reasoned the Oliver
boys and Mason had lifted it just enough to pull Delia
out. He decided to go down and have a closer look.

The investigator waded around in the shallow water,
circling the partially submerged car. Then he stood there
looking up at the broken bridge railing he had fixed. It
was almost directly overhead.

Sheriff Johnson thought that was peculiar. It didn’t
look right. A car traveling at high speed and crashing
over the side should have hurtled forward more. Maybe
even cleared the creek and landed. on dry ground.

The county officer didn’t know what to think. Everything
had been all right up to that moment. The Oliver boys
certainly appeared to be shaken by the tragedy. A witness
had corroborated their story. But the angle the jalopy had
taken after leaving the bridge was all wrong.

Johnson decided that nothing more would be done about
repairing the bridge and the car wouldn’t be moved until
further investigation could be made. He started driving
toward Davis. Maybe a talk with Chief Ramsey would
clear things up. 3

On the way there Sheriff J ohnson thought about all the
automobile accidents in Murray County. It had more than
its share. Highway 77 passes through the county on a
direct route to Texas and points in Southern California. A
lot of tourists go through Murray County because Platt
National Park, Price’s Falls and the Cedarville Mountain
resorts are located there. The roads in the Arbuckle Moun-
tains are curving and dangerous. The county officer had

seen too many fa
By the time the
throughout the cor
dead girl’s family }
for Claude Oliver.
right girl. Now sh
Sheriff Johnson
thought anything v
in Sulphur and ord:
and see to it that
bridge railing.
Then he and Ra
tablishment that s:
“IT just want to t
officer said.

Claude’s first wife had died five years
before under mysterious circum-
stances. They learned further that the
man had stabbed himself in the eye
with an ice-pick to collect insurance
and had also smashed his hand delib-
erately with a hammer. This was a
true indication that he was the mas-
ter-mind behind the diabolical plot
upon the trusting and innocent Delia
Ringer.

Later on George Oliver changed his
story a bit. He stated that while he
was pumping up the tire, his uncle
and Delia had alighted. While Claude
walked along the road, George Oliver
turned upon the startled girl suddenly
and began to beat her with the tire
tool. She had run to the other Oliver
for protection only to be held at arms
length while George beat her. Claude
had ordered his nephew to beat the
girl with the rock in order that he

ight not be injured by the long tire
tool. George Oliver also stated that
Atkins was in no way connected with
the actual crime, since he had not been
told what was to take place. This cor-
roborated Atkins’ own statement. ~

On December 12, 1932 both men
were held to trial in Circuit Court
with Judge W. G. Long presiding, at
which time George Oliver pleaded
guilty to the crime. Claude Oliver,
however, still maintained that he was
innocent and that it was the entire
fault of the younger man.

It was not so long after this that
Claude Oliver suddenly changed his
plea to guilty and Judge Long stated
that he would pronounce sentence on
the 18th of December. '

At that time Judge Long solemnly
condemned them to die in the electric
chair for their cruel deed. Atkins was
released from the custody of the state
since it was doubtful that a conviction
would be obtained. Then, too, Atkins
had: not known the full import of
what he was going to do, inexcusable
as it was. :

A move was under way to save
George Oliver because of his youth
but stern Governor William H. Mur-
ray refused to grant a change in the
sentence.

On August 23, 1933, George and
Claude Oliver walked to their death
in the electric chair; George, unafraid
and with head held h; Claude,
stumb and muttering incoherently
to himself. Thus ended the strange
case of Delia Oliver. .

1 NONPAREIL BILLIARD ACADEMY

FRONT PAGE DETECTIVE

The Crime In
Lovers’ Lane

(Continued from page 29)

be done to any suspect that could be
connected with the .crime.

[X ALL the flurry of rumors and
excitement, not one word came out
against the dead girl. Her friends all
contended that she was a good girl,
who would give no person reason to
take her to that country road; and
the only way she could be gotten
there was at the point of a gun.
Sheriff Morrow and Chief Cranston
paid no attention to the activities at
police headquarters. They didn’t seem

. interested in any suspected sex fiend

that might be picked up. ;

They remained in the sheriff's office
for a half an hour. When they had
completed their study, Chief Crans-
ton said: “I guess we can make the
arrest now, sheriff.”

“We got about everything to make
our case,” Sheriff Morrow admitted,
“but we'll strengthen the case by go-
ing to the Brown home again. I have
a pretty idea how we can make
the murderer show his hand. I am
going to call Captain Ryan out at the
military post. I want to ask him one
question and I want the murderer to
know I asked him that question. That
will be your job.” :

It was eleven o'clock when Sheriff
Morrow and Chief Cranston moved

through the darkness that fell over

Seneca Street. There was no moon
and the shadows of the trees along the
street were vague and black.

They came to the Brown home. It
looked like a phantom of dreary
desolation in the night. Sheriff Mor-

row had a key to the front door, the |

sheriff's office having taken charge
of the house.
He unlocked the door and he and

Chief Cranston slipped inside. They

didn’t lock the door behind them.
They walked on tip toe to the living
room, crossed it and stopped in a
small alcove near the kitchen door.

A curtain hung in front of this al-
cove. They got behind the curtain.
— stood there without saying a
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FRONT PAGE DETECTIVE

sey quietly. “That splintered board
and what it indicates.”

“That’s right,” muttered the sheriff.
“Let’s go over and question Atkins.
Maybe his story isn’t true.”

They found Atkins in his two-room
shack sitting near the fire deeply en-
grossed in a conversation with a col-
ored woman. She gave her name to
the officers as Veachy Erwyn and
stated that she was “merely a friend
of Atkins.” The woman spoke intelli-
gently and answered all questions
readily, Apparently, she knew nothing
of the motive for the officers’ unex-
pected visit. Atkins, however, showed
fear almost immediately and when he
was told to return to Sulphur with
them, he protested loudly.

“I ain’t done nothing wrong, Sher-
iff!” he pleaded. “Why do we have
to go there?” ;

“Come along, Atkins,” snapped
Sheriff Johnson crisply. “You'll know
soon enough!”

At the Sulphur office Atkins was
told what had transpired. He was also
told that, as his story stood, he was
either the actual slayer or an. acces-
sory after the fact.

“Now you'd better tell us the
truth,” commanded Sheriff Johnson,
“or we’re going to indict you for the
Slaying of Delia Oliver. We’ve got all
the evidence in the case to make an
airtight prosecution; there’s nothing
left to chance and furthermore, we
found the rock and car spring buried
alongside the road. How about it?”

But Atkins refused to change his
story. He told it time and again under
the rapid-fire questioning of the five
men. Then the woman who was with

Atkins, was questioned for hours with ~

the same result. The men soon learned
that she had nothing to do with the
case, but she was detained. The ques-
tioning was directed at Atkins once
more. And finally, in the early morn-
ing hours Atkins broke down and con-
fessed to a startling crime, a crime
that would soon rock the state of
Oklahoma into a murderous frenzy of
revenge.

“The Oliver boys came to my house
three times before that. accident,”
said Atkins. “They wanted me to be a
witness to a car accident. I told them
I wasn’t interested. They offered me
twenty-five dollars if I would just tell
the story I was supposed to. Then I
said I would be the witness provided
no one was hurt or killed. They told
me that nothing liké that would hap-
pen. Well, they came over on the eve-
ning of the 2nd and told me to be by
the bridge the next afternoon and to
stay there until they came.

“They came down the road and
finally stopped on the bridge. Before
I knew what they were going to do
they had shoved the car over into
the gully. Then they buried something
down the road a ways and told me to
say that the car ran off the bridge
and they jumped. That was all I was
supposed to “go

“Didn’t you know that Delia Oliver
was in the front seat, her head
smashed in?” demanded Sheriff John-
son. ®

“No, sir,” wept Atkins. “Honest, I
didn’t. I would have run to you if I
knew what they were going to do.
They said they wanted to collect some
insurance on the old car so that they
could buy a new one.”

Sheriff Johnson stared at the negro
sternly. Then he grasped the man by

he coat lapels.

“You’re lying, Atkins!” he sg, ag
“You saw them kill Delia Oliver. ow,
out with it!” ,

Finally, Atkins confessed that he
had heard the girl scream before the
car had rolled’ around the bend in the
road. He also stated that Claude
Oliver had not paid him the twenty-
five dollars as yet.

EANWHILE, news had _ spread

throughout Wynnewood, Davis
and Sulphur and angry groups of
citizens clustered about discussing
their chances of lynching the two
Olivers. With this emergency to spur
them on, Sheriff Johnson and his dep-
uties drove furiously to the Oliver
farm home and arrested the twe men.
Both of them denied their guilt but
they were brought back to Sulphur
and lodged in the county jail.

Feeling was at fever pitch by now,
and over four hundred men milled
about the jail. Seeing this, Sheriff
Johnson slipped his prisoners through
a rear door of the jail and brought
them to Ardmore some 35 miles away.
There, Sheriff Elmer Byrd accepted
the prisoners and double-posted his
guards. No one aside from these men
knew of the whereabouts of the
Olivers.

The two boys, Claude 28 years old
and George, 18 years old, were con-
fronted with Atkins’ confession. Both
denied the story, still insisting that
it was an accident and that the negro
was trying to gain revenge upon them
for a fancied wrong. Deciding that the
first to break would probably be
George, the officers concentrated their
examination upon him. He broke soon.

“My uncle Claude kept after me
for two weeks last summer to help
him make some easy money with in-
surance,” sobbed the youth. “He
planned to marry Delia Ringer and
then he would kill her fot insurance.
Claude had saved up quite a bit of
money so that he would be able to
keep his premiums up on the insur-
ance. -He said that he had it all
planned out.

“We would flip coins to see who
would marry her and then kill her,”
continued George Oliver. “Well,
Claude flipped a penny and I called
for heads. It came up heads so he had
to marry her. Then we flipped the
penny again to see who would kill
her. I called heads again and then the
coin fell tails. I felt bad because I
didn’t want to kill Delia, She was
such a good kid. .

“Claude finally married her and
then we began to save our cotton
money to pay for the insurance. Poor
Delia; she picked cotton harder than
us two put together and she handed
over all her earnings to Claude.

“We found the spot where the crime
would take place and then we got
Atkins as a witness. Claude stopped
by the bridge and asked me to get
out and see if the tire was low. I
was on the ground when he hit her. I
hit her with a rock, too, because she
kept screaming. Then he drove the
car on the bridge and I helped him
shove it off. After that Atkins drove
us into Davis.”

Claude refused to talk and three
days later he was returned to the
Sulphur county jail together with
George. Claude kept insisting that he
was innocent of the crime, blaming
his nephew for the deed.

Sheriff Johnson and the insurance
agent got busy. They learned that

a
{
ME
a

Parks pee Ena of execution

; By DAN PARKER

Tribune oats by cay Lawson

Robyn Parks stands in a room near death row at the Oklahoma State Penitentiary.

Wa Tiles es Wed, Lan; zB [994

At death’s door .

The Tulsa Tribune

McALESTER — Robyn Parks: an in-
mate who is scheduled to be executed
March 10, said he is not afraid to die.

In an interview Tuesday at Oklahoma. ‘

State Penitentiary, Parks said he is more
frightened of the effect the death penalty
could have on society and on the families of
condemned inmates.

“Death itself is not what I am scared of, sg
Parks said..‘‘I’m more scared of the pro-
cesses in which man has chosen to end my
life, and (man’s) attempt to play God. __..

“At times, Iam very much at peace with
the death concept of it (execution),” Parks
said. “But a lot of times ... I think about

i) my son, David, what he goes through,
} what may happen to him, how he may

never ... have someone to give him an-
— to. eins he is confronted with in

e.””

Parks, 37, is scheduled to die for the
murder in 1977 of Abdullah Ibrahim, 24, an
Edmond gasoline-station attendant. .

Parks would be the second person exe-
cuted in Oklahoma since 1966.

Parks allowed reporters from three
news organizations to interview him Tues-
day. He had refused ail but a few inter-

a views since the mid-1980s.

eget & but
aking about the possibility of execution. g!

rei -

Speaking into a phone in a smail inter-
Mast Sires sis aca’ row, ial at
ughed frequently while talking about
beouine stone-faced while

said he is Islamic and prays five ~~

denen a day. He said he believes he will goln

to heaven when he dies. :

“Even before I came to prison, I didn’t
live what you’d call a sinful life. I had
— contributions (to society) in the same

I do now.” :
‘Barks said he does not dwell on the
possibility of being executed.

He said he tries “to create that positive
and constructive way of thinking. That’s by
ae books (on) African culture like
‘The Bia
cy,’ ‘The Isis Paper,’ stuff like that.”

{

ck Exodus,’ ‘The Stolen Lega- .

Parks said he has done a lot of reading i in .

prison and has come to believe young black
men in: the United States are jailed in
disproportionately high numbers because
of what he said is institutional racism.
“Every news report says the black male
is an endangered species ... so I started
trying to figure out where all this came

from. Then I realized it came from a.

See PARKS, page 4A

“Parks

(over)

Continued from page 1A

system that said, ‘We’re going to
make sure this happens. Anything

| that you do, we are going to incar-
'. cerate you so that this becomes a

fact.’”
Parks wore a T-shirt to the in-
terview with the following

words:

“ “What happened to the Afri-
cans in America?’ the traveler
said to the old man. Ancient rec-
ords show that the blacks in
America were Africans. What
happened to them? ‘Ah,’ the old
man sighed. ‘They lost their his-
tory, so they died.’ ”

Parks maintained that he is a
victim of institutional racism and
that he did not kill Ibrahim.

If given clemency, he said, he
would devote his time in prison to

‘

_ been .

finding out who really killed the
student from Bangladesh.

Parks has a girlfriend, Debra
Sutton, whom he calls his wife,
because the Oklahoma City

‘woman regularly visits him anc

“performs more marital duties
than most married people do.”
Parks said he considers Sutton’s
three children to be his own. ;

One of the children, David Sut-
ton, 13, wrote a letter begging the
governor for clemency for
Parks.

Parks said the letter reminded
him of how much he wishes he
could be free.

The letter says, in part:

“Please, Governor Walters, you
can help us keep our family to-
gether. I’m only 13 years old. I
don’t want to become the man of
the house. I want to enjoy my
youth.”

Parks said, “When I read let-
ters like the one my son wrote...
it makes me realize my failures

I’m not what I should have
. I didn’t do the thj I

could have done ... I may

-get the chance to do t
,, things.”

all

he bb Nh end 9

cyOKr
aS Me

. vn ty 4s iy Zz" Toth
VO Le INO Y 5 bh ot. oe 37 5 LEU

» inj., Okla. 3/10/1992

Parks Bolsters Self, Lashes System
As Date for His Execution Nears

By Wayne Greene
World Capitol Bureau

McALESTER -— As his days appear to dwin-
dle, Death Row convict Robyn Leroy Parks, 37,
says he remains optimistic.

“I try to stay extremely positive,” Parks said
Tuesday in his first newspaper interview in
years. “I try to stay constructive and not allow
things to get to the point where I cannot con-
centrate.”

Parks. convicted of the 1977 murder of Okla-
homa City service station attendant Abdullah Ibra-
him, is sentenced to die by lethal injection March 10
at Oklahoma State Penitentiary.

He would be only the second inmate put to death
in Oklahoma since 1966.

Parks’ attorneys have vowed to continue appeals
to the Oklahoma Court of Criminal Appeals, feder-
al courts and the state parole board, but it seems
likely that after 14 years of appeals the sentence
will be carried out.

Parks says he doesn’t know whether he will be
executed, but he is sure Oklahoma County District
Attorney Bob Macy and other proponents of the
death penalty will do all they can to see that
he is. .

Parks charged that a mob paranoia is ruling
Oklahoma, insisting on action against crime, but
trampling on justice.

“It’s like in the old Westerns with the lynch mob
and John Wayne,” he said. “It doesn’t seem society
cares one way or the other. Society is only con-
cerned with special effects.

“Society is a community of violence. This is just
one other expression of that.”

, ._ Most of those demanding his execution know little
about his case, Parks said.

“They just want to see something. Do something,”
he said. “Execute! Execute! Execute!”

The Tulsa World was one of three media outlets
allowed to interview Parks for one hour each
at the penitentiary’s maximum-security unit.

The interview was monitored by the Oklahoma
Department. of.Corrections, a representative of
Parks’ attorneys and Parks’ Muslim chaplain.

Parks said he previously turned down interviews
because “I thought nobody was interested, in the
truth anyway.”

The interview was conducted under rules set by
Parks and his attorneys, including a prohibition of
questions about pending appeals or his recent un-

_. Parks

World staff photo by Mike McRuiz

Convicted killer Robyn Leroy Parks pro-
motes black history on a T-shirt he made on
Death Row.

successful attempt to gain clemency from the pa-
role board.

Nonetheless, Parks referred to his own legal cir-
cumstance, continuing to maintain his innocence
and protesting against his perceived injustices in his
appeals and the clemency process.

Parks said he and many other black men are in
prison because-a white justice system assumes
stereotypes that leads it to convict blacks.

The way blacks speak and dress is seen as mili-
tancy or gang conformity by whites, he said: The
result is prisons packed disproportionately with
See Parks on A-4

Continued from A-1
blacks, he said.

Although William Kennedy Smith, a wealthy
white man, could face a jury with a presumption of
innocence, Parks said, he never could. _

He pointed to demands for an expression of re-
morse by parole board member Farrell Hatch dur-
ing the clemency hearing as an example of this
injustice.

Hatch had indicated that he might vote clemency
for Parks if he would admit his guilt and say he
was sorry. That was a demand that would not be put
on a white inmate, Parks charged.

“I’m innocent,” he said. “I’m trying not to become
a victim myself.”

Parks said he felt sympathy for Ibrahim's family
and could relate to their sense of loss.

He too has lost much because of someone's crime,
Parks said.

“The past 14 years of my life have been wasted.
Wasted."

But killing him will only continue the waste, he
said.

“If I'm executed. the process stops,” he said. “No
one ever will know what happened to Abdullah

Threshing

Parks said he spends his time praying, reading
about black history and sometimes watching televi-
sion.

Self-educated, Parks seems intelligent. He is ver-
bally fluid, but soft-spoken.

He doesn’t seem violent or angry about his
circumstances.

If he survives past March 10, Parks said, he plans
to continue working with his young relatives, trying
to instill in them pride and awareness of their black
heritage. ’

Referring to Biblical heroes and ancient kings,
Parks described how important it is for black chil-
dren to understand that black people have done
great things. Maintaining that awareness is the
only way black children can transcend the violent
culture maintained by white America, he said.

He came to the interview wearing a handmade
T-shirt bearing a drawing of a chained black man
and the message:

“What happened to the Africans in America? the
traveller said to the old man: Ancient records show
that the blacks in America came from Africa. What
happened to them? ‘Ah. the man sighed. ... ‘Thev
Inst their history So thev died’ ~

THE SUNDAY OKLAHOMAN

Section A

July 19, 1987 ;

“People — they
really try to stay
away from
thinking about the
death penalty and
whether they’re
going to be put to
death. But, in your
own mind, you
can’t help but
think about it
because it’s there
— it’s a reality.”

— death row

inmate .

Charles Troy
Coleman Sr.
By Kim Alyce Marks

The fate of 81 men
and women in Oklaho-
ma seemingly was
sealed when they were
convicted and handed
the death penalty in va-
rious district court-
houses across the state.

As of last Friday, 79
of the men are housed
at the Oklahoma State
Penitentiary in McAles-
ter, one man is at the

Federal Correctional ¢

Institute in El Reno and
the lone woman is at
Mabel Bassett Correc-
tional Center in Oklaho-
ma City.

Many death row in-
mates cling to the hope
they will not be exe-
cuted — that time and
attorneys will somehow
help them ‘‘cheat
death,” as one prosecu-
tor says when a con-
demned inmate's case is
overturned. But, many
of them admit the
thought of death is a
constant in the back of
their minds.

Coleman, 40, whose
execution date is set for
Wednesday, said, “You
just wonder if it’s going
to happen. And, if so,
how are you going to
handle it? I don’t think

me S.
Robyn Parks
anyone can really an-

swer that question. You
can have in your mind

any number of things,

but until in actuality it

happens, you just don’t ”

know,

“Anyone around you,
even your closest
friend, even yourself,
could be put to death to-

-morrow,"’ he said.

“That’s a reality that
everybody lives with.
You don’t try to dwell
on it and think about it,
but it’s there. And you
can feel it. ... Even in
another state when
somebody gets exe-
cuted, you feel it. ... you

4, RS es
Don Hawkins ur.

can kind of feel the hush
because they say, ‘It
could have been here —
it could be here next.’”

Death row inmate
Sean Sellers, 18, said,
“Sometimes the reality

of where you're at is:

something you don’t
want to think about.
You don’t think about
your family and you
don’t think about the
past. You don’t think

about the future and —

you don’t think about
the outside world be-
cause all that will bring
you down real quick.

‘*So, you focus on
where you're at now, at

this moment < ‘here
and now. But, you don’t
do it in a sense of think-
ing ‘I’m in a cell.’ You
pet say, ‘Here I am.’
t's kind of being able to.
cope with where you're
at without being able to
think about anything
else,” he said.,: vlad

. For Robyn Parks, 33,”
_ living.on death row is
. “almost a chilling real-

{zation”.. because while

* their lives with the real-
ization of how and when -

that death will occur.
' Parks indicated he

" ‘still-has hope that he

will receive some kind

* of break in his case, but.

because the courts have
thus far refused to rule
favorably on his behalf,
“Sometimes I think I’m
going to be executed.”

Because the, thought.,
of death is ever present,.¢
it is not surprising that
many-death row in-
mates have strong feel-
ings about the death
penalty,

Coleman said, “I don’t.

believe in the death pen-
- alty as a deterrent to

crime’ and further °

“added that-when the
‘death penalty is carried .
.out, the state “kills
. Someone to show them
: you don’t kill someone.”

Don Hawkins Jr., 27,°
said the courts ignore
society’s problems when
they hand out the death
penalty.

“When you execute a
man, you're not killing
the problem,” he said,
“The problem is just a
chain of events in a cer-
‘tain order that actually
took the reins of control
out of a man’s hands, If
you kill the body, the

events are still alive

“Tf a-per

there.” Fs
_ Another inmate, -who,
spoke on condition ‘of +
anonymity, said, “‘Ad-*

_amantly, as plainly as I-

can speak, there’s.no de-%
terrent (to crime) in'the*
death penalty, Anybody ;
who commits a crime; if:
he: thinks’ about ‘it’ be-#
forehand +~iif it's’ pre-*
st cats, is ia ;

| “est degree; his thinking’

-«- Most people réalize they 4

ao will die sooner or later, ‘
they do not-live out

also includes ‘dismissal¥.
of such thoughts’ be-

cause he-doesn't plan on#

getting caught-to starts
With: 2 ov. wg

on is. think-
ing about‘, not: getting*
caught doing some-;
thing, he’s definitely not,
thinking about receiv-2° .
ing the penalty that hef.
would receive if he. did: '
get caught,” he saidw..yia:

Because Coleman has}
exhausted all hig ap-;
peals and because: his}
execution date is’-‘five?
days away, many of the:
-inmates are’ watching:
his case closely, Sellers;
sald, “I don’t think any-*
one believes -he’s going’
to make it out of this, I!
think everyone knows*
it’s inevitable and:
they're seeing it‘as at
contest right now —how?
long. can his lawyer:
keephimalive?” —s;
' At the'same'time;

“Sellers said,;he’ doesn't

want’ to see Coleman's:
execution take-place:
Wednesday.. “I:.believe
everyone should have a’
second chance and the
death penalty takes that
away. You. neverget a
chance to prove that
you've changed.!'I’ be-.
lieve everyone‘has ‘that
chance, but the’ reality:
of the situation ‘right
now is it’s going to haps
pen.” tt :

“

28 Thursday, February 21, 1991

THE DAILY OKLAHOMAN

Parks’ Execution Near, Officials

By Don Mecoy
Staff Writer
State officials believe the latest legal set-
back for death row inmate Robyn Leroy
Parks will lead to his execution some time
this year, a spokesman for state Attorney
General Robert Henry said Wednesday.

“It’s been 13 years in the making,” said
spokesman Gerald Adams.

The 10th U.S. Circuit Court of Appeals ,
in Denver on Feb. 14 unanimously rejected |
Parks’ appeal of his death sentence.

“There is no question that a big hurdle
has been cleared,” Adams said. “Tt is ex-
tremely rare to get a unanimous decision
i death case from the 10th Circuit

On Wednesday, Assistant Attorney
General Bob Nance asked the state Court.
of Criminal Appeals to Set an execution :
date of April 15, precisely 60 days after the;
appeals court decision.

Adams said he expects that whatever:
date is set by the court of criminal appeals
will stand. The court could Set a later date!
to allow Parks time to exhaust all federal:
appeals.

Parks already has been heard by the
10th Circuit court three times, and once by
the U.S. Supreme Court, and “we don't
believe the Supreme Court will agree to
hear his case again,” Adams said.

After the Supreme Court last year re-
instated Parks’
said he was counting on the 10th Circuit

Dead

By LEIGH ANN EAGLESTON

Staff Writer
The father of a ~
Clist killed ‘-

sare

Say

Court to save him from lethal injection.
“T’ve got an ‘ally in the 10th Circuit. He
(Attorney General Robert Henry) has an

ally in the
ball,” Parks
Parks, 36
shooting d
Oklahoma

d cyclist’s
father putting
blame on a!

Supreme Court. ... It’s volley-
told The Oklahoman.

» Was convicted of the 1977
ath_of. Abdullah Ibrahim, an;

ity gas station attendant.

|
|

i
|

- 4 fice re

THE DAILY OKLAHOMAN

Thursday, March 14, 1991 ay

State Officials Confident Man’s Death Penalty Will Stand

i By Don Macey
( | Staff Writer
“| - Officials in the state
attorney general’s of-
n confident
that Robyn Leroy
' Parks’ death sentence
t will stand despite the
| refusal of a state court
- to set an execution
‘date, a spokesman
* sald Wednesday.

\ The state Court of

Criminal Appeals last
week denied a request
by the attorney
general's office to set
an April 15 execution
date.

The court said the
State's application was
premature because
Parks intends to seek
a hearing soon before
the U.S. Supreme

Court, oa Gerald Ad-

ams, ‘assistant to At-

torney General Robert
Henry.

Parks’ latest appeal
was unanimously re-
jected Feb. 14 by the
10th U.S. Circuit Court
of Appeals in Denver.
However, the appel-
late court allowed
Parks 90 days to ap-
peal the decision to

the oe Court.

Citing that 90-day
window of opportuni-
ty, the Court of Crimi-
nal Appeals ruled that
the 10th Circuit
Court’s decision “is
not final.”

Parks has taken ap-
peals of his death sen-
tence to the 10th Cir-
cult Court three times

and once to the Su-
preme Court. Adams
said the denial of the
ag s application will

poneine the es-
ae Ishment of an exe-
cution date.

“We feel certain
that the petition (to
the Supreme Court) ...
to hear the case now
will be denied. That's
why we asked that the

execution date be set,”

Adams said. ‘‘Ob-

viously, the court Is
going to allow Mr.
Parks one last chance
togetahearing.” ~

. Parks, 36, was con-
victed in the 1977
shooting death of Ab-

dullah Ibrahim at the °

Oklahoma City ser-
vice station where
Ibrahim worked.

Parks based his lat-
est appeal on remarks
made by the prosecu-
tor during the sen-
tencing phase of his
trial. Parks alleged
that then-Oklahoma
County Assistant Dis-

trict Attorney daiats
McKinney made state.
ments that minimized
the hig? responsibli-
1 aie anding Parks
the death sentence.

In an earller appeal,
the Supreme Court

last year rejected
Parks’ argument that
a jury instruction not
to allow sympathy to
influence the vote for
a death penalty vio-
lated Parks’ constitu-
tional rights.

To Increase,

Officials Say

_|Execution Rate

THE DALLY OKLAHOMAN ton, Se, Y, 99

TULSA (AP) — State prosecutors
say Oklahoma may hold three more
executions in the next 1% years
and begin working through the re-

- maining 119 in businesslike fash-

ion, after Charles Coleman's death
-a year ago shook the cork out of
the death-row bottleneck.

“A lot of the major philosophical |

points have now been decided,”
Robert Nance, chief of the attorney
general's federal division, said. “We
have a system that has been up-
held. We’ll always have to defend
how it’s carried out.”

Tuesday will mark the first anni-
versary of Coleman’s execution.

Coleman, who killed a rural Mus-
kogee couple during a robbery, was
the first inmate executed by Okla-
homa since 1966.

The execution that Oklahomans
have been anticipating perhaps
even more than that first one could
come within the next 18 months,
Attorney General Susan Loving
told the Tulsa World. Mass-murder-
er Roger Dale Stafford has almost
exhausted his appeals, Loving said.

Before Stafford, however, two
Oklahoma death-row inmates may
be executed by the end of the year,
Nance said.

| ~ Robyn Parks, convicted of killing

an Oklahoma City gas station atten-

- dant, has had his latest appeal to

the 10th U.S. Circuit Court of Ap-

peals rejected and has an appeal .

Olan Robison, who authorities
say shot the occupants of a farm-
house near Velma during a rob-
bery, also has a petition before the
high court. -_

The Supreme Court seems likely
to reject both appeals come Octo-
ber, and the two murderers have

exhausted their state ee nore
Nance said.

Court rulings and proposed feder-
al legislation that change the han-
dling of habeas corpus issues dur-
ing appeals may speed Oklahoma
murderers’ trips to the execution
chamber. state prosecutors say.

Loving said she intends to pursue
capital cases diligently. .

“I'm not a ‘line them up and
shoot them’ kind of person,” Lov- .
ing said. “It’s very important to
make sure that defendants get a
full and complete trial and appeal.
But when it’s time, it’s time.”

“I would think at- some point
they’re going to have to fall out of
the back of the pipeline, ” Nance
said.

Judy Chancellor, executive direc-
tor of Oklahoma Citizens United for
Rehabilitation of Errants, said she
fears Oklahoma becoming like Tex:
as or Florida, where executions are
almost routine.

Coleman’s execution has had “ng”
effect on crime, Chancellor,’ a_
death-penalty opponent who has. be:
friended Oklahoma death-row in-
mates and took part in a vigil out-
side Oklahoma State Penitentiary
the morning of Coleman’s exetir’
tion, said.

“It has connected people across
the state who see that killing is
wrong,” Chancellor said. “If any
good came out of it, it’s that. thé.
humanitarians are connecting.”

The attitude of condemned me
and women on Oklahoma’s deat
rows has changed since Coleman.
died, she said. :

“They're fearful. They’re suicid:
al,” she said. “It shook their faith.
They believed in God up to that
point.”

(ove R)

Executions And
Search For Truth

By Michael L. Johns

In the past five years while working to promote a single standard of
human rights for all people, I have learned much about capital punishment,
the criminal fustice system, and the relationship between the sentence of
death and the factors that determine who will be on death row and
eventually executed.

Since District Judge Charles L. Owens felt moved to make some
observations from his perspective of 23 years on the bench regarding the
appeals process in capital cases following the executions of Robyn Leroy
Parks and Olan Randle Robison, | am likewise moved to discuss some
significant factors that he conveniently omits in his zeal to shorten the
“endless appeals.”

His goal 1s to “restore the public's respect for our system of Justice.” Given
this honorable goal, it is diMcult to see how Judge Owens “credentials as a
black African-American ethnic minority member” could be in order since I
am sure he is aware of these facts and chooses to ignore them.

Statistics need the human factor to make them real. To illustrate these
facts | will discuss three cases I am intimately familiar with as evidence of
the inherent danger in a rush toward execution.

McCLESKEY's CASE

In 1987, Warren McCleskey, a black African-American ethnic minority
member and death row inmate in Georgia who was executed in the electric
chair last fall. petitioned the U.S. Supreme Court for relief. He was convicted
of the murder of a white police officer along with two accomplices who
received life sentences in exchange for their testmony against McCleskey.
There was no direct evidence McCleskey was the triggerman.

His petition to the high court argued that his death sentence should be
overturned because the race of his white victim played a significant role in
his sentencing. The court was presented with mounds of data from
primarily two studies that showed racial bias in death penalty sentencing.

Probably the best known study was conducted by Professor David Baldus
at the Untversity of lowa, who analyzed all Ceorgia homicides between 1973
and 1980. Professor Baldus examined over 2,500 cases and considered 230
nonractal variables. He analyzed this mountain of data controlling for the
hundreds of factual variables in each case in search of any explanation
other than race that would account for the obvious disparities in Georgia's
capital sentencing record. He could find none. And neither could a team of
social scientists hired by the state of Georgia specifically to try to refute
Baldus' conclusions.

POOR ODDS

Baldus found that a Georgia defendant's odds of receiving a death
sentence were 4.3 times greater if his victim were white than if his victim
were black. This is impossible to explain since approximately 60 percent of
all Georgia homicide victims are black. Baldus also discovered that some of
the legal guidelines that the Supreme Court felt were crucial to overcome
the racial discrimination of capital punishment sentencing and resulted in
the elimination of the death penalty in 1972 in the Furman decision were
themselves being applied in a discriminatory manner.

For example, the use of a separate sentencing phase tn a death penalty
trial was supposed to curb racist tendencies by forcing the jury to focus on
Issues related to the crime, |.e.. whether It ts heinous, atrocious and cruel.
However, Baldus research shows that juries in Georgia are more likely to
find and agree that a crime is heinous, atrocious and cruel when the victim
1s white, and likelier still when the defendant is black. It ts indicative of a
criminal justice system that places greater value on the life of a white victim
than a black victim.

Since Judge Owens will argue that Oklahoma does not participate in this
racially biased system of capital punishment sentencing, | offer a second
study performed by the Dallas Times Herald that examined 11.425 capital
murders tn the United States from 1977 to 1984. It consistently revealed
that the kiDer of a white was nearly three times more likely to be sentenced
to death than the killer of a black in the 32 states where the death penalty
had been imposed. OTHER SUPPORT

The nationwide results are supported by other studies of individual
states or groups of states. Statistically significant disparities based on the
victim's race corrected for other variables were found in Callfornia, Florida.
Illinois, Arkansas, Mississippi, Alabama, Oklahoma, Southarolina, New
Jersey, Maryland, and Colorado. In Oklahoma the killer of a white is 4.31
Umes more likely to be sentenced to death than the killer of a black. Despite
claims by prosecutors and the Attorney General that capital punishment ts
sought based on aggravating circumstances of the crime, In reality it is the
prosecutor's discretion whether to ask for the death penalty, the race of the
vicum. and the competence and resources of the defense attorney at the
Ume of trial that ultimately determine who will be executed.

The Supreme Court in the McCleskey case allowed that there is a
Statistical link between a victim's race and the imposition of capital
punishment in the system as a whole. However, in a bitterly split 5 to 4
decision the court said that some racial bias !s inevitable in the criminal
Justice system and that McCleskey could not rely on such statistics to
demonstrate that “he received the death sentence because, and only
because his victim was white.” The court told McCleskey that he must prove
that the judge. jury. prosecutor, or defense attorney was acting or thinking in
a racially discriminatory manner during his trial for his sentence to be
overturned.

The absurdity In this thinking !s obvious: no person will admit publicly
that he thinks or acts in a ractally biased manner even though his behavior

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results in no other conclusion. The historical significance of this logic !s the
same reasoning that the Supreme Court used in the late 1800's to determine
that the Jim Crow Laws which established a double standard of Justice, one
for blacks and another for whites. was constitutional. Justice Brennan
wrote in his dissent in McCleskey vs. Kemp, “We remain imprisoned by the
past as long as we refuse to acknowledge its effect on the present.”

NO CHANGE

The Jim Crow Laws encouraged poll taxes and literacy tests for blacks to
vote, and allowed separate public facilities based on race. The “separate but
equal” doctrine ensured separation but never equality. Public lynchings
were common during the 1700 and 1800's. Blacks accused of striking whites
three times or accused of the rape of a white were always put to death:
whereas, whites accused of killing blacks were seldom charged and rarely
convicted of more than a misdemeanor. Nothing has changed in 100 years.
A double standard of Justice continues today based on the race of the victim.

In 1972, the Supreme Court nuled in the case of Furman vs. Georgia that
capital punishment was unconstitutional because it was applied in an
arbitrary and racially biased manner not related to the crime. Even though
the court was presented with more evidence in McCleskey than in Furman.
the undentable moral tone in Furman is clear.

As attorney David Bruck says, “It is one thing to say that 100 murderers
deserve to die for their crimes, and an entirely different moral stance to say
that out of those 100 people. soctety will draw 10 names, then spare 3 of the
10 because they are white and 3 more because their victims are black, and
finally execute only the 4 left, while the other 96 are allowed to live.” This
amounts to nothing more than a lottery determined by prosecutorial
discretion rigged by race.

PATTERN

In February 1990, the General Accounting Office (GAO) of the U.S.
government released a study that found a “pattern of evidence indicating
racial disparities in the charging, sentencing, and imposition of the death
penalty” In this country. The GAO evaluated 35 studies which had shown
that race plays an important. sometimes critical role. on the road to the
death chamber. These studies reveal in most states that under similar
circumstances, the killer of a white is far more likely to receive capital
punishment than ts the killer of a black. However, racial bias ts only one of
many problems encountered in death cases. Prosecutor and law
enforcement misconduct are common in all areas of criminal justice.

Barry Lee Fairchild, a black African-American ethnic minority member
on Arkansas death row since 1983. was convicted of the Tape and murder of ;
a white Air Force nurse outside of Little Rock. Arkansas. He was convicted |
and sentenced to death based on a video taped confession with no other |
physical evidence that ted him to the crime.

Although hair, blood, and semen samples were submitted for analysis,
they did not match Fairchild. At his trial Barry Fairchild maintained his
innocence and insisted that his confession was beaten out of him by Sheriff
Tommy Robinson and Sergeant Larry Dill of the Little Rock Sheriff's
department. Since he had no proof he was beaten, it was Fairchild's word
against the sheriff.

: TORTURE

This ts how the case remained until 1990 when an anonymous phone call
was received by one of Barry Fairchild’s attorneys. The caller said that
Barry was not alone in having been beaten and tortured by the Sheriff's
department in an attempt to obtain a confession in the case. Several names
were supplied which led to the discovery of a list hidden in the Sheriffs
office files with the names of 13 black men who were “rounded up,” brought
in, and beaten to try to garner a confession.

After contacting these men. it became clear that a wholesale roundup of
black men had occurred by Shertff Tommy Robinson to get a confession tn
the case. The men were tortured in a variety of ways which Included
repeated choking with a wet towel so not to leave marks until passing out.
shoving the barrel of a gun in thetr mouth and pulling the trigger, slamming
the butt end of a shot gun into the chest. frequent kicks to the groin, and
placing a telephone book on top of the head and hitting the book with a

be hehe gt

’
porns

rie EXECUTIONS venncaca

yelling inside the closed room where the beatings took place. The most
credible and condemning witnesses were three former deputy sheriffs in
Little Rock who told gruesome accounts of their expected participation In
the beatings that occurred.

Despite severe, agonizing physical torture to themselves, none of the
other black men confessed and had not talked about their experience until
contacted by Fairchild’s attorneys. If the other men resisted and did not
confess, why did Barry Fairchild? He feared for his life tf he didn't. In
addition, Barry has a special vulnerability to emotional pressure since he Is
moderately mentally retarded. His inability to resist the emotional strain
made it more likely he would confess if he felt threatened.

PENDING

Barry Fairchild remains on death row today as the new evidence of his
innocence, forced confession, and law enforcement misconduct winds Its
way through the federal courts 80 far to deaf ears. Of course, Robinson and
Dill deny all charges of torture presented by more than 10 witnesses. And
Sheriff Tommy Robinson was promoted. He was elected to Congress in
1984. Justice may often be blind, but in this case It doesn't have to open Its
eyes to see the truth.

If as Judge Owens advocates, the appeals process should be shortened
and limited, then Barry Fairchild would be dead. We would never know what
happened at the Little Rock Sheriffs department, of the torture and
mistreatment that occurred at the expense of intimidation and persecution
against a race of citizens for the personal political gain of Robinson, and
most Importantly, there would be a false sense of Justice and a false sense of

accomplishment In executing an innocent person.

Surely, tf Judge Owens’ credentials are in order he would not endorse or
support a system of such obvious racial bias by proposing to shorten the
time that such {issues can be ralsed. I hope Judge Owens would not trade life
for political expediency.

Robyn Leroy Parks, an African-American was executed by Oklahoma on
March 10, 1992. In capital cases the system cannot right Itself and correct
- the mistake after the person is dead. Apologies. if you can get them, are

hollow. Judge Owens would not care about Barry Fairchild's innocence after
his execution because “justice has been served.”

For Robyn Parks, justice was not done, in part, because Judge Owens was
busy complaining about the "frivolous appeals” that “made a mockery of our
judicial system,” which tured attention away from the claims of innocence
and prosecutorial misconduct at the center of the case.

Even though Parks maintained his innocence since his arrest In 1977, it
was not until 13 years later that evidence was found hidden tn the district
attorney's files which disproved the prosecutor's publicly presented theory
about the motive for the crime.

Evidence found in the file indicated that no gasoline was missing from
the station and that no stolen credit card was used during the crime. Both of
these facts were alleged at the trial.

Quite by accident, two additional alibi witnesses were found within the

past several months that corroborated Robyn's contention that he was at
his girlfriend's house the night of the murder. In the end, Parks was
convicted, sentenced to death, and executed based on a taped telephone

conversation to a friend who elicited the confession In exchange for $5,000.

and lesser criminal charges in a different case.
BLUFF

Robyn explained the taped confession at the trial. He suspected his
friend was working for the police and so he admitted to the crime,
describing the details in sucha way that he thought no one would believe it
could have happened that way. In fact, in reenacting the murder 14 years
later it could not have happened as Robyn described tn the taped
confession.

Finally, the gun that Robyn led police to as the murder weapon could not
positively be linked to the bullet that killed the victim. Unfortunately, none
of this evidence was presented to the courts until 1991, and, at that time, fell
again on deaf ears. As Robyn Parks said before his death, "We will never
know who committed the crime after I'm dead, no one will care.”

—Michael L. Johns lives in Oklahoma City and serves as a volunteer leader for
Amnesty International USA. He currently serves as the Oklahoma Death Penalty
Abolition Coordinator and the Southern Region Death Penalty Abolition
Coordinator for AIUSA.

THE OKLAHOMA OBSERVER, JULY 10/25, 1992, PAGE 15

2g 2

ara eS s . f\i-% 2/430 alate’
KS ULL e ode Ld J eed Enkei: af ha fF ods SI OI Se

LIRGENT !!

ROBYN LEROY PARKS: CLEMENCY MUST BE GRANTED -

Robyn Leroy Parks, a 37 year old African American man from Oklahoma City, was convicted in
ye 1978 for the murder of a gas station attendant in Oklahoma City , and was sentenced to death. An 4

Covér)

execution date of Friday, December 6, 1991 at 12:05 AM has been set by the district court at the
request of the state of Oklahoma. This date is considered very serious. The Oklahoma Pardon and
Parole Board has agreed to a clemency hearing on Monday, December 2, 1991, time unknown, at
the state penitentiary in McAlester. Because clemency is not a judicial matter and the Pardon and
Parole Board is part of the Executive Branch of government in deciding who receives clemency, it is
critical that public pressure in favor of clemency be directed to the Governor, and in particular, the
Pardon and Parole Board, to prevent the execution. The Oklahoma Parole Board has not heard a

, clemency petition for a death row inmate since 1966. The following facts must be stressed for Mr.
Park's clemency hearing.
. First, there is very thin evidence about Robyn Park's guilt. The only evidence which caused the

police to focus on Robyn Parks as a suspect was a tag number written on an otherwise blank credit
card receipt which may have been lying in the clerk's booth for days, weeks or months prior to the
homicide. There was no date nor any other information on the receipt and no other physical evidence
that linked Robyn to the homicide. The only other evidence connecting Rebyn with the crime were
statements by Parks elicited from a police informant who testified in return for leniency for his own
criminal behavior. Parks presented witnesses at trial who testified that he was at another place and
could not possibly have been at the gas station at the time of the crime. Robyn maintained his
innocence at trial, and continues to do so today. Thus, there is serious doubt about his guilt.

Second, the state asked the jury to find 3 aggravating circumstances to support the death sentence.
The jury rejected the state's contention that Robyn would be a continuing threat to society, and they
rejected the contention that the crime was especially heinous, atrocious, and cruel. He was sentenced
| to death on a single aggravating circumstance of murder to avoid arrest or prosecution, A death
) sentence on a single aggravating circumstance is very rare. Only 3 of the 123 inmateson
Oklahoma's death row fall into this class. ‘

Third, with each succeeding year Robyn Parks’ behavior while on death row has become more and
more exemplary, He serves as a role model and positive inspiration for death row inmates who are
seeking to adjust to their unhappy situation. Robyn's thoughtful approach to race related problems in
prison has gained him the respect and admiration of inmates, guards and those outside the penal
system. The Pardon and Parole Board should be made aware that Robyn Parks is not the notorious
killer some would portray him to be. His death would not make society safer or bring back the
victim. a it would be a great loss to his family and friends and those in the penal system who
admire hirn.

Fourth, the Pardon and Parole Board is charged with weighing facts that are not always direci
related to a person's trial in deciding whether or not to remit a sentence. In Robyn's case race an
economic background are extra-legal factors which MAY have made it easier for the jury to return a
verdict of death. Robyn's race was influential in criminal charges stig Rone against him at the age of
seventeen for the Sohbery of six or seven cents in a school yard fight. Such incidents usually resulted
in a three day suspension when those involved were of the same race. Had his subsequent conviction
for attempted second degree burglary been a first time offense for a white youth, from a respectable
family, the chances of his being given a prison sentence would have been slim. If Robyn had not
been convicted of robbery and sentenced to prison (a consequence in part of the school yard incident),
v he would not have appeared to be a three-time-loser to the jury and it is far less likely that they
would have returned a verdict of death in 1978. It should be stressed to the Pardon and Parole Board
that death is different. While race and class issues may taint many trials, Robyn Leroy Parks does not
deserve to die for not being white or lacking the resources to hirea thoraughhy prepared attorney.

87th Year—No. 57

—_

TULSA WORLD

Final Edition

Tulsa, Oklahoma, Saturday, November 9, 1991

35 Cents

Execution Date Set for Convicted OC Killer

By Wayne Greene
World Capitol Bureau

OKLAHOMA CITY —An
Oklahoma County judge Fri-
day set an execution date for
convicted slayer Robyn Parks,
fixing only the state’s second
execution in 26 years.

Judge Daniel Owens ordered
the Department of Correction
to execute Parks by lethal in-
jection at 12:05 a.m. Dec. 6 at
the Oklahoma State Peniten-
uary in McAlester.

The courtroom was crowded
with Parks’ supporters including
prison reform activist Bobby Bat-
ues and Oklahoma City National

Association for
the Advance-
ment of Colored
People leader
Ciara Luper.

Parks is de-
fended by
NAACP attor-
neys and the
State appellate
public defend- e
ers office.

Parks, 37, Parks
was convicted in the 1978 murder
of an Edmond service station at-
tendant.

Attorney General Susan Loving
said she was pleased with the ac-
tion, but it is time for the Oklaho-
ma Legislature to reorder state
laws to eliminate a new series of
appeals that will likely be used in
the Parks case.

Attorneys for Parks were un-

successful in their attempts to
argue that he hasn't gotten all his
appeal rights and that the court
should allow evidence in his case

“to be reopened before setting. an

execution date.

The court sided with Assistant
Attorney General Robert Nance
who. argued “the state and the
people are entitled to a date.”

Oklahoma County District At-
torney Bob Macy said he was sa-
tisfied with the decision.

“Mr. Parks is a murderer,”
Macy said. “Twelve citizens of
Oklahoma County decided he was
a murderer.”

“The evidence is overwhelming
that he killed to avoid prosecu-
tion,” Macy said.

The jury that convicted Parks
found aggravating circumstances
warranting the death penalty be-
cause Parks had killed the service

Station attendant after the atten-
dant wrote down Parks’ license
‘tag number. Parks had used a
Stolen credit card at the station.

Loving said the Legislature
needs to reform the way execu-
tion dates are set.

Because of a recent Court of
Criminal Appeals decision, execu-
tions must be set in District Court,
meaning the judge's decision can
be appealed to higher courts.

Loving said she suspects the ex-
ecution will be carried out, but

the appeal avenues are unneces-.

sary and costly for citizens.

The only other Oklahoma exe-
cution date, that for Charles Troy
Coleman in 1990, was set by the
Court of Criminal Appeals and
could not be appealed.

Loving said the Legislature
needs to change the law so that
the high court can set the execu-

tion date, thus eliminating the
possibility of last-day appeals of
the issue for future executions.

In addition to any further court
appeals, Parks will receive the
state’s first death-row commuta-
tion hearing in decades just prior
to the execution date.

The state Pardon and Parole
Board Thursday voted to give
Parks the hearing a few days be-
fore his slated execution, with two
members saying they favored the
hearing only to avoid further ap-
peals by Parks based on the argu-
ment that he was denied a right to
a clemency hearing.

Any clemency decision would
require a positive vote of the
board and the concurrence of
Gov. David Walters.

Loving and Walters’ legal ad-
viser, Joe Watt, said they didn’t
think anything in law guaranteed

the right to a clemency hearing.

But an attorney for Parks ars
gued the board had proven crimi-
nals facing executions had a right
to demand a hearing for mercyr’

“Yesterday, memberstof the
board stood up with rourage and
did the right thing — they agreed
to carefully and honestly. consider
Robyn Parks as an individual
human being and to ensure to the
best of their human ability that he
does not become another statistic
in tomorrow’s history book of
mistakes that were learned:-too
late,”.said attorney Terry Hull.

The state Constitution guaran-
tees a hearing for any doomed
criminal, Hull said. :

“It is not easy to do-the.right
thing in-a world of shifting ethics
and ‘political rhetoric, but it
should never easy to kill
another human being,” Hull said.

The NATIONAL EXECUTION ALERT NETWORK is a project
of the National Coalition to Abolish the Death Penalty
For more information, contact: Pamela Rutter, NCADP

1325 G St. NW LL-B, Washington DC 20005 (202)347-2411
Peacenet Access Code--ABOLITION//Non-Business Hours Alert Answering Machine 202-347-2415
Partial: Funding for the Alert Network is provided by the J. Roderick MacArthur Foundation,
the A.J. Musfte Memorial Institute, the Boehm Foundation and the Unitarian Universalist
Foundation.

ALERT 92-2 February 21, 1992
**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**
OKLAHOMA 10 MARCH 1992 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. The
Governor does not have executive clemency power without the recommendation
of the Pardon & Parole Board.

OKLAHOMA 13 MARCH 1992 LETHAL INJECTION
OLAN R. ROBISON, (White), age 45 has been on death row since April 1981.

Robison was convicted of the robbery/murder of 1 white male and 2 white females.
There was no mitigation on Robison’s behalf introduced at his trial. Robison’s two
co-defendants received llife sentences. Robison was sentenced to death, after the
trial judge granted a prosecution motion to prevent a sister of one of the victims
from testifying that Robison should not be given the death penalty.

TAKE ACTION ON OKLAHOMA CASES, 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
ALABAMA 20 MARCH 1992 _ELECTROCUTION

LARRY HEATH, (White), age 40, has been on death row since February 1983. He was
convicted of the contract murder of his pregnant wife. The two co-defendants
who actually committed the kidnapping and murder were given life sentences.
TAKE ACTION, CONTACT: Gov. Guy Hunt

state House

11S. Union St.

Montgomery AL 36130

(205) 242-7100 FAX (205) 242-4407

ARIZONA 6 APRIL 1992 GAS CHAMBER
DONALD EUGENE HARDING, (White), age 42, has been on death row since January
1982. He was convicted of the robbery/kidnapping/murder of two males. Based
on the advice of his lawyer, who was recently out of law school, who had never
tried a capital case and who had conducted virtually no investigation, Harding
represented himself at trial and at his sentencing hearing. Harding, who is
diagnosed as having organic brain damage, made only one objection during his
trial and presented no mitigating evidence. Although the ineffectiveness of
Harding’s lawyer has been acknowledged, the state of Arizona is continuing to
refuse to hear unrebutted evidence that would warrant a sentence less than death.
Arizona has not had an execution since March 1963.
TAKE ACTION, CONTACT: Gov. Fife Symington

1700 W. Washington (602) 542-4331

Phoenix AZ 85007 FAX (602) 542-7601

MONTANA CONSENSUAL 17 JANUARY. 1992 HANGING
TERRY ALAN LANGFORD, (White), age 24 has been on death row since December
1989. He was convicted of the kidnapping/murder of a white male and female.

VIRGINIA 23 JANUARY 1992 ELECTR TION
HERBERT R. BASSETTE, (Black), age 46 has been on death row since November 1980.
He was convicted of the robbery/murder of a black 16-year-old male gas station
attendant. There is no physical evidence that links Bassette to this murder. The 3
co-defendants who charge that Bassette was the triggerman received suspended
sentences or no sentence. Bassette did have witnesses that testified he was with .
them at the time of the murder.

TAKE ACTION, CONTACT: Gov. Doug Wilder

State Capitol (804) 786-221 1
Richmond VA 23219 FAX (804) 786-3985
QKLAHOMA 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

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ee eS A a A a SS Sa SD oe ANS SN) NS GANS SEND ON SO GE SRN COND NN CUP SN SE Oe SN SD SD GEES SNS SON TS OS SED NN SN SNS GED SED NS SENS ET SE SY RY Se) CRD SD SR GY ce om

UPDATES- Robert Wayne Sawyer, Louisiana, received a stay from the
US Supreme Court.
Leo Alexander Jones, Florida, received a stay from the State
Supreme Court.

There have been 157 executicns in the United States since the reinstatement of the
death penalty in 1976.

National Execution Alert Network
v c/o NCADP

1325 G St. NW LL-B \,
: Washington DC 20005

bestlastbaavadbesdusLaLsLalDssnsedsffasaTasalusthd

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
penalty in 1976.

National Execution Alert Network
c/o NCADP

, 1325 G St. NW LL-B
Washington DC 20005

Parks’ Execution Date Set;

Defense Says Judge Unfair

By Charolette Aiken
Staff Writer

- Tempers flared Friday when an =

Oklahoma County district judge set

‘a March 10 execution date for death -

row inmate Robyn Leroy Parks af-
ter the same judge denied two last-
minute appeals by defense attor-
neys.

Attorney Richard Burr, of the
NAACP Legal Defense Fund, angri-
ly lashed out at Judge Dan Owens,
saying the hearing “bears all the
hallmarks of a lynching.”

The controversy centers on

. Parks, 37, who has been on death

row for 13 years. He was convicted
for the 1977 killing of Oklahoma
City gas station attendant Abdullah
Ibrahim.

This is the second time Parks has.

been ordered to die by lethal injec-
tion. He faced execution last
month, but an appeals court deci-
sion put off his execution until he
had exhausted all appeals.

Burr and Owens verbally s

_ Friday after Owens denied the lat-

est round of appeals which were

‘filed Wednesday. Burr did not

know at the outset of Friday’s hear-
ing that Owens had been assigned
the appeals as well as the execution
phase of the sentencing.

“We had no opportunity to be
heard,” Burr said when Owens said
he had read the briefs earlier in the
day. He also said he wanted a
chance to discuss evidence that he
claimed would prove Parks had not
committed the murder.

Burr interrupted Owens several
times as the judge explained he
could not find any legal reason to
delay the execution. “We request a
hearing to undo what you have al-
ready done without hearing from
us,” Burr said.

Through clenched teeth, the ju
said, “You are rehashing ‘yotr
brief. Mr. Burr, I read 64 pages
Pia shot back, “I am not rehash-

g!”

Owens called the appeals “bla-
tantly frivolous,” and said the is-
sues they addressed had been
raised on four prior occasions. “It’s
been heard by four judges and the
a of Criminal Appeals,” Owens
said.

The Daily

Set,

The U.S. Supreme Court has re-
jected similar appeals in Parks’
case

jail were he was allowed to confer
with his attorneys for an hour.

“It’s clear that this court has no

concern with the facts,” Burr told
reporters outside Owens’ court-

room. “The court is refusing to vr

‘hear any of the claims of new facts

in this case ... and is indifferent to
whether or not Robyn Parks is
guilty. This judge doesn’t care
about that, and there’s no. differ-
ence between that and a lynch
mob,” Burr said.

He said he has “never seen a case
dealt with like this before when a
judge handled the deal with a
closed door.”

Parks’ attorney is repeating earli-
er claims that Parks’ tape-recorded
confession was false, that a receipt
with a scribbled license number
does not tie Parks to the crime
scene as prosecutors argued, and
that new witnesses could confirm
Parks’ alibi. Burr said another ap-
peal is planned.

Oklahoman
an, N 1992

Parks was led back to the county - \ 4

— AP Photo

Death row inmate Robyn Leroy
Parks is escorted to Oklahoma
County District Court Friday in
Oklahoma City.

Death Penalty Unfair

TO THE EDITOR:

I recently read with deep concern
the editorial that appeared in The
Oklahoman on Dec. 12 regarding the
decision of the Oklahoma Pardor
and Parole Board to deny the clem-
ency appeal by Robyn Leroy Parks.

The editorial states, among other
things, that it is unclear why a
clemency hearing was granted to
Parks. It also claims the full confi-
dence of infallible justice — a claim
no one should make, especially in
the face of death sentences. Death
means that we need to understand
the traditional role, purpose and
the unique importance of executive
clemency power, to keep our civili-
zation from doing justice in the
name of the legal process.

The power to commute death sen-
tences to life imprisonment gener-

is a crucial function of the ex-
Seative prerogative. In 1976, the
Supreme Court noted in Gregg vs.
Georgia (1976) that a system with-
out executive clemency “would be
totally alien to our notions of crimi-
nal justice.’ No criminal justice
system is devoid of human error,
and when the penalty to be im-

posed is death, the safeguards sur-

rounding the process must be of
the highest standard. International
norms likewise give the right of all
,people to seek clemency.

Y Reliance on the decisions of the
courts cannot always ensure that
zhe highest standards of fairness
prevail. Appellate courts are bound
by procedural rules which may pre-
vent them from considering all rel-
evant information or new evidence

which was not presented at an ear-
lier state of the proceeding.

Clemency authorities have the ad-
vantage of being able to take into.
consideration all of the circum-:
stances unlimited by technical
rules of evidence of the case. The |
case of Robyn Parks provides a!
strong and compelling reason for
clemency:

/ The very thin evidence forming | |
the basis of his conviction, indeed, ,
conflicting, newly discovered evi
dence;

/ The jury’s rejection of two pos- :
sible aggravating circumstances to |
support a death sentence;

Y Of Oklahoma’s 123 death row:
inmates, Parks is one of only three:
to have been sentenced to death on.
the basis of the single aggravating
circumstances of murder to avoid
arrest or prosecution;

Y Parks’ exemplary record while |
on death row: he has earned a rep-
utation as a mediator in race-relat-
ed problems on death row and has:
won the respect of prison guards:
and inmates.

The greatest mockery of justice:
lies not in the board’s decision to
grant another clemency hearing.
Rather, justice is mocked when an:
individual is wrongfully executed.
Justice is mocked when racial prej-;
udice lies at the core of the applica-:
tion of the death penalty, when per-:
sons with mental retardation are!
executed, or when the poor are sen-:
tenced to death because they can-:
not afford adequate legal council. |

It is of critical importance that!
clemency authorities conduct their}
review of a prisoner’s petition with)
all due objectivity and fairness. |

The arbitrariness and unfairness|
of the death penalty in the United!
States has already made a mockery:
of the criminai justice system.
Don’t let Oklahoma join the mock-

ery.
John G. Healey,
executive director, '
Amnesty International USA

gies t Daily Oklaheman

Sencloy

as S, iz.

| Say Poppycock

TO THE EDITOR:

After reading the letter fon
John Healey in the Jan. 5 issue of
The Oklahoman, I feel I must re.
spond. The power to commute.
death sentences to life imprison-

ment is in no way mandatory u
the governor even though the a

-utive director of Amnesty In

tional USA seems to itis. | |

When Healey claims that racial
prejudice lies at the core of the:
application of the death penalty, ‘|
~ poppycock. ‘The death ety

has nothing to do with racial prejy-
dice. If the person whe commits
murder is black, he’s black. Every-
one who commits murder should he | fone
sentenced to death regardless of his |
color. This law applies to all.

Robyn Leroy Parks, like every |
other person, is entitled to have his |
conviction reviewed by all appro-.
priate courts. But, in the case of!
Parks, the only mockery of justice |
is the dozens of appeals that have |
been made in a period of more than |
10 years in his behalf. The time has
come for the courts to put an end to
this little game and get on with the
business at hand.

vz W. Harris, City

the Sindlay Oklahoma,
Son. Ge | i 1992

URGENT !! aoe

ROBYN LEROY PARKS: CLEMENCY MUST BE GRANTED.

Robyn Leroy Parks, a 37 year old African American man from Oxlahoma City, was convicted in

1978 for the murder of a gas station attendant in Oklahoma City , and was sentenced to death. An
¥ execution date of Friday, December 6, 1991 at 12:05 AM has been set by the district court at the x

request of the state of Oklahoma. This date is considered very serious. The Oklahoma Pardon and
Parole Board has agreed to a clemency hearing on Monday, December 2, 1991, time unknown, at
the state penitentiary in McAlester. Because clemency is not a judicial matter and the Pardon and
Parole Board is part of the Executive Branch of government in deciding who receives clemency, it is
critical that public pressure in favor of clemency be directed to the Governor, and in particular, the
Pardon and Parole Board, to prevent the execution. The Oklahoma Parole Board has not heard a
clemency petition for a death row inmate since 1966. The following facts must be stressed for Mr.
Park’s clemency hearing.

First, there is very thin evidence about Robyn Park's guilt. The only evidence which caused the
police to focus on Robyn Parks as a suspect was a tag number written on an otherwise blank credit
card receipt which may have been lying in the clerk's booth for days, weeks or months prior to the
homicide. There was no date nor any other information on the receipt and no other physical evidence
that linked Robyn to the homicide. The only other evidence connecting Rebyn with the crime were
statements by Parks elicited from a police inforrnant who testified in return for leniency for his own
criminal behavior. Parks presented witnesses at trial who testified that he was at another place and
could not possibly have been at the gas station at the time of the crime. Robyn maintained his
innocence at trial, and continues to do so today. Thus, there is serious doubt about his guilt.

Second, the state asked the jury to find 3 aggravating circumstances to support the death sentence.
The jury rejected the state's contention that Robyn would be a continuing threat to society, and they
rejected the contention that the crirne was especially heinous, atrocious, and cruel. He was sentenced
to death on a single aggravating circumstance of murder to avoid arrest or prosecution, A death
sentence on a single aggravating circumstance is very rare. Only 3 of the 123 inmateson
Oklahoma's death row fall into this class. |

Third, with each succeeding year Robyn Parks’ behavior while on death row has become more and
more exemplary. He serves as a role model and positive inspiration for death row inmates who are
seeking to adjust to their unhappy situation. Robyn's thoughtful approach to race related problems in
prison has gained him the respect and admiration of inmates, guards and those outside the penal
system. The Pardon and Parole Board should be made aware that Robyn Parks is not the notorious
killer some would portray him to be. His death would not make society safer or bring back the
victim. But, it would be a great loss to his family and friends and those in the penal system who
admire hirn.

Fourth, the Pardon and Parole Board is charged with weighing facts that are not always direcil
related to a person’s trial in deciding whether or not to remit a sentence. In Robyn's case race an
economic background are extra-legal factors which MAY have made it easier for the jury to return a
verdict of death. Robyn's race was influential in criminal charges rs, ey against him at the age of
seventeen for the a of six or seven cents in a school yard fight. Such incidents usually resulted
in a three day suspension when those involved were of the same race. Had his subsequent conviction
for attempted second degree burglary been a first time offense for a white youth, from a respectable
family, the chances of his being given a prison sentence would have been slim. If Robyn had nor
been convicted of robbery and sentenced to prison (a consequence in part of the school yard incident),
he would not have appeared to be a three-time-loser to the jury and it is far less likely that they
would have returned a verdict of death in 1978. It should be stressed to the Pardon and Parole Board
that death is different. While race and class issues may taint many trials, Robyn Leroy Parks does not
deserve to die for not being white or lacking the resources to hireathordughky prepared attorney.

ee ne

ROBYN LEROY PARKS: CLEMENCY MUST BE GRANTED

RECOMMENDED ACTIONS:

Please write, call, or fax a letter to the Governor, and in particular the Pardon and Parole Board, |

addressing the following points:

1) There is serious doubt about Robyn Parks’ guilt.

2) Robyn was not sentenced to death for being a continuning threat to society. His sentence of
death was based on the rare case of murder to avoid arrest or prosecution.

3) Robyn has acted as a leader in prison and his behavior has been exernplary.

4) Robyn's race and economic background made it easier for the jury to return a death sentence.

OKLAHOMA PARDON AND PAROLE BOARD

Ms. Jari Askins, Chair

Mr. Marzee Douglass, Vice-Chair

PO Box 391 PO Box 2297
Duncan, OK 73534 Ardmore, OK 73402
Ms. Carolyn Crump Mr. Carl Hamm
PO Box 50043 PO Box 122
Tulsa, OK 74150-0043 Perry, OK 73077
Mr. Farrel] Hatch
PO Box 1099
Durant, OK 74702
Oklahoma Pardon and Parole Board
4040 North Lincoln Boulevard Suite 219
Oklahoma City, OK 73105
tele (405) 427-8601
fax (405) 427-6648

Governor of Oklahoma

Governor David Walters

State Capitol
Oklahoma ret OK 73105
tele (405) 521-2342

For more inforrnation call:

Pat Keefe (405) 232-8514
Mike Johns (405) 842-5356

Allen Hailey (403) $24-5577 or 447-2468

fax (405)'521-3353

1496 840 FEDERAL REPORTER, 2d SERIES

Jett objected to Union Bank’s motion on
- the grounds that he needed additional dis-

covery, but he did request additional dis-
covery pursuant to Fed.R.Civ.Proc. 56(f) in
his opposition to National Union’s motion.

In support of that request Jett submitted:

evidence that the relationship between Sun-
derman and National Union was estab-
lished prior to the offering and that they

had other similar arrangements: He

sought discovery concerning the nature
and extent of National Union’s involve-
ment. ;

[16] The district court found that addi-
tional discovery was unwarranted, given
the nature of the allegations in Jett’s com-
plaint and the scope of the requested dis-
covery. Apparently this ruling rested on
the erroneous conclusion that since the

Bond and Indemnification Agreement relat-
-ed only to financing, National Union’s in-

volvement necessarily was not “in connec-
tion with” the sale of the partnership inter-

- ests. A district court abuses its discretion

when it rests its conclusions on ineorrect
legal standards. S.E.C. v. Carter Hawley
Hale Stores, Inc., 760 F.2d 945, 947-48 (9th
Cir.1985). Jett was entitled to conduct dis-
covery concerning National Union’s in-
volvement in the financing/sale arrange-
ments.

The district court’s judgment in favor of
Union Bank is affirmed. The judgment in
favor of National Union on the § 12(2)
claim is affirmed. The judgment on Jett’s
other claims against National Union is re-
versed and the case is remanded for fur-
ther proceedings.

aAUmMSs

Robyn Leroy PARKS,
Plaintiff-Appellant,

John N. BROWN, Warden, Oklahoma
State Penitentiary, McAlester, Okla-
. homa; Larry Meachum, Superintend-
ent, Oklahoma Department of Correc-
tions; and Michael C. Turpen, Attorney
General of Oklahoma, Defendants-Ap-
pellees.

No. 86-1400.

United States Court of Appeals,
Tenth Circuit.

July 15, 1987.

As Modified on Denial of Rehearing
March 1, 1988.

Suggestion for Rehearing En Banc
Granted March 1, 1988.

Petitioner sought federal writ of habe-
as corpus, challenging his state conviction
for first-degree murder. The United States
District Court for the Western District of
Oklahoma, Ralph G. Thompson, Chief
Judge, denied relief, and petitioner appeal-
ed. The Court of Appeals, McWilliams,
Circuit Judge, held that: (1) instruction on
lesser-included offense of second-degree
murder was not warranted; (2) error, if
any, was harmless in admission of petition-
er’s prior conviction of robbery by force
and fear; (3) prosecutor’s comment to jury
during penalty phase did not improperly
minimize importance of jury’s role in fixing
penalty; (4) trial court’s antisympathy in-
struction was appropriate; (5) instruction
regarding aggravating circumstances and
mitigating circumstances was not constitu-
tionally defective; (6) petitioner was not
denied effective assistance of counsel dur-
ing penalty phase; and (7) district court
properly refused to hold evidentiary hear-
ing on petitioner’s claim that Oklahoma
death sentence statute was applied in ra-
cially discriminatory manner.

Affirmed.

McKay, Circuit Judge, concurred in
part, dissented in part, and filed opinion.

PARKS v. BROWN 1497
Cite as 840 F.2d 1496 (10th Cir. 1987)

1. Homicide ¢=308(5)

- First-degree murder defendant’s state-
ments to friend after defendant had killed
gas station attendant, indicating that he
went to gas station intending to get gas
with a stolen credit card and that, because
attendant subsequently appeared to write
down his license number and because he
was afraid that attendant would call the
police, who might discover guns and dyna-
mite in his car, he then killed attendant,
was not entitled to instruction on lesser-in-
cluded offense of second-degree murder
during course of felony of using stolen
credit card; defendant’s statements to
friend indicated that defendant killed at-
tendant after he had used stolen credit card
for payment, and indicated that he killed
attendant because he was concerned not
only regarding stolen credit card, but also
regarding small arsenal which he had in
trunk of his car.

2. Criminal Law ¢-1169.11, 1177

included defendant’s tape-recorded confes-

sion to crime.

3. Criminal Law €723(1)

Prosecutor’s statement to jury during
penalty phase of defendant's first-degree
murder prosecution, which indicated that,
in assessing death penalty, jury would
“just have become a part of the criminal
justice system” and was not itself putting
defendant to death, did not improperly lead
jury to believe that responsibility for deter-
mining appropriateness of death penalty
rested elsewhere, and did not minimize im-
portance of jury’s role in fixing penalty.

4, Homicide 311

Trial court’s antisympathy instruction
during penalty phase of first-degree mur-
der prosecution, which indicated that jury
should avoid any influence of “sympathy,
sentiment, passion, prejudice, or other arbi-
trary factor when imposing sentence,” did

not improperly mislead jury into believing
that mitigating evidence about defendant’s
background or character also must be ig-
nored so as to render defendant’s sentence
constitutionally infirm; instruction indi-
cated that jury should not consider extrane-
ous emotional factors, and jury was further
instructed that it must consider statutory
mitigating circumstances and that it could
consider any other mitigating circumstanc-
es it could find from evidence. U.S.C.A.
Const.Amends. 8, 14.

5. Constitutional Law <=268(10)
Criminal Law €778(5), 797, 1213.7
Death penalty instruction specifically
informing jury that, even if it found that
aggravating circumstances outweighed any
mitigating circumstances, it could exercise
its discretion and still fix penalty at life
imprisonment, was not required under
Oklahoma law and was not required by
Eighth and Fourteenth Amendments; in-

struction as given under Oklahoma law ad-.

equately advised jury of its discretion and
did not cast any burden of proof on defend-
ant. U.S.C.A. Const.Amends. 8, 14.

6. Criminal Law ¢641.13(7)

“Defendant failed to establish that he
was denied effective assistance of counsel
during penalty phase of first-degree mur-
der prosecution, notwithstanding defend-
ant’s claim that there were at least 25
witnesses who could testify favorably con-
cerning defendant’s personal history; deci-
sion not to call such character witnesses
could have been based on concern that such
witnesses would be subject to cross-exami-
nation and rebuttal regarding defendant’s
possible involvement in other crimes and
trafficking in drugs. U.S.C.A. Const.
Amend. 6.

7. Habeas Corpus ¢90.2(10)

Sores

‘ufaoy

1504

of misleading the jury into thinking that
it had a reduced role in the sentencing
Process. If anything, the prosecutors’
comments would have had the tendency
to increase the jury’s perception of its
role... We therefore find petitioner’s

Eighth Amendment argument unconvine-
ing.

In Dutton v, Brown, 812 F.2d 593 (10th
Cir.1987) (en banc), and in Coleman y.
Brown, 802 F.2d 1227, 1240-41 (10th Cin

1986) this Court considered closing argu-
ments quite similar, though not completely
identical, to that made in the instant case
and held that such comment was not consti-
tutionally impermissible. In the instant
Case, we have read the entire closing argu-
ment of both. the prosecutor and defense
counsel in the penalty-phase of the case.
There was no objection by defense counsel
to the prosecution's argument. We fail to
see how the argument of the prosecution,
— In its entirety, tends to minimize or

owngrade the importance of the jury’s
determination of the penalty to be imposed

Indeed, the prosecutor’s remarks tended to

tize the extreme importance of the
matter and was an exhortation to the jury
to “follow the law” of both man and God

IV. Anti-Sympathy Instruction
Instruction No. 9 at the penalty phase of
the state Proceeding advised the jury, in
part, as follows:
: You are the judges of the facts
importance and worth of the We is
for you to determine. You must avoid
any influence of sympathy, sentiment, -
passion, prejudice or other arbitrary
Sactor when imposing sentence. You
should discharge your duties as jurors
impartially, conscientiously and faithfully
under your oaths and return such verdict
as the evidence warrants when measured
_by_ these Instructions (emphasis added).

constitutes constitutional error. In thus
arguing, counsel relies primarily on Skip-

840 FEDERAL REPORTER, 2d SERIES

per v.. South Carolina, 476 US. 1

S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings .
Oklahoma, 455 U.S. 104, 102 S.Ct. 869 71
L.Ed.2d 1 (1982); Lockett ». Ohio, 438 WS.
586, 98 S.Ct. 2954, 57 L.Bd.2d 973 (1978),
and, in a Supplemental Brief, counsel both
relies on and distinguishes the recent case
of California v, Brown, — U.S. —, 107
S.Ct. 837, 93 L.Ed.2d 934 (1987),

Neither Skipper, Eddings, nor Lockett

Concern an instruction to the jury that in
their deliberations they should “avoid any
influence of sympathy, sentiment, passion
prejudice or other arbitrary factor... ”
These cases all stand for the general propo-
sition that under the Eighth and Four-
teenth Amendments the sentencer in a capi-
F case should not be precluded from con-
Sidering as a mitigating factor
of the defendant’s puleatia rat beck:
ground which might serve as the basis for
@ sentence less than death. In Skipper,
the Supreme Court held that the exclusion :
of testimony of jailers and of a regular
visitor regarding the defendant’s good be-
havior during the defendant’s seven
months’ incarceration in jail awaiting trial
deprived him of his right to place before
the sentencers “relevant evidence on miti-
gation.” In Eddings, the Supreme Court
vacated a state conviction wherein the
death penalty was imposed after the state
court refused to consider as a mitigating
circumstance the defendant’s unhappy up-
bringing and emotional disturbance, includ-
ing evidence of the defendant’s turbulent
family history and beatings by a harsh
father. In Lockett, the Supreme Court
held that “in all but the rarest kind of
capital case, [the sentencer may] not be
precluded from considering, as a mitigat-
ing factor, any aspect of a defendant’s
character or record that the defendant
proffers as a basis for a sentence less than
death.” 438 U.S., at 604, 98 S.Ct. at 2964
(opinion of Burger, C.J.) (footnotes omitted)
(emphasis in original).

In its simplest form, then, Parks’ argu-
ment is that “sympathy” could Serve as the
basis of a sentence less than death, and
therefore the jury must be allowed to con-
sider it. The Supreme Court recently con-

eee ee ee

PARKS v. BROWN

1505

Cite as 840 F.2d 1496 (10th Cir. 1987) .

fronted an “anti-sympathy” instruction in
California v. Brown, supra. In that case,
the jury was instructed not to be “swayed

' by mere sentiment, conjecture, sympathy,
‘passion, prejudice, public opinion or public

feeling” during the penalty phase. 107
S.Ct., at 840. The California Supreme
Court had held that the anti-sympathy in-
struction violated the Eighth Amendment
and stated that a defendant had a right to
“sympathetic consideration of all the char-
acter and background evidence” which is
presented as mitigating evidence. People
v. Brown, 40 Cal.3d 512, 709 P.2d 440 (Cal.
1985). The Supreme Court granted certio-
rari and reversed, holding that the anti-
sympathy instruction in Brown did not vio-

~ Tate the Eighth or Fourteenth Amend-

ments. It is true that the Supreme Court
in Brown noted that the instruction there
referred to “mere sentiment, conjecture,
sympathy, passion, prejudice, public opin-
ion or public feeling,” whereas the instruc-
tion in the instant case did not utilize the
adjective “mere.” However, such, under
Brown, does not dictate a reversal in the
instant case, and, in any event, we are not
persuaded by the rationale of the California
Supreme Court in Brown.

6. With regard to nonstatutory mitigating cir-
cumstances, Parks’ jury was instructed as fol-
lows:

You are not limited in your consideration to
the minimum mitigating circumstances set out
herein, and you may consider any other or
additional mitigating circumstances, if any, that
you may find from the evidence to exist in this
case. What facts or evidence that may consti-
tute an additional mitigating circumstance is for
the jury to determine.

In Brown, the jury there was instructed that it
could consider nonstatutory mitigating circum:
stances as follows:

sion based on the aggravating and mitigat-
ing evidence presented, and not on “extra-
neous emotional factors.” Brown, 107
S.Ct., at 840. A jury should indeed not be
influenced by “sympathy” for either the
defendant, or, for that matter, for the vic-
tim and his family.

In his Supplemental Brief in this Court,

petitioner attempts to show that, under the
approach of Justice O’Connor’s concurring
opinion and four dissenters in Brown, the
challenged instruction, taken together with
certain remarks made by the prosecutor,
renders his sentence infirm. In Brown,
Justice O’Connor agreed that an anti-sym-
pathy instruction, by itself, does not violate
the Constitution. However, she cautioned
that care must be taken, else “juries may
be misled into believing that mitigating evi-
dence about a defendant’s background or
character also must be ignored.” 107
S.Ct., at 842 (concurring opinion). Here,
however, there is no possibility that the
jury was misled concerning its role or the
scope of the mitigating circumstances it
could consider. The jury was clearly in-
formed that the only bound on the mitigat-
ing circumstances it could consider was the
evidence found “‘to exist in this case.”* In
addition to the statutory mitigating circum-
stances, which the jury was told it must
consider, the court instructed the jury that
it “may consider any other or additional
mitigating circumstances, if any, that you
may find from the evidence to exist in this
case.”

Thus the jury was not instructed to ig-
nore mitigating evidence. Such an instruc-
tion would indeed run afoul of the princi-
ples of Lockett and. Eddings. Instead, the -

Any other circumstance which extenuates
the'gravity of the crime even though it is not a
legal excuse for the crime.

Justice O'Conner was concerned that the jury
may have understood this instruction to limit its
consideration of nonstatutory mitigating factors
to evidence about the circumstances of the
crime, and to preclude consideration of evi-
dence about the defendant's character and back-
ground. See Brown, 107 S.Ct., at 842 (concur-
ring opinion). The instruction given here, how-
ever, does not so limit the jury’s consideration.

~~ 1498
*—_ ly return death penalty rather than life
sentence, petitioner’s victim was native of
Bangladesh and was very dark-skinned,
and petitioner failed to demonstrate consti-
~ tationally significant risk of racial bias in
*f his case. U.S.C.A. Const.Amends. 8, 14.

-*&

= Vivian Berger, New York City (Lewis
Bs Barber, Jr., Oklahoma City, Okl., with her
‘. on the brief), for plaintiff-appellant.
Robert A. Nance, Asst. Atty. Gen., Depu-
“ty Chief, Federal Div. (Michael C. Turpen,
Atty. Gen., Okl, and Michael W. Elliott,
Asst. Atty. Gen., with lim on the brief in
. chief, and Robert H. Henry, Atty. Gen.,
Okl., with him on appellees’. supplemental
_=. response brief), Oklahoma City, Okl., for
=... defendants-appellees.

"Before MeKAY, BALDOCK and
~ McWILLIAMS, Circuit. Judges.

McWILLIAMS, Circuit Judge.
In a proceeding in the District Court of
“Oklahoma County, State of Oklahoma, a
2 ury convicted Robyn Leroy Parks of the
~*~ first-degree murder of Abdullah Ibrahim, a
.-<—Gulf gas station attendant, and the same
=. jury, after further hearing, sentenced
- = Parks to death. Parks’ conviction and sen-
«_ tence were affirmed on direct appeal by the
Oklahoma Court of Criminal Appeals.
> Parks v. State, 651 P.2d 686 (Okla.Crim.
i _App.1982), and the Supreme Court of. the
= United States denied certiorari, Justice
Brennan and Justice Marshall dissenting.
Parks v. Oklahoma, 459 U.S. 1155, 103
S.Ct. 800, 74 L.Ed.2d 1003 (1983).

Parks then sought post-conviction relief
in the state courts of Oklahoma. The state
district court denied relief and the Okla-

shoma Court of Criminal Appeals affirmed

==in an unreported order and opinion. There-
=Zafter, the United States Supreme Court
denied certiorari. Parks v. Oklahoma, 467
AES. 1210, 104° S.Ct. 2400, 81 L.Ed.2d 356
24984).

= n-June 29, 1984, eleven days before he
-was scheduled for execution, Parks filed in
the United_States District Court for the
= Western District of Oklahoma a petition
- =~-for a writ of habeas corpus pursuant to 28

840 FEDERAL REPORTER, 2d SERIES

U.S.C. § 2254. The district court stayed
execution, and, on November 5, 1985, in a
33-page opinion, dismissed all of the claims
asserted by Parks in his petition except the
claim of ineffective assistance of counsel at
the penalty phase of the state criminal pro-

_ ceeding. Before ordering an evidentiary

hearing concerning the claim of ineffective
assistance, the district court determined to
first propound interrogatories to the peti-
tioner, Parks. Based on the answers there-
to, the district court, by order of February
28, 1986, denied relief on the claim of inef-
fectiveness of counsel and dismissed all
claims. This appeal followed. We are ad-
vised that the parties have agreed that no
new execution date will be set pending
disposition of the present appeal.

The government’s case-in-chief estab-
lished the following. Abdullah Ibrahim, a
native of Bangladesh, was attending school
in Oklahoma and working part-time at a
Gulf gas station in Oklahoma City, Okla-
homa. On the morning of August 17, 1977,
a motorist who had stopped at the Gulf
station at around 4:30 a.m. to buy some
cigarettes found the attendant, Ibrahim,
dead inside the station booth. Ibrahim’s
death was caused by a gunshot wound in
the chest.. No money or other property
had been taken from the booth. However,
the investigating officers found an unused
Gulf gas credit card charge slip in the
booth with the letters and figures “XZ-
5710” written on it and circled. The police
checked out this alpha-numeric combina-
tion, and ascertained that it corresponded
with the license number of an automobile
in which Parks had an interest, possessory,
at the least, if not strict legal title thereto.

Parks at this point in the investigation
became either a prime suspect or a material
witness, and it was-ascertained that Parks
was then in California. In the meantime
the police had contacted a friend of Parks’,
one James Clegg, and enlisted the latter’s
aid. Clegg, in Oklahoma, called Parks, in
California, on several-occasions, and, with
Clegg’s consent, two phone conversations
were tape recorded. In the first of these
two recorded conversations, Parks told
Clegg that he went to the Gulf station

nn coietanmnticanananinn lean, fy: ermatatine, erecta:

PARKS v. BROWN 1499
Cite as 840 F.2d 1496 (10th Cir. 1987)

intending to get gas with a stolen credit
card and that the attendant came out of the
booth and appeared to write down his li-
cense number. Fearing that the attendant
would “call the law” and also fearful that
if the police caught him they would find
guns and dynamite which he had placed in
the trunk of his car, Parks decided to kill
the attendant so that if “he don’t be around
there ain’t nothing he can tell them no-
way.” In this setting, according to Parks,
he went to the station booth and shot and
killed the attendant. Apparently, the door
to the station booth was partially open and
Parks fired one shot which struck Ibrahim
in the chest.

At trial, Parks testified in his own behalf
and denied killing Ibrahim. He testified
that at the time of the killing he was in
another place, and a witness corroborated
his alibi. Parks explained the fact that the
license number of his car was found on the
unused credit card slip by stating that sev-
eral days before the homicide he had been
in this particular gas station and had pur-
chased gas when he had no money. He
said the attendant at that time took down
his license number, but that he had re-
turned later on the same date and paid for

the gas. Parks also explained his presence
in California at the time of his arrest by

_ testifying that subsequent to the date of

the killing he had gone first to Kansas
City, and then to California, in an effort to
buy marijuana. On this general state of
the record a jury convicted Parks of first-
degree murder and the same jury, after
further hearing, sentenced him to death.!

On appeal to this Court, Parks asserts
that his state conviction and sentence is
constitutionally infirm for any one, or all,
of the following reasons: (1) failure of the
state trial court to instruct the jury on a
lesser included offense; (2) admission of a,
prior conviction of Parks for robbery by
force and fear; (3) improper comment to
the jury by the state prosecutor in the
hearing at the penalty phase of the case;
(4) error by the trial court in instructing
the jury to disregard “sympathy”; (5) in-
complete and misleading instruction on ag-
gravating circumstances vis-a-vis mitigat-
ing circumstances; (6) ineffective assist-
ance of counsel at the penalty phase hear-
ing; and (7) failure of the trial court to hold
an evidentiary hearing on his claim that
Oklahoma’s death sentence statutes are ap-
plied ina racially discriminatory manner.
These matters will be considered seriatim.

I. Lesser Included Offense

The jury found only the second statutory aggra-
vating circumstance charged, i.e., that the mur-
der was committed to avoid or prevent a lawful
arrest or prosecution.

2. The judge stated:

As a matter of fact, the defendant's own
testimony was that he didn’t even own a cred-
it card. But even in the State’s case there was
no evidence of a credit card, except his state-

1502 840 FEDERAL REPORTER, 2d SERIES

ant refused to do, and no instruction was
given. The defendant was ultimately con-
victed of. first-degree murder and _sen-
tenced to death. The Supreme Court in
Spaziano found. no error in the state trial
court’s refusal to instruct on second-degree
murder, stating that “[w]here no lesser in-
cluded offense exists, a lesser included of-
fense instruction detracts from, rather than

_ enhances, the rationality of the process.

Beck does not require that result.” 468

US., at 455, 104 S.Ct. at 3159.

II. Admission of Evidence That Parks
Had a Prior Felony Conviction

In 1972, Parks, then seventeen years of
age, was charged as an adult with robbery
by force and fear. He pled guilty to the
charge and was given a five-year suspend-
ed sentence.. A few years later Parks was
also convicted of attempted burglary in the

second degree after a felony charge and —

was imprisoned for three years for that
conviction. At the very commencement of
the state trial on the murder charge, Parks
sought an order which would preclude the
use of his prior conviction for robbery at
the guilt phase of the proceeding. No chal-
lenge was made to the prosecution’s possi-
ble use of the burglary conviction for im-

_ peachment purposes should Parks elect to

testify in his own behalf. The reason ad-
vanced for the exclusion of the robbery
conviction was that Parks was only seven-
teen years of age at the time of the rob-
bery conviction and that accordingly such
conviction was invalid under Lamb v.
Brown, 456 F.2d 18 (10th Cir.1972). See
Radcliff v. Anderson, 509 F.2d 1093 (10th
Cir.1974) (en banc), cert. denied, 421 US.
939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975);
Bromley v. Crisp, 561 F.2d 1351 (10th Cir.

_ 1977) (en banc), cert. denied, 435 U.S. 908,

98 S.Ct. 1458 (1978). See also Edwards v.
State, 591 P.2d 313 (Okla.Crim.App.1979).

The state trial court denied Parks’ re-
quest, noting that no challenge had ever
been made in state court to the conviction.

At trial, then, defense counsel, in his direct
examination of Parks in the “guilt-phase”
of the state proceeding, brought out the
fact of the robbery conviction and the bur-
glary conviction. This was the state of the
record on this particular matter when the
case went to the jury on the guilt-or-inno-
cence phase of the trial. Later, in the
penalty phase of the bifurcated proceeding,
the jury was ultimately apprised of all of
the underlying facts leading up to Parks’
plea of guilty to robbery with force or fear.
In brief, the facts were that Parks, and two
other black youths, accosted a white stu-
dent in a school yard and after a fight took
six cents from the victim. All involved
were students.

The federal district judge in the habeas
corpus proceeding ruled that any possible
error in connection with the admission into
evidence of Parks’ prior robbery conviction

--was, when viewed in context, “harmless

error” as that term is defined in Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). We agree and are not
inclined to disturb that ruling.

At the time when the jury was deliberat-
ing the guilt-or-innocence of Parks on the
murder charge, the jurors knew about the
robbery conviction, but did not, at that
time, know of the underlying facts leading
up to Parks’ plea of guilty to the robbery
charge.5 However, counsel in the penalty
phase of the proceeding went “behind” the
robbery conviction and apprised the jury of
all the underlying facts and circumstances.
Thus, the jury was eventually fully in-
formed about the entire matter and knew
that this was not, by way of example, the
armed robbery of a bank by an adult of-
fender, but, on the contrary, arose out of a
fracas in a school yard where only six cents
was taken from the pocket of the victim.

[2] In our view, this entire episode was
de minimis, and must have been viewed as
such by the jury. As the federal district

court observed, the evidence of Parks’ guilt -

Parks’ testimony regarding the circumstances
surrounding the robbery conviction was incom-
“petent at that stage. The prosecutor did not
pursue the robbery conviction on cross-exami-
nation.

See! Sen A ae OT

PARKS v. BROWN 1503
Cite as 840 F.2d 1496 (10th Cir. 1987)

In the penalty phase of the proceeding,
where the jury was weighing life vis-a-vis
death, the jury was fully informed as to the
circumstances giving rise to the robbery
charge. . At that stage, the jury in effect
rejected the State’s arguments for the sole
statutory aggravating circumstance. to
which this robbery conviction was relevant,
when it refused to find that there was a

_ probability that Parks would commit crimi-

nal acts of violence in the future that
would constitute a continuing threat to so-
ciety. See note 1, supra. The only aggra-
vating circumstance contended for by the
State which the jury found supported by
the evidence was that the murder was com-
mitted by Parks for the purpose of avoid-
ing or preventing a lawful arrest or prose-
cution, which was the reason given by
Parks himself for the killing. We refuse to
believe that a jury would impose the death
sentence because of Parks’ conviction for a
crime arising out of a school yard fist
fight. To us, it is inconceivable that a jury
of twelve adults would be influenced in any
manner by such testimony to the end that
such would affect their deliberation on ei-
ther the question of guilt or penalty in a
first-degree murder proceeding. We have
more faith in the jury system.

III. Improper Comment by State
Prosecutor in Closing Argument

Counsel argues that statements made by
the prosecutor to the jury during closing
argument in the penalty phase of the case
come within the prohibitions laid down. in
Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 86 L.Ed.2d-231 (1985). The

Supreme Court in Caldwell held that it is
“constitutionally impermissible to rest a
death sentence on a determination made by
a sentencer who has been led to believe
that the responsibility for determining the
appropriateness of the defendant’s death
rests elsewhere.” Id., at 328-29, 105 S.Ct.
at 2639 (emphasis added). . In Caldwell, the
prosecutor, according to the majority opin-
ion, sought to “minimize the jury’s sense of
the importance of its role.” Specifically,
the state prosecutor commented that
should the jury return a death sentence,
such would be “automatically reviewable
by the Supreme Court.”

In the instant case, the state prosecutor
spoke to the jury as follows: --

But, you know, as you as jurors, you
really, in assessing the death penalty,
you're not yourself putting Robyn Parks
to death. You just have become a part
of the criminal justice system that says
when anyone does this, that he must
suffer death. So all you’re doing is
you're just following the law, and what
the law says, and on your verdict—once
your verdict comes back in, the law takes
‘over. The law does all of these things,
so it’s not on your conscience. You're
just part of the criminal justice system
that says when this type of type [sic] of
thing happens, that whoever does such a
horrible, atrocious thing must suffer
death. Now that’s man’s law. But
God’s law is the very same. God’s law
says that the murderer shall suffer
death. So don’t let it bother your con-
science, you know.

[3] We do not read the prosecutor’s
comment to minimize the importance of the
jury’s role in fixing Parks’ sentence. In
Darden v. Wainwright, 477 U.S. 187, 106
S.Ct. 2464, 91 L.Ed.2d 144 (1986), the Su-
preme Court, in footnote 15 at page 2473,
stated, in part, as follows:

Caldwell is relevant only to certain types

of comment—those that mislead the jury

as to its role in the sentencing process in

a way that allows the jury to feel less
_ responsible than it should for the sen-

tencing decision. In this case, none of

the comments could have had the effect

‘
a*

sé

1500 840 FEDERAL REPORTER, 2d SERIES

Oklahoma Court of Criminal Appeals, on
direct appeal, agreed that there was no
evidence to support “a lower degree of the
crime charged or an included offense....”
Parks v. State, 651 P.2d, at 690.3

-result based on Hopper v. Evans, 456 U.S.

605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982)
and Palmer v. State, 327 P.2d 722 (Okla.
Crim.App.1958).4 In so holding, the federal
district judge concluded that the state had
made a prima facie case of the greater
offense, i.e., murder in’ the first degree,
and that the evidentiary matter relied on
by the defendant, Parks, for requesting an
instruction on second-degree murder was
“no evidence whatever to refute the allega-
tions of the information.” The court com-
mented that, under Palmer v. State, su-
pra, the evidence relied on by Parks, in
order to justify the instruction on second-
degree murder, must “raise the issue of
whether the defendant was guilty of the
lesser offense only.” We need not attempt
to reconcile these different approaches to
the problem, since our view of the testimo-
ny relied on by the defendant is such that
there was no error in the trial court’s re-
fusal to instruct on second-degree murder.

In advancing this particular argument,
counsel relies heavily on Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980).. In Beck, the Supreme Court, citing
Keeble v. United States, 412 U.S. 205, 93
S.Ct. 1998, 36 L.Ed.2d 844 (1973), com-
mented, at p. 635, as follows:

ments and his statements alone do not prove
the corpus delecti of the crime. There is no
corpus delecti of any other felony having been
committed. ... There is no evidence and,
consequently, it's Murder One or nothing.

In the federal courts, it has long been
“beyond dispute that the defendant is
entitled to an instruction on a lesser in-
cluded offense if. the evidence would
permit a jury rationally to find him
guilty of the lesser included offense and
acquit him of the greater.” (Emphasis
added).

Our analysis of the evidence relied on by
counsel in advancing the lesser included
offense argument is that the evidence
would not permit a jury to rationally find
Parks guilty of second-degree murder and
acquit him of first-degree murder.

Under Oklahoma law, a person commits
murder in the first degree when he unlaw-
fully and with malice aforethought ‘causes
the death of another human being. Fur-
ther, “malice” is defined as the ‘deliberate
intention” to take the life of another, which
intent is manifested by “external circum-
stances capable of proof.” Okla.Stat. tit.
21, § 701.7(A) (1981). ;

Okla.Stat. tit. 21, § 701.7(B) (1981) fur-
ther provides that a person also commits
the crime of murder in the first degree
when he kills another, “regardless of mal-
ice,” in the commission of certain enumer-
ated crimes, such as forcible rape, robbing
with a dangerous weapon, kidnapping, and
the like. A killing occurring in connection
with the use of a stolen credit card is not
one of the enumerated crimes constituting
murder in the first degree.

4. In Palmer v. State, 327 P.2d 722 (Okla.Crim.
App.1958), the Oklahoma court held that it was
not error to refuse to give a lesser included
offense instruction where the state made out a
prima facie case of the greater offense, and

_ there was “no evidence whatever to refute the
allegations of the information....” In order to
justify or require the giving of a lesser included
offense instruction, there must be “evidence suf-
ficient to raise the issue ....” 327 P.2d, at 726.

TE ei AT a TT aan ee i

PARKS v. BROWN | 1501

Cite as 840 F.2d 1496 (10th Cir. 1987)

cide is murder in the second degree when
perpetrated by a person engaged in a felo-

-ny “other than” the felonies enunciated in
- Okla.Stat. tit. 21, § 701.7(B) (1981). Okla.

Stat. tit. 21, § 1550.22 (1981) provides, in
effect, that it is a felony to unlawfully use
or possess a stolen credit card.

Based on the foregoing statutes, Parks
argues that under Oklahoma law the state
district court should have instructed the
jury on second-degree murder and that the
failure to so instruct violates the mandate
of Beck v. Alabama, supra. In thus argu-
ing, counsel suggests that there is evidence
that the homicide in the instant case oc-
curred when Parks was engaged in a felo-
ny (using a stolen credit card) other than
the ones enumerated in Okla.Stat. tit. 21,
§ 701.7(B) (1981) and that accordingly an
instruction on second-degree murder was
mandated by Beck. The argument borders
on the ingenious, but in our view does not
stand up under a careful analysis of the
evidence relied on for the giving of such
instruction.

{1] As indicated, Parks testified in his
own behalf and denied killing Ibrahim, tes-

tifying that he was elsewhere at the time
of the homicide. So, there is nothing in the

defendant’s testimony that would justify -

giving an instruction on second-degree
murder. The evidence which counsel relies
on in advancing the present argument are
the statements made by the defendant to
Clegg in the two tape-recorded telephone
conversations, particularly the first of the
two conversations. We do not agree that
these statements made by Parks to Clegg
required an instruction to the jury on sec-
ond-degree murder.

Parks, in his statements to Clegg, indi-
cated that he had gone to the Gulf station
to buy gas with a “hot” credit card. Pre-
sumably, Parks had pumped the gas and
had used the “hot” credit card for pay-
ment. In any event, thereafter Parks no-
ticed the attendant taking down his license

number. Then, Parks, according to his.

statements to Clegg, formed a deliberate
intent to kill the attendant in the belief that
“dead men tell no tales.” Parks at the

time was apparently concerned not only

with the “hot” credit card, but also with
the small arsenal, consisting of guns and
dynamite, which he had in the trunk of his
car. It was in this setting that Parks pro-
ceeded to the attendant’s booth and,
through the partially opened door to the
booth, shot Ibrahim once in the chest. This
evidence does not justify an instruction on
a homicide without malice occurring in the
use of a stolen credit card. It only shows
a premeditated killing of another with de-
liberation and malice, the motive, there-
fore, being a desire to avoid possible detec-
tion by the police.

We believe our holding that the evidence
in the instant case did not require an. in-

‘ struction to the jury on second-degree mur-
der squares not only with Beck, but that it :

is also in accord with subsequent decisions
of the Supreme Court in such case as
Hopper v. Evans, 456 U.S. 605, 102 S.Ct.
2049, 72 L.Ed.2d 367 (1982) and Spaziano
v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82
L.Ed.2d 340 (1984). Hopper involved a
homicide perpetrated: during the course of
an armed robbery. The defendant, against
the advice of his attorney, testified and
stated, in effect, that he deliberately shot
the deceased in the back. Later, in a feder-
al habeas corpus proceeding brought by
the defendant’s mother, the Supreme Court
held that an instruction on second-degree
murder was not required since “the defend-

ant’s own evidence negates the possibility -

that. such an instruction might have been
warranted.” 456 U.S., at 606, 102 S.Ct. at
2050. In the instant case, Parks’ own
statements to Clegg concerning the homi-
cide negate his counsel’s claim of second-
degree murder.

1416 823 FEDERAL REPORTER, 2d SERIES

ing circumstance thus found against the
mitigating circumstances in the case. In
this connection, the jury was instructed
that if the mitigating circumstances out-

weigh the aggravating circumstances, then’

it must fix punishment at life imprison-
ment, but in this connection the jury is
further instructed, in effect, if not in so
many words, that if the aggravating cir-
cumstances outweigh the mitigating cir-
cumstances, then the penalty shall be
death. This, to us, is not a burden of proof
matter.”

Further, in our view, the jury was ade-
quately instructed on the nature and func-
tion of mitigating circumstances. Instruc-
tion No. 6 identified eight “mitigating cir-
cumstances,” and advised the jury that it
was not limited to such itemization and
could consider “other or additional mitigat-
ing circumstances, if any, you may find
from the evidence to exist in this case.” §

VI.- Ineffective Assistance of Counsel In
the Penalty Phase Proceeding

7. The Supreme Court has stated that “specific
standards for balancing aggravating against mit-
igating circumstances are not constitutionally
required.” Zant v. Stephens, 462 U.S. 862, 875
n. 13, 103 S.Ct. 2733, 2742 n. 13,'77 L.Ed.2d 235
(1983). In Andrews v. Shulsen, 802 F.2d 1256
(10th Cir.1986), also a death penalty case, we
recently observed that “sentencing authorities
may determine a defendant's fate without re-
gard for burdens of proof or other measures of
certainty.” 802 F.2d, at 1264. See also Ford v.
Strickland, 696 F.2d 804, 817-19 (5th Cir.1983)
(opinion of Roney, J.) (burden of proof argu-
ment confuses proof of facts and weighing of
facts in sentencing; weighing process not a fact
susceptible of proof under any standard); Son-
nier v. Maggio, 720 F.2d 401, 408 (5th Cir.1983),
cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79
L.Ed.2d 726 (1984); Foster v. Strickland, 707
F.2d 1339, 1345 (11th Cir.1983).

8. We have examined the cases from other Cir-
cuits relied upon by the petitioner, and have
determined that they do not support his posi-
tion. See e.g. Peek v. Kemp, 784 F.2d 1479 (11th

and that his representation of Parks in the
penalty-phase proceeding was constitution-
ally deficient and that such prejudiced
Parks and conceivably tipped the scales for
the death penalty, instead of life imprison-
ment. The record does not support this
argument.

Parks was represented in the state trial
court by David Hood, who was retained by
Parks’ father. We agree that Hood’s rep-
resentation of Parks in the guilt phase of
the case was not only constitutionally ac-
ceptable, but was, from our reading of the
record made in the state trial proceeding,
considerably above the norm. The jury
returned its verdict of guilty at about five
o’clock on a Friday afternoon. Hood and
the prosecutor were both of a view to com-
mence the penalty phase of the case imme-
diately. The judge, however, thought the
jury was perhaps “tired” and set the penal-
ty phase hearing for eight o’clock a.m. on
the next day. In the penalty phase hear-
ing, all of the evidence adduced at the trial,
which included all of the testimony of the
defendant, Parks, was reintroduced. Hood
then called as his only witness Parks’ fa-
ther. Parks’ father testified at some
length concerning his son, his home envi-
ronment, his education and personal traits.
The State had earlier indicated that it
might not call any witnesses at the penalty-

Cir.1986) (en banc), cert. denied, —- U.S. —,
107 S.Ct. 421, 93 L.Ed.2d 371 (1986); Spivey v.
Zant, 661 F.2d 464 (5th Cir. Unit B 1981), cert.
denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d
1374 (1982). In Peek, the Eleventh Circuit held
that the constitution requires only that there be
“no reasonable possibility” that a juror will fail
to understand “the meaning and function of
mitigating circumstances.” 784 F.2d, at 1494.
In Andrews v. Shulsen, 802 F.2d 1256 (10th
Cir.1986), we recently stated that sentencing in-
structions need only instruct the jury that “the
law recognizes circumstances which may be
considered as extenuating or otherwise reducing
a defendant's culpability and hence his punish-
ment.” 802 F.2d, at 1264. In the instant case,
the state trial judge’s instructions on mitigating
.circumstances were lengthy and thorough. The
jury's attention was clearly focused on the possi-
ble existence of mitigating circumstances, and,
in Instruction No. 7, the jury was instructed as
to its role in the sentencing decision. There is
no reasonable possibility that Parks’ jury failed
to comprehend the nature and function of miti-
gating circumstances in reaching its decision.

PARKS v. BROWN 1417
Cite as 823 F.2d 1405 (10th Cir. 1987)

phase hearing, but after the father. testi-
fied about his son’s robbery conviction, the
State did call as a rebuttal witness the
victim of the fracas in the schoolyard. -The
victim’s father also testified, and it would
appear from his testimony that it. was the
father’s insistence which resulted in the
filing of charges against Parks.

After closing argument, which was vig-
orous, the jury received the case around
noon. After lunch, the jury. commenced
their deliberations around 1:30 p.m. and
returned the death penalty around 4:45
p.m: At the request of Hood, who was of
course present with Parks when the verdict
was received, the jury was polled and all
jurors indicated that they had voted for the
death penalty. -

In the hearing in federal district court,
the. judge initially denied all of Parks’
claims for relief except the one claim of
ineffective assistance of counsel... Rather
than hold a full-scale evidentiary ‘hearing
into the ineffectiveness of counsel argu-
ment,. the district court: decided to. first
submit. written interrogatories to :Parks,
which. interrogatories Parks, in: time,: an-
swered and thereafter: filed supplemental
answers. thereto. Parks at this point. in
time was represented by local Oklahoma
counsel. who presumably assisted. Parks: in
his. answers to the interrogatories... Fur-
ther, no objection was made-at-that time. to
using interrogatories.as ar to.a. eat
scale evidentiary: hearing: =) ~:~ -=

. In any event, the answers ‘indicated ’ auite

clearly that the sole basis for the'claim ‘of .

ineffectiveness of counsel was ‘that® Hood

didn’t call moré witnesses to testify’ con-*

cerning Parks’ ‘personal history.° In this
court, Park’s counsel states that there

were. “at least.25 of Parks’ friends; rela- -

tives and associates who. would havé testi-

fied in his behalf,”? and. who..‘would: have:

painted a more complete picture of him as 4

human being; ‘i.e.,- church: -attendance;: ‘good’
_ performance in. achbol subjects,-his. non-vio->
lent: nature as a youth,”,and the: Jikese.1t?
should be.noted that by. the-time’ ‘aclaim: =0f:

ineffective trial counsel.-was' first:.made,

David Hood, who-.was Parks’; trial: counsel,”
was. deceased,- having -died:, a:’short-time’

after the trial: Be that as it may, based on
Parks’ answers to the interrogatories, and
upon a review of the record before him,
which included a transcript of the state
trial proceedings, the federal district judge
rejected the claim of ineffective counsel.
Under the circumstances, we are dis-
inclined to disturb his ruling on the matter.

In Strickland v. Washington, 466 U.S.
668, 104°S.Ct. 2052, 80 L.Ed.2d 674 (1984),
the Supreme Court held that in order to
prevail on a claim of ineffective assistance
of counsel, a defendant must demonstrate
that “counsel’s representation fell below an
objective standard of reasonableness,” id.,
at 688, 104'S.Ct. at 2064, avd that “there is
a reasonable probability that, but for coun-
sel’s unprofessional errors, the result. of
the proceeding would have been different.”
Id., at 694, 104 S.Ct. at 2068. Thus, in
order to. grant relief, a reviewing court
must find that both parts of the Strickland
test-are met. The reviewing court must

“indulge j a strong presumption” that coun-
~ gel’s assistance was effective, and it is the

defendant's burden to overcome the pre-
sumption ~ that “the challenged’ action
‘might. be considered sound ‘trial strate-
gy.” Td., at 689, 104 S.Ct. at 2065, quot-
‘ing. Michael v. Louisiana, 350 U.S. 91, 101,
16 S.Ct. 158; 164, 100 L.Ed. 83 (1955). In
applying Strickland, we bear in mind that
the “essence of an ineffective assistance
claim is that ‘counsel’s unprofessional er-
rors SO. “upset the adversarial balance be-
tween defense and prosecution that the tri-

=, 106 ‘S.Ct. 2574, 2583, 91
L.Ed. 2d. 305 “(4986).

16} Applying these volition. to y the i in-
stuntanacwe agree with the federal dis-
trict. Court: that Parks cannot prevail: on-his
claim.of. ineffective counsel.. The fact that
counsel did not call a succession of witness-
es: who- would: presumably: testify: concern~
ing: Parks’-boyhood years: and testify. gen-

erally~ass-to: his. character. does: not’“show”
_deficient:.performance: by: defensé’ counsel:

See Dutton wv: Brown, 812: F.2d. 593 (10th
Cir.1987). «Under the circumstances, decid-
ing: not. to. call .character- witnesses was

1418

perhaps a wise tactical move. Such wit-
nesses would have been subject to cross-ex-
amination and rebuttal. Though Parks
may have had an innocent boyhood, his
more recent past was not so spotless. In
addition to his plea of guilty to the robbery
charge, Parks had also been convicted of
burglary for which he had served time.
Further, as mentioned above, Parks at the
time of the homicide was apparently in the
drug business. At least that was Parks’
own testimony at trial where he explained
his presence in California at the time of his
arrest by stating that he was in California
on a “buying trip.” This aspect. of the
case, of course, was not fully explored in
the guilt-phase proceeding, but no doubt
defense counsel felt that if he tried at the
penalty phase proceeding to inject Parks’

general character into the case, the state -

would endeavor to bring out all the details
of Parks’ current endeavors, including his
trafficking in drugs, as well as the guns
and dynamite, which were apparently in
the trunk of Parks’ vehicle, and the pur-
pose for which they were intended.

Counsel argues here that at the very
least Parks should have been given an evi-
dentiary hearing on the claim of ineffective
counsel and points out that there was an
evidentiary hearing in Strickland. We do
not believe, however, that an evidentiary
hearing must be given in every case involv-
ing a claim of ineffectiveness of counsel.
In the present case, defense counsel was
not available to testify, having died shortly
after the state trial. The federal district
judge did not reject, out of hand, Parks’
claim that defense counsel’s courtroom per-
formance was constitutionally deficient.
He allowed Parks, assisted by his counsel,
to answer interrogatories. And these an-
swers, and supplemental answers, indicated
quite clearly that the only fault he had with
his counsel was his failure to place his
entire history before the jury. If counsel
had placed before the jury the entire record
made by Parks from the date of his birth to
the date of trial, such would undoubtedly
inelude Parks’ present drug activities,
which would probably not have enhanced
Parks’ position in the eyes of the jury. If
such had been the scenario, the claim in the

823 FEDERAL REPORTER, 2d SERIES

present proceeding would be that counsel
was deficient in permitting his life history
to go to the jury.. In our view, defense
counsel did a competent and vigorous rep-
resentation of Parks throughout the entire
trial. His arguments to the jury were im-
passioned. In the words of Strickland,
Parks’ present claim of deficient represen-
tation is grounded on “the distorting ef-
fects of hindsight.” 466 U.S., at 689, 104
S.Ct. at 2065.

VII. Refusal of the Federal District Court
To Hold an Evidentiary Hearing on
Parks’ Claim That Oklahoma’s Death
Penalty Statutes Are Applied Arbi-
trarily and Discriminatorily Against a
Defendant Such as Himself Charged
with Killing a White Victim .

In his petition for habeas corpus, Parks
urged as his ninth ground for relief that
the application of the death sentence to his
case violated his Eighth and Fourteenth
Amendment rights. In his petition, Parks

initially stated that his case is perhaps the’

only case where a death sentence was im-
posed solely on the aggravating circum-
stance that at the time of the homicide he
was attempting to avoid arrest or detec-
tion, and that in 90% of the cases where a
death sentence was imposed in Oklahoma
the jury either found that the offense was
heinous, atrocious and cruel, or that there
was a probability that the defendant would
constitute a continuing threat to society
because of his record of violent misconduct,
neither of which was the finding of the
jury in his case. This particular reason
apparently fell by the wayside and was not
pursued in the district court, nor is it raised
in this Court.

In his petition, and as a part of this ninth
ground for relief, Parks also urged that
based on a study by Samuel R. Gross, an
Acting Associate Professor of Law at Stan-
ford University, and Robert Mauro, an As-
sistant Professor of Psychology at the
University of Oregon, one is more likely to
receive the death penalty in Oklahoma if he
has killed a white person than if ‘he has
killed a black person. In this connection, it
is further alleged that Parks “will further

PARKS v. BROWN

1419

Cite as 823 F.2d 1405 (10th Cir. 1987)

bring out evidence of other forms of racial
discrimination in Oklahoma County.” In
support of this claim, Parks later proffered
to the federal district court Professors
Gross and Mauro’s study, since published
as Patterns of Death: An Analysis of
Racial Disparities in Capital Sentencing
and Homicide Victimization, 37 Stan.L.
Rev. 27 (1984) (the Gross-Mauro Study).

The federal district court declined to hold
an evidentiary hearing on the claim of ra-
cial discrimination in the application of
Oklahoma’s death penalty statutes. The
judge was of the view that what may have
happened in some other case didn’t prove,
or even tend to prove, what had occurred in
Parks’ case.

[7] The conclusion of the Gross-Mauro
study is that it is the color of the victim,
rather than the color of the defendant, that
impels 4 jury to more readily return a
death penalty vis-a-vis a life sentence. In
the instant case, the victim, Abdullah Ibra-
him, was a native of Bangladesh temporari-
ly in the United States, and he is not white-
skinned, but, from the photograph in the
record before us, is very dark-skinned.
Under such circumstances, a court would
be going far afield to hold an evidentiary
hearing on the basis of the Gross-Mauro
study. A Bangladesh victim does not ap-
pear to fall into place in the Gross-Mauro
study.®

Moreover, the Supreme Court recently
considered and rejected a similar claim in
McClesky v. Kemp, — U.S. ——, 107 S.Ct.
1756, 95 L.Ed.2d 262 (1987). In McClesky,
a study similar to the Gross-Mauro study
offered here was considered. That study
(the Baldus study) purported to show a
disparity in the imposition of the death

9. The Gross-Mauro study itself states that “cases
involving Asian or American Indian defendants
or victims have been removed from any tabu-
lations that include the racial characteristics of
the defendants or of the victims, respectively,
from all regression analyses, and from tabu-
lations involving our scale of aggravation.” Pat-
terns of Death, 37 Stan.L.Rev., at 52 (footnote
omitted).

penalty in the State there involved, Geor-
gia, on the basis of the race of the murder
victim.'° McClesky there argued, as Parks
does here, that the statistical disparities
shown by the proffered study demonstrat-
ed that Georgia’s capital punishment stat-
ute violated both the Equal. Protection
Clause of the Fourteenth Amendment and
the Eighth Amendment’s ban on “cruel and
unusual punishments.” See McClesky, 107
8.Ct., at 1770.

The Supreme Court rejected McClesky’s
Equal Protection Clause argument. It held
that in order to prevail on the equal protec-
tion claim, McClesky had to “prove that the
decisionmakers in his case acted with dis-
criminatory purpose.” McClesky, 107
8.Ct., at 1769 (emphasis in original). The
Supreme Court examined the Baldus study
and found it “clearly insufficient to support
an inference that any of the decisionmak-
ers. ... acted with discriminatory pur-
pose.” 1! The Supreme Court also rejected
McClesky’s Eighth Amendment claim that
his death sentence was excessive since ra-
cial considerations may have influenced
capital sentencing decisions in Georgia. It
found that at most, “the Baldus study indi-
cates a discrepancy that appears to corre-
late with race,” id., at 1777, and refused to
assume that the unexplained discrepancy
resulted from invidious racial discrimina-
tion. The Gross-Mauro study proffered
here is similar to the Baldus study con-
sidered in McClesky. Like the Baldus
study, it does not show what transpired in
Parks’ case. Nor does it demonstrate a
“constitutionally significant risk” of racial
discrimination.!?

Parks has offered no evidence that would
support an inference that the decision mak-

the race of the suspect did not have a statistical-
ly significant role in the imposition of the death
penalty. See Patterns of Death, 37 Stan.L.Rev.,
at 97 n. 187.

11. At-.an evidentiary hearing, McClesky’s expert
witness testified that the Baldus study did not
show what occurred in any given case. McCle-
sky, 107 S.Ct., at 1767 n. 11.

1420 823 FEDERAL REPORTER, 2d SERIES

ers in his case acted with a discriminatory
purpose. As indicated, such evidence is
essential in order to prevail under the
Equal Protection Clause. Parks’ Eighth
Amendment claim must also fail. He has
not demonstrated a “constitutionally signif-
icant risk of racial bias.”. As the Supreme
Court has observed, discrepancies in sen-
tencing decisions appearing in studies such
as the proffered Gross-Mauro study are
but an inevitable part of our criminal jus-
tice system. See McClesky, supra, 107
S.Ct., at 1778.

Finally, the additional proffer by Parks
that if given time he could “bring out evi-
dence of other forms of racial discrimina-
tion in Oklahoma County” is conclusory
and non-specific i in nature, and did not re-
quire the district court to hold an evidentia-
ry hearing. See Andrews v. Shulsen, 802
F.2d 1256, 1266 (10th. Cir.1986) where we
upheld a district court’s ruling that an evi-

-dentiary hearing was. unnecessary where

the allegations of discrimination in ‘fact
were conclusory, stating that a “habeas
petitioner must provide Supporting factual

- allegations.””.

In sum, we think the defeniiank got a fair
trial.. Perhaps not a perfect one, but we
know of no rule.that in a capital case the
trial: must be perfect. Certainly there is
nothing before us to. indicate that the entire
proceeding was-fundamentally unfair, or
that there has been a. miscarriage of jus-
tice. Parks’ ‘defensé, as-stated, was an
alibi. The jury rejected that defense. Ac-
cordingly, the facts‘and circtimstances of

. the homicide, coming necessarily from only

the state’s evidence, showed a senseless,
cold-blooded: killing, the, evidence. therefor
coming from the defendant himself. And,
as previously: Stated, defense counsel did all
he. could do with.) what he had ta work with.

Judgment affirmed.

" McKAY,. ‘Gereait’ Tadeks concurring in
pare: and: dissenting i in parts: See

While I concur in parts IL, V, VI, “and VIL

of the majority’s opinion, fhe 5 issues raised

Seat eS aha

— Dea, at-96 n. 184.< This- gues’ is. esuatantlaliy

identical to that which the Supreme Court char-
.acterized as “not demonstrat{ing] a constitution-

in parts I, III, and IV compel me to dissent
in this death penalty case.

The murder committed by Robyn Parks
was, as all murders are, a personal tragedy
for the victim’s family and an affront to
society’s moral sensibilities. Yet, capital
punishment is not the usual punishment
inflicted in capital murder cases. As Jus-
tice Brennan recounted. in 1972:

There has been a steady decline in the
infliction of this punishment in every dec-
ade since the 1930’s, the earliest period
for which accurate statistics are avail-
able. In the 1930’s, executions averaged
167 per year; in the 1940’s, the average
was 128; in the 1950’s, it was 72; and in

the years 1960-1962, it was. 48. There

have been a total of 46 executions. since
then, 36 of them in 1963-1964. Yet our
population and the number of capital
crimes. committed have increased great-
ly over the past four. decades.
Furman v: Georgia, 408 U.S. 238, 291, 92
S.Ct. 2726, 2758; 33 L.Ed.2d 346 (1972)
(Brennati, J; concurring) (emphasis added
and footnote omitted). In the pre-Furman
era, less than twenty percent of those con-
victed of murder. were sentenced. to ‘death
in those ‘states that authorized capital pun-
ishment. See Woodson v. North Carolina,
428 US. 280, 295 n. 31, 96 S.Ct. 2978, 2987
n. 31, 49 L.Ed.2d 944 (1978). ‘Even if cur-
rent statistics regarding | ‘the rate of i imposi-
tion of the death penalty i in. the post- -Fur-
man.era would show a dramatic i increase in
its use; I have no: doubt that the. rate fails
to approach ‘by an exceedingly large mar-
gin the rate of homicides i this country.
The disparity is for good reason. ... “[T]his
most. irrevocable. of. sanctions, ‘should. be

ated for 4° small number’ of- extreme

cases.” Gregg v: " Georgia, "428" US. 153,
182, 96 S.Ct. 2909, 2929. 49. TEd.2d. 859

(1976): -The relatively Tow. incidence. of the’

death penalty as ‘compared tothe | homicide
rate in this country indicates that juries
obviously eros lees sore sree ay

sy 107-S.Cty at ¥76t

woke pas eg Sega eeu inte Set BAG ‘ae aGYAR as

PARKS v. BROWN 1421
Cite as 823 F.2d 1405 (10th Cir. 1987)

At common law, the death sentence was
mandatory for all convicted murderers. In
twentieth century America, the use of the
death penalty was reduced both by narrow-
ing the class of murders to which the pen-
alty attached and by vesting the jury with
discretion in the penalty’s imposition. See
Eddings v. Oklahoma, 455 U.S. 104, 110-
11, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1
(1982); Gregg, 428 U.S. at 176-79, 96 S.Ct.
at 2926-28. The Gregg Court rejected the
notion that our “standards of decency had
evolved to the point where capital punish-
ment no longer could be tolerated.” Jd. at
179, 96 S.Ct. at 2928. However, the Court
recognized that the penalty’s imposition
must be tailored so as to avoid arbitrary
and capricious imposition based on irrele-
vant biases and prejudices. A death sen-
tence imposed because of these impermissi-
ble considerations violates the eighth
amendment. Even a cursory reading of
the post-Furman cases reveals _ that,
through principles enunciated in those
cases, the Court has attempted to restrict
the jury’s attention only to those considera-
tions that may properly impact on the indi-
vidual sentencing determination before
them. In fact, the issues in parts I and II
that follow involve precisely such issues.

The evolution of capital punishment for
the crime of murder thus evinces the con-
clusion that to be constitutional today, a
death sentence must be closely intertwined
with the facts of the murder and the pro-
pensities of the defendant and must not be
actuated by extraneous influences. Al-
though the jury may not be discriminatory,
it is constitutionally bound to be discrimin
ating. The decision to impose the death
penalty in a particular murder case prop-
erly revolves around such parameters as
the depravity of the murder (7.e., a torture-
killing, multiple and hideous wounds, etc.)
and the demonstrated violent propensities
of the defendant. These are the types of
factors that differentiate those ‘routine
murder case{s],” Jackson v. Virginia, 443
U.S. 307, 328, 99 S.Ct. 2781, 2794, 61
L.Ed.2d 560 (1979) (Stevens, J., concurring),
that do not result in the imposition of the
death sentence from those far fewer mur-

der cases that do result in the death penal-
ty.

Along with those murders committed in

_ the heat of passion by someone known to

the victim, murder committed in the course
of committing a robbery seems to me to
epitomize the “run-of-the-mill” murder.
The victim in this case was killed by a
single gunshot wound to the chest, appar-
ently when Mr. Parks attempted to buy
gasoline with a stolen credit card. The
facts do not indicate that Mr. Parks
stopped at this station expressly to kill the
attendant. There was no evidence of tor-
ture or other wounds. His only prior con-
viction was as-a juvenile and involved a
schoolyard scuffle. As unfortunate as
these facts are, the imposition of the death

sentence for this murder is disquieting, un- .

less the death penalty is to be imposed in
every murder case. Its imposition in this
case thus requires close scrutiny to ensure
that the jury’s focus was properly chan-
neled to only those considerations that may
appropriately impact upon the sentencing
determination.

I agree with defendant’s contention that
the prosecutor’s remarks in the sentencing
phase of the trial violated the principles
articulated in Caldwell v. Mississippi, 472
U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985). The Supreme Court has recently
interpreted Caldwell to prohibit those com-
ments “that mislead the jury as to its role
in the sentencing process in a way that
allows the jury to feel less responsible
than it should for the sentencing deci-
sion.” Darden v. Wainwright, 472 US.
820, 106 S.Ct. 2464, 2473 n. 15, 86 L.Ed.2d

1422 823 FEDERAL REPORTER, 2d SERIES

231 (1986) (emphasis added). Near the

close of his argument in chief, the prosecu-

tor made the following remarks:
And then you may say, well, you know,
yeah, I still mean it, I could, without
doing violence to my conscience if this
was a proper case; but, you know, I
really don’t want it on my hands that I
had anything to do with anybody dying.
So for that reason, although this is a
proper case, I don’t want to assess the
death penalty because I just don’t want
to have to think about that. I don’t want
it on my conscience.

Well, I don’t think it’s on Robyn Parks’
conscience that he took an innocent per-
son’s life away; and I don’t believe in
observing him throughout this trial and
his testimony and listening to his voice
on the tapes—I don’t feel like there’s the

. least bit of remorse in him over what he
did. But, you know, as you as jurors,
you really, in assessing the death penal-
ty, you’re not yourself putting Robyn
Parks to death. You just have become a
part of the criminal-justice system that
says when anyone does this, that he
must suffer death. So all you are doing
is you’re just following the law, and what
the law says, and on your verdict—once
your verdict comes back in, the law takes
over. The law does all of these things,
so it’s not on your conscience. You're
just part of the criminal-justice system
that says when this type of type of [sic]
thing happens, that whoever does such a
horrible, atrocious thing must suffer
death.

Now, that’s man’s law. But God’s law
is the very same. God’s law says that
the murderer shall suffer death. So
don’t let it bother your conscience, you
know.

Record, vol. 6, at 707-08.

Such an argument was designed to do
precisely that which Caldwell specifically
prohibits: . to allow the jurors to minimize
their sense of personal responsibility for
imposing the death sentence. “(I]t is con-
stitutionally impermissible to rest a death
sentence on a determination made by a

1. The majority also notes that “[t]here was no

sentencer who has been led to believe that
the responsibility for determining the ap-
propriateness of the defendant’s death
rests elsewhere.” Caldwell, 472 U.S. at
328-29, 105 S.Ct. at 2639-40. Such delega-

tion of sentencing responsibility “presents

an intolerable danger of bias toward a
death sentence.” Jd. at 331, 105 S.Ct. at
2640.

The prosecutor’s statements here freed
the jurors from personal accountability for
Mr. Parks’ sentence of death by arguing
that all the jury was doing in assessing the
death penalty was following the mandates
of the law. By implying that the law af-
firmatively prescribed the death penalty in
this case, minimizing any sense of jury
discretion in imposing the death sentence,
the prosecutor allowed the jurors to feel as
if their “hands were tied.” He allowed
them to feel as if they weren’t choosing to
impose the death penalty; the law required
it. Portions of his argument merit repeat-
ing for illustration:

You just have become a part of the crim-

inal-justice system that says when any-

one does this, that he must suffer death

[O]nce your verdict comes back in,
the law takes over. The law does all of
these things.... You're just part of the
criminal-justice system that says when
this type of type of [sic] thing happens,
that whoever does such a horrible, atro-
cious thing must suffer death.

Record, vol. 6, at 707 (emphasis added). In
essence, he told the jurors that they were
not responsible for sentencing Robyn
Parks to death; the ephemeral “criminal
justice system” was responsible. The ju-
rors were invited to shift, or at least dif-
fuse, their sense of ultimate responsibility
to “the law” that required them to sen-
tence Mr. Parks to death.

The majority opinion finds the state-
ments made in this case to be “quite sim-
ilar,” maj. op. at 1412, to those we found to

be constitutional in both Dutton v. Brown, —

812 F.2d 593 (10th Cir.1987) (en banc), and
Coleman v. Brown, 802 F.2d 1227 (10th
Cir.1986).!. I very much disagree and set

objection by defense counsel to the prosecu-

PARKS v. BROWN 1423
Cite as 823 F.2d 1405 (10th Cir. 1987)

out in the margin the challenged state-
ments made in those cases for comparison
purposes.”

tion’s argument.” Maj. op. at ——. In Dutton,
there also was no objection at trial; in fact, the
issue was not pursued at any time in the appel-
late process. The issue was raised for the first
time in the habeas proceedings. However, the
en banc court found cause for the procedural
default because the trial occurred in 1979, six
years prior to Caldwell in 1985. The court stat-
ed that counsel “could not have known that the
prosecutor’s remarks might have raised consti-
tutional questions.” Dutton, 812 F.2d at 596.
Robyn Parks’ trial occurred in 1978, seven years
before Caldwell and even a year before Dutton.
Considering the en banc court's treatment of
this problem in Dutton, it seems disingenuous to
me to apparently fault counsel in this case for
not objecting at trial. At least he had the fore-
sight, unlike counsel in Dutton, to pursue the
issue on direct appeal.

2. The challenged statements in Dutton were as
follows:

First of all, [Defense Counsel] argues that
the final decision is yours, and of course, to
some degree it is. But you are, as I am, as
Judge Theus is, as all the courts are, part of
the process. We are not functioning as indi-
viduals. I am not here as Andy Coats. I am
here as the District Attorney. ;

ed). “Moreover, viewing this argument in
context, it is evident that the prosecutor
had no intention of diminishing the jury’s
sense of responsibility.” Coleman, 802
F.2d at 1241 (emphasis added). We quoted
the prosecutor’s subsequent remarks at
length in our Coleman opinion. See id.
In the present case, the prosecutor made
no additional remarks that may have molli-
fied his impermissible comments. He basi-
cally closed his argument in chief with the
unconstitutional statements.

The Supreme Court’s concluding state-
ment in Caldwell is equally applicable in
this case.

This Court has always premised its
capital punishment decisions on the as-
sumption that a capital sentencing jury
recognizes the gravity of its task and
proceeds with the appropriate awareness
of its “truly awesome responsibility.” In
this case, the State sought to minimize
the jury’s sense of responsibility for de-
. termining the appropriateness of death.
Because we cannot say that this effort
had no effect on the sentencing decision,
that decision does not meet the standard
of reliability that the Eighth Amendment
requires.

And you are not here in your individual
capacities. You are here as the jury. And
Judge Theus is not our good friend, Harold,
off the Bench. He is his Honor, Judge Harold
Theus, when he is in. this Courtroom.

And we are all part of the law and it is the
law that makes us work. ‘So it has to be in
that attitude, in that frame of mind, that you
approach the problem.

Dutton, 812 F.2d at 596. ;
The challenged statements in Coleman were
as follows:

In closing I say to you that they try to put
the responsibility on you, like it’s all your
fault. To a certain extent—I don’t mean to
imply, I don't mean to imply that it’s put on
you like it’s your fault if you do something in
this case. I don’t mean to imply that neces-
sarily, but let me make it real clear that you're
not writing the verdict in this case. Don't—
don't be mistaken into believing that it's your
responsibility that this happened, that you're,
you're writing the verdict. I, I say to you, this -
man wrote the verdict on February 9th, and
all those days after when he got out of jail and
went on [sic] spree of knifing and kidnapping
and killing. He wrote the verdict. This man.
He wrote it in blood over and over.

Coleman, 802 F.2d at 1240.

friends were and see

connect any of them
1e.

» long hours that fol-
four.d it wasn’t that
iad friends, plenty of
ine knew Judge Wall’s
liked him. The more
o, the more incredible
ea that a friend of his
1. The youths he palled
have fought for him.
engeance. All of them
heriff and his deputy
assistance in bringing
sponsible to justice.
ficers talked to Alvin
lerked at the corner

“T don’t know if it’s
to do with the killing
Hayne drove by my
ipper and brought me

He asked me what
and I told him eleven
1e said he would see

me back?”
en. It was around ten.
‘¢ store all dressed up
yhone.”’
ime instantly
all?”
shook his head. “I
ir the conversation. A
» in just then and I
to wait on her. That
iced some fellow with
dutside in the coupe.”
leaned forward anx-
you recognize him?
is a description?”
‘Ss in the negative. In
paid any attention,
t once at the car. He
at the fellow wore a
d low over his face.
say who was with

alert.

finished waiting on
was through at the
gone.”

o the sheriff, “The
ly the one made to
it keeping out the

1. “It all adds up.
find out is who was

che name of the cus-
ey hurried to the
38 to question her.
| Hayne Wall being
had not noticed any-
pe. She could add
t the clerk had al-

ie house, Drake said,

“This wouldn’t be hard to crack if
we had a good description. .We know
when, where, how and why thé vic-
tim was murdered, and it all jibes
with this fellow in the black cap.. Ps

“But we don’t have his descrip-
tion,” Cheek interrupted. “We know
that they left the drug store at ten
o’clock; at eleven, Hayne Wall was
dead. Where they went and what
happened in the one hour . i
Cheek turned up his hands. “I’m
afraid this is going to be a bad one
unless we can pick up that car.”

“At the office, they delved into a
score of reports that had come in
during their absence. Some of these
were from the surrounding towns
of Muskogee, Fort Smith, Okmulgee
and Tulsa, Oklahoma’s oil capitol
city. All had made a diligent search
of their streets and highways, and
even checked storage garages and
parking lots, but to no avail. They
had not even received any report on
a car of this description having
been abandoned. By. the next morn-
ing, with no, further reports coming
in, it became apparent that the killer
had made a complete getaway, prob-
ably into one of the adjoining states.

The newspaper carried a sensa-
tional account of the crime, along
with the sheriff’s appeal for public
aid in locating anyone who had seen
the Wall automobile and its occu-
pants the evening preceding the,
murder. The telephone in his office
buzzed with response, but these re-
ports, quickly followed up, were
swiftly discounted. Numerous con-
flicting rumors that Hayne Wall had
been looking for a date that evening
were circulated, but the officers
could find nothing here to sink their
teeth into.

One man told them, “I met Hayne
Wall uptown in front of the Cherry
& Winters building about 9 o’clock.
I was going to the train to mail
some letters and he was walking
pretty fast. I. asked him where he
was going in such a hurry, but he
didn’t answer. Just kept walking. I
didn’t see the car.”

Another said, “I saw him parked
in front of the Sallisaw Trading
Company at 9:30. That is one door
east of the corner drug store. There
was no one with him then. I didn’t
talk to him. Just spoke to him as I
walked down the street.”

So when had the man in the black
cap stepped into the picture?

Where had he come from and
where had he gone after they left
the drug store?

Was he the slayer of Hayne Wall?

Ted Patton,

Who died in the electric chair at

the Oklahoma State Penitentiary
for this slaying.

The officers asked these questions
of themselves and every person they
talked with, and each time they were
given the same hopeless answers.

They went down the list of
Hayne’s friends who were known to
wear black caps. But they all had
airtight alibis.

At length Sheriff Cheek asked,
“Are we sure this fellow in the
black cap even exists?”

we found on the mountain road
where the killer unloaded the body.
It was a fellow in a black cap that
Alvin Short saw in’ the coupe in
front of the drug store. There’s no
doubt about it.”
“Let’s talk to him again. No one
else saw anyone with Hayne the
night of the murder. Maybe Short

Drake said, “It was a man’s track

was mistaken. After all, he’s the
one Hayne was to pick up at eleven
o’clock.”

Alvin Short was questioned again,
this time by County Attorney Green
and Cheek and Drake. He repeated
the same.story he had told Cheek
and Drake.

“Are you sure there was someone
else in the car?” Green insisted.

“There was a fellow in the coupe,”
Short declared. “I saw him, and I
could tell it was a black cap he
wore.” -

“But you couldn’t see clearly who
it was?”

“No. The car was parked about
three stalls down from the street
light, and it was too dark to tell.”

Green asked, “If you saw him
again, would you know him?”

“JT don’t know. It seems this fellow
was somebody I’ve seen before, but
I can’t remember. I keep thinking,
but can’t be sure.”

It was evident that the witness
was doing his best, and at the same
time being absolutely truthful. But
he had been too busy to notice. Now
that Hayne was dead, it was too late.

The sheriff and his deputy went
to the Wall home where relatives had
gathered for the funeral. All were
questioned at length. Cheek came
back to the man with the black cap
time and again, but they were un-
able to help him. They knew of no
acquaintance Hayne had like that.

“Maybe there’s moré behind his
death than just robbery,” Cheek
said in desperation. “Did he ever
mention anything that happened
that might make anyone angry
enough to want him dead ?”

But they could think of nothing.
Hayne, they said, would never do
anything to anyone that would anger
them enough to do a thing like that.

Cheek groaned with disappoint-
ment.

Drake asked, ‘What of these ru-
mors about a date?”

The grief-stricken mother scoffed
at the idea. “If there had been a
girl, Hayne would have mentioned
it,” she said. ‘He confided every-
thing in me.”

And that was the way the case
stood at the end of the second day.

No other motive but robbery. The
killer was someone familiar with the
victim and the locality. He wore a
black cap.

But there was no way to trace
him. The car seemed to have van-
ished into thin air. No other clues
to follow.

(Continued on page 40)

Wh contd ail

PATTON, Ted, why elec

By GLENN SHIRLEY

T was already 9 a.m., but a heavy

fog still hung low over the dense,
wild fastness of Wild Horse Moun-
tain four miles south of Salli-
saw, Oklahoma, as Farmer Lester
Sparks wheeled his car off highway
59 and headed east up the narrow
mountain trail. He had driven
scarcely forty yards when his little
daughter, riding in the seat beside
him, suddenly spotted a bulky ob-
ject lying half concealed in some
thick underbrush on the bank of a
small creek just off the edge of the
road.

“Look, daddy, look!” she called
excitedly. “Somebody has thrown
away a bundle of clothes. Let’s get
them.”

It was possible that the bundle
was of some value. Even if they
were rags, they could be put to use
around a farm.

Sparks braked his car to a stop
and climbed out. As he moved
closer, the bundle began to take
shape and he could see a pair of
feet sticking up.

With mingled feelings of curiosity
and excitement, he pulled the wil-
lowy branches apart, then stepped
back in surprise and horror. Stuffed
down in a pile of rocks was the body
of a young man, the front of his
shirt encrusted with a splotch of
rust-colored blood.

Speechless with shock at his grue-
some discovery, the farmer ran back
to his car and drove the short dist-
ance to the Sequoyah county seat to
report it the authoriies. It was
Tuesday, April 26, 1932. cr

Sheriff George Cheek and his de-
puties Raymond Drake and Bill
Byrd sped to the scene. They were
accompanied by County Attorney J.
Fred Green and Doctor J. A. Mor-
row, coroner’s physician, in an am-
bulance from the Wheeler Steven-
son mortuary.

LATEST DETECTIVE CASES,

eller

Sheriff Cheek took the lead as
they proceeded down the slope, and
spread the bushes apart.

“Good Lord!” he ejaculated. And
County Attorney Green whistled.

The two deputies gasped.

They all recognized the body of
Hayne Wall, 19-year-old son of W.
B. Wall, former County Judge, and
one of Sallisaw’s most prominent
families.

The body lay in a twisted heap,
the head downstream. The face had
bloated and turned a purplish hue.
Examination showed he had been
shot in the chest.

Deputy Drake studied the place of
concealment. “Looks like the killer
didn’t intend for him to be dis-
covered.”

While Byrd and Green removed
the brush from around the body, the
sheriff and Drake surveyed the
scene.

The corpse rested twenty-five feet
off the trail. From the body to the
roadway, they traced faint disturb-
ances: of dead leaves and twigs
covering the rock-studded terrain of
the ravine. Obviously the body had
been dragged down to where it now
lay.

At the edge of the road, the sher-
iff leaned over to study some im-
pressions in the soft, earth, still
damp from a heavy dew which had
fallen shortly after midnight. One
was a fairly legible tire track. The
other was the blurred print of a
right shoe where a man had twisted
around.on the ball of his foot.

“No good for a cast,” the sheriff
said. “But it proves the body was
unloaded here. The track is fresh
enough, made in the night just after
the dew, for the moisture has been
knocked off the grass and weeds
and the sand.”

He sent Byrd off to block the
trail at the highway for already

rorn

people had heard the startling news
and were pouring out to the scene.
Then he went back to where Doctor
Morrow was examining the corpse.

He looked at the body again. It
was clad in blue tweeds, tan shirt
and blue necktie. The trousers had
been freshly pressed and were still
in neat order. The shoes were fresh-
ly shined. Nothing to indicate that
there had been a struggle.

There was a gash across the left
side of his soft, evenly cut features.

“But that was done when he was
thrown in these rocks,’ Doctor
Morrow declared. “The wound is

.deep enough to have caused con-

siderable bleeding if there had been
any circulation at the time.”

This was further proof that he
was already dead when carried down
here. The discoloration of the face,
he explained, was due to the head
hanging downstream for some time
and the gravitation of the blood to
the lower part of the body.

“What time would you say the
death occurred?” Cheek queried.

“It couldn’t have been many
hours, but I can’t say definitely until
I complete the autopsy. Doctor
Morrow rose and wiped his hands on
some freshly plucked tufts of grass.
“If you’re ready, we’ll take the body
in where I can make a thorough ex-
amination and probe for. the bullet.
Okay?”

The sheriff nodded. He left Drake
in charge at the scene and drove
back to Sallisaw.

Arriving at his office, he notified
Judge Wall of the tragedy. A half
hour later the body was brought in,
and he took the judge to the under-
taking parlor, where he identified
the victim as his son. “Why would
anyone want to to do this?” he
muttered weakly.

Doctor Morrow reported that the
youth had been dead about ten hours

Winter, 1948

“The Polic:
_—But Fin

when found,
of the murd
previous day
“Then he °
after I talke
phone,” the i
“Hayne ca
The fathe)
had dressed
8:30 p.m.
and asked
the car oul
murred to }
late, and h
be driven, t
So I told hi
“Parked ?’
have a date
“T don’t °
went with
his evening
“Where v
But Judg
That quest
moment un:

The phys
ther that h
small calibr
on the bods
been fired
The angle «
he had bee
the death
have been
slain.

His. pock
cording to
leather bi
Sheaffer fc
sive Elgin
chain and
highschool
the fami!
pointed de

“His gl
the judge
the time.
his glasse

“They }
lost where
theorized.

ird the startling news
ring out to the scene.
back to where Doctor
‘Xamining the corpse.
t the body again. It
lue tweeds, tan shirt
ie. The trousers had
ressed and were still
The shoes were fresh-
hing to indicate that
a struggle.
gash across the left
, evenly cut features.
is done when he was
‘ese rocks,” Doctor
‘ed. “The wound is
o have caused con-
ng if there had been
at the time.”
rther proof that he
.d when carried down
loration of the face,
vas due to the head
‘ream for some time
‘tion of the blood to
of the body.
would you say the
”’ Cheek queried.
have been many
't say definitely until
e autopsy. Doctor
1 wiped his hands on
icked tufts of grass.
, we'll take the body
nake a thorough ex-
robe for. the bullet.

dded. He left Drake
le scene and drove

is office, he notified
he tragedy. A half
dy was brought in,
judge to the under-
vhere he identified
3 son. “Why would

to do this?” he

’ reported that the
2ad about ten hours

A oe

when found, thus placing the time
of the murder at 11 p.m., on the
previous day.

“Then he was killed only an hour
after I talked to him on the tele-
phone,” the father said.

“Hayne called you?” asked Cheek.

The father explained that his son
had dressed and left the house about
8:30 p.m. ‘At two o’clock he called
and asked my permission to keep
the car out another hour. I de-
murred to his driving it around so
late, and he told me it would not
be driven, that it would be parked.
So I told him it would be all right.”

“Parked?” echoed Cheek. ‘Did he
have a date?”

“T don’t think so. Hayne seldom
went with girls. He always spent
his evenings at home.”

“Where was he when he called?”

But Judge Wall shook his head.
That question, too, was at the
moment unanswerable.

The physician’s report stated fur-
ther that he had been shot with a
small calibre weapon. Powder burns
on the body indieated the bullet had
been fired from very close range.
The angle of the wound proved that
he had been facing the killer when
the death slug landed. So he must
have been outside the car when
slain.

His. pockets had been rifled. Ac-
cording to Judge Wall, a brown
leather billfold, a mottled design
Sheaffer fountain pen and an expen-
sive Elgin pocket watch with a gold
chain and heavy anchor key, all
highschool graduation gifts from
the family, were missing. This
pointed definitely to robbery.

“His glasses are missing, too,”
the judge added. ‘‘He wore them all
the time. Why would the killer take
his glasses?”

“They probably fell off or were
lost where Hayne was slain,’ Cheek
theorized. ‘‘He wasn’t shot in that

The murder weapon was an old
pistol.

‘en

ravine. We know that because of
the trail made by dragging the body
down there.”

He took Judge Wall and drove
out and rejoined Drake and Byrd
at Wild Horse Mountain. The shoot-
ing undoubtedly had occurred near
the spot whére the body was found.
A genuine lead might develop from
discovery of the scene of the slaying.

The tire tracks had entered the
mountain road from the direction
of Sallisaw, curved and criss-
crossed where the car had turned
around above the spot where the
body had been found, and returned
to the highway. They followed the
tire marks, slowly, searching both
sides of the trail. They found
nothing. But Judge Wall identified
the treads of the tires as the same
brand used on his car. There was
little doubt that Hayne Wall had
been hauled to this spot in his own
automobile.

At the highway, Drake pointed to
where the tracks turned north back
to Sallisaw.

“The killer must have been a local
resident,” the deputy said. ‘‘At least
he was familiar with the country,

5 na Pe a er

Sree: Fa

Huge crowds packed the courtroom of this Sequoyah County court-
house at Sallisaw, Oklahoma, to hear the trial of the slayer of the
popular son of a former County Judge.

Pas

He couldn’t have picked a better
spot for concealing the body.”

Cheek agreed. “He must have
killed him for his personal posses-
sions, with the car the prime con-
sideration. He then hid the body
where he thought it wouldn’t be
discovered for days, allowing himself
plenty time to make a clean, get-
‘away.”

The sheriff got a complete descrip-
tion of the machine. It was a 1930
model A Ford sport coupe, with a
rumble seat and a gray fabric top.
He spread the alarm for two hun-
dred miles in every direction.

“Tt’s the key to the whole riddle,”
he told Judge Wall. “We may pick

up the car with the killer stil] in
it.”

Meantime, they continued their -

hunt for the place of the slaying. A
volunteer posse departed for the
side roads while the officers stuck to
the highway. They moved out from
Wild Horse Mountain, making in-
quiries of everyone in the vicinity
who might have noticed a commotion
the night before. It was not until
they talked to a farmer who _lived
more than a mile to the north that
their efforts were rewarded.

“I just had a feeling something
was wrong last night when my dogs
started barking and got me out of
bed,” the man commenced when he
was informed of the tragedy. It
was about eleven o’clock. I went
out on the porch and made the dogs
hush up, then I saw a coupe parked
down on the road. I could hear loyd
talking and a second later a popping
sound like a shot from a _ gmall
calibre gun.” , a

He told the officers he had yelled
out what was wrong down there,
and started toward the highway.
Just then the motor roared to life,
the lights went on, and the car drove
on south at a fast rate of speed.

“IT figured it was just some
drunken revellers on their way home
from Sallisaw,” he concluded. “So
I went back to bed. I never thought
any more about it until just now.”

The sheriff asked him to show
them the exact spot where the coupe
had stopped. He did.

They searched the roadway. They
found some hlurred tracks where
two men had been outside the car.
But no signs of a struggle were vis-
ible. Hayne Wall had been taken by
surprise. Had he suspicioned he had
been brought here to be robbed and
murdered, he would have put up
some kind of a scrap against any
odds. His slayer not only knew the

Sheriff George Cheek,
Who led the investigation that led
to the arrest of the killer in
Dallas, Texas.

country well, but he was someone
Hayne knew and trusted.

But on what pretext had the killer
lured his victim to this lonely road
at the foot of Wild Horse Mountain?

Cheek wondered again if a girl
was involved. But he dismissed the
thought as mere guesswork. Theo-
ries like this didn’t mean anything
until they could ascertain why
Hayne Wall had wanted to keep the
car out for another hour. .

Convinced that the farmer had
seen the coupe only seconds before
the slaying, they. questioned him
down to the barest detail. But he
remembered nothing else that would
help.

By this time the physician had
removed the bullet. It had entered
the chest under the fourth rib, passed
through the heart, stomach and
liver, and lodged between the back-
bone and left kidney. So it was in
excellent condition for analysis. He
turned it over to the sheriff.

Cheek rolled. the pellet between a
thumb and finger. “It’s a .22 cali-
ber,” he mused. “Now I wonder
what kind of gun we're looking
for?”

He knew there was only one way
to find out. He dispatched Deputy
Byrd with the bullet to Oklahoma
City to have it examined by Charles
Reber, ballistician of the State
Crime Bureau.

Meanwhile he and Drake began
work on the theory that the ‘killer
was someone friendly with the vic-
tim.and familiar with this section.
They decided to find out who all

Hayne Wall’s friends were and see
if they could connect any of them
with the crime.

But in the long hours that fol-
lowed, they four.d it wasn’t that
simple. He had friends, plenty of
them. Everyone knew Judge Wall’s
son, everyone liked him. The more
they talked to, the more incredible
became the idea that a friend of his
had killed him. The youths he palled
with would have fought for him.
Some swore vengeance. All of them
offered the sheriff and his deputy
their all-out assistance in bringing
the person responsible to justice.

Then the officers talked to Alvin
Short, who clerked at the corner

_ drug store.

Short said, “I don’t know if it’s
got anything to do with the killing
or not, but Hayne drove by my
house after supper and brought me
back to work. He asked me what
time I got off, and I told him eleven
o’clock, and he said he would see
me then.”

“Did he come back?”

“Not at eleven. It was around ten.
He came in the store all dressed up
and used the phone.”

Cheek became instantly alert.
“Who did he call?”

The youth shook his head. “I
didn’t even hear the conversation. A
customer came in just then and I
went up front to wait on her. That
was when I noticed some fellow with
Hayne sitting outside in the coupe.”

The sheriff leaned forward anx-
iously. “Did you recognize him?
Can you give us a description ?”

The reply was in the negative. In
fact, he hadn’t paid any attention,
just: glanced out once at the car. He
remembered that the fellow wore a
black cap pulled low over his face.

“Did. Hayne say who was with
him?”

“No. When I finished waiting on
the woman, he was through at the
phone and was gone.”

Drake said to the sheriff, “The
call was probably the one made to
the judge about keeping out the
car.”

Cheek nodded. “It all adds up.
What we got to find out is who was
in the car.”

He obtained the name of the cus-
tomer, and they hurried to the
woman’s address to question her.
She remembered Hayne Wall being
in the store, but had not noticed any-
one in the coupe. She could add
nothing to what the clerk had al-
ready told them. '

As they left the house, Drake said,

“This wouldn’t
we had a good
when, where, !
tim was murd
with this fellov
“But we do
tion,” Cheek ir
that they left
o'clock; at ele
dead. Where
happened in
Cheek turned
afraid this is
unless we can
“At the offic
score of repo
during their a
were from tl}
of Muskogee,
and Tulsa, ¢
city. All had
of their stree
even checked
parking lots,
had not even
a car of th
been abandon
ing, with no:
in, it became
had made a ¢:
ably into one
The news}
tional accour
with the she
aid in locatin
the Wall au
pants the €
murder. The
buzzed with
ports, quick
swiftly disco
flicting rumo
been looking
were circul:
could find no
. teeth into.
One man t
Wall uptown
& Winters b
I was going
some letters
pretty fast.
was going i
didn’t answe
didn’t see th
Another s
in front of
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east of the
was no one
talk to him.
' walked dow
So when !
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Where h
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Was he t!}

United States. Even the lowliest of his charges knew
him for a great penologist and a brilliant officer,

Dunn and his guests paused briefly before the stone
steps leading to the prison hospital, their backs to the
building. “I thought we would bring the wires in
there—” the warden gestured, ‘“—and control the system
trom the central switch—”’

He never saw the murderous quartet that crept from
the shadows behind him. A grim voice at his back said,
“Don’t move—” and then a knife-blade, razor-sharp,
was laid against his throat. A second convict stepped in
front of him, shoved a dagger against his stomach, and

BULLET-RIDDLED—_ WARDEN DUNN——

a death trap for Warden an innocent visitor to
Dunn and three convicts, the Oklahoma Prison.

BLOODIEST PRISON BREAK

CLAUDE BEAVERS——
(upper left) led break, proved
to he a rat of lowest degree.

» HIRAM PRATHER—
(upper right) was the only
criminal to come out alive.

BILL ANDERSON——
(lower left) had joined with
Beavers in the 1936 break,

ROY McGEE—_
(lower right) was the fourth
man on the thwarted escape.

The getaway car became lost his life protecting |

at areca pRapae east we.

REE

turned on the electrician, their knives against him. He
stood quietly, his eyes steadfastly upon Warden Dunn,
showing no sign of fear. The leader rasped, ‘Tell those
s to throw down their guns, or this guy gets
it right here!”

Again Dunn lifted his eyes, and there was. quiet
tragedy in his glance. Tonelessly, he said, “Throw down
your guns, men. This man is a guest—an outsider—”

White-faced and silent, the guards let their rifles
down. The weapons were seized by the convicts, levelled.
“Now—the gates! Open them!”

Across the yard hurried another tall man—Ben H.
Crider, the deputy warden, now momentarily the war-

“SOME DAY I'LL GET
yYyou-—.
and get you right!" Beavers
told Warden Dunn in 1936,

den. In the Oklahoma prison is the unwritten law that
when warden or any other official is taken captive by
inmates, he ceases to be an official at that moment. Upon
Crider’s shoulders now rested the responsibility.

He called out, ‘“You men—you can’t get away with it.
Put down your guns—let Mr. Dunn and this other man
go. You won’t be harmed—”

The barrel of a rifle bore steadily upon him. “If those
gates aren’t open in five seconds,” the leader shouted,
“we slit these guys’ throats from ear to ear!”

There was nothing anyone could do. Any sudden
move meant instant death to the captives. The watching
officials were unarmed—because of the law which says

| [

Se eee

eee

HE SHOT IT OUT——
Deputy Sheriff Bill Alexander's accurate
fire ended lives of two of the criminals.

he felt the press of a third at his back. The fourth

man was menacing the electricians with a razor.
He ordered, “Take that damn’ kid and get him out
of here.”

Obediently, the one electrician took his small son
by the hand and hurried away toward the rotunda,
the boy casting terrified glances backward at the grim
scene being enacted. The grim voice at Dunn’s back
ordered, “Walk to the east gate. You’re goin’ to take
us out of here—”

Without turning his head, Dunn said, quietly, “You
can’t get away with it, boys—”

A pressure of the blade was the answer. A thin trickle
of blood flowed down the warden’s throat. He did not
flinch, and his voice was still quiet. “This man is a
guest. Let him go.”

“He goes with us!”

A guard ran toward them. He was unarmed, as are all
guards within the walls of the great prison, but his
intention was in his face. He intended to grapple with
the convicts. Dunn said, “Stand back. You can’t do
anything—” His warning was timely, for one of the
convicts turned and slashed wickedly at the guard, who
ducked barely in time to avoid the vicious blade.

“Walk toward the gate—” was the command. Re-
luctantly, the captive warden and electrician began to
move forward. Among the tense watchers, not a man
stirred.

“Tell the guards to lower their guns—”

The warden raised his eyes to the armed guards on
the towers above the huge gate. “Let your guns down,
boys—” he said. The men above him hesitated, re-
membering...

“Tf ever I am taken hostage in a break, ignore
anything I may say. Don’t throw down your guns.
Protect yourselves—and me if you can—but ignore any
order I may give under such circumstances.” That was
what the warden had told them, time and again. “Do
not throw down your guns, regardless of what I say.”

They hesitated. There was something else Dunn had
said. “No innocent outsider must ever be harmed within
these walls.”

They made a motion as if to lower their rifles, then
hesitated again. Always the warden had said it was
better that an officer die than that felons escape to
prey upon innocent persons. He had said, “Ignore any
order I might give under such circumstances.” Now he
stood before them, the captive of four murderous men
who could easily take the life of the warden—even if
the guards’ own bullets did not strike Dunn down. And
there was the innocent outsider, whom Dunn had said
must always be.protected. The guards were undecided
as to their next move.

Infuriated by the slowness of the guards, the convict
leader snarled. His knife moved, and blood gushed from
a deeper wound in the warden’s throat. A crimson stain
formed upon his-white shirt. Two of his companions

GATEWAY TO FREEDOM——
was opened for the convicts because
they threatened to kill their hostages.

BRIEF ExXoDUS——
ended a short distance from prison,
where the fatal gun fight took place.

ee Y

ieee

VYME L-ZfecTiys

Lee

OUR men crouched in deep shadow beneath the stone
steps, waiting in tense silence. Their faces, swarthy
in the semi-gloom, shone with sweat. Their eyes,
narrowed, hate-filled, were watchful.

From a doorway nearby, four other figures appeared.
Three men—one of them a tall, commanding figure with
a face at once kindly and stern—and a small boy of ten.
The newcomers advanced toward the stone stairway.
In the hidden gloom, one of the watchers arose silently
to his feet, and in his hands something glittered suddenly
—a long knife, wickedly keen. He motioned to his
companions and began to creep forward. There was a
thin smile on his sullen face...

No shadow of impending disaster lay over the Okla-
homa State Prison on that Sunday morning, August 11.
There was no brooding tenseness. To the contrary, an
air of expectancy pervaded, for inmates were busy with
plans for their yearly rodeo. Throughout the huge,
sprawling institution was a hubbub of excitement, During
the recreation hour—when the sun sent scorching rays
slanting across the big yard—the men sat about in the
shadow of the grey walls, talking, playing cards, en-
joying their weekly release from routine duties. There

Nie) o pattehbur
s. OBLa. (E 24ULSOUL

"DON’T SHOOT!"
Beavers’ first escape
hadendedincapture,

was nothing to indicate that, in a few moments, all
hell was to burst loose!

Many of the men glanced up in interest as Warden
Jess Dunn came from the hallway leading into the
rotunda. More than one convict said, with genuine cheer-
fulness, ‘“‘Good morning, Mr. Dunn—” as the tall man
passed. He was busily engrossed in conversation with
his companions, but he answered all greetings with a
smile and a word. Once or twice he paused for a
moment to chat with an inmate. “These gentlemen—”
he indicated the others, ‘‘“—are electricians from Okla-
homa City. They’re going to install a loudspeaker system
for the rodeo.”’

The small boy beside the men was staring about him
with interest as the quartet moved slowly across the
big yard.

The eyes of 500 men were upon the warden, scores
of them with genuine affection and respect. Among that
motley throng of convicted criminals, the big man had
many friends. To them he was “Square-deal” Dunn,
a man’s man and a man’s friend. He had brought.the
Oklahoma prison a reputation as one of the most humane
and most successful in rehabilitation of criminals in the

Y fed Gp

scsupsk, L79L

Metadata

Containers:: Box 32 (2-Documentation of Executions), Folder 14
Resource Type:: Document
Description:: George Oliver executed on 1933-08-23 in Oklahoma (OK) Claude Oliver executed on 1933-08-23 in Oklahoma (OK)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: July 3, 2019

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