Arizona, A-B, 1910-1996, Undated

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838 Aris.
State v. Magallanes, 110 Ariz. 235, 236, 517
P.2d 506, 506 (1973).

(2) In our review of this case, we have
concluded that none of the waived issues
presents fundamental error. See State v.
Gendron, 168 Ariz. 153, 165, 812 P.2d 626,
628 (1991) (defining fundamental error as
“error of such dimensions that it cannot be
said it is possible for a defendant to have had
a fair trial”) (citations omitted). Therefore,
we do not deal further with the issues raised
for the first time on appeal, which are listed
in Appendix A.

(3,4) Defendant also raises several issues
for which he offers argument insufficient for
appellate review. Failure to argue a claim
on appeal constitutes waiver of that claim.
State v. Carver, 160 Ariz. 167, 175, 771 P.2d
1382, 1390 (1989); see also Ariz.R.Crim.P.
31.13(c)(1) (appellant's brief shall include a
concise argument containing the party's con-
tentions, reasons therefor, and necessary
supporting citations). Defendant argues that
the state may not now complain about his
insufficient argument because the state ob-
jected to defendant's first, oversize opening
brief. The state, defendant argues, caused
the defendant's cursory arguments by invok-
ing this court's eighty-page limit on opening
briefs in capital cases. See Ariz.R.Crim.P.
31.13(F\(2). We reject defendant's argu-
ment.

Defendant could very well have complied
with our rules in the first instance, and the
state would have had no occasion to object.
We strongly disapprove of defendant's at-
tempt to create legal issues out of his own
failure to cooperate with this court in review-
ing his case. We have reviewed each of the
issues, which are listed and discussed briefly
in Appendix B, and have found no fundamen-
tal error. All are procedurally defaulted
pursuant to Rule 31.13(c), Ariz.R.Crim.P.

Finally, defendant attached to his second
opening brief thirty-one pages of additional
argument contained in “appendices.” The
rules prohibit this practice. See Ariz.
R.Crim.P. 31.13(c)(4) (limiting contents of ap-
pendices to pertinent authorities and extend-
ed quotations therefrom). Defendant ap-
pears to be attempting to evade our page

896 PACIFIC REPORTER, 2d SERIES

limit by manipulating the format of his brief.
We disapprove. State v. Cruz, 175 Ariz. 395,
400, 857 P.2d 1249, 1254 (1993); State v.
Atwood, 171 Ariz. 576, 658-59, 832 P.2d 593,
676-716 (1992), cert. denied, — US. ——
113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); see
also Varda, Inc. v. Insurance Co. of N. Am.
45 F.3d 634, 640-41 (2d Cir.1995) (condemn-
ing abuse of footnotes). One “appendix” con-
tains argument on several constitutional is-
sues and is entitled “Capital Sentencing:
Preserved Pursuant to State v. West.” First,
defendant raised none of these issues below;
thus, even if he had properly presented them
in the body of his brief, we would have
deemed them all waived. Ramirez, 178 Ariz.
at 126, 871 P.2d at 247. Second, we said in
West, “If preservation is sought to avoid
issue preclusion, brevity should be em-
ployed.” 176 Ariz. at 439, 862 P.2d at 199.
Contrary to defendant's understanding, this
statement does not license the practice of
“preserving” issues in appendices. Counsel
who “preserve” scores of issues which have
repeatedly been decided against them should
consider that if a significant change in law
occurs that would benefit their clients, post-
conviction relief may well be available with-
out preclusion under Rule 32.1(g), Ariz.
R.Crim.P. See also Ariz.R.Crim.P. 32.2(b).

We therefore strike the text contained in
Appendices 3, 4, and 5 of defendant's opening
brief. Argument must be in the body of the
brief, and the body of the brief must comply
with our very liberal page limits. The issues
argued solely in appendices are all procedur-
ally defaulted and are listed in our Appendix
B. None presents fundamental error.

DISCUSSION

I. APPELLATE PROCEDURE

Our rules limit the length of opening briefs
in capital cases to eighty pages. Ariz.
R.Crim.P. 31.13(b)0), 31.13(D. Defendant
requested permission to file an opening brief
exceeding the page limit and attempted to
file a 17h-page “brief.” We denied defen-
dant’s request, rejected his oversize brief,
and ordered him to file a brief in compliance
with the eighty-page limit.

ee ee ee

STATE v. ROLTON E
Cite as 896 P.2d 830 (Ariz, 1995) Ariz. 839

(5) Defendant now claims that our order to
pass upon question

sae aaah a 31.13(f) itself violate court from which the sane tate ay :
ie a si of counsel and deny v. Narten, 99 Ariz. 116, 121, 407 P.2d 81 ¥
Tae an 2 aw. He offers no legal (1965), cert. denied, 384 US 1008, 86 Ss. :
mo tee gree Fs . ae pre- 1985, 16 L.Ed.2d 1021 (1966). Reload
ho es ae sy oT waived these issues and is precluded from
fo ace ge te a, pd raising them on appeal. If trial counsel fell
ee ris wan oe oe i - below acceptable standards by failing to raise
a SN dit . % a critical fssue, the remedy lies not in thi

» We reject It court on direct appeal, but in a Rule 32

again. Reasonable limits placed on a
e | ppellate
ii a inhibit nor detract from effec- ap sgiae snne MT) PES Ss Pe
oa ate advocacy. As we said in West, able a : A Bue oF prerecing ashe
: ‘ most effective briefs this court re- sia ee ee 9 5 eee
eives, including those in death penalty pcp; Se ee Oe
cases, all comply with the liberal page ae Ee
limitations of the rules. Only a few offices
in the state chronically abuse the rules in
death penalty cases. Most have no trouble
providing effective representation while fil-
ing sensibly sized briefs. Barring an ad-
vance showing of the most extraordinary
circumstances, this court is committed, in
all future cases, to enforcing the page limi-
tations set by the rules.
176 Ariz. at 439, 862 P.2d at 199. Defendant
ale no — of extraordinary circum-
stances justifying deviation from the ei
page limit. eas
Defendant's brief could easily have been
filed within the parameters specified by the
rules. Despite our prior admonitions, defen-
dant has taken the “kitchen sink” approach.
Instead of presenting a well-reasoned and
legally supportable analysis of the record
nla by this case, defendant has at-
sable oe ie al ae oe opening The abduction and murder of the victim
nceivable argument. were widely i
pet e ely reported in the |
aim a os a . serie 832 P.2d at Press coverage was also oll pst ee
Oe a“ ant’s approach, later when police identified defendant as a
ala ae oe 5 essen- suspect. Because of this pretrial publicit
ie es ae Te apr ee oh alls argues that the trial court ue
, as v9. ave granted hi i
apical no arguable merit, and The oe ae ee ie
oe Ce ia ee es waived this argument in ee car een
noe ce yer a ie ue at the argument in the trial court related to the
Rt me pe ee h riz. at amount of pretrial publicity whereas, on He
siege peal, defendant urges that the :
a “he ¥ bs m_ already ob- publicity mandated a ae ane
ad, t fendant raised numerous is- From our review of : :
’ the
_ ale eae that he did not raise below. that defendant a seat hy Saat:
e province of an appellate court issue. On its merits, we id it ae

We categorically reject. defendant’s claim
that our rules on brief length denied him due
process when he has wasted many of his
pages on precluded issues. In addition to
precluded issues, defendant raised many is-
sues which have repeatedly been rejected in
recent decisions. As we have already noted
if this court or a federal court changes the
law in a way that would probably benefit
defendant, he can claim the benefit of the
new tule without preclusion. See Ariz.
R.Crim.P. $2.1(g), 32.2(b). Thus, defendant
simply does not need to clutter his briefs in

the name of “issue preservation.” There was
no denial of due process,

Ii. TRIAL ISSUES

1, Change of Venue

act ne ob tile tens nt ebb mig nae bhe nn edisisinae
nen an oN Ss

NAME: BOLTON, DAREN LEE DATE OF EXEC.: 1996/06/19 NUMBER: 331

S: YofE: 96 DR #: 60184 METHOD; INJECTION TIME: 0004
SOC. CLASS: ECO. CLASS: EXECUTION SET : NO.:
RACE: W SEX: M TO-DR: 03.3 T-C: 10.0 AGE AT EXEC.: 29 DOB: 66/09/09
STATE: AZ CO: PIMA CITY: TUCSON
HOR: BOOK/MOVIE:
H: L: 3 C: 3 E: 2 SPECIAL LIST:
DATE OF CRIME: 1986/06/27 AGE AT CRIME: 19 CATEGORY: LEO:
DATE OF SENT.: 1993/02/22 WEAPON: STABBED
CRIME: MURDER-KIDNAPPING-SEX ABUSE NO. KILLED: 1 , TOTAL KILLED: 1+

VICT. CODE: WFO02
CMTS#1: ZOSHA LEE PICKETT [02], neighbor

--kid. from her bedroom, took to abandoned taxi, undressed, raped,
stabbed, redressed, left her to bleed to death [30min. ]} £=86/07/01
—-COMPUTERIZED FINGERPRINT SYSTEM MATCHED HIM IN 1990
~serving 15 yrs for sex. assault, kid.,& ind, expos.
KNOWN PREVIOUS CONVICTIONS: ASSAULT; THEFT; INDEC. EXPOSURE

ACCOMPLICE: FIRST ENTER:

CMTS#2: --FINAL APPEALS: 1996 --DROPPED HIS LAWYERS “Innocent but would rather
die than spend the rest of his. life in prison"
~-DENIED; CONFESSED; RECANTED:. ~claimed that "Phil" committed the crimes &
he killed "Phil" left him in the desert
~claimed his fingerprints were at the scene

had been at the cab to strip it earlier
--hs d.o.

TRIAL PENDING: SEPTEMBER 1996

82/10/01 CATHY FRITZ [07], walking home from a friends home next door
kid., raped, murdered [beaten & stabbed]
“~DNA links to BOLTON ~
~he was a friend of her brother .-~— -

LAST WORDS: “no last words"

LAST MEAL: lasagna, cheesecake, Pepsi

HUMOR-STRANGE:

SOURCE: AZ DOC | ee IQ LEVEL:

CMTS#3: ABOUT 35 ANTI-DP;

BOLTON, Daren Lee, white, LI, AZSP (Pima County) June 19, 1996.

BOLTON, Daren L., white.-”Phoenix-Daren Bolton, 29, acting as his own lawyer,
dropped his appeals and says he won’t fight his Wednesday execution.”-USA Today, 6/17/1996.

“Florence-Darrn Lee Bolton, who raped and murdered a 2-year-old girl 10 years ago
took ojnly 2 minutes to die early this morning inside the Arizona State Prison...Bolton’s death was
witnessed by the plarents of Zosha Lee Pickett of Tucson, the 2-year-old he raped and stabbed to
death in 1986...prosecutors said Bolton ahd snatched Zosha from he bed, drgged her through the
bedroom window and carried her to an abandoned car, where he molester her before stabbing her
in the chest...After Bolton was charged with the murder, detectives linked him to the 1982 sexual
assault and slaying of 7-Oyear-old Cathy Fritz, also of Tucson. Bolton had been chard with
Cathy’s death too.”-Phoenix newspaper, 6/19/1996, from America Online.

He maintained his mnooente: but said he would rather be xecuted than spend life in prison.

Ars. : < age
(a) Presumed Prejudice
| Defendant argues that the press cov-
e had such an impact on the community
prejudice requiring a change of venue
ld be presumed. Ordinarily, juror expo-
: to reports about an offense does not
'f raise a presumption that the offender
denied a fair trial. Bible, 175 Ariz. at
. 858 P.2d at 1166; see Murphy v. Flort-
421 U.S. 794, 799-800, 95 S.Ct. 2031,
6, 44 L.Ed.2d 589 (1975). “If, however, a
endant can show pretrial publicity 80 out-
reous that it promises to turn the trial into
mockery of justice or a mere formality,
yjudice will be presumed without examin-
: the publicity’s actual influence on the
ry.” Bible, 175 Ariz. at 563, 858 P.2d at
66; see Murphy, 421 U.S. at 799, 95 S.Ct.
2036; Atwood, 171 Ariz. at 631, 832 P.2d

648.

{7] To presume prejudice, a court must
nd “that the publicity was 80 unfair, 80
rejudicial, and so pervasive that (the court]
annot give any credibility to the jurors an-
wers during voir dire.” Bible, 176 Ariz, at
65, 858 P.2d at 1168. In other words, “If
lefendant could demonstrate that media cov-
wrage was so extensive or outrageous that it
oermeated the proceedings or created a ‘car-
nival-like’ atmosphere, (this court] would pre-
sume prejudice.” Atwood, 171 Ariz. at 631,
832 P.2d at 648 (citing Rideau v. Louisiana,
373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663
(1963); Sheppard v. Maxwell, 384 U.S. 333,
86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes
vy. Texas, 381 US. 532, 85 S.Ct. 1628, 14

L.Ed.2d 543 (1965).

{8] We cannot presume prejudice in this
case. The media coverage was extensive at
the time of the abduction and at the time
defendant was charged. The record, howev-
er, does not indicate that the media behavior
was of the pervasive or outrageous nature
that typically would require a court to pre-
sume prejudice. All of the reports regarding
the incident were factually based, and much
of the information reported was repetitive.
See Bible, 176 Ariz. at 564-65, 858 P.2d at

1167-68.

Furthermore, the press coverage of the
victim’s death and defendant's emergence a8

996 PACIFIC REPORTER, 2d SERIES

a suspect was neither disruptive to the court
proceedings nor suggestive of defendant's

guilt or innocence. :
defendant's case from the Supreme Cour

cases that have guided us on this issue:

This alone distinguishes

Prejudice was presumed in the circum-
stances under which the trials in Rideau,
Estes, and Sheppard were held. In those
cases the influence of the news media,
either in the community at large or in the
courtroom itself, pervaded the proceed-
ings. In Rideau the defendant had “con-
fessed” under police interrogation. ... A
20-minute film of his confession was
broadcast three times by a television sta-
tion in the community where the crime and
trial took place...

The trial in Estes had been conducted in
a circus atmosphere, due in large part to
the intrusions of the press, which was al-
lowed to sit within the bar of the court and
to overrun it with television ‘equipment.

Similarly, Sheppard arose from a trial in-

fected not only by a background of ex-

tremely inflammatory publicity but also by

a courthouse given over to accommodate

the public appetite for carnival.

Murphy, 421 U.S. at 798-09, 96 S.Ct. at
2035-36. :

Here, most of the media coverage that
defendant claims deprived him of a fair trial
occurred at the time the crime was commit-
ted—more than six years before the trial.
And because he was not a suspect until four
years after the murder, none of those reports
mentioned him by name. Defendant makes
no complaint of disruption or unfair publicity
during the trial. Whatever prejudicial effect
the news reports contemporaneous by the
crime might have had on defendant's trial

was so attenuated by the passage of time
that it could not have rendered defendant's

trial unfair. See Bible, 175 Ariz. at 564, 858

P.2d at 1167 (stating that passage of several

months mitigated effect of potentially preju-

dicinl news articles).

(b) Actual Prejudice

19,10} Defendant next argues that even
if the pretrial publicity does not require this
court to presume prejudice, it was pervasive
enough to have an unfair influence on the

STATE v. BOLTON

Ariz. 841

Cite as 896 P.2d 830 (Ariz. 1995)

jury, causing him actual prejudice and de-
priving him of a fair trial. Where prejudice
is not presumed, the defendant must. prove
that the pretrial publicity probably deprived
him of a fair trial. Bible, 1765 Ariz. at 566,
858 P.2d at 1169; see also Ariz.R.Crim.P.
10.3(b). The focus is on whether the poten-
tial jurors “‘could not judge impartially the
guilt of the defendant.’” Bible, 175 Ariz. at
566, 858 P.2d at 1169 (quoting Patton v.
Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885,
2891, 81 L.Fid.2d 847 (1984)). In judging the
impact of pretrial publicity on a trial, “the
relevant inquiry is the effect of the publicity
on a juror’s objectivity, not the mere fact of
publicity.” Td.

(11) Of the fifteen jurors who heard the
case (three of whom eventually became alter-
nates), only five had any prior knowledge of
the case. Moreover, their knowledge was
sparse, consisting only of vague recollections
of factual information, all of which was even-
tually admitted into evidence. One juror re-
called having read and seen media reports
about the murder at the time it happened,
but could recall only that the victim “wasn’t
found for a little while.” A second juror
remembered that the body was found in an
abandoned car. A third recalled having seen
the victim’s photograph on television. A
fourth recalled that an “infant was taken out
of the bedroom window or something” and
that the body was found several days later.
Finally, a fifth juror remembered reading
about the case and that “it wasn’t recent. ...
Something about a screen and something
about a car in a back yard and about the
little girl that was killed.... That she was
taken from her bedroom and, as I remember,
that the body was found in a car outside or in
back. That's all I remember.” The trial
court's voir dire was very thorough, and none
of the jurors’ recollections persuades us that
any juror was unable to he objective and
render a fair verdict. See id. (relying on a
fully developed voir dire record in deciding
actual prejudice),

2. Death Qualification of Jurors

Defendant claims that the trial court erred
by questioning potential jurors regarding
their views on the death penalty and on their

ability to follow the court’s instructions in
light of those views. The trial court did not
err. West, 176 Ariz. at 439-40, 862 P.2d at
199-200.

3. Dismissal of Jurors for Cause

_ Defendant argues that the trial court erred
in striking four jurors for cause when they &
said their opposition to the death penalty
might affect their deliberations on guilt. The
state claims defendant waived this claim by
failing to make proper objections to the dis-
missals below. While the state’s argument
has some merit, based on our review of the
record we decide to reach the merits of the
issue.

(12, 13] A potential juror may be excused
for cause if the trial court believes that his,
attitude will “prevent or substantially impair
the performance of his duties.” State v.
LaGrand, 153 Ariz. 21, 38, 734 P.2d 663, 575
(1987) (quoting Wainwright v. Witt, 469 U.S.
412, 419, 105 S.Ct. 844, 860, 83 L.Ed.2d_ 841
(1985)), cert. denied, 484 U.S. 872, 108 S.Ct.
207, 98 L.Ed.2d 168 (1987), This court re-
views such findings to see whether they “are
fairly supported by the record considered as
a whole.” Jd.

(14, 15) The record here supports the tri-
al court’s findings. Three of the four jurors
dismissed expressed unequivocal opposition
to the death penalty and said that it might
affect their deliberations. The fourth ex-
pressed the same views, but in an equivocal
manner. All had been instructed that the
judge would do the sentencing. Based on
these responses, the trial court was justified
in dismissing these jurors, even the one who
spoke equivocally. Jurors need not express
unequivocal opposition to the death penalty
for a trial judge to properly dismiss them for
cause, Id. at 31-33, 734 P.2d at 573-75.

4. Stnte'n Use of Peremptory Strikes

Defendant arguea that the state's exercise
of its peremptory challenges to remove per-
sons with reservations about the death penal-
ty violated defendant's right to a fair and
impartial jury under Batson v. Kentucky, 476
US. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
modified, Powers v. Ohio, 499 U.S. 400, 111

BOOTH, Zach, white, hanged

Coes ARE Bangs Gel Gs}205

Photos Courtesy Author

OL? SANTIAGO VIGIL was a veteran

of many sheep drives from north of
the Mogollon Rim to winter range in
Arizona’s Salt River Valley. All kinds of
riders, some good and some bad, came
around while he was on the trail. None
had ever given him any trouble. Con-
sequently he paid no particular attention
when a couple of men dashed out of the
timber toward him and the flock in
Brushy Basin early on the morning of
December 22, 1903.

Not until they came close did he notice
that both, heavily armed with six-guns
and rifles, were in a hostile mood. As
they closed to within ten feet, one of
them yelled, “Get them rotten sheep out
of cattle country, and do it in a hurry!”

Vigil replied stonily, “Boss, him there,”
pointing toward the temporary sheep
camp inside the timber.

“Start moving them woollies!” the
burly, cold-eyed man retorted. “And we
mean pronto!” Vigil still did not move.
One of the herding collies rounded the
band on the far side, coming to stand
beside his legs.

Both riders abruptly jerked holstered
six-guns. Vigil feared they were going
to start shooting but instead the other
rider, who greatly resembled his partner,
asked, “Where’d you say the boss is?”

Again Vigil pointed toward camp. The
sun was still not an hour high in the
sky. Abruptly the riders holstered their
guns and galloped in the direction indi-
cated.

In camp, unaware of swiftly approach-
ing death, were Vigil’s seventeen-year-
old son Juan, and Wiley Berry, the
twenty-year-old son of sheep owner Wil-
liam W. Berry. During his father’s ab-
sence, Wiley was in charge of the flock.

Juan was busy doing preliminary pack-
ing for moving camp later in the day, and
Wiley had just about finished cooking
breakfast. After they had eaten, Juan
would relieve his father so that the old
man could come in for breakfast.

When the riders clattered noisily into
camp through the timber Wiley stood up
from the cooking fires. Not liking their
heavily armed appearance he eased over
to where his .80-30 carbine leaned against
the bole of a tree. Just what angry
words passed between them was never
known. Neither of the two youths sur-
vived to tell their side of the story. But
from ground sign the evidence was plain
enough to investigating officers.

The riders dismounted, moving forward
a few yards to engage Wiley in short
conversation. They then returned to their
horses that had started grazing off with
dragging bridle reins. There the pair
talked briefly together before hitting
their saddles.

What followed must have been decided
during the parley—a wanton and wholly
uncalled-for murder of two youths who

FRONTIER TIMES, July, 1970

had given them no cause whatever for
violence.

Reining about, the riders suddenly
opened fire on Wiley, shooting him dead
in his tracks before he had a chance to
reach the rifle to defend himself. When
the shots crashed out, Juan apparently
looked up in time to see him fall.

Breaking into a twisted run the un-
armed boy tried desperately to reach
safety in the brush but was brought down
by six-gun lead. There followed a brief
pause before more shots were fired into
the air, then the riders raced away.

@TARTLED by the first sound of gun-
fire, Vigil started running toward
camp. On hearing the final shots spaced
out, he ran harder as the galloping riders
vanished into the surrounding forest.
Wiley was found lying on his face

| t you fj Tave to Seo

hate and imalice wi ed

where death throes shifted his body: :
what. The newly knitted red sweat
wore was on fire from powder |
Automatically Vigil picked up 3 hua
of water to extinguish the smoli
blaze.
In great apprehension he walkeda
looking and shouting for Juan B%
steps from camp he came onto his:
body lying on one side, slightly
The boy had bled copiously and 4%
were so many bullet wounds in him’
the grief-stricken father assumed
to be dead.
Knowing the dogs would stand’ g
over the sheep, Vigil mounted Wi led par

horse which had been saddled fors flopp
to Gisela, the nearest settlement a ice Vi;
supplies were available, Not knowing] bt this

where it was located on Tonto Sam
Creek, Vigil headed for Payson im

*; am No sooner did he vanish from sight,
aes west, than out of the timber from
» Waere they had been watching, appeared
‘| She two killers. Halting, they stretched
i Beir saddles, appraising the situation
_ efare dismounting.

‘Ome picked up Wiley’s carbine and
: tely fired several more bullets
‘ats the dead youth’s body. According to
| & later confession the man then fired a
* Gallet across his saddle, cutting the
| esther to make it seem that he had been
“4 fied upon. (If he had actually been in
the saddle he would have sustained a bad
. waad or death.) The rifle was then
* Yawesd partly under Wiley’s body, which
Was flopped over from the position in
wiih Vigil saw it last.

this spot the riders mounted; then
rently wondering if Juan’ were
) -watlly dead, rode over to where he lay.

Same July, 1970

Sp SSF

a,
a

Se tee tee

He was found “not guilt

To their surprise he had regained con-
sciousness, managing to crawl a few feet.
One man then jerked the carbine from
his saddle scabbard and fired four bul-
lets into him. That definitely made cer-
tain the slender Juan was no more. This
cruel and further terrible act would
soon arouse the country,

On reaching Payson, badly agitated,
Vigil found part-time Deputy Sheriffs
John Chilson and Ben Pyeatt. Chilson
immediately telephoned County Sheriff
C. R. Rogers in distant Globe. Accom-
panied by Pyeatt he then rode fast across
the country to the sheep camp with
Vigil.

The three men reached there at mid-
day. Vigil returned at once to the sheep
while the officers searched for ground
clues. To their trained eyes the story
was read like an open book. They were

wr EEO, eS BEF
eae % = ‘ee
SMvad a M8 .

LH aN Be ee ie

Say a
Fhe Lis
ya Lon
ANS pee

In the Gisela pioneers’ cemetery is the grave of Juan Vigil, seventeen- |
year-old victim of the sheep camp raid.

Above, within thirty feet of Juan Vigil's resting place is the grave of
John Fox Booth, one of the two brothers accused of the brutal killings.
y” because of his brother's admission of guilt
and lack of evidence to tie him in with the crime. Many old-timers
living at Globe and Payson did not believe the two brothers were the
actual killers. At left, sheep in Brushy Basin—the excuse for murder.

appalled on discovering that Wiley had
been shot several times after death and
the rifle placed under his body. They were
thunderstruck also on discovering that,
felled by several .388 caliber six-gun bul-
lets, Juan survived only to die from soft-
nosed .30-30 lead fired into his back after
the riders returned to the grisly murder
scene.

-A coroner’s jury and justice of the
peace had followed the officers to Brushy
Basin. After viewing the scene the jury-
men returned to Payson, but the bodies
were. buried at Gisela. Henry McCleve,
another sheepman, took charge of the
Berry flock.

Vigil was held in technical custody as a
material witness. When questioned, Vigil
gave a close description of the riders and
their mounts. Both were complete strang-
ers to him. He said that he and Juan

Sees Sener nanan

Sie Paina na eres eS IRD isis us Has sdk

caren BNE

ee een ee ee

nage teem

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————————

fs we eal a Sal £45 e? , i
tember to take the flock from St. Johns
south for the winter. Soon after the
sheep were on the trail, the Berry family
left for a new home where the winters
were not so bitterly cold. Supposedly
they had gone to some ranch near
Thatcher, but Vigil did not know exactly
where or how to locate them. Wiley
Berry had planned that in late December
he would leave the Vigils with the sheep
wherever they happened to be and join
his family for Christmas.

THE DRIVE south was a slow one.
No greater progress than four miles
a day had been made. Once a storm struck
suddenly and the flock was kept on the
same bedground for almost a week.

Thirty days out of St. Johns, McCleve,
also trailing south to winter his own
sheep in Phoenix’s Salt River Valley,
overtook them. Since the bands might
mix and cause all manner of trouble, he
volunteered to remain two days’ drive be-
hind the Berry flock.

By December 18 the band was footsore
and trail weary. In addition, said Vigil,
they were out of sheep salt and their
grub was nearly gone. Wiley directed
the outfit into Brushy Basin of the Sierra
Ancha Mountains to rest over. The village
of Gisela was five miles away and Payson
about eight. The basin was a beautiful
spot with plenty of good grass. As the
sheep were being counted into it, a loss
of thirty head was discovered, but that
was about average on the rugged trail
south.

The first camp was soon abandoned
for a better site near a good spring of
water on the eastern side. On the night
of December 21, Wiley told the Vigils
that he would take the pack burros to
Gisela the next morning and bring hack
food and sheep salt. He would then re-
turn to Gisela and catch the stage to
Globe. From there he could take a train
to Thatcher to spend Christmas holidays

with his parents and three sisters.

After he told his story Vigil, a short,
ruggedly built man, was asked if he
would be able to positively identify the
slayers.

“Sefior, the one with tiger eyes I will
never forget!” he exclaimed. Those pe-
culiar, burning eyes he would remember
to his dying day. The man who owned
them had killed his son. They were
flecked, he said, giving off a pointed
glare that looked right through a person.

Before leaving Globe, the seat of Gila.

County, Sheriff Rogers had dispatched a
message to the Berry family at St. Johns.
He was not aware that they had departed
in September to live near Thatcher. Pend-
ing his arrival at Payson, Deputies Chil-
son and Pyeatt, both experienced range-
men, continued seeking ground clues in
Brushy Basin. Then back in Payson they
began hearing curious fragments of tales
emanating from Gisela.

Cowmen in that area and along Tonto
Spring Creek claimed all the range in
and around Brushy Basin. Word had
come that several bands of sheep were
being driven from the north, down over
the Mogollon Rim, to occupy the range.
Stockmen were aroused by. these tales
and held a few hurried meetings con-

Courtesy Jess ©

John W. Wentworth, Payson attorney who had represented the Booth broth:
several occasions, decided to “bow out” of the murder case.

Mrs. Dollie Hale, who went to Gisela in 1891, knows the history of and all the :
pants in the sheep camp murders. An artist of note, she stands next to her re-c:
of the first Gisela schoolhouse. ae

BOOTH, ZACH, white, hanged Globe, Arizona, on
Sos ie 9-15-1905.

pay ed

ee ese

Se ee

1 Sst ae
Seer

Zack Booth, with hat in hand, waves farewell to curiosity seekers
shortly before being hanged in Globe, September 15, 1905. He was
convicted for his part in the killing of Juan Vigil and Wiley Berry,
shepherds of St. Johns, near P in December, 1903.

C AR l2 ons) oe
Justices reject —

halt of execution

Mom appeals, but son’s ready to die.

By Pamela Manson
The Arizona Republic «

The Arizona Supreme Court has turned down
a request by the mother of death-row inmate
John George: Brewer to Stop: his. scheduled
March 3 execution.:

Without comment, the high court declined to.

block the execution of Brewer, who killed his
pregnant girlfriend in Flagstaff in 1987.

Elsie Brewer’s appeal to the Supreme Court.

Was the best chance she had to save her. son,
according to prosecutors. John Brewer, 27, ,
insists he wants to die for his crime and has
fought all appeals. -

“The state is done with the case,” said Paul

McMurdie. of the criminal-appeals section of the -

Arizona Attorney General's Office.

Appeals can be made in federal court,
McMutrdie said, but he predicted that they will
be rejected there as well. And even if Brewer
changes his mind, McMurdie’s office will fight
to have the execution carried out, the official
said. Robert Bartels, a Tempe attorney repre-
senting Elsie Brewer, declined to comment
Thursday. ,

If John Brewer was put to death as scheduled,
he would be the first Arizona inmate to die by
lethal injection. On Feb, 11, he chose to die by
that method rather than the gas chamber.

The justices decided Wednesday to decline
the request for a Stay: of execution. - Their
decision was made public Thursday. _

Brewer was sentenced to death for killing
Rita Brier, who was five months pregnant, in
‘November 1987 at their Flagstaff apartment.

He said the murder was sparked by Brier’s
complaints that he was too dependent on his
mother. The couple had:moved to Arizona from
Elsie Brewer’s home in Greensburg, Pa., two
months earlier. John Brewer killed his 23-year-
old girlfriend in the course of a horrific struggle
that may have lasted as long as 45 minutes,

court records say. He claims that he hadsex
with the corpse, but defense attorneys say (there
was no physical evidence of that. ©

Brewer pleaded -guilty -to first-degree murder
and insisted he wanted sthe-death _ penalty.
Although the Prosecutor . recommended ‘Ife “in
prison, Judge Jeffrey. Coker of Coconino County
Superior Court imposed death.

. Since the sentencirig ‘in

August 1988, Brewes ‘has
remained Steadfast ig his
. Tequest.to be put to death,
1 He. claims he is..sorry
.that he committed a crime
but not sorry that Bricr. is
. dead. He spends much ‘of
his time writing letters to

pee) defense attorneys, the At-
aki FP. torney General’s Office and
John George the clerk of the Arizona
Brewer/"|AM Supreme Court asking to be
a murderer, and put to death.
murderers must
be executed,"he- murderers: must be exe-
wrote in one cuted,” Brewer wrote in
letter to the One letter to the Supreme
Supreme Court. Court. : ;

: ‘Arizona's first execution
in 29 years was carried out April 6, when Don
Eugene Harding was executed. in..the gas
chamber. His execution attracted extensive:news
coverage, including graphic descriptions: of his
death convulsions.

Voters in November overwhelmingly ap-
proved an amendment to the Arizona Constitu-
tion that replaces the gas chamber with injection
as Arizona's method. of execution. However, the
109 inmates sentenced to death before Nov. 23,
when the measure was certified as having

- Passed, are given a choice between the . gas

chamber and lethal injection. :

Tut NM

“TAM a murderer, and-

Arizona killer executed

State refuses his mom’s final-hours plea

Associated Press

FLORENCE, Ariz. — An inmate
who said he deserved to die for
strangling his pregnant fiancee
was executed by injection early
today.

John George Brewer, 27, went
to his death 1% hours after the
U.S. Supreme Court, in a 7-2 vote,
lifted a stay imposed by a federal
appeals judge.

It was Arizona’s second execu-
tion since 1963 and the first since
voters switched the state’s
method of execution from the gas
chamber.

Earlier yesterday, the state
Board of Pardons and Paroles re-
fused to move to block the execu-
tion after hearing Brewer’s
mother argue against it and Brew-
er argue in favor.

“I committed this crime and I
feel it is an appropriate penalty
for the crime,” he testified.

Brewer confessed shortly after
the crime that he beat and stran-
gled Rita Brier, 23, who was 22

. weeks’ pregnant, in the couple’s

Flagstaff apartment in 1987, then
-had sex with the corpse.

He said he had to try three
times to kill her with a necktie

‘wrapped around her neck during

a 45-minute struggle. He told the
parole board he wished it had
taken longer to kill her. “I do not
feel that she suffered enough,” he
said.

Brewer’s mother, Elsie Brewer,
who attended the parole board
hearing in a wheelchair, said her
son had tried to kill himself as a
boy.

“ve been trying to prevent
him from committing suicide
ever since he was a small child.
Today I was trying to prevent him
from committing suicide again,”
she said. @

THE BOSTON GLOBE ¢ THURSDAY, MARCH 4, 1993

Murderers are executed in Delaware, Arizona

ASSOCIATED PRESS"

. SMYRNA, Del. - James Allen Red Dog re-
ceived final rites from a medicine man, told his
wife, “I’m going home, babe,” and was execut-
ed by injection yesterday for slitting a man’s

throat while in a drunken rage.

Hours earlier, John George Brewer was

executed in Arizona. Brewer had admitted that

he had strangled his pregnant fiancee, then
had sex with the corpse. Neither man made a

legal appeal.

After a prayer ceremony with a medicine
man, Red Dog, a Sioux Indian, was given the

lethal dose of drugs.

Red Dog choked and told his wife, Bonnie,
“Tm going home, bal

She leaned seal the window of the ex-

ecution room, responding, “I know, I love you.

I'll be there soon.”

Red Dog, 39, had killed at least twice and
was living in Delaware under the federal wit-
ness protection program when he murdered

Hugh ainda an acquaintance, in Febru-

ary 1991. He then saan a woman and

raped her.

Red Dog, who was from Poplar, Mont., had
been placed in the witness program in 1988
after testifying about prison gangs and the
American Indian Movement.

Brewer, 27, was executed 1% hours after
the US Supreme Court voted 7-2 to lift a stay
imposed by a federal appeals judge.

Brewer admitted that he beat and stran-

gled 23-year-old Rita Brier, who was 22 weeks

pregnant, in their Flagstaff apartment i in 1987.
_ Brewer gave a thumbs-up sign to his minis-: |
ter just before the lethal injection. He died
within a minute. ©
Red Dog repeatedly said he wanted to die
and his family supported his decision, saying in
a statement he was going to his death “with
pride and dignity ... and proud that he’s giv-
ing in return for what he took - a life.”

" Unlike Red Dog, Brewer’s family opposed
his death sentence.

en epee es Re rere

a oe

a Prosar fae cae me tapes

Execution
‘T-shirts earn
reprimands
for 2 officers
‘i ainitiemns 3° C* IS

The Arizona Repubtic

:. Two state-prison detention officers
who participated in a gathcring of
death-penalty supporters the night
John George Brewer was executed
have been reprimanded for wearing
T-shirts that corrections officials be-
lieve are in “poor taste.”

Jim Bentley, administrative officer
for management. for the Department
of Corrections, said Friday that letters
of reprimand were hand-delivered
Thursday to Officers Darrell Stein-
‘brecher and Neil Emore. .

:: While off duty, Steinbrecher and
“Emore appeared: at a gathering of
-about 20 people Tuesday night across
Tfrom the Arizona State Prison at
. Florence.
. , Doth were photographed wearing
‘shirts that read, “For all you do, this
shot's for you — Arizona Execution
1993” and feature a dripping syringe.

Bentley said Steinbrecher, who was

selling the T-shirts, and Emore
violated ethics standards by wearing
the shirts. Those standards say correc-
tions officers shall conduct themselves
in a manner that “will not bring
embarrassment or discredit to the
department.”
__ “They have freédom of speech, and
they have the righ to sell T-shirts, but
they do not havd the right to do so
while portraying! themselves as De-
partment. of Cofrections employces,
and they were directed not to do so in
the future,” Bentley said.

The group played loud rock music
much of Tuesday evening, and some
of the participants were drinking beer.
That was in sharp contrast to about
three dozen death-penalty opponents,
who quietly burned candles in the
hours leading up. to Brewer's
12:17 a.m. execution.

Steinbrecher and Emore could not
be reached for comment at their
homes, and corrections officials re-
fused to place any calls through to
them at the Florence prison.

{Tucson, Friday, October 30, 1992

Mhe Arizona Daily Star

| ri A ee PHY asi FG “aa
i :{s
ores

| Continued from Page 1B
sexual abuse and indecent exposure.

Those chatges stem trom an Aug. 20, 1987, incident
‘in which he exposed his genitals to two sisters walking to
‘a midtown convenience store, grabbed one of them, fon-
‘dled her breasts and held her for 10 minutes.
' He was linked to Zosha’s death in November 1990
‘when Illinois State Police tinkering with their new Au-
itomated Fingerprint Identification System happened to
match his prints to those at the scéne.
( Before then, police had worked more than four
.years and manually compared more than 20,000 finger-
prints in an effort to solve Zosha’s death.

Police have said Bolton is also a suspect in the Octo-

‘ber 1982 murder of 7-year-old Cathy Fritz, another
highly publicized case.

Cathy disappeared while walking to her midtown
home, about the same time as 1,500 people marched
nearby in a “Take Back the Night” rally to protest

crime. Her beaten and stabbed body was found the next |

: day lying in a midtown alley. .

! “We haven't filed Charges against him in that case,”
(Said Sgt. Charles Armijo of the Tucson Police Depart-
iment. “But that doesn’t mean we won't file charges
: against him in the future.”

Bolton’s trial in Zosha’s death continues today be-

| fore a jury in the courtroom of Judge William Scholl of
{

Pima County Superior Court. - - Defendant Daren Lee Bolton sits in courtroom

RI:

David Sanders, The Arizona Daily Star

ee eee are ae ot aoe

REHM ere OR

45 2%

+ oh
ie tI

pyogonmenmmestbat PF

CAA (L-CNe

ON,

Suspect confessed
to Zosha Pickett’s
killing, inmate says

By Kim Kelliher

The Arizona Daily Star G- “Al al

Daren Lee Bolton confessed to a
prison inmate that he murdered 2-
year-old Zosha Lee Pickett, accord-
ing to an interview expected to be
used against him in trial.

And, based on information con-
tained in Pima County Superior
Court documents, two assistant pub-
lic defenders yesterday were re-
moved as Bolton’s court-appointed
attorneys.

A motion filed by Assistant Public
Defender Deborah Bernini, who,
along with co-counsel Victoria
Brambl, represented Bolton, said
continuing to represent him would
constitute a breach of ethics, be-
cause that office previously repre-
sented the man who claims Bolton
made the confession.

Assistant Public Defender Dan
Cooper defended Bolton’s fellow
prison inmate, William Keith Paul-
son, on.,contraband charges years
ago, the documents say.

“Effective representation of Mr.
Bolton would require cross-examin-
ing William Paulson on matters con-
tained within his old file, which this
office is honor-bound to consider
privileged and confidential informa-
tion,” she wrote.

Superior Court Judge William
Scholl granted the request to with-
draw, and appointed private defense
attorney Lamar Couser to represent
Bolton.

Bolton, 24, was indicted in Febra-
ary in the 1986 slashing murder of
the girl after his fingerprints were
matched to the crime scene by

See SUSPECT, Page 2B

ori et balk Ad ob

Suspect

Continued from Page 1B
chance. Lllinois State Police were
testing a new Automated Finger-
print Identification System when
they unexpectedly scored a “hit”
with Bolton’s fingerprints.

Bolton currently is serving a 1514-
year sentence in the state prison
in Florence for kidnapping, sexual
abuse and indecent exposure. His
prints were on file in Illinois for two
assault charges filed after he
grabbed women in 1984 and 1985.

According to Bernini’s motion, the
Public Defender’s Officer was pro-
vided with a copy in late August of

the interview given in May by Paul- |

son to the County Attorney’s Office.

:* In the interview, Paulson states that:
‘Bolton confessed to the’ murder .

.. while they were roommates at the ..

Cimarron Unit of the Arizona State

~ Prison Complex on South. Wilmot,
i Road.: °

“It is defense counsel’ s belief that
the state plans to use Mr. Paulson as
a witness against Mr. Bolton as a re-
sult of this alleged admission,” the
motion states.

Deputy County Attorney Kathi
Mayer, who is prosecuting the case,

could not be reached for comment
yesterday.
Bernini said she had planned to

ask to move the trial out of Pima
County because of heavy publicity

in Tucson. She said Couser, or any

other defense attorney who takes,

the case, wil! need six montis to 2
year to prepare.

Zosha Lee Pickett was kidnapped’

from her bedroom during the mid-

dle of the night on June 27, 1986. The:
child’s body was found four days

later in the baci seat of an aban-
doned taxicab in a vacant lot a few

blocks from her central Tucson

_ home.

Police had no suspects in the case’

“until the fingerprint matchup in Illi-
— nois.

_ Prints found on the window of,
‘the child’s home and on the abadon-,

-oned car where her body was found
matched Bolton’s prints « on file with

«the Illinois police. = ** - »

According to authorities, Bolton is

also a suspect in the 1982 murder of.
-. J-year-old Cathy Fritz. Her beaten

and badly cut body was found lying
between two buildings just two
blocks from where Zosha’s body was
found four years later. Bolton has
not been indicted in that case.

Hap SIDE eh se SES

ek =e ie a a

Sex offender

indictedin ¢!""

girl’s murder

By Margo Hernandez f, Z 2 () -§

The Arizona Daily Star

A Pima County grand jury yester-
day indicted a convicted sex of-
fender in the 1986 murder of 2-year-
old Zosha Lee Pickett, The Arizona
Daily Star learned.

Daren Lee Bolton, 24, is serving a
15\4-year sentence in the state
prison in Florence for kidnapping,
sexual abuse and indecent expo-
sure.

Sources said the grand jury in-
dicted Bolton on a charge of first-de-
gree murder in the child’s case.

Bolton also allegedly is a suspect
in the unsolved murder of 7-year-old
” Cathy Fritz, who disappeared in Oc-

“tober 1982 as she walked home. She .

disappeared while 1,500 people

marched nearby in a “Take Back

the Night” rally to protest crime.
The next morning, family and

See INDICT, Page 4A

R : Cela swat
through a stroke of luck. : = :

a
Indict
Continued from Page One

friends found Cathy’s beaten and
badly cut body lying between two
buildings in the 3500 block of East
Speedway.

At the time of Cathy’s murder,
Bolton was a 16-year-old Catalina

High School student and a friend of

her brother, Brian. The suspect was
at the Fritz home on the day that
Cathy was abducted, police have
said.

Zosha was kidnapped from her
bedroom during the middle of the
night on June 27, 1986. The child’s
body was found four days later in
the back seat of an old, abandoned
taxicab in a vacant lot a few blocks
from her central Tucson home.

An autopsy showed she had been
stabbed once in the abdomen and
that she died from asphyxiation
caused by internal bleeding.

The bodies of the two girls were
found within two blocks of each
other, but investigators originally
believed the cases were unrelated.

Investigators say the proximity of

the bodies now leads them to believe
that the same person is responsible
for both murders.

Police came to suspect Bolton

The Pickett case was nearly 5§
years old, and the Fritz case mare
than 8 years old, when the Illing!s

State Police last November found a }

link between Bolton and the Zosha
murder during a trial run of its new
Automated Fingerprint Identifica-
tion System.

The state troopers were having a
training session — playing around ¥
with the system — when someones

noticed a match of prints. a

Fingerprints found on the window,
of Zosha’s central Tucson home and &
those found on the abandoned cars
where her body was found matched q
the prints on file with the Illinois po-
lice. »

Bolton is serving his fourth year of
a 15\4-year sentence for kidnap-«
ping, sexual abuse and indecent ex-
posure. On Aug. 20, 1987, Bolton ex-,
posed himself to two sisters as they#
walked to a convenience store nears
North Country Club Road and Easty
Speedway. He grabbed one of the¥
sisters and held her for 10 minutes. s

He also was convicted in Pimas
County of a 1986 theft and of posses-s
sion of burglary tools in an earlier,
case. .

His Illinois record includes twos
assault charges that were filed after
he grabbed women in 1984 and

1985. 2Q-20-9 _

— Cli 2on > Darky SK - "70S,

By Brent Whiting
The Arizona Republic

* John George ‘Brewer’ s wish to be
executed for murdering his’ pregnant
girlfriend four years ago will be
granted March 3, the Arizona Su-
preme Court decided Thursday.

In issuing the execution warrant,

the state’s highest court said Brewer

can decide whether to die by cyanide
gas or-by lethal ‘injection.

- Brewer, 27, of Flagstaff, was
sentenced. to death in August 1988
after he pleaded guilty to the Novem-
ber 1987 slaying of Rita Brier, 23.

The execution warrant was issued

“nearly a month: after Judge Jeffrey

Coker of Coconino County Superior
Court . dismissed’ Brewer’s “court-ap-
pointed defense attorney, Kathleen
Kelly, and ruled that the defendant is

. competent to represent himself.

Coker issued the orders Nov. 23
after Brewer complained that Kelly

“has continually failed to represent’
- my views” by filing motions to put off

his death sentence.

The judge ‘also ruled that Brewer
would not have to-go through a
post-conviction relief’ hearing, which

would further delay i an’ execution, thus:

marking the end. of his appeal. process.

. Brewer’s conviction and death.
_ Sentence were upheld: by ‘the ‘Arizona.
Supreme Court. in February: 1990. In’

October of this year, the US.
Supreme ‘Court refused to review the
case, .

- John Trebon, a- Flagstalt lawyer
representing Brewer’s :mother, said

Thursday that he ‘has. filed petitions |

with Coker and the Arizona Supreme
Court seeking further appeals.

Paul McMurdie, chief counsel for |

Tonia date set

the éiiniinal: -appeals section of the

Arizona Attorney General’s Office, |

said Trebon’s petitions, if granted,
could delay the March 3 execution. |
McMurdie said there has been no
indication from Brewer on how he
wants to be put to death.
Last month, Arizona voters ap-
proved a switch to lethal injection as

the state’s execution method, : leaving

the gas chamber as an option only for

inmates already condemned to die. ;

Another death-row inmate;
murderer Randy Greenawalt, 43, is
scheduled to be executed Feb. 17, :but
officials of Arizona Capital Rae
tation Project are expected to seek a
stay. The U.S. Supreme Court upheld
his death sentence in October.

resen- -.

—

December 18,-1992 :

The Arizona Republic

Friday,

B10.

enix Gazette. |. Tues, Nov. 24,1992

The Arizona Republic -

FLAGSTAFF — Convicted murderer
John George Brewer moved a step closer to
ideath Monday: after a Coconino County
: Superior Court judge dismissed his court-ap-
paniee defense attorney and ruled that

rewer is competent to represent himself.

Judge Jeffrey Coker also ruled that the
27-year-old death-row inmate will not have to
go through a post-conviction relief hearing,

Such hearings to ask the court to set aside a

sentence or conviction normally are requested
by the defendant or his attorney.
Brewer, however, insists that he be
executed for the Nov. 11, 1987, murder of his
ee girlfriend in Flagstaff.
oker dismissed attorney Kathleen Kelly,

who Brewer said “has continually failed to
ie shige my views” by filing motions to put
fo)

his death sentence.

which could further-delay Brewer's execution+-::-Coker warned Brewer that if the upcoming

Judge says death-row inmate may rep

relief hearing is canceled, that will be the end

of his appeal process.

“This is it, Mr. Brewer,” he said. “There
will be no more hearings before me.”

Brewer, who spoke out on his own behalf a
number of times during Monday’s proceeding,
said he understood.

Brewer's mother sat. weeping on the-

opposite side of the railing from her son. The
Rev. John Schaumburg sat beside her.

“Capital punishment is not necessary Or

resent self

“proper, especially in this case,” the Lutheran

minister said outside the courtroom. “The
man made an incredible error in judgment in

“a one-hour period. But the rest of his life, he

had been law-abiding.”

Paul McMurdie, chief counsel for the
Arizona attorney general’s criminal-appeals
section, said he plans to ask the Anzona
Supreme Court for a warrant of execution
today. Such a request normally takes about a
month for the court to review, he said.

john Srewor / The
26-year-old insists that
he wants to dle for his
crime.

Tue SAay

Randy Greenawalt /
Escaped from prison in
1978 while serving
sentence ys murder.

Cex G

High court t

Jarnas Dean

Clark / The 34-year- old
is under four death
sentences.

(ot AG 7.
rns awav

na ee

5 death-row inmates

By Pamela Manson Poe x
The Arizona Republic Sed

_ The U.S. Supreme Court on Mon-
day refused to hear the appeals of five
Arizona death-row inmates, possibly
setting the stage for the execution of
three of them early next year.

Shortly after the high court's
action, the state Attorney General's
Office filed motions with the Arizona
Supreme Court asking that execution
dates be set for James Dean Clark,
John Brewer and Randy Greenawalt.

“This is a giant step toward their
executions,” Attorney General Grant
Woods said Monday.

The three “don’t have anything left,
except what they can dream up” in
the way of appeals, Woods said, and
could face the gas chamber as early as
January.

Lawyers with the Arizona Capital
Representation Project, which helps
with death-sentence appeals, could not
be reached for comment.

Greenawalt and Clark “have been
in front of every court” and have
exhausted their appeals, Woods said.
Brewer has asked to be executed,
Woods said, putting him in the same
position as the other two unless he
changes his mind.

The other two Arizona death-row
inmates, David Cook and Ramon

wines Frome still can appeal to
lower federal courts, a proccss that
likely will take years.

Greenawalt, 43, was serving a
sentence for murder when he escaped
from the Arizona State. Prison in
Florence in 1978 with another
murderer, Gary Tison, whose three
sons aided in the breakout. After the
escape, the gang gunned down a
family of four near Quartzsite.

One Tison son, Donald, was killed
at a police roadblock. Gary Tison
escaped but died of exposure. Greena-
walt and the two surviving Tison sons,
Raymond and Ricky, were convicted
and sentenced to death.

The Tisons’ sentences later were
overturned, and they were resentenced
to life in prison.

Clark, 34, 1s under four death
sentences for the murder of the
owners and two ranch hands at a
guest ranch near Elfrida in 1977.

Brewer, 26, was convicted of killing
his pregnant girlfriend at their Flag-
staff apartment in 1987. He insists
that he wants to die for lis crime.

Arizona's first execution since 1963
took place April 6, when triple-
murderer Don Eugene Harding was
put to death in the gas chamber.

There are 102 men and one woman
on Arizona's death row.

FRIDAY

FEBRUARY 19, 1993

CARI ZH & Kap behe = (Favenyy AZ.

By Pamela Manson
The Arizona Republic.

The Arizona Supreme Court has turned down
a request by the mother of death-row inmate
John George Brewer to stop his scheduled
March 3 execution.

. Without comment, the high court declined to
block the execution of Brewer, who killed his
pregnant girlfriend in Flagstaff in 1987.

Elsie Brewer’s appeal to the Supreme Court
was the best chance she had to save her son,
according to prosecutors. John Brewer, 27,
insists he wants to die for his crime and has
fought all appeals.

“The state is done with the case,” said Paul

McMurdie of the criminal-appeals section of the -

Arizona Attorney General’s Office.

Appeals can be made in federal court,
McMurdie said, but he predicted that they will
be rejected there as well. And even if Brewer

changes his mind, McMurdie’s office will fight
to have the execution carried out, the official
said. Robert Bartels, a Tempe attorney repre-
senting Elsie Brewer, declined to comment

| Thursday.

If John Brewer was put to death as scheduled,
he would be the first Arizona inmate to die by
lethal injection. On Feb. 11, he chose to die by
that method rather than the gas chamber.

The justices decided Wednesday to decline
the request for a stay of execution. Their

: decision was made public Thursday.
Brewer was sentenced to death for killing

_ Rita Brier, who was five months pregnant, in

‘November 1987 at their Flagstaff apartment.

He said the murder was sparked by Brier’s
complaints that he was too dependent on his
mother. The couple had moved to Arizona from
Elsie Brewer’s home in Greensburg, Pa., two
months earlier. John Brewer killed his 23-year-

.. Old girlfriend in the course of a horrific struggle .
_ that may have lasted as long as 45 minutes,

| Justices reject ~
halt of execution —

Mom appeals, but son’s ready to die. |

court records say. He claims that he had'.séx.- .
with the corpse, but defense attorneys say ,thefe: -~

was no physical evidence of that.

Brewer pleaded guilty to first-degree murder. « -
and insisted he wanted .the—death penalty...
Although the prosecutor recommended /life‘in’ _*
prison, Judge Jeffrey Coker of Coconino County: . -

Superior Court imposed death. -4

Since the sentencing ‘in’ _
August 1988, Brewer ‘has: . -
remained steadfast .in his. °
request.to be put to death. - °

He claims he is -sorry

‘that he committed a crime

his time writing letters to
defense attorneys, the At-

John George the clerk of the Arizona:
Brewer / ‘| AM
a murderer, and

murderers must

put to death.

wrote in one
letter to the
Supreme Court. Court.

‘ Arizona’s first execution
in 29 years was carried out April 6, when Don
Eugene Harding was executed in..the gas

chamber. His execution attracted extensive: news
coverage, including graphic descriptions of his
death convulsions. Do

Voters in November overwhelmingly ap-.

proved an amendment to the Arizona Constitu-

tion that replaces the gas chamber with injection .

as Arizona’s method of execution. However, the

109 inmates sentenced to death before Nov. 23,

when the measure was certified as having

passed, are given a choice between the . gas

chamber and lethal injection. . A ethos
1

but not sorry that Brier/is - .
dead. He spends much of -~

torney General’s Office and -

Supreme Court asking tobe
“JT AM a murderer, and: =

be executed,” he murderers: must be’ exe- °

cuted,” Brewer wrote in .
one letter to the Supreme

1030 989 FEDERAL REPORTER, 2d SERIES

Fro, His Holy Son—our savior be upon Brewer was competent to dismiss his coun- j Finally, the major

thee.” sel and waive all post-conviction relief ' enes v. Baal, 495 1
See Dist.Ct. Exh. 5. should be entitled to a presumption of cor- | 2228, 2226, 109 L.E

The second letter was written in early rectness on federal habeas review. I dis- thority for acceptin:
1992, and states, “I killed Fro because she agree. 4 ing of competency,
was going to follow Dantain’s command for A find the j f ; | this case are indist
me to live separate of (not from) her, andI “+ *70lNg On the issue of competence is a | the two cases are
didn’t want to.” See Dist.Ct. Exh. 6. finding of fact. A presumption of correct- The “next friend” p

In addition to this new evidence, Mrs. "°** etec a wiktate aoe ate po of fact | on the same eviden
Brewer also relied upon an affidavit by only when the court made its findings after } at the state court
Brian McKee, a friend of her son’s from 2 full, fair, and adequate hearing. 28 Se Here, Mrs. Brewer |
high school. . McKee states that Brewer U.S.C. § 2254(d)(6). The November 23 | of new evidence-
told him that he believed Dantain is the hearing was neither full, fair nor adequate. + Brewer’s letters an
God of Terracia, and that when he dies he The state court had before it an affidavit / ny concerning his ck
will go to Terracia where Rita is waiting from Dr. Rollins, in which he stated that he | er’s competency—t!
for him. McKee also says Brewer claimed was persuaded “to a reasonable degree of | ered at the state c
that Dantain would speak to Brewer and medical certainty that Mr. Brewer is not ‘ —
Rita through each other. See McKee Affi competent to participate in legal proceed- B. Did the Distric

davit at 2-8. ings at the present time.” District Ct. 1 rect Standard «

At 6:00 p.m. on February 19, 1998, a Exh. B at 2. Yet the court rejected Dr. The district cour
Friday, the district court gave notice that it Rollins’ affidavit, even though it heard no _ Mrs. Brewer to the
would conduct a hearing on Mrs. Brewer’s testimony from any medical professionals | standard of proof o
habeas petition on the afternoon of the on Brewer’s current mental status. The ; (“The Court’s obli
following Tuesday, February 28, 1993... On court’s finding on Brewer's competence | law, as the Court w

the morning of the hearing, the court is- was based entirely on a brief colloquy with | that evidence in the
sued an order granting Mrs. Brewer a ' not the petitioner,

right to discovery of the notes and data on the p mane and on, tae atate court's ong tained her burden «
which the state-retained mental health ex- 04! determination made four years earlier ence tat (Brews
perts based their opinion of Brewer’s com- that Brewer was competent. Court finds that the

petency, and a right to have Brewer exam- _—‘The court’s deference to a four year old | sustain her burde
ined by Dr. Bayless. After issuing the finding of fact is particularly troubling, Dist.Ct.Hrg. at 11:
discovery order, the court proceeded with pecause the question of competency is not | tion whether the c
the hearing that afternoon, which, of a question of historical fact but a question ; ing. the much less

course, rendered the discovery order oe that fluctuates over time. The relevant .. of the evidence s
ingless for purposes of the afternoon’s

hearing. | _ question for purposes of third-party stand- y cites Groseclose ex
—_ ing is not whether Brewer was competent » 594 F.Supp. 949,
III before he spent four years on death row | authority ee me
; . », Waiting for Arizona to finish judicial pro- _ ponderance or tne
as paige, following: nis. Srewer . ceedings Brewer did not want or seek, but State nor Brewer c
" whether he’ is competent now to waive his |. Soever on the issu
A. Is the State Court’s Finding of Compe- right to any further legal proceedings. Be- _ straints of the ex
tence at the November 23, 1992 Hear- cause the state court failed to adequately _ be confident - whict
ing Entitled to a Presumption of Cor- explore the question of current competen- ; But I’m inclined t

rectness? cy, the state court’s determination is not _ correct that on a

The majority asserts that ‘the state entitled to a presumption of correctness in ; ee ei
court's finding on November 23, 1992 that federal court.’ q 7

priate one.
3. The majority cites Lenhard v. Wolff, 603 F.2d Moreover, in Lenhard there was no new evi- ‘The majority’s r
91 (9th Cir.1979) as authority for also giving the dence indicating incompetence. Here the feder- { ‘Ark 495 US
1988 finding of competency a presumption of al court was presented with new evidence not 4 TKANSAS, 0.

correctness. In Lenhard, however, the state available at the .1988 hearing—specifically, ; L.Ed.2d 185 (1990)
court hearing was held in 1978 and the federal Brewer's letters, Dr. Bayless’. recantation of his toa “clear evidence’

court hearing in 1979. Here, the elapsed time 1988 testimony, and Dr. Rollins’ and Dr. Heller's
was over four years—four years on death row. es rena “ae Beat ; affidavits, all of

a
be..u8
m and
tisfied
ess its
imend-
Circuit
dividu-

ent is
e pur-
The
> is to
) exer-
faced,
se. It
lgment
ut the
execu-
y.
is even
9 juris-
Brew-
wholly
27 US.
a )
tow 5
olly in-
nerit.’’)
stand-
ives no
Indeed,
on the
he has
iat she
che dis-
ised a
iat she
‘ing on
y. Un-
ire her
ly with
‘ic stay
consid-
without
tion.
ised in
of our
ease of
filed in
a iS
a

} various
» Brewer’s refusal to challenge his death
f sentence and his repeated insistence that
® his. execution be carried out. On Novem-
f ber 23, 1992, the state trial court conducted
® another hearing and again pronounced him
@e competent to dismiss counsel and to waive
| all post-conviction review. Finally, on Feb-
m ruary 18, 1993, the Arizona Supreme Court
.: : affirmed the state court proceedings.

BREWER vy. LEWIS 1029
Cite as 989 F.2d 1021 (9th Cir. 1993)

L peal to this court was filed exactly two

weeks ago. As I write, Mr. Brewer's
_ scheduled execution is less than 24 hours

| away.

II
. In November of 1987, John George

| Brewer (“Brewer”) murdered his five-
+ month pregnant girlfriend and immediately

confessed and pled guilty. After a hear-

ing, he was pronounced competent and sen-
; tenced to death. For the next four and a
| half years he languished on death row

while the state courts of Arizona conducted
proceedings, notwithstanding

On February 19, 1998, this case entered

' the federal court system for the first time
' when Brewer’s mother filed a “next

friend” habeas petition challenging her
son’s competency as well as the constitu-
tionality of his sentence. On February 23,
1993, the federal district court, following
an afternoon hearing, ruled that Mrs.
Brewer had no standing to pursue a “next

f friend” habeas petition. On the same day

she. filed a notice of appeal and asked this
court to issue a certificate of- probable
cause and a temporary stay of execution.
Arizona has scheduled his execution for
March 3, 1993 at 12:01 a.m.

1. Mrs. Brewer presented much of this new evi-
dence:to the state courts promptly after he was
found competent at the November 1992 hearing.
Neither Arizona nor Mr. Brewer claims she had
‘any obligation to seek “next friend” relief for
her son before that competency determination
was made.

2. Dr. Alexander Don, who testified for the state
at the district court hearing, formed his opinion
that. Mr. Brewer was competent without having
read his letters. Dist.Ct. Transcript at 78. In-
terestingly, Dr. Don disagreed with Dr. Celia
Drake, another doctor who submitted testimony
for the state, on. a significant element of her

Mrs. Brewer supported her habeas peti-
tion with new evidence not considered at
the November 28rd state court competency
hearing: *

(1) Two letters written by her son while
he was on death row, discussing his belief
in a planet called “Terracia,” which is ruled
over by the God “Dantain.” The letters
refer to a person called “Fro,” who appears
to be Dantain’s child, and who lives on
Terracia, but who also lived on earth, at
which time she was Rita Brier, the girl-
friend Brewer murdered.

(2) An affidavit by Dr. Michael Bayless,
who, after reviewing Brewer’s letters
along with other new materials, had a
change of heart about the testimony that
he gave at a 1988 state court hearing in
which he concluded that Brewer was com-
petent.?

In the first letter, written to a friend,
Keith Lester, in early 1989, Brewer wrote
in part as follows: —

“T am the one who killed Fro, the savior
of Terracia.”

Fro was to “become a man elf when we
got to Terracia. However, I knew her
. only as a woman.”

‘Tt is hard to explain what I understand
Dantain’s teachings to be, and my reac-
tion to them.”

“Dantain told me | would be executed in
1-7 years”

“T keep finding myself praying to Christ
~ to forgive me worshipping other Gods.”

Brewer ends the letter with, ‘May the
Blessings of Dantain, Our Lord God, and

diagnosis. Jd. at 68. Even though Dr. Drake
concluded that Mr: Brewer was competent to be
executed, she found that he had a “long history
of emotional problems with a history of depres-
sion and suicide attempts that resulted in men-
tal health intervention.” ‘ Drake Affidavit at 19,
21. Dr. Don cited a scholarly test “regarding
the stressful experience on death row and the
likelihood that an individual who is sentenced
and is, awaiting execution may well decompen-
sate into a psychotic state,” but found no indica-
tion that this had happened in Mr. Brewer's
case. Dist.Ct. Transcript at 62.

he meaningful
- and Baal de-
s abmitted
hav which the
val, and which
asufficient. In
ted an affidavit
reviewed and
xperts who had
him competent,
mally observed
Ct. at 2225-26.
ted brief affida-
lave never met
avit of Dr. Bay-
‘and found him
rless speculates,
wailable to him
s. mental condi-
i during his in-
2x may now suf-
e disorder.5 As
dence is insuffi-
itantial evidence
ing the defen-
in the last two
‘is _. four psy-
@ lly exam-
Lfound him com-

t a belief that Rita
er planet, and that
tis execution. Dur-
f him, Brewer spe-
ves in the existence
mitted his religious
on did not review
at the district court
that he would join
t “indicative of any
n.” These religious
ence of the planet
the first time in the
a part of Brewer's
s prior to the mur-

affidavits from sev-
nbers, all of whom
cult childhood and
order from an early
not contradict the
1e four experts who
xd he suffers from a
agreed that Brewer

i
i
|
|
'
t 4

‘BREWER v. LEWIS | 1027
Cite as 989 F.2d 1021 (9th Cir. 1993)

| Iv. THE ARIZONA STATE COURT'S

DETERMINATIONS OF BREWER’S
~ COMPETENCE ARE. ENTITLED TO
A PRESUMPTION OF CORRECT-

NESS |

[6] Our conclusion that Elsie Brewer
has not established standing as next friend
of John Brewer is bolstered by our obli-
gation to accord a presumption of correct-
ness to the state court’s determinations of
his competence. The Supreme Court has
held that a state court’s conclusion regard-
ing a defendant’s competence is due such a
presumption where it is “fairly supported
by the record.” Baal, 495 US. at 735, 110
S.Ct. at 2225; Maggio v. Fulford, 462 US.
111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d
794 (1983).

[7] The state court’s July 1988 determi-
nation that Brewer was competent to plead
guilty is without question supported by the
record. The state court’s conclusion was
based upon psychological reports from Dr.
Bayless, and Dr. Gerstenberger which eval-

uated Brewer’s competence to stand trial

as well as his mental condition at the time
of the offense. Furthermore, the state
court conducted an in court colloquy with
Brewer concerning his desire to plead
guilty and his understanding of his circum-
stances.

On November 28, 1992, the state trial
court again found Brewer. competent, in a
hearing on Brewer’s motion to dismiss an
automatic notice of post-conviction relief.
At this hearing, the court itself extensively
examined Brewer concerning his. reasons
for wishing to forego post-conviction relief
proceedings. In light of Brewer’s state-
ments in court, and based upon its review
of the entire. record, the. state court con-
cluded: that it found no reason to change its
previous finding that Brewer was compe
tent to act on his own behalf. Hearing of
Nov. 23, 1992, R.T. at 45. The court found
further that an affidavit of Dr. Rollins
submitted by Brewer’s former counsel was
insufficient to raise questions ‘concerning
Brewer’s competence. Id. at 25. The two
and a half page affidavit suggests in a
conclusory fashion that further psychologi-
cal examination of Brewer is needed to

determine his competence. Considering
the complete absence of contrary evidence,
we must conclude that the state court’s
determination of Brewer’s competence at
the November 1992 hearing was fairly sup-

ported by the record, and therefore entitled

to a presumption of correctness. See Len-
hard v. Wolff, 603 F.2d 91, 93 (9th Cir.
1979) (a determination of competence re-
mains valid where, even though time has
elapsed, there has been no showing of in-
competence).

We note further that additional evidence
of Brewer’s psychological condition gath-
ered within the last two and a half months
corroborates the state court’s determina-
tions. Four psychological ‘experts who
have personally examined Brewer have de-
termined that he is competent, and this
evidence has been presented in various fil-
ings with the Arizona courts, the district
court below, and this court on appeal.

Because we presume that the state court
correctly determined Brewer to be compe-
tent, and because petitioner has not come
forward with meaningful evidence to un-
dermine that determination, we must con-
clude that she has, failed to “provide an
adequate explanation” why Brewer cannot
appear on his own behalf. Whitmore, 495
U.S. at 168, 110 S.Ct. at 1727.

Vv. CONCLUSION ~ |
‘Accordingly, we affirm the judgment of
the district court and dismiss Ms. Brewer's
appeal for lack of jurisdiction, The applica-
tion for certificate of probable cause and
the motion for stay of execution are denied,

WILLIAM A. NORRIS, Circuit Judge,
dissenting: aoe an

I
Mrs. Elsie Brewer appeals the district
court’s decision denying her standing to
file a “next friend” petition for habeas
corpus seeking to avoid her son’s execution
principally on the ground that he is incom-
petent. She asks this court to issue a
certificate of probable cause and a stay of
his execution, now scheduled for March 3,

1993, at 12:01 a.m. -_

1028

On February 19, 1998, the day after she
was finally denied relief from the state
courts in Arizona, Mrs. Brewer filed a ha-
beas petition with the district court. This
is the first federal petition for relief that
has been filed on behalf of this prisoner.

Ninth Circuit Rule 22-3 explicitly pro-
vides that a certificate of probable cause
and a stay of execution shall be granted
automatically on an appeal from the first
federal habeas corpus petition filed in a
death case. The Rule provides:

(a) Definitions. This rule shall apply to

appellate proceedings involving a first

petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 for a peti-

tioner under a sentence of death. A

“first petition” for habeas corpus shall

mean: the original filing relating to a

particular conviction or sentence, and a

subsequent or amended filing if the origi-

nal filing was not dismissed on the mer-
its.

of Probable Cause. On the first petition,

if a certificate of probable cause and a

stay of execution have not been entered

by the district court or if the district

_court has issued a stay of execution that

will not continue in effect pending the

issuance of this court’s mandate, upon
application of the petitioner a certificate

of probable cause will be issued and a
' stay of execution will be granted by the

special state death penalty panel pending

the issuance of its mandate.
By the plain language of this rule, we have
no authority to deny Mrs. Brewer’s request
for a certificate of. probable cause and a
stay of her son’s execution.

The majority of this panel justifies its
refusal to comply with the clear directive of
this rule by reading language into the rule
that does not appear. Under the majority’s
interpretation, the automatic stay. rule for
first petitions does not apply to. third-party
petitioners when the panel decides that it
can resolve the merits of petitioner’s claim
in time to meet the scheduled execution
date. The Rule says no such thing. The
Rule plainly applies to all “first petition[s]

989 FEDERAL REPORTER, 2d SERIES

filed ... for a petitioner under a sentence
of death.” This rule was adopted by the
Court after considerable deliberation and
comment. If the majority is dissatisfied
with this particular rule, it may address its
concerns to the Court and seek an amend-
ment. The power to revise the Circuit
Rules rests with the Court, not an individu-
al panel. .

Moreover, the majority’s amendment is
fundamentally inconsistent with the pur-
pose behind the automatic stay rule. The
purpose of the automatic stay rule is to
allow time for the appellate court to exer-
cise reasoned judgment when it is faced,
for the first time, with a death case. It
requires us to exercise deliberate judgment
at least once in a death case without the
hydraulic pressure of an impending execu-
tion only days, or even hours, away.

The only gloss on Rule 22-8 that is even
arguably justified is that we have no juris-
diction to consider the merits of Mrs. Brew-
er’s appeal if her standing claim is “wholly
insubstantial.” See Bell v. Hood, 327 US.
678, 682-83, 66 S.Ct. 778, 776, 90 L.Ed. 939
(1946) (dismissal for want of jurisdiction is
appropriate when the claim is “wholly in-
substantial” or “patently without merit.”)
The majority does not say that her stand-
ing claim is so insubstantial that it gives no
jurisdiction to decide her appeal. Indeed,
by reaching and deciding her claim on the
merits, the majority holds that she has
raised at least a colorable claim that she
can establish standing. Moreover, the dis-
trict court found that she had raised a
colorable claim because it ruled that she
was entitled to an. evidentiary hearing on
the question of her son’s competency. Un-
less the majority ‘is willing to declare her
claim to be frivolous, it must comply with
Rule 22-8 by allowing the automatic stay
of execution to issue to permit us to consid-
er the merits of the standing claim without
the pressure of an imminent execution.

The complexity of the issues raised in
this case demonstrates the wisdom of our
automatic stay rule. This is not a case of
federal court delay. The case was filed in
the district court for the. first time less
than three weeks ago.. The notice of ap-

| peal to this court
' weeks ago. As
| scheduled executic
| away.

' . In November

| Brewer (“Brewer
' month pregnant gi
| confessed and ple
‘ ing, he was pronot
- tenced to death.

| — On February 1!
. the federal court
® when Brewer's
@e friend” habeas —
| son’s' competency
| tionality of his se
. 1998, the federal
| an afternoon he

' Brewer had no st
' friend” habeas pe
& she filed a notice
* court to issue ¢
; cause and a tem
; Arizona has sch
March 8, 1993 at

1. Mrs. Brewer prt
dence :to the state
found competent :
Neither Arizona n
‘any obligation to
her son before tl
was made.

2. Dr. Alexander [
at the district cou
that Mr. Brewer *
read his letters.
terestingly, Dr. I
Drake, another d
for the state, on

ont eth pedir: , matte ibitomitilh inp hansen athe ois

the walls of said prison, in the manner and as provided

by law, you be hanged by the neck until you are dead,

The prisoners are remanded into the custody of the
Sheriff to he by him delivered into custody of proper
officers of the State Prison, and proper death warrants

ordered to be issued therefor.

Mo sufficient cause bteing sho™m or appearing to
the Court why judsment should not be pronounced against you,
It is the judgment of the Court that yov are guilty
of the crime of murder of the first degree, and
IT IS ORDERED, ADJUDGED aD DECHSED, and the judg-
ment and sentence of the Court is that you, Willis Azbill,
te taken to the State Prison at Florence, in the State of
Arizona, an¢ there be safely kept and confined until Friday,
the £9th day of September, A”. 1916; and that on said day and
within the wells of said prison, in the manner anc as pro-
vided by lav, you be hanged by the neck until you are dead.
Henry Azbill, an information was filed in this
Court by the County attorney, charging you with the crime of
murder of the first degree, to which ir ormation, upon your

arraignment, you plead "Not Guilty". You were duly and

regularly tried by a jury of your Country and & verdict ren-
dered finding you guilty of the crime of murder of the first ;
degree and fixing the penalty at death. EE oe

Have you any legal cause to show why judgment and
seutence should not be pronounced against yout

No sufficient cause being shown or appearing to
the Court why judgment should not be pronounced against you,

It is the judgement of this Court that you are guilty
of the crime of murder of the first degree, and

I? 1S ORDERED, ADJUDGED AND DECREED, and the judg-
ment and sentence of the Court is that you, Henry Azbill, he
taken to the State Yrison at Florence, in the State of arizona,
ana there be safely kept and confined until friday, the 29th
day of September, Asi. 1916; and that on said day and within

IN THY SUPFRIOR COURT OF THE STATF OF APIZONA
IN ANT FOR THF COUNTY OF COCONINO

TH CTATF OF ARIZONA,
Pleintiff, )

SP AP

Ve. \ SULGVENT AND SrNTFVCE.
SIMPLICIO "ORRFZ,
Defendent.

Comes now the State of Arizona by F. M. Gold, Feq., County
Attorney cf Coconi:o Co.nty, Arizona, enc by George W. tarben,
Feq., Deputy County Attorney of saic Coconino County, and also
comes the defeniant Simplicio Torrez in pereon end by his
at-orney, Mercer Hemperley, Esq., 9: thereupon a moticn for 4
new trial was duly filed, *rgved -nd submitted and by the
Court cenied.

It being more tran two days since the verdict was rencered
and recorded herein, the Ccurt fixes this, the 4th day of
August, A. TD. 1919, ac the tive for pronouncing judgment and
sentence agairst the defendant, and thereupon proceeded as
fol:ows: :

Simplieio Torrez, you were informed esgainst by the Conty
Attorney of Coconino County, State of Arizona, by an information
flea in this Court on the llth dey of June, A. D. 1918, charg-
ing you with the crine of murcer, committed as follows, to-wit:
The ssid Simplicio rae ou on or acout the Zlst day of May,
1919, and before tre filing of ttis information, ®t the County
of Coconino, St%te of Arizona, tren anc there being, did, then
eng tlere, wilfully, unlewfv1l:, feloniously, deliberately,
premeditatedly, enc of his melice sforethoveht, kill *nc murder

one Victor F. “lelick, a humen being, then and there being, by

then end there wilfully, unlawfully, feloniously, deliberately,

premeditatedly, and of his malice aforethougrt, inflicting

upon the body of him, the seid Victor H. Melick, a mortal wound,
from the effects of which mortsl wound he, the said Victor H.
Melick, did then and there aie.

To this information, oa your arrai.nment, you plead not
guilty. You were cvly and regulsrly tried by a jury of twelve
good and lawful sen of your country and a vercict rendered :
by said jury finding you guilty of the crime of murder of the
first degree and fixing the penrlty at death.

Have you eny lezfl csuse to show why judgment and sentence

should not be pronounced against you?

No sufficient ceuse being shcwn or appesring to the Court
why judgment shuld not be pronounced a-sinst you,

It is the judgment of this Court that you are guilty of the
crime of murder of the first degree, and

IT IS ORDERED, ADJUDGFD AND DECRFFD, and the judgment and
sentence of this Court is, that you, Simplicio Torrez, be taken
to the State Prison at Florence, in the State of Arizona, and
there be safely keps and confined until Friday, the 24th day of
October, A, D. 19193; and thst on said day and within the walls
ef 881d prison, in the manner and as rrovided by law, you be
hanged by the neck until you are Gead.

It ice further ORDERFD thet the Sheriff of this County deliv-
er the defencent, Sim licio Torrez, within ten days from the date
of thie judgment, to the Superintendent of the State Prieon of
the State of Arizona for execution; and

It is further ORDFRFD thet you, Simplicio Torrez, are to
be remanded to the custody of the Sheriff of Coconino County,
State of Arizona, to be by him delivered into the custody of -
the proper officers of said Stste Prison; and

It ie further ORDERED that a certifiea copy of this
judgment shall be @ sufficient warrant t> the eaid Sheriff of ica!

a eed

Coconino County to take and keep end safely deliver the eaid

h is to visit all towns on the A. &\at’a meeting of secretaries and offi-
hext «Tueeday, beginning with Par-|cers held in Phoenix during fair week.
and ending at Wickenburg, js 80} A thousand copies of this bulletin '
meating the valley that a number ‘are circulated throughout the territory] ® . _
enterprising merchants in Tempe | and elsewhere, and it contains a con- Woon

Me** have declared thelr saa densation of the important progrés- Mexicans Pay Penalty for
( ing the aggregation Of | sive steps taken during the preceding

| Brutal Murder of

st | making the trip with the] ,onth,
he cv.umittee urges an 8@rly PUL Vimpressed with the plan that it has Old Man.

he spirit of the “Rose Spectal,”| throughout the territory, ‘authorized |

QOWFUDIOD )

‘OR HONVS pus Tesezey ‘VTHUVe

AG. The Reclamation Service is so much
e of tickets and resefvation Of. ouosted several copies for its own
use and for forwarding purposes.

A number of both the Maricopa; ~
Cesaro Sanchez and Rasael Barela,

county and territorial bulletins have
dsworthy, who has pane gg es been .sent to the Los Angeles bureau convicted of the murder of Gregorio

in c¢ L
arrangements in vay of\ot the Phoenix board for distfibut{on Conejo at Bellemont, Coconino county,

*OT6IT-d-2tT (AqunO

thy se okngeio he < there. last summer, and sentenced to death
he special is scheduled to leave at| The first bulletin of the Arisona De- by Judge Doe, after a trial lasting
o'clock Monday night, and at 9| velopment Board follows: os only eight days, were hanged today in
lock there will be a reception tothe! <A new lumber mill at Flagstaff is|the territorial prison at Piorence.

cipants in the get-acquainted trip |now ready.’ - Sanchez’s exetution took ‘place at

t
v

the offices of the of Trade. Arizona mines yielded last year a 10:30 and Bafela was hanged a half
ha = stg total of $42,496,745.19.' "a hour later. haa
|” poultry show for Pima county will]. The crime was one of the most bru-

be held at Tucson: December 16-17. ¢ tal in the higtdéry,of Arizofa. The

Arizona death rate is lower than the three men naiiied ad been employed
death rate for the entire-o : at an ash pit and at night Conejo, an
Three thoygand five hundred head aged man, was'attacke@ by his two
of cattle were in « recent’ single ship-| Companions, wno used a sharp file to
ment from Tucson. Ay _,) accomplish theit brutal work. Conejo
Work on territorial highway, Phoe-| 74% stabbed and mutilated almost be-
nix to Yuma, will commence within aj yond recogni ee i
month. “| The murderers settited $210° from
Census returng give Cochise county |their victim gnd escaped... Later they
a population of 34,591, an increase of} Were arrested. at. Aibuquérque, N.+M
272.9 per cent in ten years. - \and were brought back to Arisina by
Arizona will receive $61,220.38 as|Jehn Francis, #herift’ of Coconino
revenue from national forests for year|county. The trial-amd conviction fol-
ending June last. . ae _ flowed. Ae Go Me i,

Douglas chamber of ¢ There never was any question as to
mines reportea { } the guilt of both ten) Each con--

erations in Sulphur & ‘ but: tried to the
' ites ong ¥ PY ler. The sentence

“OT6I-c-cl ‘z¥ *xTUeoug *OFTAAdey
<- guozqyay. pesugy f*sTH ‘etdesep

DANTNULUMBW, LeESter te, white, asphyx. Ariz (Maricopa) 8-31-1955.

THE ARIZONA DARY SAR
. x “y- fh ‘8 8 :
pou SDAY, ae 1955,

MAHER - Ol FAYEUEVING PATA, LE LETS
FL Lester Edward Bartholomew, sittlng ‘were ington Crumb,’ co-

, strange | Shp in the executign chamber. of the State| © Ordima lain for Maricopa
oh today, amiled confidently and ther. “Brayed uhtil hig life wen} | County institutions, and. Rev,

j . 134 .Bartholo; =i Zhot and killed-his wile and his two Soe |
ie | ml thelr. home | =. —y : 4

° atv Age
ay Whea Warden: Frank an,
4 the, last n to: talk to Bartholo- |:
‘ mewW,;entered the chamber,: the |
\, hand , 28-year-old truckdriver
‘thanked him,for his“courtesy and
kindness,” then recited John 3:16:

era ae
* “former emp yer, elt
nifnls

s*For God sol loved" the: world | faa out : ters, hast
. . ‘that He {gave ‘js ‘only * eas
‘ey. 7 Bon} f: w er, believeth, in ete wae a heel
* < ll not® ut have bi
grerlastiig life; calla ; soe bt Neier He) ong 1
hen he told’ tin ahs keh
God'tpless ¥ » Boke owe aa
you,lin heaye wer e at er}

. “weapon. ! hit
- <The wife rap next ‘door and
tot: Peighbors ; ito call ——

eral, pt’ 10 tdhectlictenew went: tate his

the Firs Baptist Ch house and Skilled his daughter,
ce will ¢ome. -from a tape. amela, 2. and! shis 60n

ing made |in his ‘death cell. When: his*wife heard Fo first

Babtbé méw's coniposure was eae ane ran. sen ae the home, The

shaken orfly bnce after he arrived. , ny for pos-

the death chdmber. His body rn =e

lted a the sharp 80 of the
dete rp sopnd

: Be Ing.clofed and i gee é s
m c a Teg

dd. Yocked: ic Hee tele fom the
f a bale de od Dive cRiAe ee the Ybome when th wtarted
Dion ADke' a - isp of ciga- “And ‘went to: th Here ber
. ba reas 2 ti ke ‘from vheneath his : paeenea nae just as help.
“ 4ochalr, Hi breathed tolstip enough te ‘chest int If in
ie »* ty to be hedrd through the gfegl and in a {tempt
; gifss chamber, athen his heed ioe ‘Ailled| the cf dren and.
-s ‘“quluntped} J ed le wwe. The wound jwas gerious |
“gn back ter he was - Dut net critical 4 |
“he © dd dead. € ‘t Ha (waived trial and pleaded.
¥ * 1a 8* ministers .weht Into the 2. ey J&tne 2 legree
et: to say goodbye to Bar urder : es chil-
pido the warden en- , paren artd i Pat ate mur
tered, Bartholomew’s pide 1g, the hooting of *his wife.

*. e gourt no ) wen nee in
ection wil the ‘wif’ death.

Bib ne mewitold Uce he had
te pol vife. He

j re _ eae - joa e lie h re) if bed , Fe she
Sse ee ot aa Ms cgi pe fad igri

ew s- RR i~w~ih the: bot

case. *
pp Rigs nt he ‘wanted to “get 4 ad mat os not saetet

eee lonfew repeat-

4 orother w: . Glenn Jones |

—

ero AMSWers Ulcers,

ARIZONA REPUBLIC, Sex

témber 1, 1955.

rm Ready To Go’ =| ~f4Ss.
Bartholomew Dies,

Prayer On His Lips

FLORENCE — Triple-slayer Lester Edward Bartho-
lomew accepted death with a smile, a prayer, and a
tightly clenched fist early yesterday in. the Arizona
State Prison gas chamber.

But before the thin fog of cyanide gas could make
{its kill, the 98-year-old confessed murderer was granted two last
wishes he hoped would make him “right with God.”

Bartholomew tape-recorded a repentant sermon for his public
funeral in Mesa’s First Baptist Church, scheduled this morning
at 10. And willed his eyes to the blind.

over

ing 3% minutes after entering the small, hexagonal
dea chamber Bartholomew had paid the price society de-
manded for he killing of his wife and two youngest children.

* * *

ew had told investigators he had thought about
If and his children for a week before the May 28
that night he fired bullets from a .22 caliber rifle
ks of his daughter, Pamela, 2, and son, Rickie, 3.

He killed! his 23-year-old wife Marie as she ran horrified from
their mote} cabin at 2183 FE. Monroe, After he dragged her
body back {nto the room, he turned the rifle on himself in an
unsuccessfa@l suicide attempt Only his 5-year-old daughter
Linda, wha ran from the blood-spattered cabin to the safety
of neighbors, escaped Bartholomew's wrath.

‘ * * *

Bartholo
killing him

BARTHOLOMEW, who gulped eagerly at the execution gas,
spent his last night singing hymns on death row.

Entering the telephone booth-like chamber at 5 a.m. sharp,
Bartholomew's 6- foot frame was pale —from the lack of sun
nore than fear. He was much more at ease than the 38 assembled
pectators and casually flicked off the thought of death with a
wave and a smile.

After the heavy buekles had been strapped into place, Bar-
tholomew bade goodbye te three Baptist ministers and Warden

— | a eee

When clomew had recovered from his two self-inflicted
rifle wo he stood before Renz L, Jegaings on June
20 and uely refused a & hearing to d wheth-
er there re mitigating circumstances in th¢ triple slaying.
The hearing conceivably could have saved from death in

the gas chamber, .
Court ted trists‘ who examined Barthqlomew
disclosed he blamed the killings on his wife’s conatant nagging.
“Even ri I did have a job,” said the unemployed truck

driver, “shp’d just get on me and nag me.” Bartholomew was
adjudged sane.

* * *
‘

PERHAPS thinking it was the cyanide pellets being dropped,
he winced heverely when the heavy iron door clanked into an
air-tight ppsition.

It was thé only break in his perfect composure.

His lips then mbved furiously in prayer and gasped as the
deadly gas,| looking like harmless steam, rose from béneath his
legs.

Althoqugh|he was probably unconscious after the first breath,
Bartholomew continued to gasp for about a minute until his head
pitehed forward and his tightly +closed fist opened. His fingers
stiffened until they were bending backward.

The spectators watching from the tiny outer chamber stood
white as hig face turned toward the ceiling, seconds after he was
§

pronounced | dead.
i * * 2

Rertholomew drew 1% to 2% years prison sentence

mpt g to pass a bad check. This year he was freed on

on an aggravated t charge follewing an attack

injured an 18-year-old Phoenix man for s “flir-
r i)

As his tencing on June 22 Bartholomew heard the declara-
Jennings that. the court felt that a jury, under

ances would have been remiss in its duty if it had
@ verdict of guilty of murder in the first degree

he penalty at death. —
@ terrible and tragic! responsibility for » jury and
Jennings

minister — the Rev. Glen Jones of
| = stood bravely by his wife's brother through-
j i 5

Po ie * ~~ we

yy eee

Dictator
Says He'll
Keep Jo

_ BUENOS AIRES, Argen-
tina (AP)—President Juan
D. Peron gaid last night he
has withdrawn an. offer to
resign and has decided to re-
main president of Argentina.

Peron earlier in the day
had said ,he -would quit if
that would bring peace to
his country? .

His followers had been clearly
primed in advance to receive and

demand he stay on the job he
has held nine years.

After hours of speculation as
to whether he really did not
choose to remain yin office,
Peron appeared dramatically at
dusk on his familiar Govern-
ment House balcony.

A ‘huge crowd had gathered
to cheer him in the Plaza de
Mayo.

The crowd waited more than
an hour for his appearance.

A small group tried to force
entrance ‘through the main
door of Government House, da-

manding the right te talk with
Peron. Federal police hurled

(ai

reject his offer to resign and):

back the intruders and i
order before Peron sony Om

the scene. “ars
Peron earlier Oy ee
-|lowerg he would resign if that

would pacify the nation.

The General Confederation of
Labor (CGT) e«nslled a general
strike and suiamoned workers to

The house of deputies, ruled by
Peron’s party, had to cancel its
session yesterday afternoon be-
cause the majority refused to at-
tend until the president with-
drew his offer. The entire mem-
bership of the senate—all Peron-
istas—declared they would resign
if Peron did.

“ALBERTO Tessaire, vice presi-
dent of Argentina, sald he also
would quit if Peron should leave
his office. So did all the proVin-
cial governors.

Approximately 45,000 perséns—
according to official estimates—
streamed into the Plaza de Mayo |
outside Peron’s government head-|
quarters toon after Hugo di Pi-
etro, CGT: secretary, broadcast
the first announcement that the
president had offered to resign.

They carrie banners and plac-
ards and chanted “Peron, Peron.”
They sang and milled around, but
there were no disorders,

TH Pietro declared that the
watchword was “Peron must
remain” and called on unien
members all over the country
to stage similar demonstrations
in the main plazas of other
cities and towns.

mass demonstratiofs to insist}.
‘that Peron stay on.

Young Anglers
nual Labor Day fishing contest iniincanto Park lagoo

are, from left, Buddy Brignall, 9, 1033 E.
Jeannie Ernst, 7, 1116 E, Palo V

Rd.;

Getting in some early practice
for Phoenix Jaycees 12th ¢

y Home
; Barry Ve
ance

U.S. Paroles

22 Japanese
War Leaders

WASHINGTON (UP) — The
United Statés yesterday an-

nounced the ‘parole of 22 Japaebs

nese war criminals in @ move t@
holetar orm-Armeriean elemente tn

aad

Simplicio Terrez into th: custod: of the proper officers of
ssid State Prison, san. a sufficient warrant for the officers
of the St-te Priscn to kecp ana confine the erid Simplicic
Torr.2 within the walle of seid Prison until the 24th day

of October, 1919, i *ecordence . it? this jucgment.

Done in o;en Court this 4th dey of ee Pr, 3012,

Judge.

aes

Oo PAFCOPT NR tT CO PRCT

TRAPOLTLE @ SIA § Ohe lk oa. = =a pe
Bartholomew's 6- foot frame was pale—from the lack of sun
more than fpar. He was much more at ease than the 38 assembled
spectators and casually flicked off the thought of death with a
wave and a smile,

. After. the heavy buekles had been strapped into place, Bar-
tholomew bade goodbye te three Baptist ministers and Warden
Frank Eyroan.

agg wl * * *

When Bartholomew had recovered from his two self-inflicted
rifle wounds, he stood before Judge Renz L, Jemmings on June
20 and bradquely refused a special hearing to d wheth-
er there re mitigating circumstances in thq triple slaying.
The hearing conceivably could have saved him from death in,
the gas chamber, .

Court egpointed psychiatrists’ who examined Bartholomew

disclosed h¢ blamed the killings on his wife’s conatant nagging.

“ven when I did have a job,” said the unemployed truck
driver, “shb'd just get on me and nag me.” Bartholomew was
adjudged ia . 2c

PERHA thinking it was the cyanide pellets being dropped,
he winced feverely when the heavy iron door clanked into an
air-tight ppsition.

It was the only break in his perfect composure.

His lips then moved furiously in prayer and gasped as the
deadly gas,! looking like harmless steam, rose from béneath his
legs.

Althqugh | he waa probably unoonscious after the first breath,
BartholdmeWw continued to gasp for about a minute until his head
pitehed forward and his tightly + closed fist opened. His fingers
stiffened until they were bending backward.

The spectators watching from the tiny outer chamber stood
white as hig face turned toward the ceiling, seconds after he was

pronounced 'dead.
} . *# ©

In 1958 Bartholomew drew 1% to 2% years prison sentence
for attempting to pass a bad check. This year he was freed on
$2,000 band on an aggravated It charge following an attack
whieh seriously injured an 18-year-old Phoenix man for a “flir-
tation” with Mrs. Bartholomew. gr

At his s¢ntencing on June 22 Bartholomew heard the declara-

ton of Judge Jennings that the court felt that a jury, under
the eircurtstances would have been remiss in its duty if it had

not retu a verdict of guilty of murder in the first degree
and fixed the penalty at death.
; This ta|m terrible and tragic responsibility for # Jury and
’ eeurt,” Jufige Jennings sald.
| o ® ®
A SMALL, tired-looking minister — the Rev. Glen Jones of

Fayetteville, Ark. — stood bravely by his wife's brother through-
out the last hours.

“He was the bravest man I ever saw,.. He died with more
Gospel ‘th any man I ever saw,” said the Rev. Jones, one of
three Baptist ministers to enter the death chamber before Warden
Eyman. The others were the Rey. Ebed Hannah, prison chaplain,
and the Rev. Frederick Crumb, co-ordinating chaplain for Mari-

copa County Institutions.
Jones\arid Bartholomew embraced at the end.

The t armed Bartholomew with prayer and courage to face
the executioner and helped him learn of God during his stay in

ew ate chicken at his last meal with a cousin, Wil-
olomew, of Norwalk, Calif.; a former employer, Art

CRB MIPOURR tne Tian |
door of Government House, de-
manding the right te talk with
Peron, Federal police hurled
back the intruders and

the scene. ae
he ® Am
that

Peron earlier
lowers he would resign
would pacify the nation.

The General Confederation of
Labor (CGT) -ealled a general
strike and summoned workers to
mass demonstrations to insist
that Peron stay on.

The house of deputies, ruled by
Peron’s party, had to cancel its
session yesterday afternoon be-
cause the majority refused to at-
tend until the president with-
drew his offer. The entire mem-

istas—declared they would resign
if Peron did.

“ALBERTO Tessaire, vice presi-
dent of Argentina, said he also
would quit if Peron should leave
his office. So did all the provin-
cial governors.

Approximately 45,000 perséns—
according to official estimates—
streamed into the Plaza de Mayo
outside Peron’s government head-|
quarters toon after Hugo di Pi-
etro, CGT secretary, broadcast
the first announcement that the
president had offered to resign.

They carrie banners and plac-
ards and chanted ‘‘Peron, Peron.”
They sang and milled around, but
there were no disorders,

Di Pietro declared that the
watchword was “Peron must
remain” and called on unien
members all over the country
to stage similar demorktrations
in the main plasas of other
cities and towns,

Offices, and factories
closed quickly when the news
of and strike
spread soon r the opening
hours. Parts of capital soon
were without r and tele-
phene service. ered om
Companies operated on emer-
gency power

Di Pietro exchaded ntial

public services from the strike
call and said they would be halt-
ed for only 15 minptes beginning
at 5 p.m.

here last

“After broke ip the argu-
two' men red

order befere Peron come : +a

bership of the senate—all Peron-| «

mr &
Young Anglers

Getting in some early
for Phoenix Jaycees 12th an

+ dell
is ie

practi

we?

nual Labor Day fishing contest irfecncanto Park lagoo
are, from left, Buddy Brignall, 9, 1033 E. Bethany Hom
Rd.; Jeannie Ernst, 7, 1116 E. Palo Verde; Barry Var

U.S. Paroles
22 Japanese

War Leaders

WASHINGTON (UP) — The
United States yesterday an-
nounced the parole of 22 Japa-
nese war criminals in a move to
bolster pro-American elements in
Japan.

The action was disclosed at the
end of three days of conferences
here between Mamoru Shige-
mitsu, Japanese foreign minister,
and leading U. S. military and
diplomatic officials. 4

Shigemitsu had sought release
of all Japanese war criminals still
imprisoned on convictions result-
ing from Japan's participation in
World War I. “"

No “Class A" war crimindlse—
the chief offenders —- were in-
cluded in ‘the parole action.

The comferences also brought
agreement by the United States

to let Japan assume “primary re-|.

sponsibility” for its own defense
and to study pans for gradual
, 5. forees from

withdrawal of
Nippon. /

‘The state department said U. 8.
withdrawal also would be condi-
tioned on “the related situation
in Asia.”

Gloria Likes
So—She Gets 16,000

Shéemake

Receives Fi

ROME (AP) — Gino Prat:
the. operm@-loving shoemake
who won $32,000 on televisio.
returned after 33 years to h
native Italy and a hero's we
come yesterday. |

But little, graying Prato gi
his biggest. thrill when told b
is golng td have coffee with
fellow New Yorker named J
DiMaggio. .

“Wonderful! I have alwa
dreamed about meeting
You see, I'm a Yankee f
sajd Prato.

“THE WHOLE family
Yénkee. fans,” interjected 2
pretty raven-haired daughte
Lorraine, who is honeymooi
tng with her husband, Euger

father

CHICAGO (UP)—The National

had “very ;
his aim in coming to”

passed into eternity just 14% min-
utes fore dawn.

Théshush which settled down on
the afifost-rigid figures in the rows
of guests invited by the State to

witn payinent in coin it demands,
of a will long due, became a sil-
ence atony and cold as the walls
oft ¢ room the !f!nstant the man

ouGeto die took his first step
the trap.

Th@jaharp, tearing sound which
broke@@he stillness as a paper sack
up a@@inat the ceiling, was broken
and lender, hempen rope snaked

down Dbove the man abeut to dle,

soun almost as a scream in the
rootn

Otte Death Trip At 5:0214

Th ctual execution was brief.
At j 6:02% a. m. the door to
Black#wrn's cell was thrown open,
end @ condemned man walked
througm and into the corridor, turn-
ing ard the right and caught
his f glimpse of the door lead-

t@ihe execution chamber.

fre alked steadily the 20 feet
betw hia cell and the door. Black-
burn iked his arm with that o!
hie er, Wellington, and the two
led the march of death.

ButSs moment elapsed until he
had ched the foot of the 13 sters
lead! to the second floor cham-
ber. &

He Burned his head toward War-
Gen Se@ptt White following him, and
asked

“Domyou want me to cout, the
“ee ¢
@ Peceived no answer, but as he

c is foot on the first , he said
ry m, resonant tone, “one.”
@ counted the steps through
. “three,” feur” and te
vole”

He Mepped up the 13th step in
atlen and walked quietly to the
ad”

® s aaked ff he had any state-
ment make.

* ote a statement this after-
noon, Band made one again to-
night.@@] wit stand on them,’ was
hie remy.

Quig@ly he kissed his brother and
then Bibis brother-in-law, Joe
Mat

He Gok en eyeshade off his head
and nded it to his brother.

Th ack cap was adjusted, and
fa a r voice he said:

“GQ ye, boys!”

Th p Was sprung.

TheMercrifying clank of steel on
steel the door of the trap struck

ches was partly drowned in

le ¢@cream as Wellington

rn shouted:

ey.” :

urn Wes pronounced dead
a. m.

body was claimed Imme-
by a Mesa undertaker,
on the wishes of Black-
widow, and with the per-
cf Warden Scott White,
taken immediately to

urn's absolute lack of fear
me was more clearly dis-
an during the few minutes
ied the death chamber as
actor in the grim drama
on the steel] trap a mo-
his ascent he faced the
» Looking squarely into
} of those in the Urst row,
‘who in less than four min-

courage, ° ,
Meets Newspa Men .

At 4:45 a. m B burn eon-
sented to see representatives of
the newspapers in his cell. He
smiled as they crowded in the nar-
row, steel-walled space, and shook
hands with each man, his grip firm
and a tly hearty. He did net
wait for questions:

“I'm glad you. gentlemen don’t
have to meet for this kind of an
occurrence very often,” he aald. “If
the law calls for it, as it epparent-
ly does, I am man enough to go.

‘l am a victim of circumstances,

and maintain my entire innocence
of the crime with which I am ac-
cused, ce

. “It my being taken. away will
benefit any person or any persons,
I am glad to do it. But I insist I

_am not guilty.” ie

He was broken with s question
as to what be would have done had
he been a member of the jury
which convicted him.

“Had I been on the jury, I don't
see how I could have done anything
else but free the person accused.”

He added he believed that in Gra-
ham county, every person believed
he was a criminal, from Informa-
tlon he had

* 1

gained from every
source, He said he understood
everyone residing in that county
believed he bad killed his father-
in-law, but “that is untrue, beyond
a shadow of doubt,” he maintained.
Thinks Of Hereafter

Standing within a few minutes of
hig entrance there, he was asked
what he thought of the. hereafter.

“I have no ideas of the hereafter,”
he sald. eS

“If the jew @emands me I am
ready to go into the hereafter.

“IJ think there is no such IHife,
cha every living person needs a just
God.

“I am prepared to meet by God,
in every detail and with a clear
conscience,”

The last 12 hours Blackburn spent
in his cell saw no change.jn the
calm attitude as he waited with
hope for days for a reprieve, or in
the last hour when he walted with

‘acceptance for death.

Mrs, Charlies J, Blackburn, wife of
the condemned man; his mother,
two sons, Lovell, 18 and Charles,
17; two brothers-in-law, Joe Maler
and Bill Brundage, and hie brother,
entered Blackburn's cell at 6 p. m.
for their last conversation with the
doomed man,

Prisonere Dread Last Night

With the exception of one guard,
who stood ellent and passiv& a
stolid expression on his face, just
outside Blackburn's cell, they were
the only occypanta of the death
house, a block of four cells and the
death chamber which comprises the
north end of the central cell block
of the prison.

George Janovich and Granville
Johnson, two other condemned
men had been Blackburn’s come
panions in the death house until
yesterday morning when ,at their
own request, they were removed to
cella elsewhere in the prison.

Blackburn's relatives talked long
and earnestly to the man who was
waiting only for the first faint Went
of day to pay a debt on which
Society has steadfastly demanded
payment.

plunge to death smiled ! © Blackburn was composed, A faint

sere MESHES UE:

jing LG PTT Cy Ur B.
Family Leaves Death House
Biackburn’s mother nearly col-
lapsed, and it was her son, the con-
demned man himself, who gently
supported her to the door of the
death house and handed her over to
@ guard who would permit him to
step no farther than the heavy
door, The mother was accompan-
fed by Biackburn’s wife and the
two boys. Lovell and Charles, who
had said their goodbye to their hus-

band and father. |

As swiftly as the condition of the
mother would permit, they were
escorted the short distance to the
penitentiary walle, and were passed
through by silent de, whose
faces completely lacked expression
as they watched the broken quar-
tet pass through the gate without
a@ glance behind. . '

The depressed and sorrowing
group stood for a moment outside
the walls, apparently fighting hard
with nerves about to break. <A
few moments later they entered a
waiting automobile and were driven
ewiftly away from the prison. It
was believed they were enroute 15
their home in Mesa, near where
neighbors were caring for Black-
burn’s two youngest children, Creta,
11 and ‘Beverly Ann, 3.

Last Glimpse Of Family

Blackburn stood for a moment
at his cell door, one hand rest-
ing lightly on the bars, watch-
ing with eyes which did net
seem to eee, the place wheres, a
moment before, he had eeen his
best love kin stand before they
walked beyond his sight out

Tate the air.

Quite composed, he turned about
and resumed hie conversation with
his remaining three relatives, They
talked in a low, murmured mono-
tone; scarcely a word of thelr taik
reaching the ever-silent guard at
the door. -

Blackburn exhibited no nervous-
ness as 10 o'clock drew near and

assed. Deputy Warden Tom

rench reported shortly after that

time Blackburn still believed he

head “an out” ~ meaning he still

hoped there was one more play

in his behalf before the ball-game

he so evidently visualised, was com-
leted and the final score written
to the books.

Blackburn's reported statement
was received in silence in the War-
den’s office, where a tew of the
Btate’s guests, early arrivals, sat
about in easy relaxation, waiting for
the night to pass.

Likewise in silence was re-
eclved his added statemen
“but If | have to take it, i'l
take it like a man.”

Visiters Nervous
The group of four or five guests
in the administration office dis-

cussed the condemned man, the|

weather, the penitentiary, and any-
thing and everything which occur-
red to any one of them. At infre-
quent intervals the conversation
would die out, and a numb ailence

— olin

Bi
K

would prev
thought would
half-seated,
whose chairs
the dull concer
fice.

There see
in the attitude
now and.then
come reaticsa,
moment, and
as the other
unconsciously
der and fro
ary composure.

Bitter

In the cell th
versation conti
ble at the do
penetrating th
tightly closed
hum—the only
entire peniten
the generators
keeping up t
never varying
as the murm
the depths of B
ters itself con

Blackburn r
eat at 10:36
eerved the r

30 N. Central

|
?

‘

Well.
TE PRISON, FLORENCE,
Arisa May 20.—-Charles J. Bilack-
a Mesa rancher, was hanged
im thee death chamber of the State
‘ mifantiary in Florence at 5:09%
- weleq s morning in expiation
/* ot (83 muNMer, November 4, 1925,
> om @ lonely stretch of highway,
soutligof Globe, of Miguel Bernal,
Mexi@§n farm laborer and his part-
ner business.

. haetiret werrtie light of a new day
™ faintly through a tiny, bar-
red Window in the concrete wall at
the @ast end of this grim prison
reom@s Biackburn carefully stepped
te tg center of the trap faintly
outiiggd in the floor of this upper
cham room, faced where was to
riee gun he would never see and
m into eternity just 14% min-

L tes fore dawn.
Théshush which settled down on
the afffost-rigid figures in the rows
of guests invited by the State to
| wit payrnent in coin it demands,
of a mill long due, became a sil-
ence Gp stony and cold as the walls
of tha room the instant the man
p dle took hig first step

t the. trap.
n@eeharp, tearing sound which
broke@@he stillness as a paper. sack

eoundall almost as a scream in the

rooing

Gets Death Trip At 5:02\4

Thé@actua!l execution was brief.
At j 5:02% a. m. the door to
Biack@rn's cell was thrown open,
end condemned man walked
h and into the corridor, turn-

A
}
f

HOGENGE OF
IME CLAIMED
NED MA

Lies Fittul Fever He

—a

f
i
f
{

Bret the ceiling, was broken
milender, hempen rope snakcd
nigpbove the man abeut to dle,

“a

BLACKBURN, Charles J...

‘ i
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NAME A
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Domingo France ....scosccesseae4

Franceseo
Ww. B. Cheves
Migvel Peralta

SCPE HPO SSORECaEES
eePeeseSeoeeeseteoe

Nichan Martin

Paul V. Hadley #eeereeeaeeeoeeegeee
Manuel Martinez COC CCH HC EOE OE®

Sam Flowers .....
Willlam Lawrence Ceeeeeeaereses

wenty Men Have Been
Hanged At Florence In
* Last Seventeen Years

Blackburn is the twentieth man who has been hanged in the state
penitentiary at Florence. The twenty men are:.

Joe Lopez POPeTT STTTETT TIT, Tere | Kedwedestodeccisceces aa 6, 1910
So idadccdeviceccivedee Dec. 2, 1910

36 ,covcccsvcccocctones sO, 2, 1910

SG cvcbeccecveccoeneencs My q, 1901

Aljanére Gallego PPPTITTTTT rr |
Rodriguez

eeccccccces Do cseseccccosesesess oMeAy 12,

Simplicio Torres Ceveccennecvaccet ceccsnssentescediecs te 16, 1920
Pedro Domingues cccccccccccesstlaceesceccesessecesess dan, 14, 1921
£4 vcnccccccevenedececee Opt. 9, 1921

Ricardo Lauterio 60b0b.06s dobbs KeaBeceeeberésdscesevecs 6 O4k, 13, 1923

Thomas Romans ane o.0be 600 bbb cdedteshdsseedetedeneds oc eek 12,
Theodore West COccecscccccceceshas caccecreccecs songs Oe 23,

William Ward 000000 0eee ebb eek cane chkeetie's Ké wet ieee 20,

1923

Brbvecsteccoveseiaexr neu 12, 1923
PTVETECETITSTT LETT Oo 18, 1923

1924

08600000006 6 O4NE S400 bbb 000 chee HOE Sek 9. 1975
Shishceeebebet eeees eeeee Jan. 8, 1926

1927

Chas, J. Blackburn cence secsenecdesvvsvovecsececececess May 20,

DATE OF HANGING

1911
1916
1936
1916

July 28,

PCOSECC SS ECO CHO LORSHES >

ecceeecccvcceeccenc ced ENO 9.

eccevcecevocccecoeces OUly

pleasantly and naturally. \A\ slight
pallor overspread his feat but
his breath was more regular than
that of the witnesses. ’

weakening and his last words, a
cheery “Goodbye boys,” were spok-
en in a well-modulated, resonant
tone. Horror depicted on the faces
of the 70 men crowded inte the ex-
ecution chamber was matched with
awe at Blackburn's splendid show-
ing of fron nerve. and undaunted
courage, ' ,
Meets Newspa Men

At 4:45 a. m. eon-
sented to see representatives of
the newspapers in his cell. He
smiled as they crowded in the nar
row, steel-walled space, and shook
hands with each man, his 5 a A rte
and @ tly hearty. He did net
wait for questions:

“I'm glad you. gentlemen don't
have to meet for this kind of an
occurrence very often,” he said. “If
the law calls for it, as it
ly does, I am man to go,
Il am a victim of circumstances,
and maintain my entire innocence
of the crime with which I am ac-
cused, ;

“If my being taken away will
benefit any person or any persons,
I am glad to do it. But I insist 1
am not guilty.”

ard the vieh? ent anyewht

He gave not the slightest sign of.;-

He was broken with # question

smile played ahout his lips as he
tried to comfort his wife and his
mother, who swiftly lost the com-

:
F

3
?

pEEs®

. ie yes tee and
e ; sorrow
group stood for a moment outside]

: led
ER es
m

he a “he ‘ooked 7 the

the question.
<'Weltes Several Letters

‘Btackbura asked for writing ma-
terials about 11 o’clock. A number
pf sheets of paper and a pencil

ught to him. He imme-
9 began a itetter, quickly fin-

Half way th
a low-voiced

sr. The latter murmured in re-|:

and started writing another.
he: paused to ask
on of his broth-

ply, and Blackburn continued his
letter writing.

the

, very now and then

smooth flow of his writing

neross the paper was broken as ke

for a moment’s talk; then

continued as he turned back to his
letters scarcely waiting for his re-

ply.

The group in the Warden's office

pontinued its. spasmodically mov-

No one moved

agg and the only in-
the alternating periods
and dull silence was
and almost immediate

again of some guard
Warden French.

pone to his concrete bungalow, just
te. oe prison walla, to sieep

‘be was called at the time he
wdered before rei 780 a. m.
“With him in his home, besides his
children, were av house gues’s
—lao- p~among them Con
Cronin, State librarian, and Frank

*" Crowded Much In Short Space |
Blackburn's ‘letter writing ‘was
by his frequent :

During the moments in which he
in the death house.

| in-law and brother did not ecem to

care to converse among themeelves.
They sat silently waiting for Black-
burn to pause in his steady writ-

ing.

Midnight swiftly came and had
passed almost before either the
group in the cell or the group in
the office had noticed a day slipped
poked and Black Friday was upon

em.

There are! no clocks in the
oorey ne bell tolled the passing
of ¢ hour—yet through the
four cell buildings the very air
seemed te etiffen: prisoners
woke from fitful sleep and
mumbied, or tossed restiessly on
their hard bunks as the invi-
sible but seemingly very real
spirit of death invaded the pri-
son yard, 8

Few prisoners slept after mid-|

night. Those who did, obta{ned ne

rest from the seeming stupor in
which they were sunk.

Time Speeds Away '

As the new day swung on toward

1 o'clock, and passed on again to-

ward 2, the minutes seemed to

Plant Zinnia Seeds Now|
Most Satisfactory For Summer

Everette * ne net
a ae ee eee ae erent
ra eens a Lor ne Le eal

The brother=/

Yor the meri In cell num-

ber 1, Their slight movements and
their spéech took oh a nervous

tone, and| new and then an appre-

hensive » passed through the:
door; te the nerth end of. the
block, w: another door was wait-.
ing: then turned back almost in-
etantly, relieved not to be able to

see that .

A huge sheet of steel, erected at
the north end of the ¢ell in which
the quartet sat, shut off any view
of the. where Biackburn would

spend his last ne
restless eyes in t

(Continuéd

Keep
In

IN THE

Big Clear Swimming
NEW DIVING BOARD
PHONE 6874 FOR FURTHER PARTICU

$5 for

3 Months Summer Membe

Fine Quality
Leeal New

Via xe

tion on his forehead

BLACKBURN; Charles Jey white, ha

clue of

the bleak, rocky barrier of the Pinal

Mountains. Twilight deepening into
dusk settled on the arroyos and ridges of
the San Carlos Valley in central Arizona.
_A trio of gaunt range cows nibbled
at the sparse bunch grass along the edge
of U. S. Highway 70, There was prac-
tically no traffic to disturb their feeding.

Ike Wheeler, young salesman, noted
the disappearance of the sun, then glanced
at the eight-day clock on the dashboard
of his new Buick sedan. It was ten
minutes past five. Wheeler knew it would
be dark
minutes’ more travel should put him in
Globe. It had been a hard trip. He was
tired. His thoughts raced ahead to an-
ticipate dinner and a comfortable foom
at the Old Dominion Hotel with the rest-
ful atmosphere of cigar smoke and leather-
covered furniture. ;

Suddenly the solid highway in front of
him _ disappeared. The
sharply to the left. Wheeler braked hard.
His tires kicked up a shower of pebbles
and dirt. For one breathless second the
traveling salesman looked Straight down
into the thin dusk of the twilight. Then
the nose of the car came around. and the
big sedan regained its balance.

The palms of Wheeler’s hands were
clammy with sweat. Despite the chill of
the night air there were drops of perspira-
as he struggled to
quiet his’ jumpy nerves. The Buick was
barely moving. He switched on his head-
lights—and_ the bright, driving beams
leaped ahead to reveal tragedy.

There in the deep drainage ditch on the
left ‘side of the road was a Ford touring
car upside down with its wheels project-
ing into the twilight, like some gigantic
turtle on his back and helpless.

Automatically Wheeler braked to a
stop. He noticed the wheels of the other
car were still spinning. To find this
wrecked machine after his own narrow
escape was like a grotesque practical joke,
a frightening reminder of what he had
sO narrowly avoided.

Wheeler let the Buick roll forward a

Tite SUN DROPPED swiftly beyond

little and swung the nose around until his

headlights were focused squarely on the
wrecked car. Then he set the emergency
_ tke and ran forward. Who had been
the Ford? Where were they now?
would anyone have survived that crash ?
As if in answer to these questions, a
big man appeared suddenly, crawling on
hands and knees up the steep slope of
the embankment, : ;
“Are you hurt?” Wheeler called, but

ae gti xs

tie ™ : Fy } } 7
INSIDE DETECTIVE, February, 19

in less than 30 minutes, but 30

road _ turned .

‘use some sleep.”

- . 7
re ay
Pe Be
Ve Bae
> *

even as his lips formed the words he
realized how foolish that question was.
“Not bad.” The man was on his feet
now, walking into the full,
of the Buick’s headlights. He was in
his early forties, tall and powerfully built.
Blood was dripping from a cut beneath
his left eye. His lips were locked to-
gether in a thin line to hold back the pain.
His right arm hung limp at his side.
There was dust on his dark clothing. His
black eyes stared inténtly at Wheeler.
“My partner’s still down there,” he
said. “Come on.” ;
The Ford’s canvas top was crushed, but
at the front the windshield framework

held the body off the ground. By stretch-.

ing flat Wheeler could see inside. There
was a man doubled up in the front seat.

hey began pulling rocks out of the
bottom of the ditch. They worked until
the skin on their fingers was torn and
bloody. Then the big man braced his feet
against the side of the bank, hunched his
shoulders
said, “I can roll it over some. -
can pull him out.”

There were only inches to spare, but
Wheeler managed to drag the second
victim of that accident out from beneath
his prison. The man was small. That
helped some. He was still breathing.

Together they
and placed him on the floor in the back of
the Buick. :

The big man climbed in beside Wheeler.
He swung halfway round in the seat so
that his good left hand and arm was
extended into the rear of the car.

Wheeler drove as fast as he dared,
and the big man explained.

“Miguel was driving. I was asleep.
I woke up just as we left the road. I’m
in the cattle feeding business down at
Mesa. He’s my partner. We'd been over
to Safford on a deal. My name’s Black-
burn, C. J. Blackburn.”

See if you

Wheeler pulled up in front of the min- .

ing company hospital in Globe, helped
Blackburn out of the car and then rushed
inside to get assistance.

ey were too late.,
was dead.

Miguel Bernal

A doctor stitched up Blackburn’s face

and put his injured arm in a sling. Sher-
iff Alf Edwards of Gila County was noti-
fied. The sheriff told Wheeler he would
be wanted at the inquest the following
morning. Then he turned to Blackburn.

“You better get to bed somewhere,”
he said kindly. “Looks like you could

Blackburn nodded. The tragedy of his

on May 20; 19276

bright glow -

beneath the running board.and -

carried him up the bank —

A 10 O’CLOCK on the night of No-
vember 4, 1925, Sheriff Alf Edwards
put through a long distance telephone
call to Homer C. Tate, sheriff of Graham
County at Safford. The fatal accident
had occurred 12 miles from Rice in Tate’s

territory.

Edwards explained what had hap-
pened and said that Coroner Dan Wil.
liamson of Globe would hold a formal
inquest the following morning. “T don’t
think there is any use taking the body
back to Safford,” he said. “The doctor
says Blackburn isn’t badly injured.”

“You go ahead with the inquest,” Tate
replied. “Seth Dodge and | will come
Over tomorrow and get things straight
for the record.”

Tate called Seth Dodge, his under-
sheriff, and explained the situation. “If
we leave here about 3 :30,” he said, “we'll

| eh EE SE
‘ ee nine

] ne pl. it... of speeding, pleaded guilty |
Brother Of Blackburn = 23235" =
| : | ie ik : | was fined $10.

: TI I f " | _SIMPLE ASSAULT CHARGED
u enman, arres
r esses ess charge of simple assault hype :

. by ‘Tom McGrath,

) . Sage _|ty yesterday before Justice Nat T./
or ig | § McKee and was released on his own |
recognizance to appear for trial at |

Still maintaining the remark-, corrected after punishment has 10 o'clock next Tuesday morning.
one, pastor of the able courage that held him up| been enforced. ha ori the| UNDELIVERED TELEGRAMS—
yg of Chi- through the intense strain of the/ terrible thing about it.” ' Undelivered ge ge were held at)
wreh hours. preceding his brother’s| He mentioned the newspaper|the office of the Western Union
¢ the outstanding| death and that carried him through] men who had been present at the Telegraph company last night for
Meters in the na-| the ordeal of the death chamber| prison, and stated that he was G. A. Moore and Ed Seiler. ,
ve the address and a the state prison, Wellingion| deeply appreciative of their cour-| ADMITTED TO STATE—The
tes gibiee ackburn, the one living brother | tesy, and the f ship that had| Hardware Mutual Casualty com-
ing of the stone. | of Charles J. Blackburn, who was| been shown him and his family.| pany of Wisconsin was admitted by
»w $450,000 edifice| executed yesterday morning for] “All thos? things helped us,” he/ the Corporation Commission yes-
, assumes greater| the murder of Miguel] Bernal, stat-/| said. terday to do business in the state.
the dreams of local ed early lastnight that although The officials at the prison also| The company under the permit is
proach nearer the tinis’ had been written on the| were very kind, he said, and had | authorized to write a general cas-
of establishing a last page of the closing chapter of| shown the family every coutesy | ualty business including plate glass,
the ever-increas-| his brother's life, there is no bit-| during the hours of. trial. automobile, workmen’s compensa-
/ and the services| terness in the hearts of the dead “Finis? has been written to] tion and other types of casualty in-
41) draw hundreds| ™an's family toward the law or| Charley’s life,” added Mr. Black- | surance.
ther with hundreds those who decreed his death. burn, “but for those of ts who WATER CONFERENCE HELD—
ted Phoenix citi-| “The many expressions of friend-| survive him, life must be carried) yohn F. Truesdell, superintendent
he second of the| ship,” he said “that have been ac-|0n. There is his family to think] of irrigation, United States interior
stepa. corded us during the trial of the| of—and his relatives. We must) department; Robert Denton of Casa
than two months| /ast few weeks, and the sympathy keep living, keep trying to rise| Grande, attorney for the Florence-
the first step was|#"d help extended during the fight] above the shadow the affair cast} Casa Grande Water Users’ -
ound was broken| t? save my brother's life—help| over our lives. We do not want tion; M. T. Clemens, president of
Today, the second coming from friends and strang- the family to suffer—forever—be- | the association, and ‘C. H. South-
fittingly observed| ¢'8, aiike-—they were the things| cause of the affair which ended | worth, one of the government ene
4 cornerstone will which made it possible for us to| today, and because—"Here, for the/ Bineers now at San Carlos, were
carry through until the end. first time during the interview, the| visitors yesterday at the office of

e t ve bd ‘

fi ene pi “I want to say that we are very | speaker's voice broke, and then|Capt. Edward A. Smith, assistant

a the’ building is! Srateful and appreciative of all he ended: “Because we loved | here to the United States attorney
this. I do not want anyone to Charley! general, in connection with progress

think that there is any bitterness|..272e younger brother also de-) on the San Carlos reclamation pro-
io sicie' this or prejudice or antagonism on our clared it was his love for Charles | ject.

part against those who have done Blackburn which prompted him to RETURNS TO INDIANA -— Dr.

walk by his side up 13 fatal stepS| a tnur L. Leeds, Michigan City,

be ....n ona tour). ¢neir dut
* y as they saw it. No
| a trip to Canyon| one can blame us fer doing every.| 24 stand within four feet of the/ y,qjana, has returned to his home

rtainment for the! thing we condemned hen th lows
possibly coudl to try and | Condemned man when the gallows | otter spending six months in Phoe-
4g ache who ts tikes Charley. And—after going eee * Peiiger rashapirs 4 gad nix at 233 East Monroe street. This
popular speakers ne Geax experience, and know-/ *"rng tapi A eternity. ,| was his first visit to Phoenix in 20
university gradua-| justice has been aoe ne an if- as heroic as the unflinching cour- =,"
large functions in ve an Bere Oe iN ine dee eetks | war Pacune w Ge eeacten ae
siddlewest, was a Pome ais: rgd n stated that he felt] burn walked to hig doom, wrote a Mc. and Mrs, FP. | H- rar ii of
wident Coolidge at po snag Ae the publicity given the| new page in the history of capital Globe, visited here yest 7
mn a leader in the anor ad been prejudicial to his punishment in Arizona, and prob- fore they left on @ trip which
om of. the aaiton brother's interests, on added that| aply of the United States D Hor will terminate at Ostend, Belgiu
ed ae a forceful if the facts had, dt times been| R, B, Sims, former warden ‘of the where the Rotary Interaate
Taaiteobing tha ad: presented in a different Might, that| prison, said yesterday that convention will be held next mon
a more favorable opinion on the| }, : yesterday that never; RETURN HOME—Mr. and

ciaes, he wW speak t before, so far as his knowledge
» be given in his part of the public would have re-| extended, had relative of H, H. Yoover, of Bistep.
| hy _ In . sulted, somlansad Hs bp ke yn who have been visiting here
asonic Tempje a hut Ya wet neg . peraca.” Vee S| several months, will leave ~this
y evening. mme-| eat do not mean to say by | execution. ; ‘morning for their home, planning
banquet, Dr, Stone agar that it was done deliberately. The strange situation was lent| to stop several days en route at
on Anacien, where Po Acca mean that. I recognize| heightened interest by the presence | the Grand Canyon . :
Sg engagement fer| 00 Stand that some of the papers) in ihe, donde aaaua of Black-| LEAVES FOR VISIT—Mre.
ing. and then to| anq ig en on capital punishment,| burn’s two _ brothers-in-la Joe | anna E. Meisman, 1807 North Sev-
where the Preaby- can understand why they| Maiers and W. H. Brundage. th tre ll le: |
ssemb! t maintain that it must be en- Standing before his hom Gath Ores Wil Teare Se for
igembly meets next! forced” They believe’ they, abe| Mean lems aha two hum GRAE | co naiceute “csi with will many
right.” wo Roum an extended visit with friends and
5 this evening will the execution, Blackburn attempted l&tiv
,this evening The subject led Mr. Blackburn | to trace his vari re viBITS she aa
cert by the India urn | to trace his varied emotions after VISITS FROM NEW YORK |

by ndian| into a short discussion of capital| spending the entire night with his mee
:30 o'clock, and the} punishment. He did not express| brother R. T. Kessemeier, connected with
pne exercises will) strong opposition to it. oT wae torn between. two abe [ae vores Lloyd company,
tk. Monroe street “In fact,” he sald, “if the situa-| tions,” the brother said. “One with headquarters in New | ¥@
and Fifth avenues| tion had ‘been reversed, and my| voice told me to go, the other | «'% J° visiting in Phoentz for
f by city police at} brother had been killed by some /| whispered to stay, twas advined few days in the ip
. safe and conven-! one else, and the guilty man was| by Warden White ‘not to enter the | company. Mr. Kessemeler
iace tar the many| on triak—I might feel difterently. | death chamber. He told me of the | 7S ® tour of the ee mire
ro + sted to at-| I do not know what my attitude | lasti ' ® | was influenced to come to Phos:
8. ything will| would be. f ordest, waa} vost the | nix to look over the come ercial
plans of the com- “But now, after the experience | Charley prevailed jin. the a | he possibilities here and ghout:
r short services to| I have undergone, I can only say| I couldn't leave, Regardless of the the valley. ual
ne banquet atw6:45/ that I cannot endorse capital pun-| effect-on me, I shall always be “© es
ishment I belfeve that there are| happy in the thought that I was 4
Rule, pastor of the| too many chances for error, and| with my brother, when the end
in charge of the| !f an error is made, it cannot be came.” °

will give the Scrip- decememeereos
4 prayer, W. 8.
‘ny of the tutlaine| BlackburnlsExecuted | °°? house 2 little atter 4 o'clock

rown open to pub-

ule, pastor of the
n charge of the
iN) give the Scrip-
prayer, W. 8.
of the tulilding
riefly outline the
rida and historical
be placed in the
ne Satine Che Mids
the ning, that
mal ir the in-
cendents possibly
hence, when the
finally crumbles
ighta of the ele-
asarily torn down
@ still more pre-

-ratone of the old
38 years ago no
ded,

cornerstone will
southwest corner
1, and will be ac-
descriptive plate
tion to its orl-
Boot

1 fontents of the
ik be a brief his-
. from 1878 to the
wsaof all pastors,
andi dencons; the
hip. Work accom-
xtenslion commit-
n list, and reports
departments and
the church,

fata gathered has
the fact that four
nal elders of the
» inatglied In that
re atilWtiving, they
hton, L. L. Plank,

J. C. Norton. Mr.
y fh Ider of the
aya me of the
fa { _oonly living

of the church and
in church work
owth In Phoentx.
night at the Ma-
pan to the public,
that reservations
efore noon today,
. Rule,
7 gram for this

by Indian

) elal cornerstone
ig. by Rev. Victor

stone,

. Rule.
t at Masonic

by Dr.

too many chances for error, and
if an error is made, it cannot be

with. my brother when the end
came.” . °

soot —

Blackburn! sExecuted
At Florence For Death

Of Miguel Bernal

(Continued from Page Two)

just beyond this waiting door, the
13 steps leading up and, for Black-
burn, out beyond the prison to
eternity.

Four o'clock found Warden White
{in his office in the administration
bullding, patently nervous, as the
guests in the room had become.
They found chairs, and sat down
to walt:

Underneath the death chamber,
in a room on the same level as the
cell in which Blackburn sat, @
giassed-frame waited; waited for
another picture, another history,
another noose. a a8

For in this frame, hung on a wall
just below the ceiling, is the record
of every man who had been hanged
in the state prison ,together with
his picture and that portion of the
hemp rope which was about the
neck of each man when he dropped
through the trap to his death.

Nineteen pictures, nineteen rec-
ords and 19 nooses are in that frame.
Blackburn's picture, and noose, and
the record of the bill in crime which
his death pald, today will make the
L0th exhibit in that gruesome reg-
ister of death.

The room above, the death cham-
ber itself, was still. No one was
in the room—had been in the room
or would be there until the mom-
ent Blackburn walked up the 13
steps which led there. The room
at 4 o'clock was a perfect blank.
There was no article of furniture.
The four walls, broken only in two
places with windows but a foot
square, the floor and the celling
were the game dull almost-khaki
color of the cement which forms
the building.

Nothing else was
ordinary brown-pape ack, inno-
cent as only a clean bit of\paper can
be, but hiding in its folds, the al-
ready prepared noose.

As 4 o'clock neared, more and
more guards appeared in the ad-
ministration building. As the hour

‘sible but an

‘passed, these guards went to sta-

tions in various parts of the pri-
gon enclosure.

Guards at every point were dou-
bled. Many of them entered the
tunnel, which leads from the ad-
ministration building to the smoke-
stack of the power house, where
every bit of the prison yard can be
seen, They passed the steel-barred
door which closed the entrance of
the tunnel, It closed behind them
with hardly a sound,

Down ‘the passage they walked,
almost in marching order, the bril-
liant electric lights strung along the
tunnel casting ,monstreus and fit-
ful shadows in wabbling and’ dis-
torted shapes, sometimes behind,
sometimes before them, ‘

Shadows were cast, too, tm the
death house and in the very de

chamber itself, though here it Was

the final shadow of death wh
in wait,
In The Shadow Of Deat

se MOO HEE SA AS A RS RMAC SRNR: ite 5 F.

death house a little after 4 o’clock
when first one person, then another
went into Blackburn's cell. By 4:15
a. m. there were eight per-
sons there. Beside the quartet
which had talked through the night
there was Warden White, who had
left the ever-growing group in his
office: Deputy Warden French, C.
W. Lillywhite of Mega, a very close
friend of Blackburn who had ar-
rived at the prison at 3:15 a. im.
and had been admitted to the con-
demned man’s cell immediately; and
Rev. Walter Hoffman, chaplain cf
the prison. ¢

Hoffman had volunteered to try
to cotnfort Blackburn in his last
hours, early last evening, but the
latter had made no reply to the
proffer until early in,the morning.
Then, with an impliéd mutual ag-
reement between the chaplain and
the prisoner, the former went into
the death cell and joined the group
whose murmurs had increased -in
volume as newcomers joined the
group. =
Nearly Two Score Present

Nearly 40 persons had assembled
in the Warden's office by 4:15
a. m. and many of them lacking
chairs, groups stood about convers-
ing half-heartedly and now and then
offering a brief comment on the
hour to come.

In the group were nine news-
paper men, representatives of most
of the daily newspapers in the state.
Blackburn's attitude still remained
one of sure serenity as 4:30 a,
m. was passed. He talked calmly,
and listened quietly to the words of
the other men.

The two brothers-in-law at mid-
night had requested, in a hesitant
manner, to be allowed to witness the
final grim spectacle in the death
chamber. The Warden was dis-
cussing the advisability of their
presence in whispers, a few. fest
distant from Blackburn, seated on
the edge of his cot.

estlessness Increases

The restlessness of the prisoners
increased rapidly as the: hours
passed, and as the minute hand of
the clock started its all-too-switt
climb toward the fatal hour, there
was a distinct current of
sweeping through the cell blocks.

Included among those prison-
ers was William Faltin, himeet#
sentenced to die 13 years °
In the 13 years he has waited |
for his own last moment, Falt
has seen 14 men pass theirs.
He has been a cell inmateiwhile
all but five of the men who have
been hanged in the prison have
pk up those 13 steps to the
Janovich and Johnson, who yes-

terday morning were eaaven P sow

the death house, felt a deeper
shadow cast its gloom over them as

5 o'clock neared. Only appeala to

ivilss Wren Fiunity
Is Presented In
Graduate Recital

A large and appreciative audience
heard Miss Wren Finity in a grad-
uation recital at the Arizona School
of Music last night. Miss Finity
was assisted on the program by
Frank Russell, baritone. She was
presented in recital by Orley Iles,
piano instructor at the Arizona
School of Music, under whom she
has studied for some time. The per-
formance of Miss Finity was that
of the artist, and her mastery of the
instrument upon which she has
chosen to express her artistic abil=]
ities was clearly demonstr
through the playing of the works of
the old masters.

Her program covered a_ wide
range, jumping from selections of
Bach, Beethoven, Brahms, Chopin
and Liszt of the old school to selec-
tions of the more modern composers,
Debussy, Juon and Godowsky of the
new school.

Miss Finity opened her program
with three numbers, “Fantasie in
G. Minor” by Bach, “Andante in F
Major” by Beethoven, and “Rhap-
sody in G. Minor” by Brahms. She
played thrée numbers from Chopin
including the “Polonaise in E flat
minor,” and one number each of
Juon, Godowsky and Debussy, clos-
ing her program with the very dif-
ficult “Hungarian Rhapsody, No.

om = meme ooo

—

the Supreme court of the State
has prevented them from taking
that short walk to the gallows
months ago.

Five other condemned men who
have been sentenced to die were
in the prison as Blackburn's last
hour rapidly diminished to precious
moments. They are: : Gee King
Long, 30; Jew Har, 30; Shew Thin,
23; B, W. L. Sam, 27 and Thorg
Lung, 18, with the impassiveness

of their race they were, perhaps,
the most stocially calm humans who
waited this morning for one among

them to pass on. |

cuneuuaaein -
a ‘

BOR ae

‘

Pride ve NIN
Wacpcdvds A C OCRAT

a ee a)

ae
get to Rice at sunup.”
“I'll be ready,” Dodge ul
Sheriff Homer Tate was a careful man.

According to Alf Edwards’ version of the -

story, there was little to be done now.
Dan Williamson would take care of the
legal necessities of the inquest. But a

human life had been. lost and Tate felt

it was incumbent upon him to make an
investigation.

At 8 o'clock the following morning
Coroner Dan Williamson convened his
jury in Globe to view the remains and
hear the story. Blackburn’s position of
importance as a’ big-time cattle feeder
in the Salt River Valley had attracted
a considerable crowd.

Ike Wheeler repeated the story of his

THE TWO MEN fought furiously,

and unknown to either of them, a pair

of inscrutable eyes was witnessing

every move they made} (Photo por-

traying scene is posed by professional
models.)

own narrow escape on the curve and paid
tribute to Blackburn’s courage by telling
how the big man had ignored. his own
injuries in his anxiety over his employe.

With ithe dignity of its official voice, the
coroner’s jury decreed that Miguel Ber-
nal, 31, had come to his death as the re-
sult of an unavoidable accident. Unofh-
cially, the jury expressed its sympathy

' to. Blackburn and congratulated him on

his narrow escape.
. At about the time Coroner Dan Wil-
liamson was receiving the verdict in

Globe, Sheriff Homer Tate and Under-

sheriff Seth Dodge were beginning what
promised to be a routine investigation at
the scene of the accident. The Ford
touring car was still in the ditch. From

its position the physical facts, or at least
the conclusion of | that accident, was
obvious.

“Probably swung too wide On that last
turn,” Tate said. “Trying to get it
straightened out when he went over.”

Dodge nodded.

“We'll look around some and then go
on into Globe.”

“Who. was driving ?”

- “The fellow who got killed. Why do
you ask?”

“Struck me as queer he went off on
this side,” Dodge replied. “If he had
been going fast he’d gone off on the
right side up there.” The undersheriff
pointed to the sharp turn just behind
them. “If he got around that. one he’d

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agent tells me there are lots of them written.
We can’t find where Blackburn actually
needs the money, but $20,000 is enough to
tempt lots of men.” >

Tate thanked LaPrade for his ‘informa-
tion, -put down the phone and turned to
Edwards. “Bernal had his insurance made
out to Blackburn,” he said. “It paid double
in case of accidental death.”

Tate, Edwards and Dodge questioned
Wheeler again. The traveling salesman was
positive that Bernal had been alive when
they picked him up. Wheeler recalled that
Blackburn had ridden into Globe with his
left arm over the back of the Buick’s front
seat. “I thought at the time he was trying
to hold the fellow’s head up, cushion ‘it
against the bumps.”

Tate smiled grimly. ‘You've given us the
answer, Wheeler. Blackburn finished his
job of murder as he rode into town with you.
He strangled Bernal right behind your
back !” ;

Tate telephoned County Attorney Jesse
Udall at Safford and made arrangements to
secure a telegraphic warrant for Blackburn’s
arrest on a charge of murder. “3%

At 5:30 on the afternoon of November 7,
1925, three days after the tragedy on the
highway, Sheriff Tate and Seth Dodge again
presented themselves at Blackburn’s home
in Mesa. The big rancher expressed sur-
prise at their return visit.

“You can leave out the small talk,” Tate
said. “I’ve got a warrant for your arrest.
The charge is murder.” ;

Fight hours later, C. J. Blackburn was
safely lodged in the Graham County jail.

Tate and Dodge wisely refused to reveal
the extent of their evidence against the Mesa
farm operator until the day of the prelim-
inary hearing before Justice of the Peace
Horace Walker on November 10.

‘I. A. Jennings, an able lawyer from Phoe-
nix, appeared to represent Blackburn.

Prosecutor Jesse Udall called Tate and
Dodge to the stand to describe the wheel
tracks. Then the State presented the story
of Eye One and his wife.

In the cross-examination, Jennings tried
desperately to force the Indian to admit that
what had happened was a fist fight with his
client acting. only in self-defense.

Prosecutor Udall’s next’ move counter-
acted the effect of Jenning’s manipulations.
The state introduced evidence of the in-
surance policy. Arthur LaPrade had con-
ducted his investigation on a thorough basis.
Udall presented as evidence life insurance
policies, each with a principal sum of ten
thousand dollars and each containing. the
double indemnity clause for accidental death.
In addition, there was one five-thousand-dol-
lar straight life policy. The death of Miguel
Bernal, had it been an accident, would have
enriched the accused killer by $105,000!

“Here,” Udall said, “was the true mo-
tive for the murder.”

Blackburn was held for trial in the Su-
perior Court without bail.

In December, the prosperous Mesa
rancher was tried before Judge W. R. Cham-
bers in Safford. Despite the brilliant de-
fense presented by Jennings, the jury
promptly found Blackburn guilty of mur-
der in the first degree. ,

In a desperate attempt ‘to save his client’s
life, Jennings carried an appeal to the Ari-
zona Supreme Court.

The appeal was denied. Jennings tried a
second time, and again he lost. On May
20, 1927, Blackburn mounted the 13 steps
to the gallows to die in a hangman’s noose
for his crafty murder of Miguel Bernal.

Blackburn enjoyed no profit from his
hideous crime. The $105,000 of insurance
which he had carried on Bernal’s life was
cancelled by the various companies. Legally,
no beneficiary may receive a payment or
benefit from:a loss protected by insurance

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jot of territory. About all we have now
is suspicion.”

“You want to quit ?”

“Not exactly,” Tate smiled, “but we’d
yest be sure of our facts before we go
up against Blackburn. If that Ford was
deliberately turned into the ditch, we
better start figuring Bernal was dead at
the time.” . ie es

“Why ?”
' “Because he would have jumped out
otherwise.”

“What are your plans?” ~

“I want to talk to that salesman. He
saw Blackburn right after it happened.
If there: is anything phony, he should
have noticed. Then we'll go down to
Mesa and nose around. Alf Edwards was
saying the truth when he claimed we'd
need more than a set of tire marks for
a murder charge. If we can find any rea-
son why Blackburn might have wanted
to get rid of Bernal, find out where they
had a fight or any business troubles, we'll
know we’re on the right track. If we
can’t, we better shut up before we get
ourselves in trouble and maybe cause an

innocent man a lot of unnecessary grief.” —

Dodge nodded. ;

Tate apparentiy had nothing more to
say and the two Graham County officers
waited quietly for Wheeler to put in his
appearance. Why had the Ford backed
up? Why had -its driver turned delib-
erately to the drainage ditch? Was there
a possible explanation other than murder ?

Tate tried to imagine what might have
happened, but there were too many: un-
known quantities, too many loose threads,
to permit the establishment of any defi-
nite theory. :

At 12:15 Ike Wheeler came in and the
hotel clerk’ brought him over to the offi-
cers.

“Sit down, son, and tell us just what
happened out there so far as you know,”
Tate said when the introductions were
completed. -

Wheeler had a memory for details. He
told his story slowly and carefully, leav-

ing out nothing, adding nothing. He had

almost come to grief on that curve him-
self. The Ford had been upside down
when he first saw it, but the wheels were
still turning. That fact led him to be-
lieve the accident must have happened
less than a minute before he rounded the
corner.

Blackburn had been nervous and up-
set. Any man would be. But the big
rancher’s first concern had been for the
welfare of his traveling companion. He
described their difficulties dragging the
injured man from beneath the wrecked
Ford.

“He was dead when you pulled him
out?” Tate asked.

“No, he was still breathing. We put
him in the back seat of my car. Black-
burn got in beside me. He kept asking
me to hurry. Every now and then he
would turn on the dome light to see how
his friend was.”

“You’ve told us a good story,” Tate
said. “It may be some help. There is
One question I want to ask.. Did you look
at this fellow’s face when you pulled him
out ?”

“Yes, why?”

“Was there blood on it?”

“Quite a bit of blood.”

“What color was it?”
“Why, red, I guess.
was dark. I didn’t notice particularly.

I saw he was bleeding.”
“You don’t remember whether or. not
it was bright pink?” ~
“T couldn’t be sure. What difference
does it make ?”

“Well, there are some things make us .

think maybe Bernal was hurt before the
car went over into the ditch. A healthy
man’s blood turns brown pretty fast in
this desert country. I hoped you might
remember, but thanks, anyway. When
you leave here, give-the clerk your next
address. We might want- you to testify
sometime.”

Wheeler said he, would, and left.

“He didn’t help us much,” Dodge com-
mented. “Blackburn certainly impressed
him as being sincere in his concern over
Bernal’s injuries.” ios

Tate cleared his throat, a sound which
might mean either yes or no. “Looks like
maybe we better go on to Mesa,” he said.

Their preliminary investigation in the
little Mormon agricultural community 16
miles east of Phoenix revealed only that
Blackburn was liked and respected. He
was considered by his fellow townspeople
to be a wealthy man, and he was engaged
in farming a considerable number of

_ acres under the Salt River Water Users

Reclamation Project. He was married
and had two children. ‘

Miguel Bernal was also well known
in Mesa. He was considered a good
farmer. A widower with three baby
girls, Bernal had been a foreman on one
of Blackburn’s farms. His accidental
death had saddened the community.

Tate and Dodge talked with the con-
stable, a priest, the local banker, and the
operator of the city’s most popular drug
store to gather this information.

No one had ever heard of any quar-
rel between Blackburn and the dead man,
and it was generally conceded that Black-
burn might have difficulty finding a com-
petent man to take Bernal’s place.

“Looks like we might have come on
a wild goose chase,” Dodge said when
the two officers were back in the sheriff’s
car. “Maybe we ought to go out and get
Blackburn’s story.” —

“Wouldn’t do any harm,” Tate agreed.

- Blackburn greeted the two Graham
County officers with what Tate classified
as just the proper degree of restraint
for a man who had lost a friend and a
good employe by tragic circumstances.

“He must have gone to sleep,” Black-

burn said. . “I only wish to God I’d kept .

the wheel, but he was a good driver and
had been over the road many times
before.”

“Pretty hard on his motherless kids,”
Tate observed sympathetically.

“Oh, we'll take care of them,” the big
rancher replied. ‘I’m not a wealthy man,
but I told Mrs. Blackburn this evening
that we’d see those girls through school.”

“Did he leave any insurance or any
money ?” :

For just a moment, Blackburn _hesi-
tated. “Why, he has a small interest in
some of my dairy cows. Most of it I gave
him as a bonus. Don’t know what it
would amount to in cash. I had an idea
I'd build up the herd and try and increase
it for those kids. I don’t know anything

Blood ‘color. » It

about his insurance.”
“That's a mighty generous thing for

, you to do,” Dodge observed.

The big rancher shrugged his shoul-
ders in a gesture of deprecation. “Well,
in a way I feel responsible. He was
working for me. I took him on that
trip.”
brown eyes surveyed the sheriff specu-
latively. “Tell me, isn’t it a little unusual
for the sheriff and his chief assistant to
come so far to investigate an automobile
accident ?”

“Well, yes, it is,” Tate replied. With-
out amplifying his flat answer, he turned
to Dodge. “Guess we better be moving,
Seth.” He led the way back to the car.

ATE DROVE BACK into the busi-
ness section, went into the drug store

and put through a long distance telephone

call to Alf Edwards in Globe. :

“J was hoping you'd call,” Edwards
said. “You and Seth are on the right
track. Bernal had a minor skull frac-
ture and some bruises. He died of stran-
gulation.”

“What?” Tate roared.

“That’s right. He was choked to
death.”’ : =

“Have you told anyone.” — xg

“No.”

“Well, don’t until you hear from me.
Get hold of Wheeler and tell him not
to.leave town.” o
- They were in the car racing for Phoe-
nix before Tate told Dodge what he
had learned. ‘Remember, Wheeler said
Bernal was alive when they put him in
the Buick. Blackburn must have choked
him to death on the ride into town.”

“How could he do that?”

““Wouldn’t be too difficult for him to
reach over. Wheeler would know.”

The horrible significance of the autopsy
report had a depressing effect on both
men. What limit was there to man’s
hypocrisy? Less than an hour ago they
had heard Blackburn express grief over
Bernal’s death, heard him tenderly dedi-
cate his own resources to the service of
his foreman’s orphaned children.

What was the evidence? First the
tread marks, then Wheeler’s story, a story
which had been to Blackburn’s credit
until now. But why? What powerful
lust or greed or combination of emotions
had driven Blackburn to that cold-blooded
destruction of his friend and employe?
And how were they going to prove it?

In Phoenix they contacted Maricopa
County Attorney Arthur T. LaPrade.
“Blackburn seems to be a big man in
Mesa,” Tate said. “For all I know he
is a friend of yours. We haven’t found
anything to even suggest the motive yet.
That’s where I think you can help us.”

LaPrade, a courageous young prose-
cutor,
“What do you want me to do?”

“Dig into Blackburn’s past. Your in-
vestigators know the territory and the
people. They can find out more in a day
than we could in a week. According to
him, Bernal was sort of a limited partner
in their dairy operations. I want to know

the truth. I’d also like to know if Bernal .

had any life insurance. When we go into

court, we're going to tell the jury why

he did it as well as how he did it.”

“Tl call my (Continued on page 56) 7s

Then for a moment his deep ©

promptly promised cooperation.

vif ag

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(Continued from page 27)

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You'll be here for a day or two?”

“No, we’re going back to Globe.
to talk to that doctor.”

It was past midnight when Dodge and
Tate reached Globe. After breakfast on the
following morning they went to see Sheriff
Edwards.

“T’ve got another surprise for you,” Ed-
wards told them. “We've got an eyewit-
ness, an Apache Indian. When I realized you
fellows were on the right track, that it was
murder, I figured there was a "good chance
somebody on the reservation might have seen
it, and, sure enough, the Indian police dug
up a ‘brave and his wife and two children.

“About sundown they saw this Ford stop
on the highway. Two men got out and started
to fight. This brave said he was too far away
to see who started it. The little fellow.seemed
to be having the best of it for a while, then
the big man knocked him down.

“The Indian says the big man picked up a
rock and struck the little fellow, hit him
two or three times on the head. By this
time it was too late for the Indian to inter-
fere. Then the big man put the other fellow’s
body in the Ford, backed up, pointed the
car into the ditch and stepped off the running
board. .His wife says the same thing. :

AS EDWARDS FINISHED talking the

telephone rang. He answered it and
then held the instrument out to Tate. “It’s
for you, Homer.”

“This is LaPrade in Phoenix,” a man’s
voice said. “I think we’ve found what you
want. Seven months ago Bernal took out
a $10,000 double indemnity life insurance
policy, naming Blackburn as beneficiary. It’s
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plicit Se ladle da

ON THIS LONELY, twisting mountain highway, C. J. Blackburn (inset) was only
i inj his partner, Miguel Bernal, over.

be on the

right side of the road, and if

he was skidding, that would still put him
down the -right.”

Tate shifted the

Stered .45
driving at,

weight of the hol-
on his hip. “What are you
Seth?” ;

“Tt looks like a queer accident to me,

sheriff,

Get in the car a minute and T'll

show you what I mean.” _
Dodge backed the sheriff’s car for

nearly 300

gear and pressed
floor board. He

middle of -
began to

F wheel and,

_the skid, i
across the
across the

a . the car to
yards east

“That’s what I mean,” he said.

Then he put it in low
the accelerator to the
took the curve in the
the road.
slide, he ,jerked the steering
when the car came out of
t was headed almost Straight
road. Its radiator pointed
drainage ditch. Dodge braked
a stop. They were nearly 50
of the Ford. :

yards.

“The

Ford should have gone straight into the
ditch and gone into it here.”

Tate rub

Dodge right?
predict the outcome of a skid ?

bed his chin thoughtfully. Was
How accurately could you
Would

the light Ford touring react in the same
pattern Dodge had set with the sheriff’s

Cadillac?

Dodge put the car

in gear again and

moved it out of the middle of the road.

jo the brink of the gully.

@::: Tate climbed down he walked over

The tracks left by the Ford tires were

plain.

The car had eased off the road
at a diagonal

pattern. Suddenly the

sheriff dropped to one knee.

omer
26 cattle rang

Tate had grown up on the’

es. He had learned to follow

and died en

logic.

When the wheels -

route to a. hospital.

\
‘

tracks and read signs at about the age
when most boys are discovering Robinson
Crusoe. For a moment he was speechless
in the face of the horrible accusation his
eyes had read in the firm-packed surface
of the highway. ee

The tracks argued with irrefutable
There was no other explanation.
The Ford had backed up from a parking
place at the crest of the drainage ditch,
backed up for a distance of perhaps eight
yards. When it rolled forward again,

the tracks curved over the Precipitous

shoulder of the highway. +

The Ford had been deliberately turned
into the ditch. |

‘Tate turned to Dodge. “What do you
make of these tread marks ?”

The. undersheriff took one glance.
Then he whistled. softly. “You sure the
man who died was driving ?”

Tate and Dodge went to work with
grim purpose then. They covered every
inch of ground for 100 yards in either
direction. They rolled the Ford aside to
make a careful inspection of the damaged
car. They found a jagged rock with bits
of blood and a few wisps of human hair,
and that was all.

What did it mean? Who was Black-
burn? What was_his telationship with
the dead man? What was the truth be-
hind Bernal’s death? If the Ford had
been deliberately turned into the ditch,

_what had happened ‘ was certainly no

accident. What was the Significance of
that jagged rock with its blood and hair ?

Could they be wrong? Dodge and
Homer Tate studied those tracks again.
The tread was plain and unmistakable.

toward Globe, the

-way.
-erately turned into the ditch, how are

ised grimly,

‘Tate replied.

County was positive of oO
burn’s story of the accident as related by
Sheriff Edwards over the telephone the
Previous evening was not true..

ago.” ..,:
Why?”

I’m not so sure

the verdict.
him ‘in is still here. He’s over. at the
O. D. It must have been an accident.

This fellow Bernal was driving.”

“What you mean is, Blackburn says he 7

was driving,” Deputy Dodge amended.
. “Well,
plied dryly. “He ought to know. Black-
burn is a pretty big man.
important connections. If he says Bernal
was driving, that’s good enough for me:
What's got you so worked up, Homer ?”

Methodically Sheriff Tate sketched in
details of what he and Seth ‘Dodge had
discovered. ae =
~ When Tate had finished, Edwards nod-
ded slowly. “I'll admit it looks queer,
Homer, but if you’re going to’ charge
Blackburn with murder you'll have to
have more than tread marks on the high-
If you think the Ford was delib-

you going to explain Bernal’s injuries ?”
“T have in mind asking your doctor
here to do a post-mortem. There is no
hurry on it. Blackburn’s gone and we
can find him when we want him. Right
now I’m more interested in discovering
why he killed Bernal than how he killed
him.” - ;
“I'll get the company doctor to make

an autopsy,” Sheriff Edwards said, “but
“it’s. on your. responsibility, and I’ go
“mighty slow if I

were you.
isn’t the kind of man who will stand for

_any monkey business, and you can’t take

those tracks into court.”
“When we. get to court,”
“we'll have

Tate prom-
more than
tracks.” Be

Edwards was still shaking his head
as Tate and Dodge rounded the corner

into Main Street and headed for the Old

Dominion Hotel.

In response to Tate’s query, the hotel
clerk .reported that Wheeler was out.
“Said he'd be back around noon.”

“We'll just sit down in the lobby, here,”
“When he comes in you
tell him the sheriff of Graham County
wants to see him.” .- :

_The sudden respect in the clerk’s voice
when he answered indicated his acquaint-

-ance with Homer Tate’s reputation. “Yes,
sir, Dll do that, Mr. Tate.” a

Dodge took a chair’ near the front
window, and Tate tugged a rocker around
where he could face his undersheriff.
“We might be trying to-run the wrong

brand on this, Seth. Murder takes in a

é County courthouse.’
.“Didn’t expect you so soon,”

“Because °
it was an accident. -
‘Where’s Blackburn?” __

“Left for Mesa on the stage right after -
That salesman who brought —

he was there,” Edwards re-

Has some

Blackburn .

Child’s Killer Is Executed

FLORENCE, Ariz., June 19 (Reu-
ters) — A man was executed by
lethal injection here early today for
the kidnapping and murder of a 2-
year-old girl.

The condemned prisoner, Daren
Lee Bolton, a 29-year-old habitual
sex offender, had consistently main-
tained his innocence but shunned all
appeals, saying he would rather die
than spend the rest of his life behind
bars.

Mr. Bolton was sentenced to death
in 1993 after being found guilty of
kidnapping and murdering the little
girl, Zosha Lee Pickett, seven years
earlier. Zosha had been abducted
from her bedroom at her Tucson
home, taken to an abandoned taxicab
two blocks away, raped and then
Stabbed and left to die.

The prisoner was executed shortly
after midnight in the death house of
the state prison compiex here about
60 miles southeast of Phoenix.

At his death, he was awaiting trial
in the murder of another young girl.

Mei York Tires
bf2of tb page AE

Se Ree
Ae erent

oan
Deis ey

Refuses to fight for his life

By William Hermann
Staff writer

Daren Lee Bolton gave 2-year-old
Zosha Lee Pickett no choice when
he murdered her. But early Wednes-
day, the state will give Bolton the
choice of living or dying.

“Even at the moment before the
plunger goes down to pump the
chemicals into his system, he can
stop it,” said Department of Correc-
tions Director ‘erry Stewart, re-
ferring to Bolton’s execution by
lethal injection at Arizona State

Prison at Florence. “We will have

someone right beside him when he
is strapped to that table, and if he
says he wants to appeal, we stop the
execution right then.”

Arizona law requires that all
death sentences automatically be
appealed to the state Supreme
Court. That court upheld Botton’s
conviction in 1995, But Bolton, 29,
hasn’t fought for his life and says he
won’t appeal his sentence.

On Sunday he remained adamant
about dying. He sat in his cell on
death row and chatted pleasantly
with the prison chaplain.

“Looks like he hasn’t got a care
in the world,” a detention officer
commented.

Bolton was convicted in 1992 of
kidnapping and slaying Zosha Lee
Pickett of ‘Tucson in 1986. Au-
thorities believe Bolton also. kid-

napped and killed Cathy Fritz, 7, of
Tucson in 1982, and have since

charged Bolton with that crime.

The girls’ families lived within
blocks of each other near East
Speedway and North Dodge boule-
vards, and Bolton lived a few blocks
away.

Cathy disappeared while playing
outside about the same time a “Take
Back the Night” anti-crime march
was passing on the street. Her body
was found the next morning in a
narrow space between two neizh-
borhood buildings. She had been

Daren Lee
Bolton /

He hasn’t fought
for his life and
says he won’t
appeal his sen-
tence.

beaten, stabbed and sexually mo-
lested.

Zosha was abducted through her
bedroom window, which had been
pried open while her parents slept
nearby. The girl’s body was found
four days later in an abandoned
vehicle not far from her home. She
had been stabbed in the chest in an
attack thought to be sexually moti-
vated.

The Fritz family still lives in
Tucson, but Zosha’s parents moved
to Phoenix and later divorced.
Zosha’s mother moved to New
Mexico and remarried. Allen Pickett
also remarried and _ still lives in
Phoenix.

“All these years I’ve said I can’t
wait for this to happen,” Pickett
said. “Now, I don’t know how I feel
about it. It does bring the whole sad
thing to an end, But it doesn't bring
Zosha back.”

His ambivalence about the execu-
tion doesn’t extend to Bolton.

“I know this is due Justice,”
Pickett said. “I have no doubts this
is the man.”

But Bolton swears his innocence.

At his trial, Bolton testified that ”

he and a man named Phil had tried
to burglarize the Pickett house, and
that Phil later admitted he went
back and abducted and killed Zosha.

Bolton testified that he then
killed Phil and buried his body in
the desert. No body ever was found.

~~ See MURDERER, page B2

PUBLIC

ARIZONA RE

)
4,

THE

VOU Bedy CAB wee weeeremr

Arizona (- (V- ql

— Daren Bolton, 29,
acting as his own lawyer, dropped
his appeals and says he won't fight
his Wednesday execution.

ALSO WEDNESDAY .. .

ne)
WN 17-day science mission, set to be the longest ever.
aN}
(Xt

(lo
im
|. ap one

veo~
~ ~

FLORENCE, Ariz.

Rapist-murderer executed

A man who refused to appeal his death sen-
tence for murdering and raping a 2-year-old girl
in 1986 was executed by injection early yester-
day as the victim’s parents watched.

Daren Lee Bolton, 29, had no final words.

Bolton was sentenced to death in 1993 in the

_ murder of Zosha Lee Pickett, who was kid-

| napped from her Tucson home in June 1986,

| then raped, stabbed and left to die in an aban-
doned taxi a few blocks away.

Man gets life in slayings

A man who gunned down his pregnant mail-
order bride from the Philippines and two of her
friends at a courthouse will spend the rest of his
life in prison because his jury couldn’t agree on

—AUR 6-20-76
Shon Diego CA
: Union JR buwe

the death penalty.

The jurors who convicted Timothy Craig
Blackwell, 48, said they couldn’t reach the re-
\. quired unanimous decision to execute Blackwell

\ for the three March 1995 killings.

> SHUTTLE READY: Columbia was cleared for launch
from Cape Canaveral at 10:49 a.m. ET, but forecasters ex-
pect only a 40% chance of favorable weather to begin the

’ >» EXECUTION: Daren Bolton, 29, was put to death by
injection in Arizona for the 1986 abduction, rape and stab-
bing death of Zosha Pickett, 2, in Tucson. He had dropped
appeals and was to be tried in September in the 1982 ab-
NS duction, sexual assault and slaying of Cathy Fritz, 7.

Siig ENS aupeel

: ee MURDERER, from page BI |

i sh

eg FS re
en

Murderer

Sy oys s
han galit i

«Bolton, who was not originally

_ Suspected in.

_ , found by chance in 1990, when
- Tilinois authorities ‘began using a new
;, computerized - fingerprint-indexing

_ SVMOM. ee

a: i At the time,

either homicide, was

¥ Illinois authorities, during a train-

ing session for State Police Officers,

Bolton was serving a |
~.15%-year term in Arizona on a 1988
- conviction’ :for kidnapping, sexual
, abuse and indecent exposure.’ :

home and in the abandoned vehicle
where Zosha’s body was found.
Tucson police had sent the prints to

police departments nationwide in’
_1986. Illinois had Bolton’s prints on
‘file because of assault convictions in

1984 and 1985 in Champaign. But the
match wasn’t made until Illinois
bought a computer that could -do

_ high-speed comparisons of thousands

of fingerprints.
Authorities say DNA tests prove

ants execution

_ matched Bolton’s prints to those
found on a window -at the Pickett

everything,

]

Repub

that Bolton also was involved in
Cathy Fritz’s death, and he was
indicted in May 1995 for that murder.
Bolton was 16 at time of Cathy’s
death and a friend of one of her
brothers. He had visited her home on
the day she disappeared.

If the execution goes forward,
Bolton will be the fifth person to die
since Arizona resumed use of the
death penalty in 1992,

But some officials speculate that
Bolton’s apparent “death wish” is a
ruse,

“He had a trial date for June 17 for
the Cathy Fritz homicide,” said David
White of the Pima County Attorney’s
Office. “He has certainly delayed the
trial date by taking this stance on the
execution. If he changes his mind at
the last minute and decides to appeal
(the death sentence), that trial will be
months away.”

But Paul McMurdie of the Arizona
Attorney General’s Office said Bolton
is foolish if thinks he'll gain something
by an I1th-hour appeal.

“Because he has let the process go
so far, he has waived a lot of issues,”
McMurdie said. “For instance, he
can’t say he had ineffective assistance
of counsel. He has waived that claim.
However, Mr. Bolton could stop
right up to the last

moments,”

“

¢ October 1992 for the robbery
Kingman-area couple.

SH eyhre

Death-row appeal rejected by U.S. high court
WASHINGTON —— ‘The U.S. Supreme Court rejected without comment

- Monday the appeal of Arizona death-row inmate Robert W. Murray.

Murray and his younger brother, Roger, were sentenced to death in

and exccution-style slayings of an elderly

ares, ‘ ; .
y The Murray brothers, from Russellville, Ala., were given two death
penalties each for the May 1991 shooting deaths of Dean Morrison, 65, and
r Jacki Appelhans, 60, in Grasshopper Junction, 30 miles north of Kingman.
on celine.
.° CRIME/COURT ROUNDUP
B2__The Arizona Republic Tuesday, June 18, 1996, c MSerlal rapist Robert Kroncke has been sentenced to 3261; years in prison
, ‘for attacking teenage girls as they walked home from school. Kroncke is
*-' guaranteed to spend the rest of his life in prison. He showed no emotion when he
"1 was sentenced Friday by Judge Linda Scott of Maricopa County Superior Court. He
LAW & ORDER "was convicted in May of a two-week crime spree in 1994,
3 ‘MPolice were releasing few details Sunday about the slayings of an
‘ ‘Ahwatukee couple whose bodies were found in their home Saturday. “At this
C ; "point, everyone is a suspect” in the deaths of Palma and Brian Legg, 54 and 52,
‘ ati 7 hd @ 1® ". respectively, a Phoenix police spokesman said. .
lemency board turns down = =" —— Men 6-17-91
r) a | @ ® ——
| _ z feppl)c
. execution stay for child killer ~~ 4z fe philic
Bot ,
4+.°" FLORENCE —- The state Board of Executive Clemency unanimously
voted Monday against recommending a stay of execution for Daren Lee

were te es

‘ Bolton, who is to be executed Wednesday for the 1986 murder of a
_2-year-old girl.

Bolton, 29, did not attend the 45-minute hearing at the Arizona State

‘Prison. Two activists who oppose tl
Bolton, who has dropped his appeals
life in prison,

@ death penalty spoke in behalf of
and said he would prefer execution to

“We don't burn down the homes of those who commit arson. We don't

‘rape those who rape,” said Dr. Daniel E. Georges-Abcyie, state coordinator

‘for the Arizona chapter of Amnesty International,
“: The parents of Zosha Lee Pickett, the little girl Bolton Was convicted of

“stabbing to death in an abandoned

board.

axicab, made brief statements to the

The Arizona Republic

Wednesday, June 19, 1996

“A4

Killer of Tucson girl
prepared for execution

Associated Press

FLORENCE — Unless Daren Lee
Bolton had a last-minute change of
heart, he was scheduled to g0
willingly to his death early today for
the 1986 rape and murder of a
2-year-old Tucson girl.

Bolton had dropped his appeals and
was to be executed at 12:05 am. He
was acting as his own attorney.

The 29-year-old requested lasagna,
cheesecake and Pepsi for his last meal.
He invited only a clergyman to attend
his execution but requested that his
body be given to family members.

Bolton was sentenced to death in
1993 for the murder of Zosha Lee
Pickett. After a mandatory appeal to
the Arizona Supreme Court, Bolton

fired his attorneys and did nothing to 7

fight his death sentence.

However, he could change his mind
up until the very last moment. The
excculion was scheduled after press
time for this edition.

If executed, Bolton would be the
fifth person to be put to death in
Arizona since the state resumed
capital punishment in 1992.

830 Ariz.

. 182 Ariz, 290
STATE of Arizona, Appellee,

v.
Daren Lee BOLTON, Appellant.
No. CR-93-0086-AP.

Supreme Court of Arizona,
En Banc.

June 13, 19965.

Defendant was convicted in the Superior
Court, Pima County, No. CR-33385, William
L. Scholl, J., of kidnapping, burglary, and
first-degree felony murder for abduction and
killing of three-year-old girl, and sentenced
to death, Appeal was automatic. The Su-
preme Court, Moeller, V.C.J., held that: (1)
defendant did not prove that pretrial publici-
ty deprived him of fair trial so as to warrant
change of venue; (2) trial court’s error in
admitting expert testimony regarding phe-
nomenon that some child sex murderers try
to restore their victims was harmless; (3)
probative value of close-up photograph of
murder victim’s chest showing features of
stab wound outweighed its potential for prej-
udice; (4) aggravating factor at sentencing,
that murder was committed in especially hei-
nous, cruel, or depraved manner, was sup-
ported by findings of cruelty; and (5) defen-
dant did not establish that mitigating factor
of impaired capacity to conform conduct to
requirements of law as result of mental
health problems should have been considered
by sentencing court.

Affirmed.

1. Criminal Law @1028, 1030(2)

On appeal, Supreme Court will consider
matter not raised below only if it is matter of
fundamental error, even if matter is constitu-
tional issue.

2. Criminal Law 1028

Jusues that defendant did not raise at
trial did not present fundamental error, and
so Supreme Court would not consider them
on appeal,

896 PACIFIC REPORTER, 2d SERIES

3. Criminal Law 1178 jctors that defendant
Failure to argue claim ;
tutes waiver of that claim. 1139

Crim.Proc., Rule 31.13, sub .
ier trial court consid-

4. Criminal Law @1130(5ence at sentencing in

Issues defendant raisevourt reviews record
which he failed to providenine existence or ab-
ment for review did not presd mitigating circum-
error, and so were proced

My A.R.S. Rules Crim.Proc., 208.1(6)

g court did not place

5. Constitutional Law @%rs offered by defen-

Criminal Law @1130(3then explain reasons

Defendant was not de® them in imposing

by trial court order that he (gating evidence was

to 80-page limit, where dial court stated when

many of his pages on prechit considered all evi-

made no showing of extradrs sufficiently sub-

stances justifying deviati¢®¢y, and so remand
U.S.C.A. Const.Amend, 14; Warranted.

Crim.Proc., Rule 31.13, sul»

6. Criminal Law @1163(2'stablish that mitigat-

Ordinarily, juror expor*Pacity to conform
about offense does not itself Of law as result of
tion that offender was deni? Should have been

_ ig court in imposing
7. Criminal Law @126(1) agh psychologist who

To presume prejudice fnt four years before
licity, so as to warrant changurder at issue testi-
must find that publicity weeriously emotionally
prejudicial, and so pervasivenduct disorder unso-
not give any credibility to mpulse control prob-
during voir dire. » determined defen-

8 Crimine) Law @=126(2) "ii Presence st miti-
find any signs of

Pretrial publicity was nyqant’s unsupported
pervasive as to warrant pres ynder influence of
udice and so did not warranhot establish intoxi-
ue; all of reports regarding subd. G, par. 1
killing of child were factually ; _
information reported was re
reports from time of comminot sufficient to con-
which was more than six yanstunce to warrant
mentioned defendant by nualty following convie-
were so allenuated by passader. A.R.S. § 13-
they could not have render

0. Criminal Law &126(1) :08.1(5)

Where prejudice is notkground is relevant
pretrial publicity, defendant: to imposition pf
publicity probably deprived lant. can show that

Boffo execufepf

STATE v. BOLTON

Ariz. 835

Cite as 896 P.2d 830 (Ariz. 1995)

something in that background had effect or
impact on his behavior that was beyond his
control.

60. Homicide €357(4)

Defendant who was convicted of first-
degree murder did not prove that effect of
his abusive childhood on his behavior was
beyond his control so as to warrant consider-
ation of his family background as mitigating
circumstance in capital sentencing.

61. Homicide €357(4, 5)

Defendant’s young age of 19 years was
not mitigating factor at capital sentencing
following conviction for first-degree murder,
in light of fact that defendant had been incar-
cerated as juvenile for aggravated assault,
had prior felony conviction for aggravated
battery, and was awaiting trial for burglary
at time of murder, and fact that sequence
and duration of events on night of kidnap and
murder of victim showed deliberateness that
contradicted any claim of immature impul-
siveness. A.R.S. 13-703, subd. G, par. 5.

62. Homicide @357(3)

Despite defendant’s contention that he
was entitled to mitigating factor for not be-
ing able to reasonably foresee that his crimi-
nal gonduct would create grave risk of caus-
ing death, due to his alleged accomplice’s
return to scene at which they had planned to
commit burglary, and kidnapping and mur-
der of child victim by accomplice, jury found
that defendant kidnapped and stabbed vic-
tim, and so defendant should have foreseen
that that conduct would have created grave
risk of death. A.R.S. 13-703, subd. G, par. 4.

63. Homicide €=357(3), 358(3)

Absent finding beyond reasonable doubt,
that defendant killed, attempted to kill, or
intended to kill victim, punishment by death
is unconstitutional, U.S.C,A. Const. Amend,
8.

64. Homicide @357(3), 358(3)

Although jury found defendant guilty of
felony murder, and did not make Enmund
finding beyond reasonable doubt that defen-
dant killed, attempted to kill, or intended to
kill victim, death penalty was constitutional

jp June SFE —

since, given jury instructions, jury necessari-
ly found beyond reasonable doubt that defen-
dant himself killed victim. U.S.C.A. Const.
Amend. 8. ‘ '

65. Homicide 357(3)

Giving of felony-murder instruction is
mitigating circumstance at sentencing only
where there is some doubt as to defendant's
specific intent to kill; it is not relevant to
mitigation where defendant knew with sub-
stantial certainty that his conduct would
cause death.

66. Homicide €357(3)

Giving of felony-murder instruction was
not mitigating factor at sentencing where
defendant, who stabbed three-year-old victim
in chest and left her hidden in back of aban-
doned automobile, must have known that his
conduct would cause death.

67. Constitutional Law €270(2)

Criminal Law @1213.7

Statements of victim's parents were only
considered in connection with noncapital
counts, and so did not violate right to due
process, and right against infliction of cruel
and unusual punishment, of defendant who
was convicted of both capital and noncapital
offenses. U.S.C.A. Const.Amends. 8, 14.

Grant Woods, Atty. Gen., Phoenix by Paul
J. McMurdie, Chief Counsel, Criminal Ap-
peals Section, Eric J. Olsson, Asst. Atty.
Gen., for appellee.

Susan A. Kettlewell, Pima County Public
Defender, Tucson by Frank Leto, Deputy
Pima County Public Defender, Brian X. Met-
calf, Deputy Pima County Public Defender,
for appellant.

OPINION

MOELLER, Vice Chief Justice.

A Pima County jury convicted appellant
Daren Lee Bolton (defendant) of kidnapping,
burglary, and first degree felony murder for
the June 27, 1986, abduction and killing of a
three-year-old Tucson girl, The trial court
sentenced defendant to thirty-three years for
kidnapping, twenty years for burglary, and

ARIZon e_

pre

“© Unie court is automatic. See Ariz.R.Crim.P.

*; $1.2(b); Ariz.Rev.Stat.Ann. (A.R.S.) §§ 13-
4031, 13-4085 (1989). We affirm defendant's
convictions and sentences,'

FACTS

On the night of June 26, 1986, sometime

between 11:30 p.m. and 8:30 a.m., an intruder
entered the home of the three-year-old victim
and her parents and abducted the child while
she slept. He entered through the victim's
bedroom window. The victim's body was
discovered four days later in an old, inopera-
tive, English-style taxicab that the owner had
parked in a nearby storage lot. She had one
stab wound in her chest. Although the body
was clothed, her panties were found else-
where in the taxicab, and the shirt that cov-
ered her stab wound was untorn, indicating
that the offender may have disrobed the
victim, stabbed her, and then replaced her
clothing.

At both the victim's home and the aban-
doned taxicab, police investigators found fin-
ger and palm prints, later identified as defen-
dant’s. Also found in the taxi were the vic-
tim’s fingerprints, a pizza box, cigarette
butts, and a semen-stained adult sock.
Blood group substances contained in the se-
men stains are consistent with the victim’s
blood chemistry, but cannot be conclusively
traced to defendant, Investigators found
two shoe prints near the victim’s home and
two more near the taxicab. Three of them
appeared to match each other, but none has
ever been matched to any particular shoe.

After failing to match the fingerprints
found at the scenes to any known suspect,
Tucson police distributed fingerprint samples
to police agencies in other jurisdictions. In
November 1990, police in Illinois, using a
computer system not then available in Ari-
zona, identified a fingerprint found on the
victim’s window screen as belonging to defen-

1. The state contends that our jurisdiction is limit-
ed to the capital conviction and sentence because
defendant did not file a separate notice of appeal
for the noncapital convictions and sentences.
We disagree because when the trial judge or-
dered the clerk to file a notice of appeal, he did
not limit his order to the capital conviction and
sentence.’ Because defendant may have been led

dant, who was then incarcerated in Arizona
State Prison on an unrelated conviction. On
February 19, 1991, after further police inves-
tigation, the Pima County Grand Jury indict-
ed defendant for the three charges for which
he was convicted.

At trial, the prosecution relied largely on
physical evidence, particularly fingerprints.
Defendant, who testified on his own behalf,
admitted that he had touched the taxicab, but
claimed that he had only been there to steal
parts two or three days before the date of
the murder. He also admitted that he had
been at the victim’s window on the night of
the abduction. He testified that he went to
the victim's home with an accomplice to steal
drugs but was scared off by the family dog.
The accomplice, according to defendant, later
returned alone and kidnapped the victim.
Defendant claimed that he had since killed
the accomplice and buried his body in an
unspecified place in the desert. The jury
found defendant guilty of first degree mur-
der, kidnapping, and burglary. With respect
to the murder count, the jury unanimously,
found defendant guilty of felony murder, and
eleven of twelve jurors found the murder to
have been premeditated.

At sentencing, the court found as aggrava-
ting factors that (1) defendant was an adult
and the victim was a child less than fifteen
years old, A.R.S, § 13-703(F)(9) (Supp.1994),
and (2) defendant committed the murder in
an especially heinous, cruel, or depraved
manner, A.R.S. § 13-703(F)(6) (Supp.1994).
The court found no mitigating factors suffi-
ciently substantial to call for leniency.

ISSUES PROPERLY PRESENTED
FOR REVIEW

We address one issue relating to appellate
procedure, thirteen trial issues, and eight
sentencing issues. The issue relating to ap-
pellate procedure is:

to believe that no further notice of appeal was
necessary and because we must, in any event,
resolve all the properly preserved issucs relating
to the noncapital counts in our discussion of the
murder count, we accept jurisdiction over all
defendant's convictions and sentences. See State
v. Detrich, 178 Ariz. 380, 382, 873 P.2d 1302,
1304 (1994).

STATE v. BOLTON Ariz. 837
Cite as 896 P.2d 830 (Ariz. 1995)

1, Whether our order limiting defendant's
opening brief to the length specified in
the Rules of Criminal Procedure violat-
ed his right to due process and effec-
tive assistance of counsel.

The trial issues are:

1. Whether the trial court should have

changed the venue of defendants trial;

2. Whether the trial court erred by
“death qualifying” the jury;

3. Whether the trial court erred by dis-
missing four jurors for cause when
they said their opposition to the death
penalty would affect their deliberation;

4, Whether the state's use of peremptory
strikes was unconstitutional;

5. Whether the trial court should have
excluded evidence of the nature and
fact of defendant's prior convictions;

6. Whether the trial court should have
excluded expert testimony based on
the “phenomenon” of child sex murder-
ers who try to restore their victims to
their original appearances;

7, Whether the trial court should have
excluded an allegedly gruesome photo-
graph;

8. Whether the trial court should have
excluded expert testimony that it
would not be surprising to find a se-
men stain with blood group substances
consistent with the victim near the
body of a sexual assault victim;

9. Whether the trial court should have
declared a mistrial based on prosecuto-
rial misconduct where the prosecutor
(a) allegedly used defendant's criminal
history improperly and (b) allegedly
engaged in improper cross-examina-
tion;

10. Whether the trial court should have

granted a directed verdict in favor of
defendant;

11. Whether the trial court should have
instructed the jury on lost or de-
stroyed evidence (Willits instruction)
because of the state’s disposal of the
taxicab and ten fingerprint cards;

12, Whether the trial court should have
instructed the jury on termination of
conspiracy;

13. Whether the trial court should have
instructed the jury on unlawful im-
prisonment,

The sentencing issues are:

1. Whether the automatic establishment
of an aggravating circumstance when
an adult kills a child renders Arizona's
death penalty statute unconstitutional;

2. Whether the trial court impermissibly
counted or weighed the victim’s age
twice in finding aggravating circum-
stances;

3, Whether the murder was committed in
a especially heinous, cruel, or depraved
manner;

4. Whether the trial court failed to ade-
quately consider and weigh all mitigat-
ing circumstances;

5. Whether the trial court should have
separately found that defendant killed,
intended to kill, or attempted to kill
the victim (Enmund/Tison finding);

6. Whether the trial court should have
considered the giving of a felony mur-
der instruction as a mitigating circum-
stance; ‘

7. Whether the testimony of the victim's
survivors at sentencing violated defen-
dant’s constitutional rights;

8. Whether defendant's sentence of death
is disproportionate. |

ISSUES WAIVED

{1} In addition to the foregoing issues,
defendant raises several issues that he did
not raise in the trial court. On appeal we
will consider a matter not raised below only
if it is a matter of fundamental error. Sée
State v. Cornell, 179 Ariz. 314, 328-29, 878
P.2d 1352, 1366-67 (1994); State v. Ramirez,
178 Ariz. 116, 126, 871 P.2d 287, 247, cert
denied, —- U.S. ——, 115 S.Ct. 435, 130
L.Ed.2d 347 (1994). This waiver principle
applies to alleged constitutional issues, as
well as to nonconatitutional issues, State vw
Bible, 176 Ariz. 649, 672, 858 P.2d 1162, 1176
(1993), cert. denied, —- U.S, ——, 114 S.Ct.
1678, 128 L.Ed.2d 221 (1994); State v. Hold-
er, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987);

Arizona Daily Star

Final Edition, Tucson, Friday, November 13, 1992

_ Man guitty

| 35¢ U.S./50¢ In Mexico

in murder of

Zosha Pickett, 2

By Joe Salkowski
The Arizona Daily Star

- Daren Lee Bolton was convicted yester-
day of burglary, kidnapping and _first-
degree murder in the June 1986 stabbing
death of 2-year-old Zosha Lee Pickett.

A Pima County Superior Court jury found

. Bolton, 26, guilty of snatching Zosha from

her bedroom, stabbing her once in the chest
and leaving her to die in an abandoned
taxicab two blocks from her family’s mid-
town home.

Bolton, who already is serving a 1514-
year prison sentence for kidnapping and

ate = a —

sexual abuse convictions, now faces either
the death penalty or life in prison for
Zosha’s murder.

Bolton blamed Zosha’s death on a man he
called “Phil,” whom he said joined him ina
failed burglary attempt at Zosha’s home the
night she was kidnapped.

He testified Tuesday that he shot Phil and
buried him in the desert after Phil con-
fessed that, after they abandoned their bur-
glary, he had returned alone to kidnap and
kill Zosha.

But Deputy County Attorney Kathleen
Mayer dismissed Bolton’s testimony as a

transparent attempt to explain why his fin-
gerprints were found on Zosha’s window

_ and on the taxicab.

“His explanation rivals a made-for-TV
movie,” she said. “And he is insulting your
intelligence by claiming to be the All-
American hero.

“He wants you to believe that he was so
outraged by this that he stood up for truth,
justice and the American way and shot and
buried the man he says is really the killer —
the magic, mysterious Phil,” she said.

It has been more than six years since
Zosha’s disappearance in the early morning

hours of June 26, 1986, prompted one of the
largest and most publicized manhunts in
Tucson history.

Police and volunteers searched four days
before Zosha’s body was found by two boys
who were looking for recyclable bottles in a
vacant lot near East Speedway and North
Winstel Boulevard, two blocks from Zosha’s
home. .

Her decomposing body was lying in the

' back seat-of an-abandoned-1963-Austin-taxi-
cab amid refuse that included cigarette —
butts, a Domino’s Pizza box and a Book of
Mormon. _ )

The seat was stained with blood, and~
Zosha’s fingerprints.were found on the in- -
side of the taxi’s rear left window. Mayer.
said the print indicates Zosha was tapping:
on the window before her death, describing: :
it as “a silent reminder of a cry for help.”

An autopsy showed she had been stabbed
once through her left lung, but coroners
‘could not determine if she had been sex-
ually assaulted.

But Mayer said evidence found in tne car, °
including a sock stained with a mix of

~
i
~)
Y

W- (3-72

Convicted

Continued from Page One

semen and vaginal fluid, shows
Zosha was raped.

And while her body was clothed,
her blood-stained panties were lying
on the car’s floor, indicating that she
was undressed and partially re-
dressed by her assailant, Mayer

- Said.

For the next four years, police
chased leads, manually compared

‘more than 20,000 fingerprints and

consulted psychics in ultimately fu-
tile attempts to find Zosha’s killer.
Finally, in November 1990, the in-
vestigation stumbled upon some
luck — in Illinois. State police there
were playing around with their new
Automated Fingerprint Identifica-
tion System when one officer no-
ticed the system had found a match.

The machine matched prints
found on Zosha’s window and on the
taxicab to Bolton, whose finger-
prints were on file with Illinois po-
lice after he was convicted of ag-
gravated battery and_ indecent
exposure in two separate incidents.

At the time, Bolton was serving
the third year of a 1544-year term in
the Arizona State Prison for expos-
ing himself to two women in a mid-
town ‘Tucson crosswalk, grabbing
one..of them and fondling her
breasts.

His attorney, Harold Higgins, ar-
gued yesterday during the trial that
much of the evidence in the case
indicates someone other than Bolton
killed Zosha.

Higgins said tests showed the sa-
liva found on cigarette butts in the
car did not belong to Bolton. “The
guy who did this was smoking Marl-
boro cigarettes while he was doing
it, and it wasn’t this man,” he said,
pointing to his client.

Higgins said the police investiga-
tion left a variety of loose ends, in-
cluding unmatched fingerprints, un-
identified hairs and footprints that

could identify another person as
Zosha’s killer.

And he defended Bolton’s expla-
nation of the killing, saying it was
more reasonable than Mayer’s de-
scription of Bolton as Zosha’s killer.

“If he was going to sit down and
create a story to fit the facts of this
case, he could’ve just stopped it with
him running away from Zosha’s
house,” he said. ‘Instead, he told
you about another murder.”

Bolton told jurors that he and Phil,
a man he said he met at a midtown
pool hall, visited the taxicab a few
days before Zosha’s death because
they were thinking about stealing
parts from it.

That, he said, is when he touched
the left front door of the taxicab,
leaving a fingerprint that was picked
up by investigators when Zosha’s
body was found.

Bolton said he removed the
screen from Zosha’s bedroom win-
dow — leaving fingerprints later
found by police — during a bun-
gled burglary attempt that ended
when a barking dog scared him and
Phil away from what he later
learned to be Zosha’s house.

Bolton said he ran into Phil about
a week after their burglary attempt,
stole a car and took Phil to the des-
ert northwest of Tucson to ask him
about Zosha’s death. When Phil con-
fessed, Bolton shot him and buried
him, he testified.

When Mayer asked him what he
used to bury Phil, Bolton said he
used a shovel that he carried with
him to meet Phil and steal the car —
a response that drew laughter from
the courtroom gallery.

Yesterday, Bolton submitted a let-
ter and a map to Judge William
Scholl, of Superior Court, attempting
to explain what he said was a mis-

perception of his testimony by -

Mayer and newspaper reporters.

The map showed Bolton leaving
Phil to steal the car, then driving to
his trailer to pick up the shovel be-

{
ey |

fore returning to pick up Phil and |

drive into the desert. Scholl denied

.
N 2
Q

‘

cg he Oe OP wr gL
OCeRE TS On

1986 AP photo

Zosha Lee Pickett, 2, disappeared from her home June 26, 1986

Bolton's request that the letter be
shown to the jury.

Mayer said the inconsistencies in
Bolton’s story showed he was “mak-
ing it up as he went along.”

And she compared Higgins’ clos-
ing argument to the defense mecha-
nism of an octopus, which conceals
itself in a cloud of ink when endan-
gered by predators.

“That’s what this is,” she said,
pointing at notes Higgins had written
during his address to jurors. “A
cloud of ink.”

Jurors deliberated about one hour
yesterday afternoon before return-

ing their verdict, then left the court-
house without talking to reporters.
Zosha’s parents and grandparents,

_ who watched every minute of Bol-

ton’s two-week trial, smiled and
shouted “Yes!” when a clerk an-
nounced Bolton was guilty of mur-
der.

Bolton, dressed in a white shirt

-and tan corduroy jacket, simply

shook his head and lifted his left
hand to his temple.

“Scholl is scheduled to sentence
Bolton Dec. 11 after a pre-sentence
hearing that is set to begin Dec. 7.

“Akizown DALY Stan

Tucson, Sunday, February 7, 1993

Inmate’s mon: |
tries toblock, |
his execution: |

“PHOENIX (AP)'— — Deathrow in-
a inate John George Brewer is. tryifig
to manipulate the state into helping =
‘him commit suicide, his mother says
in court: papers filed in. response to e
her:son’s efforts to speed up his own a
execution. ed
"Brewer, 27, insists he should t “i
2 put to death for the Nov:: 11, 198%, eo
-murder of his pregnant arynencs in 1
Flagstaff. a
Elsie Brewer described her son i:
papers filed with the Arizona Sy.
preme Court Tuesday. as “seriously ae
‘mentally ill.” S
_ ‘He-needs help, but he does not e
‘deserve to be executed,” she-said. 5
Brewer, who lives in Pennsylva- |
nia, said -her son has a history of =}
suicide attempts. and. acted -“‘espe-
-cially strange” -during: a. jailhouse
“meeting inNovember. ~~ °. 4
‘Ina telephone interview last week f
with: The Phoenix Gazette, Brewer *}
said he understands his mother’s a¢- 4
tions but still insists he is competent
to-seek his. own execution... . +«
“What do you expect: ‘a ‘mother $9. 3}
do?” he asked. feu es |
_ This is a hard position for me to
be in,” he said. “I’m.forced to fight
my ° ‘mother in: court: That isn't
easy.” J
Others have also said that Brewer
has a history of bizarre behavior,
marked by numerous: suicide at-
tempts, and his belief in a god he
calls “Dontain” and a planet Nien
cia.”

0 ee

pr igri pilliend,

G. &

nts to die for his cri
/But. his lawyer, and “the state courts
“oppose. bien to: become the first

John George: 4 XeC ited i in gtzone since
Brewer /*. + ioe Sa
|My fears don't yf fears | don’t matter one way or

Brewer) i the other,” Brewer said in a telephone

“matter one way 4 = ;
‘is ‘no! “different from ‘the ea 845 interview.” Som the ‘Arizona State

Gea oreo
‘chamber. ‘

that he be put to death for his crimes.

helghtened last week when the US.

- Supreme Court ruled that condemned
~ murderers who waive their right to.
appeal and say they want to die may -

be executed even if no appellate court
reviews their cases.

The court’s opinion came in a
Mississippi case in which a friend and
fellow death-row inmate of mass
murderer Ronald Gene Simmons had
asked: the justices to rule that state
appeals courts must review all death
sentences, even when not asked to do
so by the condemned person.

Simmons, like Brewer, had asked

The Supreme Court did not address
the constitutional issue of mandatory

appeals in death sentences but said
‘that the friend did not have the legal _

standing to make such an argument
on Simmons’ behalf.

The decision will let Arkansas
authorities execute Simmons, who
killed 16 relatives and acquaintances
during a 1987 rampage.

Last summer, Brewer, who was
declared mentally competent by Judge
H. Jeffrey Coker of Coconino County

Superior Court, asked the Arizona

Supreme Court to waive the require-
— See ‘JUST PUNISHMENT,’ page B3

a pe

as
*

}

te aon a le oo

“@be Arizona Baily Star

"Tucson, Monday, February 15, 1993

Region Ps ?

“4 Shey no Bey, chef ‘as et Saas ‘ é Me te a ieee tec reas fava: a 4 : ‘ @i: Se es eg” af. . : -
| D oat ee e . Sy bet eet re Cn MP eRRR: x: ym : oar a
Escription of lethal in jection as more humane is Isputed
a] By Michael Murphy. Ae 2 VS ae 2S repent tee eee Tulsa World. “He was strapped t although he has yet to convey his choice to corrections sinlica way of killing inmates,“ aie
-.f The Phoenix Gazette A: . . ; down to the table, and as much’as he could,-his back %° officials. The alternative: lethal gas,;.. ie ty The idea came in response to last year’s gas cham- =
PHOENIX: (AP) — Wayne Greene was waiting for- arched, and he was breathing out very heavily.” = His mother, Elsie Brewer, is trying to stop the exe- ber execution of Don Eugene Harding, which wit- °
the inmate to close his eyes and quietly pass away. The March 10, 1992, execution of Parks, Greene © cution, but John Brewer insists hé should be put to nesess described as violent. S
Then something went horribly wrong. reported, looked “scary and ugly.” ; death for the Nov. 11, 1987, m Generally, witnesses to executions by lethal injec- °s-
Robyn Leroy Parks, 37, the second person executed “It may have been com ions have compared them to watching someone fall =
in Oklahoma since the U.S. Supreme Court in 1976 let. - mate. We'll never know,”. - 2 aes asleep. ie Hho ae eee
states.resume capital punishment, started reacting. Sake, it looked pemful end tobumane. 3". os But critics dispute the image of lettial injection as.
: violently. to the lethal drugs being injected into his A year later, Arizona-is Preparing for its first’ execu- corréc-" “more humane and less painful: ~~‘ ae Ae
:+|. system,’ Wappen Eee 8: a Oe ae » ... tion by lethal injection, the sa Chamber at ..... Michael Radelet, a Professor of sociology at the «sy
& Two minutes after the drugs were administered, the.‘ Parks and 7 -@* University of Florida, has compiled a list of “‘botched” beet
-'| Muscles in Parks’ jaw, neck and abdomen began'to try. EE ee Pe nt wethalinjection ‘executions, including the: death .of :~
‘af - COMVUISE. 3458 Fee ee Le - . John George Brewer, 27, has told a minister anda ey G , fo : 5
2 “It was a very incredible sight to see,” said Greene, reporter’that he prefers to die. by lethal .injection, 4 Woods and state lawmakers offepéd -it' as amore, . : See EXECU TIONS, Page 2 3 #
+, OF aoe an “ ck ek - t j ott; ier op +o EPS y oy Ba ~ ‘ . . a ae . aor ‘s a ae ~

Page Two — Section B =

Ghe Arizona Dailo Star

Tucson, Monday, February 15, 1993 _

{

i
af

‘Executions

sctalunes from Page.1B.

’ Parks in Oklahoma.
“Recent examples:

‘@:May, 7 1992: Texas death row inmate Justin Lee ©
: May violently reacted to the drugs. One witness, Rob-

ert Wernsman, said May gasped, coughed and reared
against heavy leather restraints, coughing once again
before his body froze.

“I certainly did not see a humane extinguishing . .
because there was anguish there,” Wernsman said in

can interview.

® April 23, 1992: Billy Wayne White, another Texas
inmate, lay strapped to a death chamber gurney for 47

minutes while executioners searched for a vein that
could be used to inject him.

White’s veins had been scarred by years of heroin

“use; the damage was so bad he even had to help mem-

bers of the execution team find a suitable vein to use.
“It contradicts the stereotype that we give a shot

. and they go to sleep,” Radelet said.

Death-penalty opponents also contend that lethal
injection makes the execution seem et and thus
more acceptable to the public.

“Lethal injection somehow gives the siotiani that
we’re doing something terrible in a civilized way,”
said Pat Clark of Death Penalty Focus on California,
an organization dedicated to abolishing the death pen-
alty.

Like Arizona, California also moved to mid, lethal

injection as an dption to the gas chamber last year
after executing Robert Alton Harris.

“I think there’s a real danger in anyone trying to
make this be something that is easier on people to
accept,” Clark said. “I think people need to be con-
cerned and need to wrestle with what’s happening.”

Arizona corrections officials are using Utah’s lethal
injection operation as a model for the new facility at
the Florence prison. Utah offers execution by lethal
injection or by firing squad.

Scott Carver, a prison warden in Draper, Utah, said
three lethal injection executions have been carried
out at his facility. He said all were uneventful.

Carver said a solution containing three drugs, each
in a lethal dosage, is administered. The first is a seda-
tive, th the second stops the inmate’s heart and the third

shuts down the nervous system.

“The death is pretty much instantaneous,” Carver
said. “It is absolutely uneventful. There is no shudder-
ing, shaking, blinking, convulsing. ... The condemned
person is very peaceful.

“If I could choose a way to go, this would be it,
without question.”

J.C. Keeney, assistant Arizona corrections director
for adult institutions, visited the Utah facility to pre-
pare for the addition to the execution chamber in
Florence.

Keeney said the facility will be ready for Brewer’s
execution March 3.

“This is a much simpler procedure (than lethal
gas), and we think much quicker... and probably in
most people’s opinion, much more humane,” he said.

lAama and Eich wuaarel dem weet a a Le AAavinn 14

ee |

(HEIR , Whe y |

~ EJ. MONTINI

Republic Columnist

Con’s dream
coming true:
We’ Ll kill him

f this were your last day, as it is for
I John George Brewer, you probably

wouldn’t be doing this. You wouldn’t
read the morning paper on your last day.
Yesterday’s news means something only if
there’s a tomorrow, which belongs to the
living. Which woutdn’t include you.

Not if you were John George Brewer.

Shortly after midnight, Brewer will be
taken to a special room inside the state
prison at Florence. He’ll be strapped to a
table, flat on his back, while intravenous
lines are inserted into his arms. A drug will
be injected to make him sleep. Then,
another drug will be injected to kill him.

Sleep and the big sleep, one after the
other.

Journalists and politicians and
state-approved “‘witnesses”’ will be there to
watch Brewer die. He’ll like that. Brewer is
a murderer who wants to die, a young man
who’s tried to kill himself several times over
the years but never quite got it right. He’s
clever, though. He found a way to have us
fulfill his dream. ;

Made no mistake

*. Brewer could have killed himself after
murdering his girlfriend, but he didn’t. He
told a counselor after his arrest: |

“In fact, I wanted to go to prison, so I

don’t have to worry about my future, andI |

hope Ayizona has a death penalty. If it
doesn’t, I made a big mistake.” But he
didn’t make a mistake. We have experience

in the business of killing. Brewer knows we

won’t fail him, not unless there is a
last-minute delay by the courts.
~ Otherwise, this will be his last day.
Brewer can’t do many of the things you
or I’d be able to do if this were our last day.
He can’t take a long walk outside or a long
drive. Brewer is being kept in a cell where a
group of corrections officers watch him all
the time, making sure he doesn’t try to kill
himself before we get our chance.
He won’t, though.
- His plan is to be killed by us, publicly
and with much fanfare. Everything is
proceeding on schedule.

Uncomfortable for us

Still, today is an uncomfortable day for
the rest of us. More uncomfortable for us
than for Brewer, I’d guess. The reason he
wants to die so badly is because he killed his
pregnant girlfriend and can’t live with it.
It’s a terrible thing to kill someone and have
to live with it.

~ We'll know more about that after
midnight.

In the meantime, it’s Brewer’s last day,
and we all have to wait it out with him.
This makes us uneasy. A person’s last day,
even a murderer’s, has a way of making
everything we do seem trivial. And, at the
same time, it makes everything trivial seem
monumental.

Would you shower if this were your last
day? Or brush your teeth? Or comb your
hair? Or shave? Or would doing those
things be a waste of precious time? Or
would not doing them be worse?

What would you wear on your last day?
Or would you wear anything? There would
be nothing left to be embarrassed about.
Not for long, anyway.

Would you write letters on your last day?
Or in Brewer’s case, a suicide note? No
return address required. ;

If you were Brewer, would you have

Stayed awake last night, not wanting to

waste your time sleeping? Would the night
have passed slowly, as nights do? So much
so that you got impatient?

Where’s the pleasure in this?

Brewer has waited a long time for this.
The thing he couldn’t do to himself and
couldn’t get the extraterrestrials he believes

in to do for him, we’ve agreed 'to do. We’ve

agreed to send him to another place. __

The people doing the killing say it gives
them no pleasure. The people watching the
killing say it gives them no pleasure. Most
people who support the death penalty for
people like Brewer say the actual killing
gives them no pleasure. The only person
getting any enjoyment out of this, it turns
out, is Brewer.

’ For him, this last day isn’t something to
be savored, like his extravagant last meal.
For Brewer, this day, like all the days since
he killed his girlfriend, is a punishment. If
things go his way, however, Brewer’s
anxiety, his sense of guilt, his pain will end
shortly after midnight.

‘Just about the time when ours should

"March 2, 1793

1 of cor-

I dis-

mce is a
correct-
3 Of fact
gs after
1g. 28
iber 23
lequate.
ffidavit
that he
gree of
‘is not
yroceed-
rict Ct.
ted Dr.
2ard no
sionals
3. The
petence
uy with
8 On-

€ r

ear old
ubling,
ris not
uestion
elevant
‘ stand-
apetent
th row
ial pro-
ek, but
tive his
‘3s. Be
juately
apeten-
ig not
ness in

lew evi-
ie feder-
nce not
ifically,
a of his
Es

B. Did the District Court Apply the Cor-

rect Standard of Proof?

». The district court appears to have held
; Mrs. Brewer to the “clear and convincing”
| standard of proof on the competency issue.
» (“The Court’s obligation under the case
» law, as the Court understands it, is to view
that evidence in the context of whether or
| not the petitioner, Elsie Brewer, has sus-
| tained her burden of proving by clear evi-
) dence that [Brewer is incompetent]. The
' Court finds that the petitioner has failed to
| sustain her burden....
+ Dist.Ct.Hrg. at 112). This raises a ques-
+ tion whether the court erred in not apply-
- ing. the much less rigorous preponderance
| of the evidence standard. Mrs. Brewer
cites Groseclose ex rel. Harries v. Dutton,
® 594 F.Supp. 949, 953 (M.D.Tenn.1984) as
| authority that the correct standard is pre-
| ponderance of the evidence. Neither the
| State nor Brewer cites any authority what-
soever on the issue.: Under the time con-
t straints of the execution schedule, I cannot
* be confident which is: the right standard.
+ But 'I’m- inclined to think Mrs. Brewer is
; correct that: on a threshold jurisdictional

”

Transcript of

question such as standing, the preponder-

| ance of the evidence standard is the appro-
| priate one. | 7%

The majority’s reliance on Whitmore v.
Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109
L.Ed.2d 135 (1990) for the proposition that
a “clear evidence” test (presumably one

affidavits, all of which raised doubis about

BREWER y. LEWIS
Cite as 989 F.2d 1021 (9th Cir. 1993)

: ~ Finally, the majority relies on Demosth- higher than a preponderance of the evi-
-enes v. Baal, 495 U.S. 731, 737, 110 S.Ct.
} 2223, 2226, 109 L.Ed.2d 762 (1990) as au-
‘thority for accepting the state court’s find-
. ing of competency, arguing that Baal and
| this case are indistinguishable. I believe
; the two cases are plainly distinguishable.
| The “next friend” petitioner in Baal relied
j on the same evidence that was considered
f at the state court competency hearing.
f Here, Mrs. Brewer produced several pieces
, of new ‘evidence—specifically including
Brewer’s letters and Dr. Bayless’ testimo-
ny concerning his change of heart on Brew-
‘er’s competency—that were never consid-
»-ered at the state court hearing.

1031

dence) is the correct standard to apply at a
competency hearing is entirely misplaced.
Whitmore did not address the standard of
proof a district court should use in making
a determination on the ultimate question of
competency. In Whitmore, the third-party
petitioner was a fellow prisoner who prof-
fered no evidence whatsoever that would
cast doubt on the state court’s determina-
tion of competency. Whitmore’s use of
the words “meaningful evidence” refers to
the threshold showing Mrs. Brewer would
be required to make in order to get an
evidentiary hearing on the issue of compe-
tence. Whitmore clearly did not involve
the question of the standard of proof appli-
cable at the hearing on competence granted
to Mrs. Brewer by the district court. Fi-
nally, although the Court said a “next
friend” petitioner has the burden “clearly
to establish the propriety of his status,” it
did not announce a standard of proof by
which a prisoner’s incompetence should be
judged.. In. fact, the Court cited with ap-

-proval the case of Groseclose ex rel. Har-

ries v. Dutton, supra—a case holding that
a preponderance of the evidence is the
proper standard to apply in determining the
prisoner’s competence, and the only case
cited to us on the issue.

If the district court applied the incorrect
standard, which I believe it did, then the
case should be remanded so the district
court as the finder of fact can. re-evaluate
the evidence on competency under the cor-
rect standard of proof.

C. Even if the District Court Decided
Brewer’s Competence Under the Prop-
er Legal Standard, Was Mrs. Brewer
_Afforded a Full and Fair Hearing?

In my view,. the district court did not
afford Mrs. Brewer a full and fair hearing
on her son’s competency. The record
shows “there was not sufficient opportuni-
ty for proper psychiatric and psychological
evaluation of [Mr. Brewer].” Hays v. Mur-
phy, 663 F.2d 1004,.1011 (10th Cir.1981).

- Whether the district court hearing was
adequate turns mainly on whether the dis-

Brewer's current mental status.

1032 989 FEDERAL REPORTER, 2d SERIES

trict court abused its discretion in failing to
give petitioner a fair opportunity to make
use of the court’s discovery order, particu-
larly the opportunity for Dr. Bayless to
examine Brewer. The lack of time to do
anything with the discovery order rendered
the hearing unfair for two reasons. First,
it rendered Dr. Bayless. unable to express a
definitive medical opinion on the ultimate
issue of Brewer’s competence. Without an
opportunity to examine Brewer, Dr. Bay-
less was only able to testify that, based on
evidence not available to him when he testi-
fied in 1988 that Brewer was competent, he
now had “serious questions” as to the va-
lidity of his original opinion. Second, with-
out the assistance of an expert who had an
opportunity to examine Brewer, counsel for
petitioner was, as any lawyer would be,
handicapped in his efforts to cross-examine
the state’s mental health experts.

CON CLUSION

In conclusion, even without the automat-

ic stay rule, I would issue a temporary stay_

on any one of the following grounds: (1)
that the stay is necessary to preserve our
jurisdiction by giving us a fair opportunity
to resolve the standing issues raised by
petitioner (see 28 U.S.C. § 1651); (2) that
we should remand to the district court for a
redetermination of the issue of competency
under the preponderance of the evidence
standard; and (8) that the case should be
remanded to the district court to conduct a
new competency hearing after Mrs. Brewer
has a reasonable opportunity to have Dr.
Bayless examine her son and engage in’
other discovery as authorized by the
court’s discovery order.

The argument is made that we should
not take a reasonable time to consider Mrs.
Brewer's appeal because any additional de-
lay in her son’s execution would frustrate
the state’s plan to’ execute him on’ March
3rd:and would only add to Mr. Brewer’s
anguish waiting for the death he says he
wants. But to the extent this execution
has been delayed, however, it is not the
fault of the federal court system; the dis-
trict court and appellate courts combined
have had this case for less than three

weeks. The blame, if any, rests with the
State of Arizona, which, over Mr. Brewer’s
continuous objection, has taken four and a
half years to schedule his execution.

A human life is at stake.; I fail to under-
stand the rush to judgment. This is not,
after all, a successive petition, and no one
suggests that in filing a first petition, Mrs.
Brewer has abused the Great Writ.

ORDER

The petitioner’s request for a certificate

of probable cause and stay of execution is
GRANTED.

_ (O | KEY NUMBER SYSTEM

-(4+ume

UNITED STATES of America,
Plaintiff-Appellant,

‘v.
Jose Orlando LOPEZ, Defendant-
Appellee. (Two Cases)

Nos. 91-10274, 91-10393.

United States Court of Appeals,
N inth Circuit.

Argued and Submitted May 12, -1992.
Decided March 17, 1998.

. Defendant moved to dismiss drug in-
dictment on ground that federal prosecu-
tor’s communications with defendant in the
absence of defense counsel violated Califor-
nia ethical rule. The United States District
Court for the Northern. District of Califor-
nia, Marilyn H. Patel, J.,765 F.Supp. 1483,
granted motion. Government appealed.
The Court of Appeals, Poole, Circuit Judge,
held that: (1) actions of prosecutor violated
California ethical rule limiting contact be-
tween attorney and represented party in
the absence of party’s attorney, and (2)
dismissal of indictment because of the vio-
lation was an abuse of discretion.

Vacated and remanded.

“Fletcher, Cireui
tring opinion.

: 1: Criminal Law ©

Court of Appea

I trict court’s conclu
‘duct violated court |
court’s findings of
clear error.

. 2. Attorney and C]

Beginning at t

| of indictment, pros:
- duty under Califor:
: frain from commun:
' defendants. Cal.Pr

' 3. Attorney and C

“Communicatio

‘by law” exception t
» attorney communic
| parties requires th
expressly permit co
} and represented p:
| Rule 2-100.

| 4. Attorney and C

“Communicatic

; by law” exception t
- attorney communi
parties did not ap
+ duct with represent
F cause prosecutor h:
' investigate crimes;
- pressly. or implie

with represented f

mitted by case law

2-100.

5. Attorney and ¢
_. Prosecutor’s «
‘of. magistrate jud;
with represented
conversations with
nications otherwis
ception to Califor
attorney commun
parties; prosecute
istrate judge in s
conversation by
counsel was being
interests inimical
Cal.Prof.Conduct

mam S

Tucson, Thursday, March 4, 1993

Page Fourteen — Section A

"he Arizo

ment —

na Daily Star

Founded 1877

Stephen E. Auslander, Editor

_ James M. Kiser, Editorial Page Editor

_ Michael E. Pulitzer, Publisher

Another killing

A lethal injection is not a humane thing —

Arizona executed its first murderer by

- lethal injection early yesterday ‘morning, |

_ and while the event may have been less
painful than ‘the. gas chamber for John
George Brewer, it was no less agonizing for

_ the'state. Mena
The usual last-minute appeals turned a
number of people into instruments of
Brewer's death — the seven U.S. Supreme

Court justices’ who voted to overturn the

Court of Appeals at 10:40 p.m., the four

members of the state Board'of Pardons and
Paroles who earlier voted not to delay the
execution, the governor who declined toin-. ©

tervene. -. te?

And then there is Attorney General.
Grant. Woods, who has assumed the role of ~

chief advocate for the‘death penalty in Ari-

zona and has now presided over the first

two executions since constitutional uncer-
tainties put executions into legal limbo in
Woods is the man in charge of making
sure all legal hurdles are cleared, the man
responsible for | officially witnessing the
killing, the man who appears on televi-

‘Sion on execution night to solemnly state

. how the interest of Arizona is served by the .

killing.

‘+ ssWoods, who, at one point in his, life ar-
‘ ly against the death penalty,

| ued passionate

uA TTL Rh ad ER er

OSS re a eee

on behalf of a client, doesn’t need to be

, ©xcused for now arguing just as passion-
ately on the other side. | :

He is simply performing a role that the.
citizens of Arizona have given him. The
State's citizens have decided that it is in

_ their interest to kill. convicted murderers.

Woods, the judges and: justices, the pardon
board members’ and the governor are all
Carrying out those wishes, * >.” |

_' Those wishes can be changed. Arizona’s -
citizens could end this dehumanizing pro-

cess. It would take some convincing.
Perhaps some minds would be changed -

“by the thought that in killing Brewer yes:

terday we citizens of: Arizona’ were simply‘

Der

“assisting him in his oft-professéd desire to
| commit suicide. Leth GT ae) RES

_ Perhaps the story of the Alabama man, -
Walter D. McMillan, who was condemned
to death 4% years ago and released Tues-
day after three witnesses confessed that |
they had lied to convict him, would make
us too uncertain to ever coldly, legally kill.
someone. .

ihn,
hh at iff hit

IV. ‘They all operate on Gur-behalf. ,-: 4795:

Tucson, Wednesday, June 14, 1995

Death sentence OK’d
for Zosha’s murderer

By Howard Fischer

Capitol Media Services

PHOENIX - The Arizona Su-
preme Court yesterday upheld
the conviction and death sen-
tence of a man who kidnapped
and killed a 3-year-old Tucson
girl.

The justices unanimously re-
jected claims by attorneys for
Daren Lee Bolton that the trial
judge erred in letting jurors see a
‘“gruesome”’ photograph of the
victim and that the trial should
have been moved out of Pima
County because of extensive pub-
licity. They also found nothing in-
appropriate in the sentence.

The victim, Zosha Lee Pickett,
was taken from her bedroom dur-
ing the middle of the night on

June 27, 1986. Her body was -

found four days later in the back
seat of an abandoned taxi a few
blocks from her central Tucson
home.

She had been stabbed once

E an

and died from asphyxiation
caused by internal bleeding.

While police found finger-
prints at the victim’s home and
in the taxi, they were unable to
Solve the case until 1990. Illinois
State police, tinkering with their
new fingerprint computer,
matched the fingerprints found at
the crime scene with those they
already had on file on Bolton.

During the trial, Bolton admit-
ted he was at the girl’s window.
But he said he was trying to bur-
glarize the residence and ran off
after he heard a dog barking.

He claimed that another man
he was with later confessed to
kidnapping and murdering Zosha.
Bolton said he then shot the man
and buried him in the desert.

Bolton, 28, was charged last
month in the 1982 slaying and
rape of 7-year-old Cathy Fritz af-
ter DNA testing of blood and se-
men linked him to the crime
scene. oe

‘The Arizona Daily Star

| Tucson, Wednesday, June 14, 1995

Man Executed in Rape, Murder of 2-Year-Old Girl
By Associated Press, 06/19/96

FLORENCE, Ariz. (AP) - A man who fired his lawyers and refused legal appeals was executed by
injection early Wednesday for raping and murdering a 2-year-old girl in 1986.

Daren Lee Bolton, 29, was caught four years after the murder through a new computerized
fingerprinting system. |

Bolton was sentenced to death in 1993 in the murder of Zosha Lee Pickett. He fired his lawyers

after losing a mandatory appeal with the state Supreme Court and then acted as his own lawyer,
refusing to appeal his sentence.

Bolton maintained his innocence but said he would rather be executed than spend the rest of his life
in prison.

Zosha was kidnapped from her Tucson home in June 1986. She was raped, stabbed and left to die
in an abandoned taxi a few blocks away.

Bolton wasn't linked to Zosha's death until four years later.

Illinois police, who had Bolton's prints on file from previous assault convictions in Champaign, IIl.,

were training on a new computerized fingerprinting system when they matched his prints to those
found on Zosha's bedroom window and in the taxi.

Bolton was also charged with murder, sexual assault and kidnapping in the October 1982 death of

7-year-old Cathy Fritz, who was abducted while walking home from a neighbor's house in Tucson.
His trial in that case had been set for September.

DNA evidence from a pubic hair linked Bolton to Cathy's death in 1994.

Vol. 154

No. 143 *

Final Edition, Tucson, Tuesday, May 23, 1995

Cathy Fritz killing ©

By Carmen Duarte
The Arizona Daily Star

A killer who sits on death row in
an Arizona prison was charged yester-
day in the 1982 slaying and rape of 7-
year-old Cathy Fritz after DNA testing
linked him to the crime scene, a police
source said.

‘Daren Lee Bolton, who was con-
victed in February -1993 of the June

1986 kidnapping and murder of Zosha
Lee Pickett, was served with first-de-

gree murder, sexual assault and kidnap-
ping charges at the Arizona State Prison
Complex in Florence, the source said.

; pe hdghan—— nist Nese pit nee

mile of the girls’ homes, in a trailer on
East Grant Road near North Country
Club. The Fritz family lived just north
of East Speedway, near Country Club.
The Pickett family lived near North
Dodge Boulevard and East Pima Street,

not far from Country Club.

In the Fritz case, the child was
sent home’ by the neighbor at 8 p.m.
When she did not arrive within 5 min-
utes, her older brother, Steven Fritz,

went looking for her.

The brother never found Cathy,
who was walking not far from a “Take
Back the Night’’ anti-crime rally attend-

See CHARGED, Page 8A

A Pima County grand jury indicted
Bolton on the charges last week.

Tucson Police Chief Douglas Smith
scheduled a news conference for 8:30
a.m. today to discuss the case.

Bolton, 28, who in 1990 became a
key suspect in the Fritz case, was
charged after being linked to the crime
through DNA testing of blood and se-
men found at the crime scene, said the
source.

Cathy, who was a second-grader at
Blenman Elementary School, 1695 N.
Country Club Road, disappeared the
night of Oct. 1, 1982, while walking
home from a neighbor’s residence that

Death-row inmate charged in ’82

was located about 20 feet from her
home on the 3400 block of East Cody
Street.

The freckle-faced girl’s body was
found the next morning beaten, stabbed
and slashed about a half-block from her
home, between two buildings on the
3500 block of East Speedway.

The Fritz family declined to com-
ment on Bolton’s arrest late yesterday
afternoon.

Both Cathy’s and Zosha's disap-
pearances and murders were high-pro-
file cases that shook the Tucson com-
munity.

At the time, Bolton lived within a

Tuc 3.2238 - 7S

AR(ZovA PAll Y Hap

TUCSoOW AZ

Charged

Continued from Page One

ed by about 1,500 people who
marched down Speedway:

Police were called, and
Cathy’s family and friends began
searching for her that night. The
next morning, friends of the Fritz
family went out again looking for
Cathy. One of them found the
child’s body between the two
buildings. .

At the time of Cathy’s killing,
Bolton was a 16-year-old Catalina
High School student and an ac-
quaintance of Cathy’s brother,
Brian. The two boys had not seen
each other for about three
months, a source said.

However, on the day Cathy
was abducted, Bolton visited the
Fritz home. Bolton was_ inter-
viewed by homicide detectives
shortly after Cathy’s body was
found, but was not suspected as
the killer.

Four years later, Zosha, who
was 214 years old, was snatched
in the early morning hours of
June 26, 1986, through a bed-
room window of her midtown
home.

She was stabbed once in the
chest and left to die in an aban-
doned taxicab two blocks from
her family’s home.

The killer’s fingerprints were
found on Zosha’s window and on
the taxicab. The prosecutor in
the case told jurors Zosha’'s fin-
gerprints inside the car indicated
that Zosha was tapping on the

Bh ctiemnailiihiahs

window before her death, ‘‘a si-
lent reminder of a cry for help.”

An autopsy showed that Zosha
was stabbed once through her
left lung, but coroners could not
determine if she had been sexual-
ly assaulted.

However, the prosecutor said
evidence found in the car, includ-
ing a sock stained with a mix of
semen and vaginal fluid, showed
that Zosha was raped.

And while her body was
clothed, her blood-stained panties
were lying on the car’s floor, in-
dicating that she was undressed
and partially redressed by the
assailant.

For the next four years, police
chased leads, manually compared
more than 20,000 fingerprints
and consulted psychics in at-
tempts to find Zosha’s killer.

Finally, in November 1990,
the investigation stumbled upon
some luck — in Illinois. State po-
lice there were playing around
with their new Automated Finger-
print Identification system when
one officer noticed that the sys-
tem had found a match.

The machine matched prints
found on Zosha’s window and on
the taxicab to Bolton, whose fin-
gerprints were on file with Illi-
nois police after he was convict-
ed of aggravated battery and in-
decent exposure in two separate
incidents.

At the time, Bolton was serv-
ing the third year of a 15'-year
term at the state prison in Flor-
ence for exposing himself to two
women at a midtown Tucson
crosswalk, grabbing one of them
and fondling her breasts.

aca anearnatac

Murderer o

we
Kxe cution:

By Brent Whiting
The Arizona Republic

John George Brewer’s wish to be
executed for murdering his pregnant’
girlfriend four years ago will be
granted March 3, the Arizona Su-
preme Court decided Thursday.

In issuing the execution warrant, °
the state’s highest court said Brewer

qd late set.

the ¢riminal-ap; section of t
st ss Office,
said Trebon’s petitions, if granted,
could’delay the March 3 execution. [

‘McMurdie said there has been no
indication from Brewer on how he
wants to be put to death.

»Last month, Arizona voters ap-

proved a‘switch; to lethal injection as

can decide whether to die by cyanide.i* the. state’s execution method, leaving

gas or-by lethal injection.

- Brewer, 27, of Flagstaff, was
sentenced to death in August 1988
after he: pleaded guilty to the Novem-
ber 1987 slaying of Rita Brier, 23.

The execution warrant was issued
nearly a month after Judge Jeffrey
Coker of Coconino County Superior
Court dismissed Brewer’s ‘court-ap-
pointed defense attorney, Kathleen

Kelly, and ruled that the defendant is —

competent to represent himself.

Coker issued the orders Nov. 23 |’

after Brewer complained that Kelly

“has continually failed to represent '|°

my views” by filing motions to put off
his death sentence.

The judge also ruled that Brewer
would not have to go through a
post-conviction relief hearing, which.

would further delay an execution, thus’) ’
marking the end of his appeal process.‘.'| *
conviction and. death.|
sentence were upheld by the Arizona;|..
Supreme Court in February 1990. In‘}.:

_ Brewer’s

October of this year, the U.S.
Supreme ‘Court refused to review the
case.

- John Trebon, a Flagstaff lawyer ’ Fe
representing Brewer’s mother, said. |"
Thursday that he has filed petitions’ |”

with Coker and the Arizona Supreme
Court seeking further appeals.

Paul McMurdie, chief counsel for |

the gas chamber as an option only for
inmates already condemined to die. , _

Another death-row inmate,
murderer Randy: Greenawalt, 43, is
scheduled to be executed Feb. 17, but
officials of Arizona Capital Big
tation Project are expected to Beek a
stay. The U.S. Supreme Court upheld

his death sentence in October.

December 18, 1992

The Arizona Republic a

B10

ARIZONAT? ==

PHOENIX #

preme ‘oedered a. March 3
execution for’ John Brewer, 27, for:,. i;
the ’87 murder of his pregnant girl-” ‘
friend, Rita Brier. A superior court
judge Nov. 23 granted Brewer's re-
quests to represent himself and to «
dismiss an appeal he said his law-

yer filed against his wishes.

| USA TODAY - FRIDAY, DECEMBER 18, 1992 -

[- 29- 2.

-Man’s death sc

Con wants to. die
‘for strangling

__ pregnant woman
“By Pamela Manson Phoenix

~The Arizona Republic ee A Zz

The . Arizona Supreme Court on

veTuesday upheld the death sentence of

a Flagstaff man who says he wants to ©

die for strangling his pregnant arguments that Brewer was! yincompe-”

tent to plead ‘guilty. ‘to murder and.

girlfriend, leading to a prediction that

‘the state this year could execute its

first convict since 1963. ;
‘John George Brewer, 26, convicted
of killing Rita Brier in 1987, had tried

to stop the automatic appeal of his”

sentence to the state Supreme Court.

The court, saying that no one can
waive the automatic appeal, reviewed
the case and upheld the sentence ina
unanimous opinion.

The opinion also said that Brewer
cannot be charged with first-degree
‘murder in the death of his girlfriend’s

22-week-old fetus. State:law says he -

can be charged only with manslaugh-

‘ter in the killing, it said.

~ Brewer could be put to death this -

year because ’.all’ further appeals are
discretionary, said Paul McMurdie,

' ‘chief counsel of the criminal-appeals

section of the
General’s Office. *
es. “Brewer wishes to be executed,”
‘McMurdie said. “If .he refuses to
initiate any more appeals, he will be
executed.”

Arizona Attorney

Kathleen Kelly, a court-appointed.

lawyer. for Brewer: said her client still

is insisting that he want no farting ve
the degree’of cruelty evidenced in this _
“case,” Justice’ Robert Corcoran wrote

appeals in the case.”
‘However, she _ said,
change his mind. There. are. other
steps available to him? =
Appeals. are available in’ “federal
court. 2°) :
In: addition, someone “may: ‘try’ “to
intervene inthe case to. stop the
execution, Kelly said. meek
In ‘its opinion, th

that the sentencing judge.erred in
ruling that the ‘crime was. cammitted

in an. Specially. heinous, cruel or

‘He may

= ‘oaved manner.

" “We believe few murders exhibit

for the court. ’
Brewer killed Brier, 23, in Novem-

‘ bir: 1987 after she threatened to leave

him because he was too dependent on

his mother, court records say.

-In a 45-minute attack, Brewer beat

; : her: and strangled -her with a necktie,

records: say.- Brier twice began to

breathe when the tie was removed, but

finally died.

~In a confession, Brewer said he had
sex. with the: corpse before calling
police.

Brewer originally was charged with
two counts of first-degree murder, but
one charge was thrown out by Judge
Jeffrey Coker of Coconino County
Superior Court, who cited the state’s.
fetal-manslaughter law. .

Brewer pleaded guilty to the
remaining charge and was sentenced
to death by Coker.

McMurdie said Brewer’s wish wo
die for his crime will shorten the
appeals process. The U.S. Supreme,
Court has ruled in a Mississippi case

that other parties cannot file appeals
~ on an inmate’s behalf, he said.

Kelly said she is uncertain how that
ruling will affect Brewer’s case.

- By.Joe Salkowski

The Arizona Dally Star

Witnesses to the execution of John George Brewer

‘yeSterday morning agreed the 27-year-old inmate died
‘Quickly and apparently without pain.

_: ”, Their descriptions, offered shortly after Brewer's
12:18 a.m. death by lethal injection, starkly contrasted
with the morbid accounts given by those who watched
Don Eugene Harding die in the state’s gas chamber on
April 6.

:; «That morning, witnesses reported that Harding
&aSped and strained at his restraints for more than six
minutes before his death, which came 11 minutes after
hjs execution began.

: , 7 , Several described the event as torturous, and prison

izona Daily Star

Final Edition, Tucson, Thursday, March 4, 1993

xecution painless but ‘disturbin

mate executed in 29 years — appeared to suffer more
than they expected.

But Brewer's execution appeared to live up to
Promises that lethal injection would provide a quick and
Painless death. His chest heaved once, then again, and
he was dead — one minute after his executioners
Pumped the first of three lethal drugs into his veins at
12:17 a.m.

“As opposed to descriptions of Harding's execution,
this was much less violent and rather quick,” said
Bud Foster, anchorman at KGUN -TV, Channel 9.

“It was difficult, at times, to realize that this was a
man that was dying,” said Lynn DeBruin, a reporter for
The Mesa Tribune. “It all happened so fast.”

Brewer, sentenced to death in August 1988 for fa-

was the first Arizona inmate executed by lethal injec-
tion. The method was approved by state voters in No-
vember after Harding's death.

“There is no question in my mind that the voters did
the right thing,” said Arizona Attorney General Grant
Woods, one of only a few People present at both execu-
tions.

“The difference between the two is striking,” he
said. “There was no indication (Brewer's death) was
Painful.” :

Still, some witnesses were unsettled by the event.
Foster said he “started to get weak-kneed” at one point,
Pointing out a spot in his notebook where his handwrit-
ing became unsteady.

“Maybe this was not as graphically violent as Hard-

g, witnesses say

officials admitted that Harding — the first Arizona in- tally beating and strangling his pregnant girlfriend,

ing’s death, but it was still disturbing,” said Abraham

Execution stay issued
FLORENCE, Ariz. — A feder-
al appeals judge Tuesday blocked
the execution of a man who ar-
gues he should be put to death as
just punishment for strangling
his pregnant fiancee. |
Judge William Norris of the
9th US. Circuit Court of Appeals
issued his stay hours before John
George Brewer was to be execut-
ed this morning at the state pris-

on in Florence. (A)

A6 Wednesday, March 3, 1993 e The Fresno Bee

. Continued from Page One

35¢ U.S./50¢ in Mexico

Kwok, a reporter with The Arizona Republic. “To see his S

chest heaving at one moment, then he was gone the next
— it was very quick.” .

Meanwhile, Brewer’s body was to be brought to

Tucson yesterday for an autopsy, prison spokesman
Mike Arra said.

After doctors in the Pima County Medical Exam-
iner’s Office perform the procedure, Brewer's body will
be cremated and his remains turned over to his lawyer,
Phoenix attorney Lisa Sommer.

Yesterday afternoon, Sommer released a prepared
Statement that Brewer had asked to serve as his last
words.

“Iam a man who has paid for his crimes in the most

See BREWER, Page 4

3-Y¢-F3
appropriate way Possible,” reads the statement, which

Brewer typed before being brought to the Prison’s Death
House on Monday.

. “The sentence imposed is not something I necessar-

ily want, seek or desire,” he wrote.

ted.”

Brewer had asked to be executed since the hours |
after his arrest and waived his rights to appeal his death .

sentence.

a. “We reviewed with him the fact that he had the
right to appeal up until the very end,” Sommer said

yesterday. “He never wavered from his position.”

t “However, it is | |
something that is appropriate for the crime | commit-

80 PACIFIC 35)
B OOTH, Zach, white, hanged at Globe, A,izona, on 8-16-1905.

"Globe, Arizona, Dec. 28, 190f-=News has just come to this place of the murder of two
sheepmen near the Gisela settlement, eighty miles north of Globe, The victims are a
young man named Berry and a Mexican. Deputy sheriffs later arrested Zach and John
Booth at their homes near Gisela, charging them with the killing. The murder of young
Berry and the Mexican is an addition to the long list of victims of the feud between
cattlemen and shpppmen which has been carried on in the Basin district for many
years." JOURNAL, Atlanta, Georgia, December 28, 1908 (Sethe)

Killer denies —
death wish, —
admits fear —
as end nears ©

By Susan Leonard
and Abraham Kwok
The Arizona Republic

Convictéd murderer John
George Brewer remains adamant
that he wants to die, but he
insists that he does not have a
death wish and admits that he is
a little scared.

“Who wants to die?” he asked
Friday in one of the last inter-
views he was allowed before his
execution, scheduled for Wednes-
day at 12:05 a.m.

“Of course it affects me,”
Brewer said. “I’m not enthused
about it. I’m not thrilled. I’m not
overjoyed about it. I’m here
because of what I did.”

In the interview, Brewer ex-
pressed irritation with the efforts
of his mother and others to save
him from execution, and said his

‘fellow death-row inmates do not

like his willingness to die.

Brewer dismissed as “‘ludi-
crous” suggestions by some oppo-.
nents of capital punishment that
he is trying to commit suicide
rather than undertake a drawn-
‘out legal fight, as most con-
demned inmates do.

In fact, Brewer, 27, said he
does not like the “media circus”
that he expects to accompany his
execution. He said he would not

— See KILLER, page A8

John George
Brewer / “I’m ~~
not here to sell _
books. I’m not
here to make a _
movie. I’m here
to pay for the
crime |
committed,”
the death-row
inmate said. His
executionis
scheduled for -
Wednesday at
12:05 a.m.

fhoenix AZ pAl

Tuesday, March 2, 1993

The Arizona Republic

[op 2

Lhoenx AZ

Thursday, March 4, 1993

The Arizona Republic

3 Killer’ ’s transition to death imperceptible to witnesses y

. By Abraham Kwok
The Arizona Republic

John George Brewer died with his mouth
agape, neither a vision of serenity nor
graphic cruelty.

The lethal injection was eerily efficient;
not even witnesses straining to concentrate
could pinpoint his transition from sleep to

Brewer's eyes aint throat fluttered with the
first dosage of sodium pentothal, a sedative

: |. that’ induced. unconsciousness.

Thén. the executioner; ; “who was hidden

Le fromi ‘the: view of: the’ condemned and. the
: : bes witne

injected: a syringe. of :Pavulon to. of Brewer, likened the dying: man’s'.ey‘ mo a Before his‘execution began, his eyes roved “
: pare ilyze rewer's bc miscles, followed “by an those of a deer he had shot two. mionths ag ‘ago guptyand a ‘down the line of more | * than’
ies, gh ee He Wee Spe. wok, - i “ sys i ‘ Aly pods ts ¢ 4 ‘

injection of potassium chloride to still i
heart. Both are drugs normally administered
to those undergoing surgery.

His execution began at 12:17 a.m., and
death followed only a minute later, according
to prison officials.

Unlike Don Eugene Harding’s execution
last year in the gas chamber, there were no
violent, involuntary spasms or.convulsions.

Witnesses described the death as “hu-
mane” and “quick.” Some compared it to a
person falling to sleep.

. Jim’ Erickson, ‘an Arizona Daily Star’:

Teporter from Tucson: who had a direct. ples 3

én a poet trip.

“ “They had the same empty, vacant,
glazed-over look of the deer’s,” Erickson
said, “very much like a flashlight when its
beam weakens, dims and goes out.”

Another witness, Paul Sweitzer of The
Arizona Daily Sun in Flagstaff, said Brewer’s
death was “less violent, less garish” than the
gas-chamber execution of Patrick M. McGee
he had witnessed in March 1963.

. Brewer’s .yords. could not be heard by
witnesses line
the sore his f injection chamber.

‘up at a window looking into:

two-dozen witnesses. He searched out the

Rev. John Schaumburg of Flagstaff, a

Lutheran pastor who had been among
Brewer’s closest friends toward the end, and
mustered a thumbs-up sign.

“Go, go,” Brewer said, a signal for
Schaumburg and three other friends to leave
before his death sentence was carried out.

After their departure, Brewer, as if he
were in rapture, mouthed a string of
indecipherable words until the pentothal was

:pumped through one of two intravenous

tubes into his arms.

«, Reporters busily noted Brewer's final
moments. Other witnesses, including Attor-

ney General Grant Woods, stared intently at
the condemned.

At 12:18 a.m., John George Brewer finally
fulfilled his wish to get his just deserts for his
crime of murder.

The curtains of the viewing window were
promptly closed and Corrections Director
Sam Lewis walked into the witness room.

‘Mr. Brewer is dead,” he announced. “The
execution is completed.”

With that, the witnesses marched out in i

silence as prison staffers attended to Brewer’s
lifeless body.

ties

Contributing to this article was Pamela’ Man- y

son of The Arizona ee ,

Revs Yt

’

— KILLER, from page Al

want to die if he did not deserve it for
strangling his pregnant fiancee, Rita
Kathleen Brier, on Nov. 11, 1987.
“J’m. not ready to die,” he said.
“I’m here to pay the penalty. . Es
“I’m not here to sell books. ’m not

here to make a movie. I’m here to pay

for the crime I committed.”

Brewer’s execution was ordered —

after he strangled Brier, 23, who was
22 weeks pregnant, at their Flagstaff
apartment.

-” He said the murder was sparked by
Brier’s complaints that he was too
dependent on his mother, - Elsie
Brewer of Greensburg, Pa. The couple
had moved to Arizona from Greens-
burg two months before the murder.

‘ Brewer pleaded guilty to first-de-

‘gree murder and insisted he wanted

the death penalty. He has chosen
lethal injection. _

During a telephone interview Fri-
day from the Arizona State Prison at
Florence, Brewer said he decided to
seek execution because “I’m not going
to make my wrongdoing worse by
defending it.”

- “I don’t want to be grounded for it
and sent to my room for 25 years for a
murder. No, that’s two murders,” he

said, referring to Brier and the fetus.
He also said he does not want

anyone to try to stop his execution. :
“Given that this is my. case — it’s

‘my name on the title, I’m the one who

did--the crime, it’s the State“ vs.
Brewer, ‘not. the State vs. ACLU or
anyone else. It’s me. I should direct
any and all matters involving my case.
No one else should have that right.”

He said ‘that includes his mother,
who has appealed. his sentence to the
9th U.S. Circuit Court of Appeals,
which heard her motion Monday in
Pasadena, Calif. The court gave no
indication when it will rule.

Brewer said he understands his
mother’s motivations, but is nonethe-
less irritated with her.

“She’s a mother. I am her son,” he
said. “What mother wants to see her

AS The Arizona Republic Tuesday, March 2, 1993 / Woeni Xx A ZA

Killer denies death wish, admits fear as end nears |

son die? But you have_to look at what
she is saying, what she has done.”

He said he thinks she primarily
wants to keep him alive because “she
doesn’t want to have to assume my
student loans.”

Brewer said his mother has not
shown much concern in the past.

For example, .he said she did not
even tell him his father had died until
about a-month later. She also has
identified different men as his father,
he said.

Elsie Brewer could not be reached
for comment. A woman who an-
swered her phone Monday said that
she was unavailable to take calls.

John Brewer also is peeved at the
news media. ;

He said he wishes that reporters
would refer to Brier as his fiancee,

rather than -his girlfriend, and would
stop referring to him by nicknames.
Some reporters -have -said. that

Brewer has been known as “Strange .

Brew,” “The Nerd Who Killed” and

“Psycho.”*. 0 6 as te, >
“My .name’ is’ John «George

Brewer;” he said. “You can call me

John. You can-call me John Brewer or

you can me Mr. Brewer, but I do have
a name.”. ae

He said that if reporters are going
to use his nickname, they should use
their nicknames, too. gt

“At least be equal about it,” he
said. ‘“If you’re going to use my
nickname, you might as well say what
their nicknames are, as well.”

Brewer acknowledged that many of
his fellow death-row inmates are “not
happy with his decision to reject

smacked at,” he said. “I’ve had my
clothes torn off.” che 8 ia

..He said his support: of his own
execution should not be construed as
support..for capital punishment in
general, or support for those. who
back the death penalty, such as
Arizona Attorne:

’ Woods.

“Tm nobody’s poster boy or lap
dog,” he said.
Brewer said the food he has

received for the past five years in.

prison has “been a pretty standard

- diet,” so he plans to go all out for his

last meal: three pork chops with
gravy, bacon, fried shrimp, beef-fla-
vored Rice-a-Roni, pear halves with
syrup, applesauce, two cans of ginger

“[’ve been stabbed at, threatened,

General» Grant:

ale. with ict, a slice of coconut pie,
orange juice, .chicken-noodle soup
with crackers .and Maxwell. House
coffee with cream and sugar.

Brewer has written a:science-fiction
manuscript he-said he plans to leave.
to some friends, but has no hopes it
will be published and said . people
should not read too much into it: —

“That’s a private, goodbye gift to
people for them to remember me by,”.
he said. “It offers no big insight to my
soul, if that’s what you’re asking, and
it’s definitely not for publication.

“It’s like my farewell gift to them.”

But Brewer said he has something
else for publication. '

In the firial unusual twist of this
unusual case, Brewer said he plans to
have a news release with his final
comments distributed after his death.

Qo QD

ARIZOWA Day sma

Tucson, Sunday, February 7 1993 | ;
Inmate’s mom: i
tries to. block ; i

his execution:

- PHOENIX (AP)! — ~ Deathi?zow in-
mate John George Brewer: is, tryibe “eo
to manipulate the state into helpitg |
‘him commit suicide, his mother says | ye
in court papers filed. in, response “in
her son’s efforts:to speed up his own
execution.

Brewer, 27,. insists he: should bE
put to death for the Nov:: il, 198%, ~
murder of his pregnant canoes in
Flagstaff.

Elsie Brewer described her son in
papers filed with the ‘Arizona Su- fh |
preme Court Tuesday as eee ql
mentally ill.”

‘**He needs help, but he does not
deserve to be executed,” she:said.., :

Brewer, who:lives in: Pennsylva-
nia, said her son has.a. history of i
suicide attempts; and. acted “‘espe-
cially strange” :during:a: jailhouse
meeting in November:: © 4
Ina telephone interview last week
with:The Phoenix’ Gazette,: Brewer
said he understands his mother’s a¢-
tions but still insists he is competent
to seek his own execution... sr
‘‘What do you expect: ia mother fo
do?” he asked. 2 0 i
“This is a hard position for me to q
be in,” he said. “Pm: forced to fight
my mother in: COU That ismt ia
easy.” ww)
. Others have also-said that Brewer
has a history: of bizarre behavior,
marked by numerous suicide at-
tempts, and his belief'in a god he
calls “Dontain” and.a planet “Terra-
cia.”

RR oe

~ Jd &

SECTION]
ot NS & PUES Bh) shu) Se fe
gitic, ees. or FEBRUARY 23,1993 >
er.

ed saci bgtlans- HRD Gey’

qi “4

Paul

McMurdie / The
prose¢utor says’
he is comfortable
that John George
Brewer can
handle his own
affairs. ©

: sDescuo: f ielding quer

. 8) Pamela Marison

The Arizona Republic

‘In his determination to die for the murder of
his pregnant girlfriend, John George Brewer

“ has turned to the man whose job it is to make

sure his wish comes true.

Since last summer, Brewer:has been writing
to Paul McMurdie, chief counsel of the
criminial-appeals section of the Arizona Attor-
ney General’s Office, seeking advice on legal
strategy, how to counter possible roadblocks ‘to
his March 3 execution and how to best handle
pesky efforts to save him.

McMurdie balked at first, saying he could
communicate only with Brewer’s attorney.

But in November, after Brewer was ruled
competent to represent himself and promptly
fired his lawyer, McMurdie sought clarification

: carried out, ‘and he:

les 1 |

ts @

It’s strange. T’m in try to have his .
: John: George Brewer's). sentence . :

‘legal advice.on how:to fight his
stay (of execution). :
Paul McMurdie, wisceentir 3

from the state Supreme Court on whether bi
could communicate with the murderer.
Under rules of ethics, McMurdie i is allowed

to discuss a case with a defendant’s attorney —,

in this case, the defendant himself.

tyodT, whose IQ has been recorded as

, 132, is the only death-row inmate representing

himself. There are more than. 100 inmates on

. death row. 0 cA

; Brewer's lettess, wa arrive at the”
Attorney Genieral’s: Office at the rate of about
‘two'a week, ‘have a businesslike tone. They
“dwell on legal issues and complaints about -

attorneys who want to stop his execution.

fy There seldom is anything personal in them.

In’ one letter, Brewer inquired about a
technical. point on lethal injection that he
thought could affect, his execution. He asked
for a quick response.

“While I realize that I am not your only
case, things do happen quickly, and I would

— See PROSECUTOR, page B6

John George
Brewer / The
death-row inmate
insists that he
must die for the
1987 strangu-
lation of his
girlfriend.

| In death, Brewer took last slap. at mother |

" donimee was asked to see that the ashes are

She gets nothing of his,

pre-execution affidavit says, |

By Abraham K vok, Susan Leonard

- l
= a romans" Phoenix. AZE. )
Even in death; John George Brewer’ took “one :

final slap at his mother. ae
“In one of his last acts before being exevintid” by!

ashes — be given to Elsie Brewer.
And in a final. statement released through. his .

- Phoenix: attorney, John Brewer reiterated: that the.

‘death penalty was the appropriate sentence for his
. sStrangulation. of his” pregnant’ fiancee, and’ he‘

criticized " ‘civil libertarians’ who. seek to “forward.”

*” their ov Own agenda on the back of miy case.”
In. affidavits. filéd Tuesday” with the’. ‘Arizona ”

Dépectinaat of Corrections; Brewer’ directed : that

-his ‘ashes‘ be taken to his attorney, “Lisa? Sommier, °

_ buried i in Pennyslvania.

~ After he was sentenced to death in 1988, Biiwer
“fought | off many appeals, most filed by his mother,
“that argued he was: -mentally-i incompetent and had a
‘death‘wish resulting from a- ‘personality y disorder.
'tHis decision to deny-his-mother his possessions
»fuels‘an. argument: ‘that capital-punishment - foes
«repeatedly used:-That. John Brewer wanted to
‘i commit suicide to get back at a mother:-who had an

os sur, nee y
“Many péople. ‘connected ‘with t

pg Geom case also were. under that

impression;: . including; Sam Lewis,

director.of the Arizona Depertment: of

:. Corrections. -

] pa fe -and.» Paroles’ ah

Asked Tuesday . night why ‘

thought Brewer - ‘was So insistent on-

dying, Lewis said, “I think he wants

to prove to: people’ ht is in charge and:

maybe refute that he is controlled by
his aes or his girlfriend.”
his appearance before the state

=p igre

Ph “Genes

a , oe

im - iced, Seower insisted. he was ‘abt

trying: “to penalize my mother” by :

he choosing death.

But his actions suggested otherwise.
He declined to look at his. mother

. a8 he made a tearful plea to the board :
‘that -her son’s life be spared, And
when he drew up a list of people he
wished to attend. the execution, her

name was excluded.
- That decision was not made to

spare her further pain. Moments ‘

before a lethal combiriation of drugs +

’ was injected ‘into his‘ arms, Brewer

instructed : ‘the’ fours Witnesses che had :

Thursday, March 4, 1993

q 4: ~~ dethal injection early Wednesday, the murderer and that: tissue -from: his ‘body ‘be: donated : iguted
i" ordered that none of his belongings — including his research or eo oe

vn penneaste hold.on his-life:.- .*.-’..

— See NERS SUP, peje A?

elefton ge 7 ies oat

The Arizona Republic

er’ slap from death denies mother all belongings, including his ashes.

A Seedecbey' 2 2

sinvi d.to' leave the Bs
fout.ilef, . including ‘pen-pal : Jeffrey
: Reid: :
i x “He wanted to see us, but he really
~ didn’t. want us to see him receive the
: injection,” Reid said Wednesday. “It
‘ was kind and considerate on his part.”
Sommer, who released Brewer’s
‘final statement at a press conference
- Wednesday, said. Brewer was not
; trying to hurt his mother.
“T really don’t think that is what he
; Was trying to do,” she said. “He truly

(baieved with, all: his, heart that his f

| ae aes gat: Bibs iidbe on oS i Ey:

‘oom. All

ort ‘Bicwdiee! * statement, drafted
Tucaday before his’ parole-board hear-
ing, he said he has been “Aa ‘life-long
advocate ‘of the: death penalty”, and
“would. like’ to see’ it’ expanded ‘to
include more than just murder.”. °
“For there are acts that require
more than ‘grounding’ someone and
‘sending them to their room’ for any
number of years,” he wrote. “Addi-
tionally, the death penalty is just that,
a death penalty for c crimes and acts.

Wye
Se

what Brewer was saying to her- and |,
other witnesses before the execution.

“It was like’ he was saying ‘go,’ or::

‘that’s OK’ or something,” she said.

The witnesses, in a soundproof
room adjacent to the injection cham-
ber, could not hear what was said. A
prison official, J.C. Kenney, was
inside the chamber with Brewer, but
corrections spokesman Michael. Arra
declined Wednesday to release ‘what
Brewer said before he died.:

“It’s just one of those things. that’s 3:

going & ~~ Leimert Arra.'said,i:

‘They. were just final thoughts het he
talked aloud to himself.” >
: However, : he said’ Brewer did not’

havea change of heart at the end.

Arra again refused to say whether a
doctor was on the “operations team”
that carried out the execution. He also
would not say whether team members

‘ are’ prison’ staff members or con-

. tracted workers from outside the

system. .
» Inaddition, he would not: say, how:

“much ; the: ote spent to": rexecate,
Brewer.‘ sabes sabe ge ee

OPS SEA ‘id. Bigs. ees: seri fresh Bi

Se wey NS te Meme ye ON e * ™ Tw NORE > ee) ’ a ‘ 1 ey : ~ OWA ae as cate
ea 5 : : ; S395.
Page Two — Section B - » Uhe Arizona Daily Star A Tucson, Saturday, February 27, 1993
S ANSE Been S28." The’sentence ‘was-upheld on Jan. 28, 1992, by the - ' Brewer told police he strangled Brier with a necktie In the days leading to his ‘scheduled .execut mi ;
In mate ., Arizona Supreme Court, which automatically ‘consid- after-she told him she was leaving -him because he _ Brewer would not go into detail about what he's doing to

: -: - PHOENIX (AP) — Death-row inmate John George
-Brewer yesterday rebuffed his mother’s efforts to save
‘him from execution. .

-: Brewer, 27, Pleaded guilty to murdering his preg-
want fiancee in 1987 and has maintained Since that he..
<wants to be executed. He is scheduled to die by lethal

jection at 12:05 a.m. Wednesday at the Arizona State
Prison in Florence. é _
<2: His mother, Elsie Brewer of, Greensburg, Pa.,-filed
-Papers_with the 9th;U. eArcult Court .of Appeals in San ©
‘Branci date Thursday I an attempt to block the exe-
uments are Set for Monday afternoon at
@ federal court in Pasadena, Calif.

<7: “She's a mother trying to save. the life of her son. .
You can’t fault her for that,” Brewer said in a telephone _
;* y .

*
it de
-

interview from the Prison yesterday. “But this is my
case. It is my voice that should be heard.”

Arizona Attorney General Grant Woods said the ap-
peals court “has consistently ruled against the state
in things like that, so we have already filed the paper
work to take this to the U.S. Supreme Court if nec-
essary.” - vibes: :

__ Brewer's execution would be the first since Arizona
voters switched the method .of execution from ‘the gas
chamber ;to chemicafinjection, and the State's second ip.’

29'years since it resumed carrying out the death penalty
with the April 6, 1992, execution of triple murderer Don
Eugene Harding. .
"It would be the nation’s 191st execution since the

inmate rebuffs his mother’s legal efforts to block exec

U.S. Supreme Court allowed states to resume enforcing ce

_ the death penalty in 1976. .

of Corrections Director Sam Lewis to discuss a backup’. :
plan in case Brewer

“It's the first lethal injection and the first voluntary Re
execution, We wanted to make sure that .évery'mecha=:

‘nism is I place s6'things go smoothly from the technical. #.fer from delusions cinationsip)
inde Woot Me é ‘¢ Ethan Six different psychiatrists have filed.

‘side,? Woods said. "If Mr. Brewer decides to change his
‘mind at any point.in time, we'have procedures in place... "1

“I don’t ‘anticipate him chianging his mind. Mr."
Brewer: will be executed. The question is. whether it will. ....-
be Wednesday morning or sometime after that,” he a
said. a : _

_» ©", fessor who is assisting Mrs. “on
Woods said he met yesterday with state Department.” ° did not immediately return telephone calls yesterdays!

balks at lethal injection at the last’!< "da
minute and decides to die by gas instead. ty

. ° e ¢ .
« Robert Bartels, an Arizona State University law DR
Brewer.‘on her appeal:

“I know what I'm doing,” Brewer said. *
or hallucinations’ ori bed

anything
reports that all say I am competent!?a%": ee
:.:,. Brewer‘has said his moral convictions prevent hith
from seeking a stay. a epi et

“It’s always been my moral belief that execution ja :
See INMATE, Page 2B
‘ ts

Continued from Page 1B ;
the penalty for murder,” he said. “I committed this
ciime, I’m not going to make my wrongs worse by trying
to weasel out of it and say I should just be grounded and
sent to my room for 25 years. i

" “Two people are dead at my hand. Execution is the
only proper penalty for the crime that I committed. I'm
here to pay that penalty,” he said.
xt A Coconino County Superior Court judge gave

"* ered Brewer's case over his objection.

“7 don’t like what's going to happen. I’m not looking
’ forward to it. I have my fears,”. Brewer said. “But
"as far as any second thoughts, it’s very unlikely I will
. Change my mind. I killed two people — her and the
baby. The fact is I did commit murder and therefore my
life is forfeited.” ;
Brier was 22 weeks pregnant at the time of her
death. She was 23 years old. .
Brewer said he met her in Pennsylvania, and that
they began dating in October 1986 and moved to Flag-

Brewer the death sentence on Aug. 26,1988, afterhehad _ staff in September 1987. :
pleaded guilty. to the Nov. 11, 1987, strangulation and “She was my fiancee,” he said. “We were engaged.
beating of Rita Brier at their Flagstaff apartment. She had a ring.”

PRL Mae aes

was too dependent on his mother. The couple had pre-

viously lived with Mrs. Brewer in Pennsylvania,-. 2: 3%".

Brewer declined comment yesterday when asked if :
he felt he was overly dependent on his mother. Aros

He also refused to say whether he had sex ‘with
Brier’s corpse. He originally told police he had, but re-
canted when interviewed later by a psychiatrist out of
fear that he'd be declared insane.

“It’s a sick, disgusting thing,” Brewer said. “This is
not a subject I want to discuss... for legal reasons.”

Brewer said he has been “in protective custody for. ©

a number of years” after being “smacked around,
threatened and stabbed at” by some of the other 100 or
So death-row inmates.

prepare himself.
~~ “I’m a very private Person and I'm a person facing
“death,” he said. “I don't feel this is something that
-Should be bandied about in the press. ene
~ “The crime I did is inexcusable. If I did not regret it,

I would not be here. I'd be trying to get out, like
every other murderer.” ; B. i
Corrections officials said Brewer is allowed to se;

lect five witnesses for his execution. {

Brewer said they will include “friends of ee 28

BERD

clergymen,” but not his mother, z 4
“I don’t think a mother’s last memory of her son
should be something like this,” he sald. . 2 }

A me eee

ution set for Wednesday

B6__ _The Arizona Republic

Tuesday, February 23, 1993

DA oenix AZ

Prosecutor

oa PROSECUTOR, from page B1

like to have your advice before I may
blunder into something,” wrote
Brewer, who has chosen to die by
lethal injection. .
“As! always, he signed the letter,
“Respectfully yours.”

~ In -response, McMurdie explained
the intricacies of the law and warned
Bréwer that others may try to stop the
exécution by arguing that he’s men-
tally incompetent. He told Brewer not
to‘worry.

“Tt simply means that we must be
prepared i in responding to the attacks
wheit they come forth,” the prosecu-
tor wrote.

McMurdie, who will not be present
for Brewer’s execution, acknowledged
the’ odd nature of the relationship.

“Ys strange;” he said last week.
Tri trying to have his sentence
carried out, and he was giving us legal
advice on how to fight his stay (of
execution).”

But the prosecutor is comfortable
that Brewer can handle his own
affairs.

“The cases he cited were right on
point,” he said.

“In a few of his letters to McMurdie,
Brewer, too, acknowledges that they
are in a strange situation.

“As stated, I realize that it is
unusual for a defendant to ask the
Attorney General’s Office for assis-
tance, but I have few alternatives,” he
wrote in one.

. Every lawyer I have approached
about: representing or ~— me has

my request. ..°. So, I am left
with. you.”

. In. another letter, Brewer said it is
iniportant to have his views repre-
sented in the case. He again noted

‘nie. wniiinaal it is for a condemned
man to be writing to the prosecutor. :
He asked, “But what in this case
has been usual?”
Brewer, who pleaded guilty to the
1987 strangulation; of Rita Brier in

Flagstaff, insists that he should die for

the murder.
Although prosecutor Fred Newton
recommended sont in: ‘prison, Judge

Jeffrey Coker of Coconino County
Superior Court sentenced Brewer to
death.

In response to questions from The

-Arizona Republic, Brewer said he

writes to McMurdie to keep him
aware of his plans.

“He is no ‘friend’ or * sally, ics
Brewer wrote. “Merely a source " of
expert information.”

In his letters to the prosecutor,
Brewer bombards McMurdie with

* questions. He wants to know what

motions the Attorney General’s Office
has filed to move his case along. He

worries about possible delays. He asks _
about the wisdom of submitting. to a,”
mental-health “exami and how td”

handle interview requests by: defense
attorneys. '

a Brewer always wants a quick
reply

“Only by frequent and . timely
communication can we keep -
other aware and informed,” he said.

McMurdie wrote that Brewer can
request that the state
Corrections ‘not allow ‘defense lawyers
to see his file or meet with him:

“This i is simply your. call,” McMur-

-each

state"Department of.

fields legal-advice queries from death row \

die said. ;
He also said that it is up to Brewer \
to decide how to d with the
mental-health issue. “ :%:.
“You must recognize # by now,
however, that ge) a fa cre the
examiners that w find: even the

president of the Uni a Staite insane if
they believed jit ‘would. “Pp an

: execution,” McMurdie wate me

ott. Ree

——s

mee

rea

Ay IZOUG Kepu

John Brewer/The

_ Randy Greenawalt / |

James Dean

26-year-old insists that Escaped from prison in Clark / The 34-year-old
he wants to die for his 1978 while serving is under four death
crime. sentence for murder. sentences.

High court turns away
5 death-row inmates

By Pamela Manson
The Arizona Republic

The U.S. Supreme Court on Mon-

‘day refused to hear the appeals of five

Arizona death-row inmates, possibly

‘setting the stage-for the execution of

three of them early next year.

Shortly after the high court’s
action, the state Attorney General’s
Office filed motions with the Arizona
Supreme Court asking that execution
dates be set for James Dean Clark,
John Brewer and Randy Greenawalt.

“This is a giant step toward their

executions,” Attorney General Grant

Woods said Monday.

The three “don’t have anything left,
except what they can dream up” in
the way of appeals, Woods said, and
could face the gas chamber as early as

Lawyers: with the Arizona Capital
Representation Project, which helps
with death-sentence appeals, could not
be reached for comment.

Greenawalt and .Clark “have been
in front. of every. court” and have
exhausted their appeals, Woods said.
Brewer has ‘asked to be executed,
Woods said, putting him in the same
position as the other two unless he
changes his mind." “

The other two Arizona death-row
inmates, David Cook and Ramon

Martinez-Villareal, still can appeal to
lower federal courts, a process that
likely will take years.

Greenawalt, 43, was serving a
sentence for murder when he escaped
from the Arizona State Prison in
Florence in 1978 with another
murderer, Gary Tison, whose three
sons aided in the breakout. After the
escape, the gang gunned down a
family of four near Quartzsite.

The Tisons’ sentences later were
overturned, and they were resentenced
to life in prison.

Clark, 34; is under four death
sentences for the murder of the
owners and two ranch hands at a
guest ranch near Elfrida in 1977.

Brewer, 26, was convicted of killing
his pregnant. girlfriend at their Flag-
staff apartment in 1987. He insists
that he wants to die for his crime.

Arizona’s first execution since 1963
took place April 6, when triple-
murderer Don Eugene Harding was
put to death in the gas chamber.

There are 102 men and one woman
on Arizona’s death row.

3 executions
cost state
$155,000

PHOENIX (AP) — The execu-
tions of three convicted murderers
in the last 12 months have cost state
taxpayers about $155,000, according
to the Arizona Department of Cor-
rections.

The total includes start-up costs of
$7,370 to ready the gas chamber at
the state prison complex in Florence
for the April 6, 1992, execution of
Don Eugene Harding and $63,738 to
build a lethal-injection chamber for
the executions of John George
Brewer on March 3 and James Dean
Clark last Wednesday.

Harding, 43, was executed for the
1980 murders of two businessman
he robbed and shot In a Tucson
motel room.

Brewer, 27, was put to death for
strangling his 23-year-old pregnant
fiancee in their Flagstaff apartment
in 1987. .

Clark, 35, was executed for killing
four people in 1977 at an Elfrida
dude ranch where he worked as a
wrangler.

There are 110 inmates remaining
on Arizona's death row.

The Department of Corrections
prepared the cost analysis in re-
sponse to an inquiry by The Arizona
Republic.

The department said the gas-
chamber execution cost $27,882, In-
cluding $186 for cyanide and other
required chemicals, while the injec-
tion executions cost $28,047 each in-
cluding $63 for the three lethal

See EXECUTE, Page 2B

Execute

Continued from Page 1B
drugs used.

Corrections Director Sam Lewis
said his department had to spend
more than $7,000 to get the gas
chamber ready for Harding's execu-
tlon because it hadn’t been used
since 1963.

“Preparing for the 1992 execution
required a consultant to test the in-
tegrity of the gas chamber, and we
replaced defective components,”
Lewis said. “In addition, building-re-
modeling costs were incurred.”

Arizona resumed carrying out the
death penalty last spring and voters
in November approved executions
by injection.

’ Preparing for Arizona's first le-
thal injection cost the department

much more because it had to build a
chamber in which to conduct such
executions, according to Lewis.

Corrections officials built the in-
jection chamber directly across
from the gas chamber, using part of
an area set aside for execution wit-
nesses.

The department also had to build
a room for staff members who ad-
minister the injections arid mconaltor
the inmate, Lewis said.

He said that some of the work was
done by inmates but that the depart-
ment had to pay for much of the
construction, research on lethal in-
jection, and architectural services.

Lewis said he expects the injec-
tion facilities to provide 60 or more
years of service, just as the gas
chamber has.

The state prison in Florence was
built in 1932.

Ghe Arizona Daily Star

Tucson, Monday, April 19, 1993

was captured on amateur videotape
two years ago today. He condemned
what he described as a savage attack
on a defenseless, beaten man.

The testimony appeared to be the

-| handcuff Mr. Ki:
any appropriate

Turning to Off
Conta told jurors
demonstrate any

eral civil rights.

‘He had full and complete responsi-
bility,’ said Sergeant Conta, who
served 17 years as an officer and field
sergeant before assuming his current

~ We wiil show that Mr. King was at
all times combative and resistant,”
Mr. Salzman said. ‘“‘When Mr. King
stops resisting, the beating stops.”

As Barry F. Kowalski, one of two

pee STATES EXECUTE
[@ea-fee5 TWO MURDERERS

Neither Appealed Sentences
in Delaware and Arizona

Fe We

By The Associated Press

Two murderers who had refused to
make any legal efforts to escape execu-
tion were put to death yesterday, one in
Delaware, the other in Arizona.

The Delaware prisoner was James
Allen Red Dog, 39, a Sioux Indian of the
Lakota tribe who had refused to appeal
his sentence because he contended that
doing so would violate his warrior’s
code.

Mr. Red Dog, who was visited in his

final hours by a tribal medicine man
from Montana, was executed by injec-
tion at the State Correctional Center in
Smyrna, 15 miles north of Dover. Just
before the lethal mixture of drugs was
administered to him, he turned to his
weeping wife, who was among the wit-
nesses, and said, “I’m going home,
babe.”’
Mr. Red Dog, a confessed three-time
killer, had been relocated to Delaware
as a federally protected witness in in-
vestigations of the militant American
Indian Movement and of prison gangs
when, in 1991, he committed the crime
for which he was condemned to death.
In a drunken rage, he killed a 30-year-
old acquaintance, Hugh Pennington, by
slitting Mr. Pennington’s throat so se-
verely that the victim was virtually
decapitated. Immediately afterward
| he kidnapped and raped a woman.

He later pleaded no contest, saying
he had been so drunk at the time that
he could not remember anything about
his rampage.

Mother Sought to Save Him

Shortly before the Delaware execu-
tion, John George Brewer, 27, was put
to death, also by injection, at the state
prison in Florence, Ariz., 50 miles
southeast of Phoenix.

Mr. Brewer had admitted beating
4 and strangling his 23-year-old fiancée,

Rita Brier, who was 22 weeks pregnant,

at their apartment in Flagstaff in 1987.

Although he contended that he de-

t served to be put to death, his mother,

Elsie Brewer, struggled in the Federal

courts and before a state pardon board
to have the sentence commuted.

“lve been trying to prevent him
from committing suicide ever since he
was a small child,’’ Mrs. Brewer told
the Arizona Board of Pardons and Pa-
roles at a hearing on Tuesday. ‘‘Today
] was trying to prevent him from com-
mitting suicide again.”

But her son told the board, ‘‘I com-
mitted this crime and | feel it is an
appropriate penalty for the crime.”’

The board agreed with the con-
demned prisoner, who was executed an
hour and a half after the United States
Supreme Court, on a vote of 7 to 2, lifted
a stay that his mother’s lawyers had

3 Rex eg has casas

Clare OO Rensaeara?d Hb 54445

Lehn Ot hoe oe:

Saudi Beheadings Running at a Record Pace
40 Executed So Far This Year, but Critics Say Practice Fails to Deter Drug Traffic

By Caryle Murphy
W vhington Art Foren Sern +

CAIRO, May 7—Saudi author-
ities publicly beheaded three per-
sons today, including a Filipino wo-
man, bringing to 40 the number of
such executions announced so far
this year in what Western human
tights groups see as a significant
increase.

Half of the 40 executions were
for drug dealing.

An Islamic state whose govern-
ment puts great emphasis on imple-
menting Islamic law, or sharia, Sau-
di Arabia is one of the few countries

WASHINGTONM Fosr

that publicly beheads convicted
criminals. There is widespread ac-
ceptance of “the practice among
Saudis, who geherally — it as

“It is part of the
the state with [its]

i to prote
. s id:
lawyer. “But it doesn’t seem a

them from crime,” said
deterrent,” he added, citing

executions for drug traffi ls
Human rights organiza| and

some Saudis have criti behead-

ings, which are sometimes followed

by public displays of the bodies for .
days, because they say Saudi legal
procedures do not, / /conform with

f
j

fj
f

SAT. MAY

(ove R)

generally accepted norms for fair
trials.

In addition, most criminal trials
dépend heavily on “confessions”
[tom defendants, which Western

from pores held incommunicado
and subjected to beatings and other
forms of abuse.

“Many people beheaded in Saudi
bia are innocent, because you
beaten so much, there is no re-
to the law. You are alone,”
said Saudi critic of peemient
policies.

The Clinton administration has

1993

said that promoting respect for hu-
man rights will be one of the pillars
of its foreign policy. Secretary of
State Warren Christopher raised
the issue of human rights when he
visited Saudi Arabia during his Mid-
dle East trip in February, and there
was a “general exchange” with Sau-
di officials on the topic, one U.S.
official said.

Beheading is imposed for convic-
tions of rape, murder, armed rob-
bery, adultery and apostasy. Drug
trafficking was made a capital of-
fense in 1987. Saudis and human
rights monitors interviewed for this

" Bee SAUDI, A18, Col. 5

Saudi Public
‘Total 40 So Far in

SAUDI, From Al4

article said they had no reason to
believe any of the recent executions
were for political reasons.

The latest beheadings occurred
today when two Saudis were exe-
cuted, one for armed robbery and
one for smuggling \hashish, news
agencies reported. An unidentified
Filipino woman was also, beheaded in
Damman for killing her ‘Syrian em-
ployer, his wife and their son with a
knife, according to a Saudi\Interior
Ministry statement quoted by the
Gulf News Agency.

Prior to that, London-based Am-
nesty International, using Saudi
newspaper reports, had tallied at
least 37 beheadings between Jan. 1
and April 30. In the first four months
of 1992, four persons were exe-

cuted; in 1991, none, and in 1990, of

13, according to Amnesty.

“It’s the highest rate of execution /

we have recorded in the past five
years” during the first four months of
a year, one rights monitor said.
According to the most recent AJ.S.
State Department human righfs re-
port on Saudi Arabia, 59 pérsons
were executed during all of last year.
In 1991, 26 were beheaded.
During the seven-month/ 1990-91

Persian Gulf crisis, the Saudi govern-
ment suspended public beheadings,
apparently fearing adverge publicity

from the large number of foreign

15 for murder, two
for distributing h

jtian—were after-
ward “crucified,” according to Saudi
newspapers, meaning their bodies
were publicly displayed. The three
had been convicted of murdering a
couple and their four children and
raping the mother.

Of those executed so far this year,
20 were Saudis, including eight con-
victed of drug dealing. Ten Pakis-
tanis and two Nigerians were exe-
cuted for drug trafficking, and a Ye-
meni with several previous charges
of drug and alcohol dealing was be-
headed for again brewing and distrib-
uting alcohol, according to the Saudi
media reports. Alcohol is banned in
the kingdom.

The recent increase in beheadings
suggests a growing problem with

Behe

‘Ings

drug trafficking, and possibly with
crime in general. Several Saudis in-
terviewed said drug abuse is rising.
“I know the government has a pol-
icy to prevent publication of the real
figures about drug trafficking and
about crime,” said one Saudi living
abroad who closely follows develop-
ments in his country. “They publish
small figures té deter others, but not
real figures. / know [drugs are] a big
problem, bigger than before, espe-
cially amofig women and youth,” he

added.

Last October, Gen. Mohammed
Maleki/ a Saudi drug enforcement of-
ficial/ told the New York human
rights group Middle East Watch that

\ mote than 38 people of different na-

‘tidnalities had been executed since
death penalty started being ap-
/plied against drug smugglers in

/ 1987),

The \Saudi media, tightly con-
trolled by the government, rarely
report crimes. Interior Ministry an-
nouncements:of beheadings—usually
held on Friday, the Muslim holy
day—often are ‘the first time the
public learns of crimes. There is no
way to verify that all executions car-
ried out in the kingdom are disclosed
by the Interior Ministry.

The Saudi Information Ministry
did not respond to a request for an
interview on the drug problem and
trafficking-related executions:

The beheadings are of concern to
human rights groups because of what
they view as inadequate guarantees
for fair trials. Trials are closed and
usually brief, held before panels com-
posed of a prison director, interro-
gators and a judge trained in Islamic
law, said Western human rights of-
ficials, adding that sometimes they
take place in the middle of the night.

Defendants are not allowed to
have lawyers present at the proceed-
ings. Many defendants are unaware
that they can request lawyers for

pre-trial consultations, and the state.

does not provide counsel to those
unable to afford one.

At trials, defendants are asked to
certify their “confessions,” which
serve as the prime evidence against
them, according to testimony before
a U.S. Congress subcommittee last
September by Middle East Watch
officials. The State Department's
latest report on Saudi Arabia noted
“confirmed reports in 1992 of tor-

ture and abuse of persons, the ma- .

jority foreigners, while detained.”

GREATEST

WEWSPAPER 1 >

ANDERSON & PATTEN

st
ttle

Senate

1s For
ntrol

N, Aug. 13.
feat Boose:
te did some
-trading to-
‘arm loans
p control.
of the White
rogv‘am made
, but on two
control and

legislators
the adminis-

evelt's strong
ion “freezing”
ut its present
ssed a Sugar
ry the clause.
abor Bill
‘cisiation was

- in the hostile
ne,

banking cont-
modified low-
nd the same
means com-
reed a meas-
n the revenue
house passed
xisiation per-
it to revamp
| set up a new
| welfare,
feld Up
the adminis-
to conduct a
ecretary Hull
proposal to
yers to Brazil
yeyance” until
r it from all

ag described
legitisated it
@ ttiday, in-
i dusision te
s % cotton,
t 12 cents a
or » pledge
d Make crep
ysinete next

prs, Bilbe of
ed the be-
ation would
< hege sim-

% the:
listreseed as

there
be li¢ at it
atil Qs ischamber this morning and

Two Men

Executed
In Prison

adeson. Patten
Forfeit Lives
For Murders

(By Staff Correspondent)

TATE PRISON, FLOR-
ENCE, Aug. 13.—Each
struggling in his own way to
meet death calmly, a colored
woodsman and a white cow-
puncher sat side by side in
the peculiar isolation of Ari-
zona’s box-like lethal gas

paid the supreme penalty
exacted by law—their lives.

Bert Anderson, 63 years old,
aged and emaciated far beyond
his years, and Ernest Patten, 32,

y MeNary lumber worker,
entered the gas chamber at 4:05
a.m. Seventeen small white
cyanide “eggs” ‘plopped inte a
bucket of sulphuric acid and
water four minutes later. Ton
minutes later, the law was sat-
isfied.
Anderson paid the penalty for the

slaying of Cecil Kuykendall, 28, Fafr
Oaks ranch hand, in front of the
Antlers pool hall in Prescott last
December 23.

Patten’s death was exacted for

the slaying of his sweetheart,
Creacy Mae Millard, in MeNary,
December 25.

Anderson, the coldest man te
breathe the lethal fumes since
Arizona abandoned the neose
four years ago, was the ninth

freon te die in the chamber.

© was preneunced dead at '
4:14 a. mo-~juet five minutes, a
sherter time than any of his —
predecessors.
: Patten, whe had gained ws
pounds since being com
te the prison tact May . was
pronsumved dead at 4:19 a, mt:

lived 10 minutes-—tonger

than any other te die in the
‘gas chamber,
Both men slept in the death cells
just under the .gasz chamber trom
before

minutes the time set for] ~

lighted the

shortly after midnight until a few)

~|® general reduction in Be due

ea were belng dropped by his railroads.
Mo. | Other raliroads decli

President Roosevelt
Vetoes Flood Control

vetoed a bill for war

concerned.

The vetoed legislation, Mr. Roose-
velt said, is out of line with his
“thoroughly democratic” proposal
of June 3 to create seven regiona!
Planning authorities. It would
make the war department the na-
tional planning agency, he continu-
ed, and ignore Initiation of projects
by local and regional units.

Another reason given in his
veto message was that the bill
provides for no prior review of
projects by the President “from
the standpoints of national
budgetary considerations and
national conservation policies.”

ASHINGTON, Aug. 13.—(AP)—President Roosevelt

department planning flood

control, power and conservation prqjects today, declaring
he would present to congress.next January a
hensive national plan” prepared by all federal agencies

““compre-

The President's seven-region
proposal, under which as many
boards would consult local authort-
ties and submit projects for ap-
proval to the national resources
committee and the President, still
is pending before congressional!
committees.

Referring to it today, the Prasi-

sald: °

‘. expressed the belief that such
& process of national planning
should start at the bottom through
the initiation of planning work in

(Continued On Page 4, Col. 1)

Rail Wage
Hike Offer

Approved

CHICAGO, Aug. 13—(UP)—Rep-
resentatives of 14 nonoperating
railroad brotherhoods today ratified
a $93,000,000 annual wage increase
for their 800,000 members.

George M. Harrison, chairman of
the union negotiating committee,
said the increase es de retro-
active to A

“The men eian't. “think the five
cents an hour raise enough but,
under the circumstances, were _will-
ing to,accept it,” he said.

Original Request Is Lost

A 20-per cent raise was asked
originally, but was refused by the
railroads, The matter finally went
to a national mediation beard after
collapse of negotiations between
operators and the union men.

Operators have estimated that ‘if
the full demands were met, the an-
nual cost would exceed 3110,000,000.

It appeared at one time today
that ratifigation of the non-operat-
ing agreement yay oe Basse or

|Gescrined by tintetoon eee 4

muftiista from Minnodpotia” ap-
peared at the meeting and demand-
ed the right to protest the action.
They were refused admission.

6 Layeffe Announced

Even as the, pay raise was ratl-
fied, some of the railroads an-
nounced they were laying off men
“because of increased operating
costs and declining business.”

The Burlington railroad sald it
was cutting its force by 300 men.
The Milwaukee raliroad announced

fo- the increased pay and’ because
earioadings had dropped sharply.
lL. A. Downs, president of the Hil-
hols Central system, said some man:

ned. to give

Jany. ‘information. on personnel re-

State Troops
Begin Camp
At Flagstaff

Units Convatge Here
On Way North To
Fort Tuthill

THE ARMY “moved out”
morning.

Last-minute inspections, last-
minute farewells, last-minute orders
—then 19 feet depressed 19 accel-
erators, purring truck motors coor
and Phoenix posts of the Ari
National Guard rumbled north

for the annuel encampment at Flag-
staff of the state's militia.

Eleven Hundred Attend
Eleven hundred men will report
at Fort Tuthill by tenight for the
summer training period.
The 19-truck Phoenix convoy will
be joined at Prescott by four trucks
from. thd Mile High City.

Since early yore morning the
venix crmoryat Saath avenue

this

and Jefferson street

oie ion for the 12:30 «. m. departure
our.
Preparations Completed

‘ gimental Headquarters Com-
saby, Service Company, K Company,
F Company (the Indian. school unit),
Headquarters Company of ‘Third
Battalion, Company D of the 120th
Quartermaster Regiment, end the
gtate detachment—all units of the
Phoenix post—made final: prepera-
tions for the two-week encampment.
Special trains, meanwhile, puffed

into Phoenix.

Safford, Nogales and. Bouglas
units arrived in Phoenix at 9:15
o'clock last night.eboard one train,
and left for the north after a 56-
minute layover, taking with them

also the 158th Infantry band, a unit

f ring, August 14, 1937

City Blaze
Rages Out - |
Of Control :

US. Disp atches:
War. Vente 4
To Scene 7

HANGHAI, Aug. 14.—
(Saturday) — (UP) —
Japanese big guns ripped =
apart much of the native city |

here today and flames raged ,
out of control as Japanese .
and Chinese forces were
locked in battle over more.

than ‘100 square miles.

Fighting was general on
four fronts as the Chinese-Japan~-,
ese wer moved toward the end of,
the seventh week. American ‘eee
terests were affected on all fromts,

The situation in Shanghal,:
where 4000 Americans and @: \’
number of U. 8 war veeneae:
were endangered, overs
developments in Nerth Ch
where the Japanese centi
te batter away strong: Chie na
nese positions , anking the:

. Nankeow pass. ;

In the Northwest, the Chinese
still held. the * mountain ranges,
pierced by the Peiping Sutyuan
railway in the Nankow pase end
were defending the interior «of
Chahar province from Japanese
cavalry ments moving .

regi
ward’ from the Japanese
state of Manchukuo,
Drive. Antici
South of Peiping, pape
Hankow railway, the.

Japaneso fa+
dicated th :
ey might open: a drive coral

been a/ fensiv
scene of bustling activity, in prep-janese

(Cantive-8 fin Pree & tnt my

af @ervire Campany Phaanis.

‘ever, this can be done only on

saa i qu
7 rr P OOP UNG seth Brigade, |e ee Te Aekeg COMMENT OF ENS TS
and hands and denned a pair jment. i* par / 5 89th Rrigad ; i thd
formerly commanded by Maj. Gen. sible nae United States, ig scheduled to the
of shees. Seth wore sled only A. M. Tuthill. The 157th Infantry General Guthner spent his arrive at the camp py plane ral
in’ shorts, * of the Colorado National’ Guard| first year as commander at the Tuesday for a three-day inspec- ger
They were met at the head of the! forms the other section of the bri- Pode tipagrin rap tion visit. }
@tairs by guards holding stout gade. er schedu oO train @ Be ., Matis wig A
leather straps. From the close of the World war| hill last oiler but an emerge Bay yee ee 5
Fv , -| en reve . : . , :
Hold on a minute,” Anderson paid) "nti! 1928, the brigaties were non Mette ed bureau policy _ | mander-in-chief of the guard, willl eat
fm a loud voter, when the guards|existent. Thus during this period sy “Trey the state t
\ 4 to @ h the straps ~ an seeks to have brigade command- review the state troops, He
Starte ttac " : ers, where a brigade is divided The annnal maneuvers will be terly
j With the air of ‘am actor aeeking between two states, train alter-- /heid August 23, 24 and 25. be he
— Bpvier tain see ld KU MUX Alan | coe,
4 good-by to all within reach, Warden .

invitation of the sister state.

last year the Arizona camp was "
commanded by Col. J. Prugh Hern-
don, Tucson, as commander of the

158th Infantry, Arizona Nationa)

' A. J, Barnes, first. '

seeateut sett tte" | Issue Raised

ahd stumbling ever words.

, Guard,
“There has been all the good in (Continued From Page Orfe) |
b yeu anyone could want in any favorably, upon motion of Senator -
man, ay God be with you.” Dieterich, Democrat, Illinois, were

“God may be with ou,” the Dieterich, Logan, Democrat, Ken-
warden replied, sha ing his tucky, McGill, Democrat, Kansas,
hand, - Chairman Neely, Democrat, West
The colored man followed ult, Virginia, and Borah.

though his only utterance, addreas.| Borah explained he voted for con-
| @d to the warden, was, “May God|firmation on the basis of Black's

State Troops
Begin Camp

ae. allied
be with you.” personal fitness for the office, with- anoasee
Bids Chaplain Farewell de to, the constitutional dinky a Page ain sa gienisinhe
As’ they were bein “ . ment, ey wi receive “state Ebi kia
@o the death bauer Abbcacn Argues Vacancy Nonexistent pay

his. hands strapped to his thighs,| The Idahoan had swrgued in the} The state legislature appropriated
Strained to shake hands with the|senate, prior to Black's nomination,| $19,000 for this purpose.
Rev, Lambreth £E. Hancock, prison|that there is no vacancy on the! Maj. Gen. A, M. Tutbill, adjutant
shaplain. Supreme court. He contended that}general, will leave this morning for
. “Deon’ ” the constitution provides a fustice/the camp, An advance detachment
eid. © never Go Mike I @4,” he shall serve for life and eveh if the} has been on the ground a week,
, justice retires from active service, as| making preparations. :
ane. turning Quickly to the gas/Justice Van Devanter has done, he Denver Man Commands
aks Ah, here's the place.|still is a member of the court, Camp commander will be Brig.
Senator McGill replied during the/Gen. William BK. Guthner, Denver,
éubcommittee session to another line|of the Colorado National Guard,

apart nine ano cimecin in ies B34
allen Ora RDM br oe
SAMAK

Lay in a good supply at this

-As the pair was being strapped

side by wide, Anderson again jot argument, that the office to Which|commanding general of the 89th Bri.

gray the peers by asking [Black has been nominated was cre-|gade. of which the Arizona regiment

oa age Ry Loe ated by the retirement act for which|!s a i rt. ‘ wisi 8 Kk :
» aj. Gen. illiam 8. Ke

ning te show alone of toon ee, on feeny voted. : 4

“If a new office bas been created,”

mee fe answer, but Andersen Local said, “tt is the one held by
‘““Stick it there.” : ai the justice who retired and not the

cheek. hande oe, Mie. one we would be filling.”

straps were adjusted. . °° ° Senator McCarran, Democrat, Ne-
The, door closed, ‘but the drawn,|vada, a member of the judiciary
-tired-looking Anderson, ‘kept ‘talk-jcommittee, commented to reporters
ing, motioning with his hands and|afterward that the legal issues
modding his head. His words, barely|which have been raised present “a

commanding general of the 45th Fancy golden-ripe fruit

Division, National Guard of the e ey
7 v0. BS

Lettuce ies oreled SS inh
Cucumbers criss, weet
Egg Plant Prete firm ok
| Cabbage Mountain grown Lb.

GRAPES

Modern Gasoline, Oil Service
Free Air and Water

NEW CITY

very serious question.” MARKET
Wheat. Both men were sweating. A bimilar expression came from
; Witnesses Crowd Te See Senator George, Democrat, Georgia.

702 E. Henshaw Rd.
Phone 4-4202 Cer. 7th &t.

SATURDAY SPECIALS
FLOUR
Arizona Maid 24 Lbs. 70¢

sears 10 1..55¢

‘a wind . H d

a apes ares Fire 1azards

R , ‘the cyanide eggs :

| @dembove it. As they plopped I * Peril -F ts

Th woat rote itre’| £ CFU Ores
anide pellets, th

ay are facing a seer-

i fire hazard due to lack of
Suramer rains, James H. Sizé*, su-

M. J. B.
Pervisor of the Tonto National for- COFFEE Lb. 2b6ic suneraee 4-4
é eat, said y atera y after a confer- yon MUSCATS SOeeeeeeoeereeen Be.
ence with Rex ike, of the regional

TOMATOES @ No.2, ap. '
rewters “ctrce “at Albuquerave || YOMATOES 3 No.2 pp
Me Fj : tat “Mr. King reported a serious situ-

PINEAPPLE

During é ation in Northern Arizona forests, |i

od by hit a woe a aan, where he has: just completed aa in- | JUICE 3 for 25¢
Phe cams d ~im-law; al} of Pres-| @Pection,” Mr. Sizer said. Dole Tall Cans

cott, Another daughter resides at) 19 order ta scope, the situ. a

Aguila # ation in we onto forest, four fire FRUIT 1-Lb. 25¢
i + visitors, besid .|@uards an lookouts are being COCKTAIL Cans
, rt we note Reser maintained -at strategic points.
sister of thé woman he| “1 Would not say it is the driest STEAK 16
Rib, Sirloin Lb. 4c
BUTTER Lb. 34c¢

allowed in 20 years,” Mr. Sizer said, “but
Bananas 3D tbs. 140

mi@.| the lack of rain: since,about July 14,
LETTUCE 3 Heads 10¢

-e Ree er ewer ees

eves Lbs.
REBEIRS or RED MALAGAS 3.
Lbs.

Extra Fanoy Calif. ........

Extra-Fancy Ful
i] Elbertas Peach:
Wrapped and Packed Boy %

certainly has’ created’ a hazardous
| situation.”

Hundreds of ld are employed
in the egg freezing and processin
plants of Shanghai, China, to brea’
and sme) the 6,000,000 or more eggs
as get- handled there daily. Expert snif-
s ear in fere can detect a bad egg in a

mixture containing several hundred
eggs.

Fancy Prescott Pe

wie D, Moe

NIRA A MS SE ICRI NRCS, Be 8!

AIRWAY’S GROUND
WHEN IT'S BOUGHT!

EVERY OUNCE OF
PLAVOR’s CAvOGNTI.

(Azior {|

IN THE SUPRRTOR COUT OF THE STATE OF ANTZONA
Ti «iD YOR THE COUNTY OF COCONINO.

STATS CF di. TeOila,
Pinintiff,

vs.

VILIIS AZBILL and
IMURY AZBIL™.,

JUDGIENT AND SENTENCE.
)
)
Defendants. }
Comes now the State of arizona by C. Be Wilson,
Esqg-, County ittorney of Coconino County, Arizona, and also
come the defendants, Villis Azbill and Henry Azbill, in
person,and thereupon the motions in Arrest of Judgment and

for a New Irial heretofore filed herein and argued and sub-

mitted are by “he Court ONDENIT DENTED.

It being wore than two days since the verdict was
rendered and recorded herein, the Court fixes this, the
present time, as the time for pronouncing judgment and sentence
against the defendunts, and proceeded as follows:

Willis Azbill, an information was filed in this
Vourt by the County attorney, charging you with the crime of
murder of the first degree, to which information, upon your

@rraignment, you plead, "Not Guilty". You were duly anda

regulerly tried by a jury of your counvry and a verdict }
rendered finding you guilty of the crime of murder of the
first degree und fixing the penalty at death.

Have you any legul cause to show why Judgement and

sentence should not be pronounced against yout

wring the emergency. Too well in their
setmory clung the history of the bloody
Tonto Basin war between sheep and cat-
_%& interests in 1887.

- No particular cowman was known to be
te leader of the sheep-opposing faction.
Several were named, including one—
daimed to be the angriest—named Zack
Scoth. Chilson listened to the rumors
@mcerning him somewhat uneasily. For
me reason Booth suddenly became a
lbgical suspect, although Vigil’s descrip-
Sem could fit any number of men in the
far reaches of the mountain-surrounded
waeys of that cattle country.

ZACK WAS A BACHELOR of thirty-
~ Seven. Although without any special
tiarch affiliation, he was a kind of back-
woods country preacher. With his brother
fukn and John’s family, Zack had settled
mar Gisela some years before.
‘Some Sundays he held religious meet-
as and song-fests at settlers’ homes.
always attired in a tuxedo and high silk
ost unusual apparel for that coun-
@y—he ‘was a hell-fire and damnation
®mesitor. An eloquent and colorful
weaker, he easily aroused his audiences
% 2 high pitch. A few neighbors de-
- Mtibed him as a jack-leg minister; all
acknowledged that he was a hard man
» wien crossed, tough as they came and a
class marksman with any kind of
| Smearm. Zack doted on showing off,
© Seqcently stirring his coffee with his
| ai-gun muzzle.
_« Schn Booth was a mild, inoffensive ap-
maring man, but both brothers were al-
W275 in some sort of difficulty. Except
@ Ser the jury-swaying skill of a Payson
laaryer, John W. Wentworth, the brothers
wanld have been residents of the terri-
tustal prison. They complained that
Smoble followed them around, and that
they had been falsely accused of several
» They were arrested for burning their
Quarter Circle 11 brand on sixty head of
Qeare young heifers belonging to Henry
4&ahell Turning 200 head of she-stuff
jbuse on the public domain, Azbell went
ati prospecting for two years. The Booth
‘limsthers’ cattle occupied the same range
mad they let on that looking after Azbell’s
Mimerests was their business. Unexpected-
4 Aabell returned to find all of his two-
| Mareld heifers wearing the Booths’
gasteership brand. As a matter of fact,
de mo longer had even the foundation herd
aiact. Azbell was a hardcase character
ies own right, and in Payson he swore
Warrants charging the brothers with
umd theft. Zack and John consulted
&=urmey Wentworth. When they readily
'@ wititted their guilt, he was greatly an-
@ taped But being a shrewd man Went-
@ ®axth concocted a defense story to which
| Sey stuck religiously. In court they
Weare that Azbell had engaged them to
_ pak after his cattle. When he did not re-
Summ after a year’s absence and the sec-
‘mi came around, they feared something
“YL @ ‘mud happened to him. Certainly they were
¢ @ Mt going to be paid for their work as
|] wzetakers. The heifers were then brand-
B wt 2g their pay.
» Qn another occasion they were arrested
( Ser robbing an isolated country store.
Finding the owner away and the build-

a Sour July, 1970

Globe, Arizona, the county seat where the Booths were tried.

ing locked, they broke into it. A wagon-
load of groceries and drygoods, some har-
ness and a few tools were hauled away.
The loot was taken to their two homes.
On the merchant’s return the burglary
was easily traced to the Booth brothers.
Again advised and coached by Went-
worth they went to the angry merchant,
apologized for their unseemly conduct,
and paid for all they took. According to
Wentworth’s biographer, the wily lawyer
told Zack that he was utterly stupid. He
was advised to stick to preaching and

singing, for criminal pursuits were evi-

dently not his forte.

Deputy Sheriff Chilson realized full
well that if the brothers were in any way
connected with the horrible sheep camp

OM yy ra
ie oak A Pa
+e é

murders, he was tying into a real mean
pair. There must be conclusive evidence
before tackling them.

At DAYBREAK on December 23 he
and Pyeatt returned to Brushy Basin
and started cutting for overlooked sign.
The murdering pair of riders were back-
tracked to where they rode into the basin.
Next, their outgoing flight trail was
found and followed south. It was a diffi-
cult one through rocky foothills studded
with saguaro and other cactus. Sign was
lost during the afternoon. The next day
they checked out the incoming trail with
better luck.
After circling the basin, trace of the
(Continued on page 54)

The first settler’s house in Gisela as painted by pioneer Dollie Hale.

AS ct SB IES.

act meme slimes

aU awk?

°| “Well, maybe,” Chilson hedged. “Who

: fers them?”

mn # “They belong to Uncle Zack. Father
Were. Frdes one of them. But why are they
idem F widled?”

_.,, — Bvading a direct answer, the deputies
vicited

»}ai the horses away, ostensibly back to
| @ Tack’s place. But once out of sight of the
* §"irious boys, they circled around to where
)g%e road crew labored. Sundown was
© @Mproaching, and the men were quitting

n De, Zack and John Booth were imme-
S. On. @ately taken into custody, supposedly
either, questioning. The brothers were locked
LOrma-.

‘in the Payson jail the day after
‘Christmas.

#48 SOON AS they were jailed, the
brothers sent for Wentworth, and he
peared as their defense lawyer at the
@aring on the 28th. The justice of the
te had held them solely on Chilson’s
Pyeatt’s evidence. But they were not
“@amediately charged with murder. On
Ps technicality Wentworth very nearly
ang them from custody.

brothers with Vigil, He arranged a
rather weird and most unorthodox method
of identifying the accused. The owner
of the 16 To 1 saloon was persuaded into
giving a belated Christmas party. More
than eighty citizens, happy to accept free
drinks and food, attended that night.
Unfettered and appearing as part of the
merrymakers, Zack and John Booth were
seated at different tables. At the height
of the festivities Vigil was brought in.
Taken to the bar first, he and Rogers
dallied over a couple of drinks. On the
wall behind the bar, the saddlés, the sus-
pected murder weapons, and Wiley Ber-
ry’s .80-30 carbine were prominently dis-
played. Asked if he had seen any of the
saddles and _ firearms before, Vigil
pointed at the carbine. Since it had been
recovered from the murder camp by Chil-
son and Pyeatt, Sheriff Rogers was mere-
ly making a grandstand play before
showing his trump card.

A handful of cartridge cases was also
produced, which Vigil declared had ~been
picked up by officers in the sheep camp.

Se, WE @Seriff Rogers, who considered him- But he couldn’t possibly have- known them
‘ow ge 2 Hatural-born detective, was out to to be the same ones.
“ym a record. He was coming up for Sheriff Rogers surveyed the long room,
SOOB. eelection. The arrest’ of the Booths then told Vigil to do the same. “Take a
int d considerable angry muttering good look at every man in here,” Sheriff
‘OU pmng county citizens, which a politician Rogers insisted.
feud have heeded, for in that region After he had done so, Vigil was asked
v4 and sheepmen were thoroughly if he recognized anyone he had ever seen
There were cattlemen who de-__ before.
eed that all sheep owners should be run “That one is him!” Vigil declared,
“iat of Arizona. pointing at Zack Booth. “I never forget
eae ‘gers concluded to confront the Booth _ his eyes.”
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“You are sure?”

“IT never forget the tiger eyes!”

After considerable hesitation Vigil
identified John Booth as the second rider
who had accosted him. Since the herder
did not appear too certain, Sheriff Rogers
sent him through the crowd to the taple
where John sat. There Vigil placed a
trembling hand on the man’s shoulder.

“This one of them who kill my son!” he
cried.

The Booth brothers were manacled and
padlocked in jail overnight. The next
day they, were removed to Globe by the
triumphant Sheriff Rogers, to be charged
and tried for murder.

As hard as he tried, Wentworth could
uncover practically no evidence in the
Booths’ favor. No one wanted to step
forward as a witness, or become involved
in a bloody murder case which by then

was gaining wide condemnation. The

brothers had money, so Wentworth per-
suaded them to hire two Globe lawyers,
George J. Stoneman and E. J. Edwards,
after which he deliberately bowed out of
the case. ,

The Booths were indicted by a grand
jury and held for trial in the Globe jail.

MEANWHILE, down at Thatcher, the

Berry family was deeply disappoint-
ed when Christmas day arrived and Wiley
did not come home. Two days later they
concluded that due to a bad storm the
sheep had been held up and this circum-
stance occasioned his delay. The family
did not worry because they were confi-

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dent that with Santiago Vigil's experi-
enced help the band of sheep would be
safe,

Knowing that Wiley would likely go
into Gisela for supplies, Mrs. Berry wrote
him a letter there. The postmaster recog-
nized the name on the return address,
and returned it in another letter notify-
ing the family of the terrible tragedy.
This message reached the Berrys on the
last day of December, 1903. Stricken with
grief, the family prepared to bring
Wiley’s body home for burial.

Accompanied by a friend, Dave Lee,
Berry set out for Gisela. About half-way
there they met the stagecoach carrying
the accused men to the Globe jail. When
Berry and Lee reached Gisela the bodies
of the slain youths had just been exhumed
for a belated autopsy. Convicting the
Booth brothers was going to be a tough
job for the territorial prosecutors.

Claiming his son’s body, Berry had it
shipped to Thatcher for interment. Juan
Vigil was reburied in the same grave at
Gisela. To this day a small red sand-
stone, crudely cut and placed there by
Curtis Neal, marks the teen-ager’s final
resting place, containing merely his name
and “1886-1903.” The pioneer cemetery
is a windswept spot on a bench overlook-
ing the valley of Tonto Spring Creek.

The Booth brothers on June 13, 1904,
pled not guilty to the charges of murder.
The territorial prosecutors decided to try
both of the brothers for the murder of
Juan Vigil first. The saddle was certain
to be used as evidence of self-defense in
the case of Wiley’s death. During the trial
four witnesses from Gisela gave an ac-
count of the angry cattlemen’s meetings
concerning a suspected invasion of sheep.
One of them swore that Zack claimed he
would personally take care of any sheep-
men daring to enter Brushy Basin.

It was not the evidence against him—
for practically none existed—but Zack
who convicted himself by his proneness
to verbosity on the witness stand. He
seemed determined to save his brother
because of John’s family.

Declaring that John was not with him
on that murderous day, he yet refused to
say who was. He related how they re-
turned to the sheep camp, finding Juan
still breathing. Zack said that he per-
sonally finished the poor Mexican boy.
These callously given details caused the
jury to quickly find him guilty of murder
and fix the penalty as death. John Booth
was found not guilty.

On June 18, 1904, District Judge Ed-
ward Kent sentenced Zack to be executed
August 1. Zack’s attorneys appealed to
the territorial supreme court. Thereupon
Judge Kent ordered Sheriff Rogers to
confine the Booth brothers in the Mari-
copa County jail at Phoenix. “For,” he
declared, “the Globe jail is too filthy
rotten to keep any man in long!”

In privately expressed opinions the
judge declared that the death penalty was
by no means warranted. He believed that
the supreme court would reverse the con-
viction and mandatory sentence. But the
court did uphold the verdict, March 30,

' 1905. An appeal was then made to the

territorial governor who granted a thirty-
day stay of execution pending a second
appeal. Based on new evidence that did

not materialize, it was never made, Zack 9 =
was hanged on a temporary Globe wht
lows, August 16, 1905.

John Booth, still held for the murder of #4
Wiley, was released on bail after a few ##t
weeks in jail. At his trial in June 19%}
the jury disagreed. The evidence would ##é
not stand up and the murder charg ig
against him was dismissed.

ESPITE ZACK’S dubious reputation
and his bald admission in court that}

he killed Juan Vigil, his death sentence}
was most unpopular in the cattle country
around Gisela and Payson. When Sherif #@™;
Rogers came up for re-election he lost #2
heavily. Judge Kent left the bench, bemg§
replaced by a new Washington adminis 1
tration-appointed territorial governor.
The sheep camp murders were actually) 4
shrouded in considerable mystery mtg
confusion, this despite the evidence #2
gathered on the scene by Chilson nt pee red wi
Pyeatt. There are old pioneers still liva a front ©

at Globe and Payson who do not sory™ buric
and never did believe the Booth broth nument

attacked the sheep camp. us of
It is claimed that on withdrawing framge**) Ed .
Great |

defending the Booths, Wentworth warnaiy °
them the Berry family were members aie"
a church that would see they were hangaay™
regardless of the evidence. Vengeant
would be had for Wiley’s murder, anim
the victims might not necessarily be &
actual killers. Whether valid or not, m 2
old-timers were certain that it was
save John from a death penalty or a ka
prison sentence that Zack at the last
ute switched from claiming pane
nocence of the murder to admitting &
Furnished with one victim, perhaps &
blood-vengeance seekers would Mts
brother John go free. Which was €
what did happen.
All of those who were directly c
cerned in the case of the sheep CaM
murders are gone, but a few pionsemy
still living remember the incidents &
though they happened yesterday. One
them is Mrs. Dollie Hale, who cam ®
Gisela with her family in ‘1891. A wits
now in her eighties, she turned to pail
ing and has become a noted artist. ‘
Today Gisela is a ghost. The origi
buildings and the territorial schoolhs
are gone. But Dollie Hale has put th
all on canvas, just as they appeared ¥4
she was a girl growing up in the ¢
munity.

se “ é

qpistiv
. Soone
wn dog,
porcupin

Trained for Trouble! |
(Continued from page 22)

Ed Shields, noted the dog and made
comment to a worker around the statiai®
Asked Shields, “Whose sheep “<a
that?” 4
“A sheepherder who died. They shia
his body away and the dog has 4
hanging around ever since.’ - ZZ.
Shields spread the story. Permanay
employes around the station adopted &&
dog. They called him “Shep,” what
his original name had been. They &
nished him food and a home, althougt
door’s closing at first made him alm
frantic—obviously he had never Gg,
accustomed to the inside of a room,
In the third year of his vigil, $

Frontier

Post Office, a mining camp several miles
from Auburn, California. He must not
have struck pay dirt for a year later in
1861 in the Placer County Directory he
was listed as a clerk at the Orleans Hotel
in Auburn.

The final entries about this educated,
much traveled French-Indian son of Sa-
cagawea are found as obituary notices in
the newspapers. Under the date of July-7,
1866 the most detailed one appeared in
the Placer Herald, Auburn, California:

J. B. CHARBONNEAU

“Death of a California Pioneer.—We are
informed by Mr. Dana Perkins, that he
has received a letter announcing the
death of J. B. Charbonneau, who left this
country some weeks ago, with two com-
panions, for Montana Territory. The let-
ter is from one of the party, who says
Mr. C. was taken sick with mountain
fever, on the Owyhee, and died after a
short illness.

“Mr. Charbonneau was known to most
of the pioneer citizens of this region of
country, being himself one of the first
adventurers (into the territory now
known as Placer county) upon the dis-
covery of gold; where he has remained
with little intermission until his recent
departure for the new gold field, Mon-
tana, which strangely enough, was the
land of his birth, whither he was return-
ing in the evening of life, to spend the
few remaining days that he felt was in
store for him.

“Mr. Charbonneau was born in the west-
ern wilds, and grew up a hunter, trapper.
and pioneer, among that class of men of
which Bridger, Beckwourth, and other
noted trappers of the woods were the
representatives. He was born in the coun-
try of the Crow Indians—his father be-
ing a Canadian Frenchman, and his moth-
er a half breed of the Crow tribe. He had,
however, better opportunities than most
of the rough spirits, who followed the
calling of trapper, as when a young man
he went to Europe and spent several
years, where he learned to speak, as well
as write several languages. At the break-
ing out of the Mexican War he was on the
frontier, and upon the organization of
the Mormon Battalion he was engaged‘as
a guide and came with them to California.

“Subsequently upon the discovery of
gold, he, in company with Jim Beck-
wourth, came upon the North Fork of.the
American river, and for a time it is said
were mining partners.

“Our acquaintance with Charbonneau
dates back to ’52, when we found him a
resident of this county, where he has con-
tinued to reside almost continuously since
—having given up frontier life. The re-
ported discoveries of gold in Montana,
and the rapid peopling of the Territory,
excited the imagination of the old trap-
per, and he determined to return to the
scenes of his youth. Though strong of
purpose, the weight of years was too
much for the hardships of the trip un-
dertaken, and he now sleeps alone by the
bright waters of the Owyhee.

“Our information is very meager of the
history of the deceased—a fact we much
regret, as he was of a class that for years
lived among stirring and eventful scenes.

“The old man, on departing for Mon-

tana, gave us a cali, and said he was gO-
ing to leave California, probably for
good, as he was about returning to
familiar scenes. We felt then as if we
met him for the last time.

“Mr. Charbonneau was of pleasant
manners, intelligent, well read in the top-
ics of the day, and was generally es-
teemed in the community in which he
lived, as a good meaning and inoffensive
man,”

Baptiste Charbonneau’s death at age
sixty-one was confirmed by two other
mining newspapers. The Butte Record,
Oroville, California, on July 14, 1866
ran a brief item which was apparently
copied from the Placer Herald. Preced-
ing the Auburn paper’s obituary, the
Owyhee Avalanche, Ruby City, Idaho, on
June 2, 1866 published a death notice
based on a note the editor received, dated
May 16. This account gave the place as
Inskip’s Ranch on Cow Creek in the
Jordan Valley and the cause of Char-

-bonneau’s demise as pneumonia. Inskip’s

was a stage station on the old military
road between Sacramento and Boise in
the Owyhee Valley on the Oregon-Ida-
ho line at present Danner, Oregon. Be-
tween the old ranch and the road are
three unidentified graves. One of these
is presumably the burial site of Sacaga-
wea’s papoose. Prince Paul at sixty-three
had preceded his friend in death in No-
vember 1860.

All recorded references to Baptiste are
commendatory, which indicates that
among his contemporaries he was as
popular throughout his life as he was
with Captain Clark while a baby in his
cradleboard on the expedition. Oddly
enough nowhere is there any mention as
to whether he ever married or raised a
family. Like William Shakespeare, Bap-
tiste’s life still presents many enigmas.
Why did he never engage in correspond-
ence with his benefactor, Prince Paul, or
being literate, never keep any journals
or diaries of his eventful life? Perhaps
some day a German scholar delving into
the archives and unpublished papers of
Prince Paul in Stuttgart will discover the
answers and solve the mystery.

Sheep Camp Murders
(Continued from page 9)

murdering riders swung around to Tonto
Spring Creek and Gisela. As they ap-
proached the village Chilson suddenly
started and reined up. Pyeatt came close
alongside, watching his face without
speaking.

“You know that chestnut gelding the
sheepherder described—one hind leg and
both forefeet stockinged?” Chilson began,
“He said it had a slashed face with a
curve to the off side, seventeen hands
high and a ragged tail. Well, Zack Booth
sometimes rides a horse exactly like
that. I just remembered!”

“I declare!” returned Pyeatt. “But
could it be possible they’re the killers?”

“That I don’t savvy. They’re crooked
but are they cold-blooded murderers? I
don’t figure John to be, at least. Zack’s
got the mean temper.”

The trail led them down through a
narrow canyon into Gisela. The tracks
there had been blotted out by many

OUNers, OUL AL Wis Deg iii us iprim’S
had been measured, certain defects ee
worn shoes noted, and the stride of each
horse ascertained. Unless the shoes were.
pulled, the killer’s mounts could be idem
tified.

Cautious inquiry in the village elicited.
the information that Zack and J
Booth worked that day on a co
road project with several other mam
When information was sought as to

had been seen riding with Zack on De ; gga
cember 22, the officers drew blanks. Cn ate]
that day no one could recall seeing either $x A tic
of the Booth brothers. Further inform- 9, ce ‘th,
tion proved disappointing, At the sem 7m ‘

eral cowmen’s indignation meetings that
developed to plan how to combat a sheep
invasion, neither Booth had been presa
Returning to their saddles, the officers
set out for Zack’s bachelor rane
occupied a piece of ground a short di
tance from the home of John and 4
large family. ;
“T just can’t figure John in’ ‘on che
killings,” Pyeatt declared again. ‘
for the description of Zack’s horse,
haven’t got him tied in either.”
“Depends on the shoe marks,” Chil
opined. “That we'll find out pretty som
“John puzzles me,” Pyeatt comment
sadly. “On account of his family, woul

wa natu)

election.
ised con
ng coun’

he take part in a sheep camp murdet.
raid?” Som pe
“I hope not,” Chilson answered. “Datigan4 The
seem likely but maybe he was led inte ved th ats
by Zack.” diet ef Avis

“Yeah. Zack’s a mighty persuasive m a Sears cor
when fired up. I’m wondering how com— =. ~
they didn’t kill old man Vigil too? =
there wouldn’t have been a living wi
ness.”

That question was never answen
even after the arrest and trial of 8
accused killers.

At Zack’s place two horses stood im
small pole corral. Both answered
description given by Vigil. Chilson eas
identified the gelding he had seen Za
riding several times. Obtaining a sam
warrant would entail too much delag,
the officers went through the thus
room log house. No incriminating ®
dence was found.

At the saddle shed in a corner of fi
barn they hit the jackpot. A bal
scarred saddle was found. In a scat
on the marked one was a rifle. A
stered .38 caliber six-gun and cartniy
belt hung on the wall. Both weapons ie
been fired recently and not cleaned site
wards. Weapons and saddle were sta
as evidence, and later proved very
portant. ag

The two horses were roped. and i
around in soft dirt. Shoe impressions
examined, measured and the strafed
each at a walk and a gallop also dm
mined. These were the horses they 2
followed from Brushy Basin. There es
exist no doubt about it, making ti
officers grim-faced with the ce
bitter knowledge. :

“Them’s the ones for sure,
clared woodenly.

The horses were saddled and led a
to John’s house. Two of his older a8
met them at the barn lot. a

One exclaimed, “The horses got «
Uncle Zack’s corral?” :

detecti:
Crystal

” De

“a rec:

One psychologist, Michael Bay-
less, said that Brewer suffered
from “borderline personality disor-
der,” exhibited a dependency on
his mother and had a phobia about

being alone. Additionally, Bayless
said Brewer had developed a
“pathological dependency” on Bri-
er. Nonetheless, Bayless concluded
that Brewer, with an IQ of 132, was
legally competent and could distin-
guish between right and wrong.

- Manifesting his desire to die,
Brewer objected to the presenta-
tion of any mitigating evidence at
the sentencing hearing, but a priest
was allowed to testify that Brewer
had expressed bewilderment and

remorse over the killing. Brewer
not only asked for the death penal-
ty but said again that he had sex
with Brier’s corpse. Some medical
evidence and expert testimony in-
dicated that he might have lied
about the act of necrophilia.

he judge, relying in part on the |
necrophilia testimony, decided |

that the murder was committed in
an especially heinous fashion and
sentenced Brewer to death.

Over his objection, an automatic
appeal was filed on Brewer’s be-
half, as required by Arizona law.
The Arizona Supreme Court up-
held the conviction and sentence
3% years later in January, 1992. In
October, 1992, the U.S. Supreme
Court declined to review the case.

- The next month, an Arizona
judge, after questioning Brewer,
found the defendant competent to
represent himself and granted his

request to waive his right to any
review of the conviction or sen-
tence.

That set the stage for Brewer to
be executed on March 3, but then
his mother, Elsie Brewer of
Greensburg, Pa., got involved in
the case.

First, she filed a motion in state
court alleging that her son was not
competent to waive his rights. That
motion and several others filed on
her behalf by the Arizona Capital
Representation Project were re-
jected without a hearing, the last
one on Feb. 18, just two weeks
before the execution.

The next day, she filed a habeas
corpus petition in federal District
Court in Phoenix. She hoped to
persuade District Judge Roger
Strand that her son was legally
incompetent, an absolute prerequi-
site if she was to be able to assert
that his constitutional rights were
being violated. She presented let-
ters from friends about his plans to
rejoin Brier on “Terracia,” and

information about several suicide |

attempts.

Elsie Brewer also submitted an
affidavit from Bayless withdraw-
ing his 1988 opinion that her son
was competent, in part, he said,
because Brewer had “deteriorated
substantially” since that time.
Bayless also said that “treatment
must be undertaken before [Brew-
er] will be able to make competent
decisions that are not fueled by his
self-destructive desire to be

killed.”

The state submitted affidavits
from four psychologists, all select-
ed by Arizona officials, who had
examined Brewer in recent months

and found him competent.

Strand acknowledged that
Brewer’s life “has been one that
has continuously been involved
with mental disturbances and
mental episodes that have led to” |.
suicidal tendencies. Nonetheless,
the judge dismissed Elsie Brewer’s

petition.

trand concluded Feb. 23 that

the mother had no standing to
act for her son because she had
failed to sustain “her burden of
proving by clear evidence” that he |
suffered from an “inability to ap- ©
preciate his position and make a
rational choice with respect to
continuing or abandoning further

litigation.”

Elsie Brewer immediately filed
an appeal with the 9th Circuit, and
a hearing was scheduled for March
1. Strand was upheld by 2-1 vote in

a decision released at 2:48 p.m.

California time the next day, a little
more than eight hours before the

scheduled execution.

Judge Cynthia Holcomb Hall,
writing for the majority, said that
Elsie Brewer had failed to provide
the “meaningful evidence” re-
quired to show her son’s lack of
competence. The judge said her
conclusion was “bolstered by our
obligation to accord a presumption
of correctness to the state court’s
determination of his competence.”

Judge William Norris dissented,
saying numerous questions had
been raised about Brewer’s current
competence that were not ade-
quately reviewed by the lower
courts and that a temporary stay of
execution was warranted on sever-
al grounds.

Norris asserted that under the.
9th Circuit’s own rules, an auto-
matic seven-day stay should have
been granted because this was the
first habeas corpus petition filed in
the case. The majority disagreed,
saying that the rule did not apply
in a case where the petition was

_ Unable to persuade his two col-
leagues that an automatic stay was
required, Norris issued a stay in his
own name, saying there were mer-
itorious questions needing further
examination. About seven hours
later, about 9:30 p.m. California
time, just an hour and a half before
the execution was to be held, the
Supreme Court voided the stay,
without stating any reason.

At that point, a 9th Circuit judge
called for a vote of the full circuit
on a stay. Following Circuit rules,
clerks in the 9th Circuit’s San
Francisco headquarters started
calling the Circuit’s 27 judges, scat-
tered throughout the western
United States, trying to determine
in the next 90 minutes if a majority
wanted to issue another stay.

The conditions surrounding the
Circuit’s consideration of that stay
request “were as far from condu-
cive to rational judgment as I can
imagine,” Reinhardt wrote.

“There was no time for legal
research, no time to call for a
response from the state, no time to
consult with colleagues, no time to
read cases, and precious little time
even to review” the stay petition.

“We voted anyway. Although
the vote was never concluded”
because two judges were not
reached, “Brewer's execution was
carried out on schedule.” It was the
first execution by lethal injection in
Arizona history.

Reinhardt acknowledged that
the vote fell short of the majority
needed to secure a stay. Nonethe-
less, he said the evening’s events
were deeply troubling. “I thought
it extraordinary that I was required
to vote on so important a matter
while ignorant of the reasons for
the Supreme Court’s action.”

Even before Reinhardt’s opinion
was released publiclyethe Brewer
case prompted the 9th Circuit to
adopt a compromise change in its
procedures for handling emergen-
cy death penalty appeals.

In the future, when a third party,
such as Elsie Brewer, files an
appeal, the court will immediately
convene an en banc (11-judge)
panel that will get all the briefs and
be in position to review the deci-
sion of the original, three-judge
appeals court panel. Consequently,
court clerks would not have to
conduct a last-minute stay vote
among .a large number of judges
who had not previously studied the
case.

filed by a third party.

" Dissenting Tudges Decry Process
yn ARIZome Fxecthion, °

wef 2

BREWER, John Georget= Arizena 3 |
MONDAY, JUNE 28, 1993 AS

Los Angeles Times

Dissenting Judges
Decry Process in |
Arizona Execution

m Law: The US. 9th Circuit Court of Appeals was }
improperly rushed in deciding the fate of murderer Jobn

George Brewer in March, two justices say.

By HENRY WEINSTEIN
TIMES LEGAL AFFAIRS WRITER

Apparently eager to speed the

pace of executions, the U.S. Su-
preme Court authorized Arizona
officials to kill a man in March,
even though federal appeals court
judges were still considering
whether to grant a stay that would
have prolonged his life, according
to a blistering opinion released in
San Francisco by two of the judges.

In a case that drew scant atten-
tion outside Arizona, John George
Brewer, 27, was executed by lethal
injection in the Florence prison in
the early hours of March 3 without
a full hearing on a key legal
question: whether he was mentally
competent to waive review of his
death sentence.

The manner in which Brewer’s
case was handled has precipitated
another death penalty controversy
in the U.S. 9th Circuit Court of
Appeals, which has jurisdiction
over nine western states with
nearly 600 people on Death Row,
many of them with federal appeals
pending.

he latest battle comes a year

after the Supreme Court took
the extraordinary step of telling
9th Circuit judges not to issue any
more stays in the case of San Diego
murderer Robert Alton. Harris,
who was then killed in the San
,Quentin gas chamber.

“Once again, this time almost
unnoticed, a man has been execut-
ed without fair or orderly consider-
ation of a habeas corpus petition

that raises important constitutional
questions,” wrote 9th Circuit Judge
Stephen Reinhardt in an opinion
released last week.

The veteran liberal jurist, joined
by his colleague Harry Pregerson,
issued the 30-page dissent from the
full court’s March decision. At the
time, the full court declined to
grant review to an emergency
appeal that would have temporari-
ly halted Brewer's execution.

he unusual after-the-fact dis-- -

section was written by Rein-
hardt and Pregerson in an apparent
attempt to illustrate the difficulty

of trying to resolve a complex legal .

issue under crisis conditions.

“Because we failed to convene”:a
full court “to issue a stay, and to
order a competency hearing, we
will never know whether our con-
stitutional system seriously mal-
functioned— whether in our rush to
‘get on with it’ we permitted ‘an
incompetent. man to submit to an
unconstitutional execution,” Rein-
hardt wrote.

His opinion also emphasized that
unlike the Harris litigation, which
had dragged on for years, the
entire federal review of Brewer's
case was compressed into two
weeks. That occurred after Brew-

er’s mother, against his wishes,

attempted to prevent the execu-
tion, contending that he was not
competent to spurn his opportuni-
ties for appeal.

Ever since the Harris execution,
Reinhardt and other liberal 9th
Circuit judges have come under

Please see DEATH, A19

Continued from A3
attack, from death penalty advo-
cates, who charge that the judges
use specious reasoning to halt exe-
cutions. In his opinion, Reinhardt
said critics have unfairly charac-
terized him and his colleagues as “a
group of vigilante judges who op-
pose capital punishment” and fol-
low their personal convictions
rather than the law. “Nothing
could be further from the truth.”
The case started when Brewer
strangled his pregnant girlfriend
Rita Brier, 23, in November, 1987.
While on Death Row, Brewer
wrote letters to friends, telling
them that after his execution he
would rejoin Brier—who he said
was now a deity—on the planet
“Terracia.”

)rewer and Brier had moved to

Flagstaff, Ariz., from Pennsyl-
vania just two months before the
murder. The couple lived in an
apartment with another woman.

Early on the morning of Nov. 11,
1987, Brewer became angry while |
arguing with the two women over |
whether he was too dependent on
his mother. Several hours later,
Brier told Brewer she loved him
and because she did, she would |
leave him so that he could prove he
was capable of living by himself.

- Brewer became enraged, attack-
ed: Brier, then 22 weeks pregnant,
and tried to strangle her with his
hands, he later told.police. A vio-
lent struggle ensued for 45 min-
utes. Eventually, Brewer found a
necktie, wrapped it around Brier’s |
neck and strangled her. |

Then, Brewer said, he un-
dressed, threw his clothes on the
victim, took a shower and engaged
in sexual intercourse with Brier’s
body.

Soon thereafter, he admitted the
killing to a 911 dispatcher he had
called. After the Flagstaff police
arrived, he confessed again. Evi-
dence at the scene corroborated his
story of the killing.

Brewer was indicted by a grand |
jury. Seven months later, against
the advice of his appointed counsel,
he pleaded guilty to first-degree |
murder. The judge found Brewer
competent to plead based on a
conversation with him and reports
from two psychologists.

lof 2

Judge criticizes hasty review in Ariz. execution

SAN FRANCISCO (AP) — A federal ap-
peals court judge yesterday criticized his
court’s refusal to order a mental compe-
tency hearing for an Arizona murderer who
was executed in March, and shed new light
on the court’s chaotic 11th-hour review of
the case.

The request by John George Brewer’s |

mother to stay his execution and hold a
hearing on his competency to drop all fur-
ther appeals “deserved far more thorough
and careful examination than it received,”
said Judge Stephen Reinhardt, of the 9th
U.S. Circuit Court of Appeals.

In an opinion also signed by Judge Harry
Pregerson, Reinhardt dissented from the
court’s refusal to issue a stay — barely an
hour before the scheduled execution — and
convene an li-judge panel. to decide
whether Elsie Brewer’s appeal was prop-
erly dismissed without a hearing.

Because the court failed to allow time for
proper review, Reirihardt said, “We will
never know whether our constitutional sys-

tem seriously malfunctioned — whether in
our rush to ‘get on with it’ we permitted an
incompetent man to submit to an unconsti-
tutional execution.”

He said the evidence of Brewer’s mental
condition and past suicide attempts “reveal
a man whose competence to waive his rights
was in serious doubt from the very begin-
sine.” 53.

Brewer confessed to beating and stran-
gling his pregnant fiancee in their Flagstaff
apartment in 1987, pleaded guilty and suc-
cessfully fought all attempts to challenge his
death sentence.

One 9th Circuit judge, William Norris,
stayed the execution for more than eight
hours before it was to iake place after dis-
senting from a vote by two colleagues to

dismiss Mrs. Brewer’s appeal. But the U.S.

Supreme Court lifted Norris’ stay on a 7-2

vote that night and Brewer was executed by

injection 90 minutes later. .
After the high court’s order, which con-

tained no explanation, the 9th Circuit's clerk
tried to contact the court’s 27 active judges
by telephone in various Western states for a
final vote on the convening of an 11-judge
panel and a renewed stay, Reinhardt said.
He said they had no chance to review the
case or consult with colleagues: before vot-
ing.

The conditions “were as far from condu-
cive to rational judgment as I can imagine,”
Reinhardt said. He said the clerk was un-
able to reach all the judges, but a majority of
the entire court either voted no or ab-
stained, enough to defeat the request for
further review. A “substantial number,”
which he cannot reveal under court rules,
voted yes, he said. -

When the case reached federal court in
February, less than two weeks before the

‘execution date, U.S. District Judge Roger |

Strand refused to give Mrs. Brewer’s psychi-
atric experts time to examine Brewer be-
fore ruling that she had failed to prove he
was incompetent, Reinhardt said.

| mnmanee REAR

The Arizona Baily Star

Tucson, Wednesday, June 23, 1993

itm";

, "Con wants to. die,
} “for strangling .-

“ae:

"pregnant woman |

By Pamela Manson” Aoentx
The Arizona Republic. 2 ps. ia.

- The - Arizona Supreme Court . on
darwesday upheld ‘the death sentence of:
+ a Flagstaff man who says he wants to '
die for strangling his pregnant —
girlfriend, leading to a prediction that

‘the state this year could execute its
‘first convict since 1963.

John George Brewer, 26, convicted

of killing Rita Brier in 1987, had tried

to stop the automatic appeal of his”

sentence to the state Supreme Court.
The court, saying that no one can
_ waive the automatic appeal, reviewed
the case and upheld the sentence in a
unanimous opinion.

The opinion also said that Brewer
cannot be charged with first-degree
murder in the death of his girlfriend’s
22-week-old fetus. State law says he
can be charged only with manslaugh-

_ ter in the killing, it said.

Brewer could be put to death this

RE year because all further_appeals are

discretionary, said Paul McMurdie,
chief counsel of the eriminal-appeals
section of the Arizona Attorney
General’s Office. :
. “Brewer wishes to be executed, ‘
McMurdie said. “If .he refuses to
initiate any more appeals, he will be
executed.”

Kathleen Kelly, a court-appointed.

said De

“lawyer. ‘gic Brewe |
is. insisting that he. wa
- appeals in the case. '

.- However,’ _she , "said

~~ change his mind. “There sare. other

“steps available to him.”

In" addition, ‘someon ai
intervene. <in * the case
execution, Kelly said. i

-Invits opinion, the court rejected.
: arguments. that’ Brewer was’ ‘incompe-
tent to plead’ ‘guilty: ‘to murder and —
that’ the. sentencing. judge.'erred in. .
ruling that the ‘crime was. committed
in an. especially. hanous, cruel, Or

Appeals. are available in federal
court... : Be

ill t seninved manner. ,

er. “We believe. few murders exhibit
ia the: degree’ ‘of cruelty evidenced in this |

ry. case,” Justice Robert Corcoran wrote .

_for the court. |

| Brewer killed Brier, 23, in Novem-

“ber. 1987 after she threatenéd to leave

~~ him because he was too dependent on
) his mother, court records say.

-In a 45-minute attack, Brewer beat

her: and strangled her with a necktie,

records. say. Brier twice began to
breathe when the tie was removed, but

~ finally died. -

In a confession, Brewer said he had

sex. with the: corpse before. calling

police.

Brewer pleaded guilty to the
remaining charge and was sentenced.
to death by Coker.

McMurdie said Brewer’s wish to’
die for his crime will shorten the
appeals process. The U.S. Supreme
Court has ruled in a Mississippi case

that other parties cannot file appeals
~ on an inmate’s behalf, he said.

Kelly said she is uncertain how that
ruling will affect Brewer’s case.

Gi ears SE Pyimutnanarane mere at ee

GB / a a ee Ae Ae OFS ae

Bir ale
ee denied tn» Oct /9972

SIR Zona Daily Siar (UCSonv

—__

WASHINGTON tree,

agreed yesterday to decide whether the COUIT GECISIONS, MOST ITOM 1989, trar=te=——

Civil Rights Act of 1991, which restored
some legal remedies for employment dis-
crimination and expanded others, applies
retroactively to the thousands of cases that
were pending when President Bush reluc-
tantly signed it into law.

The Bush administration took the view
that the new law applied only to cases filed
after Nov. 21, 1991, when the law went into
effect, and most lower courts have agreed.

The Clinton administration has not taken

stricted the application of existing federal

civil rights laws. Initially vetoed by Bush,
the law was the product of a two-year, in-
tensely partisan battle that left both sides
lacking the strength to prevail on the re-
troactivity question.

As a result, the version that Bush finally
signed did not specify whether the law was
to be effective retroactively.

The two cases are both appeals filed by
workers who unsuccessfully sued their em-

~—— -

generous standards of the new law.

One case, Rivers vs. Roadway Express,
No. 92-938, was brought by two black men
who said their employer had subjected
them to racially discriminatory disciplinary
proceedings that led to their dismissal. They
filed their suit under the Civil Rights Act of
1866, in which the Reconstruction-era Con-
gress guaranteed to newly freed blacks the

‘same right to “make and enforce contracts”

as white workers enjoyed.

The Civil
that decisio:
applied thr
ment. But th
6th Circuit,
missal of th.
case on the g

. retroactive.

The plaint

_ vs. USI Filr

woman who

Bolton 733

G3
Continued from Page One

might have allowed her to flee.

Pickett said that if Bolton had
“any little bit of human being left” in
him, he would tell her the truth
about what he did to Zosha.

“I want so badly to know the
truth,” she said. “No one in hell is
going to care about the truth, but I
care.”

Pickett told Bolton she wished for
him what Zosha had experienced.

As she talked to him, she tried to
put him in Zosha’s place, describing
an “awful, scary monster three
times your size” who would “snatch
you from a safe place, take you toa
dark, filthy place and touch you in
ways you never knew existed.”

“Every single day I hear Zosha
screaming for help,” Pickett said.
‘What do you hear?”

As the judge imposed the sen-
tence, Bolton and others heard a
burst of emotion and hateful com-
ments from audience members.

“Burn in hell,” one man said.
“Satan has a special demon for
you.”

Symington

Continued from Page One

As he was taken back into custody,
Bolton’s sister and stepmother, in
their seats, cried silently.

“All those people that rooted for
the death penalty are no better than
he is,” said Sherry Bolton-Davis, his
sister.

Members of the group Parents of
Murdered Children were among
those in the audience. Gail Leland,
who heads the group, said it con-
ducted petition drives asking the
judge to give Bolton the death pen-
alty.

However, Scholl said the petitions
would not have a bearing on the sen-
tence.

“I’m well-aware of the petitions
included in the pre-sentence re-
port,” he said. “But the judge’s re-
sponsibility is to justice, not to public
opinion. This sentence will be deter-
mined by the law and not by the
number of petitions filed in the
case.”

Ultimately, Scholl sentenced Bol-
ton to 33 years in prison for the kid-
napping conviction, plus 20 years in
prison for a second-degree burglary
conviction. Those sentences are in
addition to the death sentence for
the first-degree murder conviction.

Bolton was serving 154 years in

makers consider any gaming ban,
tribal officials said.

With Gordon’s decision last week,
the whole negotiating process “was

turned uncside dawn and naw we as

an Arizona prison for kidnapping
and sexual-abuse convictions when
Illinois state police testing an elec-
tronic fingerprint-matching system
linked him to the Tucson crime
scene in 1990.

“It wasn’t just Zosha that he took
away that day,” said Zosha’s father,
Allen Pickett, as he stood next to his

ting on dog and horse racing, in
order to keep casinos off reserva-
tions.

Under the federal Indian Gaming
Reon'stinn Act, Babbitt must allow

One of the Supreme Court’s 1989 deci-

Ed Compean, The Arizona Daily Star
Linda Lee Pickett: ‘‘I want so badly to know the truth”

former wife after the sentencing.
“As a unit, our family was mur-
dered.”

He said his daughter would have
been 9 years old now.

“Every time I see a little girl that
age, I think of her, what she would
be like now,” he said. “I guess I’m
going to do that all my life.”

game that would have to be can-
celed if the new gaming law is
passed.

“It’s going to cost the state a signif-
icant amount of money because that

Slain child’s mother may miss killer's sentencing

By Tessie Borden aa / a i?
The Arizona Daily Star

The mother of a Tucson child found stabbed to
death in an abandoned taxi more than 6 years ago might
not be here to see the killer sentenced.

Linda Pickett Smith, the mother of 2-year-old Zosha
Lee Pickett, now lives in Cedar Crest, N.M., but has no
money to travel to Tucson on Monday for the sen-
tencing of Daren Lee Bolton.

A Tucson jury in November convicted Bolton of the
murder, affirming prosecutors’ claims that he snatched
Zosha from a midtown home on June 26, 1986, stabbed
her in the chest and left her to die in an abandoned

taxicab two blocks from the house. Bolton faces either

the death penalty or life in prison.

The murder went unsolved until November 1990,
when Illinois state police officers who were testing an
automated fingerprint-matching system noticed it had
matched Bolton’s prints to prints found on Zosha’s bed.
room window and on the taxicab.

At the time, Bolton was serving a 1514-year term in

the Arizona State Prison for exposing himself to two
women and fondling one of them. His fingerprints were
also on file in Illinois following two other convictions: ;

Gail Leland, head of the Tucson chapter of Par-
ents of Murdered Children, said Smith needs about

$300 to pay for her plane ticket to Tucson for the sen-
tencing. a%

Leland said the group helps families of murder
victims primarily through counseling, but also pays for
-ncidental expenses during trials. She said Smith had ex-
hausted her funds during Bolton’s three-week trial. a.

Leland’s son Richard died as a result of an as-yel-
unsolved homicide in 1981.

In addition to providing emotional support, paying
incidental expenses and tutoring parents of homicide-.
victims about the legal system, the group helps them -
channel their anger and frustration toward efforts at :
changing laws to give victims a larger voice. :

Leland said donations can be sent to Parents of
Murdered Children, P.O. Box 32434, Tucson, Ariz. 85751. :
For information about the group, call 881-1794.

ae ?FB

Vo VY sssssseves & YCAL allu leet =} a

‘Ed Compean, The Arizona Daily Star
sed In their daughter’s slaying

puCcIC vYcI tival piansS IO resume

Judge orders
death for killer |

of Tucson

3 ”
By Tessie Borden “L aA 3
The Arizona Dally Star

For almost seven years, Linda Lee
Pickett waited to hear the words

condemning her 2-year-old daugh-

ter’s killer to death.

~ But when she did, they signaled a

beginning rather than an end.

“We know we have a long wait
ahead,” Pickett said after Daren
Lee Bolton was sentenced to death
yesterday for the June 1986 kidnap-
ping and murder of Pickett’s daugh-
ter, Zosha Lee.

Pickett said the sentence is the
Start of a long appeals fight, and she
won't be able to say her ordeal is
over until Bolton is executed.

Bolton was convicted last No-
vember of kidnapping Zosha from
her bedroom the night of June 26,
Stabbing her in the chest and leaving
her to die in an abandoned taxicab
near her home.

Her disappearance triggered one
of the largest manhunts in Tucson
history. Two boys finally found her
decomposing body four days later in
a vacant lot near East Speedway and
North Winstel Boulevard.

Though Bolton was not charged
with a sexual offense, Deputy

if £ &

> \W

Vy \

County Attorney Kathleen Mayer
contends that evidence in the cab — Nan
a sock stained with both semen and we “3
vaginal fluid — shows he raped her. YS) TE
In her comments to the court, or. a
Pickett said she has talked over the \) xX
years to prosecutors, detectives, QW Sry 8

friends in a support group and even NS

wrote a letter to Judge William

Scholl of Pima Coun’ :1perior \
Court. . v
Yesterday, the only words she had N a
left were for Bolton. »
“I would like for you to look at me, ; 2
if that’s possible,” she said. But Bol- c

ton remained motionless, facing a
courtroom wall to avoid news cam-
eras.

“You had the Opportunity to offer
my daughter mercy,” she said. “You
could have opened the door for her
as she was tapping on the window of
that taxicab. But you decided not to;
and for that, you deserve the maxi-
mum penalty.”

Mayer said the investigation
showed Zosha lived long enough to
crawl from the middle of the back
seat toward the door, tap on the in-
Side of the window, and wrap her
hand around the door handle that

See BOLTON, Page 2A

te me - Sn

Hear the message

1,
~ Zosha Lee Pickett was murdered by a
monster. No ordinary man could have done
what was done to that 2-year-old baby. She
was snatched out of her bed, stabbed, pos-

sibly raped and left to die in the back of an
abandoned car.

. The monster who did that was Daren
Lee Bolton. And he is a man, although the
way he lived his life makes society long to
strip him of his humanity.

He was sentenced to death Monday as
the words “burn in hell” and “Satan has a
special demon for you” were called out in
the courtroom.

There is no excuse, no mitigating cir-
cumstance that can soften the horror of his
crime.

But we can learn from it.

Evidence was offered in the trial that
Bolton was abused as a child. Such evi-
dence is presented in all too many trials of
child killers or abusers.

It’s a warning sign. “There isn’t anybody
I’ve ever seen who abused children who
hasn’t been abused themselves early on,”
said Dick Krugman, pediatrician and dean

JPR Zon DM,
She = “TU CSonv

Convicted murderer has someining to say

of the University of Colorado Medical
School.

Krugman was chair of the U.S. Advisory
Board-on Child Abuse and Neglect that re-
ported in December: “In spite of the na-

_ tion’s avowed aim of protecting its chil-

dren, each year hundreds of thousands of

them are still being starved and aban- »

doned, burned and severely beaten, raped
and sodomized, berated and belittled. The
system... is failing.” —

The pain of abused children doesn’t stop
when the tears do. It ripples out to encircle
others. Abused children eventually punish
a society that didn’t do enough to protect
them. At best they grow up maladjusted. At
worst they grow up monsters.

You can’t do much once a monster is
created. You mourn his victim, you try
him, you sentence him. But for the mem-
ory of one little girl who died alone and
frightened in the back of an abandoned
car, this community should fight to prevent
more monsters from being created.

Remember Daren Lee Bolton when the
politicians say there isn’t enough money to
fund' programs designed to prevent child
abuse.

Child’s Killer Is Executed

FLORENCE, Ariz., June 19 (Reu-
ters) — A man was executed by
lethal injection here early today for
the kidnapping and murder of a 2-
year-old girl.

THE NEW YORK TIMES NATIONAL THURSDAY, JUNE 20, 1996

Since then, Brewer has fought all.
‘appeals to ‘stay his execution. Like
many of Brier’s family, he insists that
he deserves to die for his crime.

Brier, who was 23 when she was
“killed Nov. 11, 1987, grew up near
Pittsburgh, the seventh of 10 children.

She was an active, happy child who
liked sports and the outdoors. A Girl
Scout, she worked’as a camp coun-
selor for years, played the guitar in
her church folk group, and delivered
newspapers.

PE ESATA TESS RE EARS OES

ia Her oldest brother, George, said his
: -. little sister was intelligent and inquisi- ’
¢ tive. He often read to her when she Pa
was young. ae ae a
be “I often cry when I recall’ the 3)
, | ; 5)
| = {The Arizoria Republic % * countless small unremembered acts of mdf
hg ae kindness and love that comprise the eg] |
m Her sister remembers the little #° relationship we had,” he wrote. to 5
! things about Rita Kathleen Brier, like. &: Coker. “And I cry that these things :
| ¥ ow cahegalways gave socks as. a oe can be no more.” ee) D
ioe ristmas gift. A Pe We - Another sister, Susan Dutton, said’ 2

_-» Her brother remembers her inquisi-. ‘ ~=—s- Brier. had a buoyant spirit and a

Lb. aie gs and how she loved to read... ‘es _ particular love of nature and children.
ut they also remember how the She “continually exuded caring, un-

derstanding and love,” Dutton said.

Other relatives also described Brier
as kind and. loving. They said. she

Stanton, ‘Pa: restaurant where she |\ —

worked. From their first date, on Oct.
- 25, 1986, they were inseparable. In

_ February 1987, she moved from home |

to Brewer’s apartment in his mother’s

home, and the two became engaged
that June.

From’the beginning, Brier’s family
found little to like in Brewer.

Robin Sper, George Brier’s wife,
described Brewer as pretentious but
insecuré,- adding’ that he seemed
unconcerned: that he had made a bad

- first impression on the family.

- Other: relatives suspected that

Brewer.was ‘physically abusive, and

because of such fears, Brier’s mother
. ‘unsuccessfully:. tried’ to break up the. |};
relationship. But Brier always insisted
. that her bruises were the result of falls. . |

‘and accidents. te .

- The'couple moved to Flagstaff just
two months before Brier’s murder.
Brewer claims that Brier, who he says
» shad gotten him to lose 100 pounds

PITPRARRRECC RARER EERE

Saturday, February 27, 1993

and.taught him to enjoy the outdoors,
wanted to go to mountaineering

ae i a trail
v "= <won't end.” se : iat in Prescott and become a trail, :
ees ag “Kay: fa one of the most. i She also apparently wanted him to

a *",, caring: "persons I’ve eve i]| become less dependent on others.

hown,” she wrote. “The pain of a | | 3 According to police reports, their final

family member’s death is always
_ reat, a violent death brings unspeak- -
erie agony : ! ne ae

1988; CoKen&
¥ " cs “ co
tno

ee a ne

feb. /2, 1993

Injection
picked for
execution

By Mary Jo PitzI fe A e enix AZ

The Arizona Republic ae ‘ vf

Death-row inmate John Brewer chose Thursday to be
executed by lethal injection — the same day Gov.. Fife
Symington signed a law making lethal injection the state’s
method of capital punishment. .

Brewer, who is scheduled to die March 3, would become
the first Arizona inmate to be executed by lethal injection. —

Voters in November overwhelmingly approved an

amendment to the state constitution that replaces the gas.
chamber with injection as Arizona’s method of execution...

The 109 inmates sentenced: to death’.
before Nov. 23, when the measure was
certified as having passed, are given a
choice of execution methods.

Before injection could be used in
Arizona, however, lawmakers had to
approve a bill to make statutes
conform to the constitutional amend-
ment.

House Judiciary Committee Chair-
man Ernie Baird, R-north Phoenix, :
said’ there was concern that a John Brewer/ -
mismatch between the statutes and fhe is executed
challenges from death-row inmates. March 3, he will

Senate Bill 1009 passed both the become the first
House and Senate on lopsided votes. Arizona inmate
It took effect immediately upon to die by lethal
Symington’s signature. injection.

Anyone sentenced to death since
Nov. 23 will be executed by injection.

While the bill was awaiting Symington’s signature, state
Department of Corrections officials were preparing to offer

. Brewer his choice of execution methods. That choice must:
be made 20 days before the execution, officials said.

affidavit he would sign,” department spokesman Michael
Arra said Thursday. “Coincidentally, he produced one
today, saying he prefers lethal injection.”

Brewer, 27, killed his pregnant fiancee in Flagstaff in
1987. He insists that he wants to die and has refused to
appeal his death sentence, but his mother has fought his
execution. ©

Patti Noland, R-Tucson, chairwoman of the Senate
Judiciary Committee, said the switch to lethal injection
should take some of the melodrama out of executions.

“T think it will relieve some of the circus atmosphere we
had with the gas chamber,” she said. “People react in
different ways to the gas chamber. I think that was true in
the Harding execution.”

Don Eugene Harding was killed April 6, in Arizona’s
first execution in 29 years,

His death attracted extensive news coverage, including
graphic descriptions of Harding’s death convulsions.

Corrections officials on Monday toured the room that
will be used for the injection procedure, which is
considered more humane than gas.

“Everything is ready to go,” Arras said.

He added the department is working with consultants
who have medical backgrounds in preparation for Brewer’s
execution.

pinged — ee 5 . accel io acl S
: ue: . 3 p : Pk ot eee 9 ad -

Judge lets death-row inmate drop lawyer, appeal

FLAGSTAFF (AP) — A death-row inmate he told police.

who says he wants to be executed is closer to his Brewer pleaded guilty to murder on July 18, ‘to end.
wish after winning two rulings in Coconino County 1988. : “T realize this has brought problems to my
Superior Court. : | “T committed this crime and I regret commit- ~ family and to others and for that I'm sorry,” the
Judge Jeffrey Coker on Monday granted John ting this crime. 1 am here ready to pay the price,” convict said. “I have suffered for the beliefs |
George Brewer’s requests that he be allowed to he said in court Monday. - have. I have been slapped around for them and
represent himself and that Coker dismiss an ap- ~ Monday's court session had been scheduled attacked. I have had people try to bribe me off. I
peal which Brewer said his lawyer filed against to prepare for a later hearing on a motion filed by know Iam going to die and I cannot stand existing
his wishes. Brewer’s attorney, Kathleen Kelly, to consider for one more day for committing this crime of

“Mr. Brewer, we are, as they say, down to the new evidence or issues that could cancel the death murder.” .
wire,” Coker said. “There are no further chal- penalty. Kelly said she will take no additional action:

lenges, no further appeals available to you at this But Brewer asked Coker to dismiss that mo- 0M behalf of Brewer.
time.” ee cee ~~ 4 on and to dismiss Kelly as his lawyer. He asked to Paul J. McMurdie, the state assistant attorney}
The judge then asked Brewer, 27, whether he __be allowed to represent himself. | "general handling Brewer's case, said he would ask’
understood that, and Brewer said he did. _ Kelly. questioned Brewer’s mental state and — the state Supreme Court for a warrant of execu-'

Coker on Aug. 26, 1988, sentenced Brewer to producéd a report from a North Carolina psychol- tion today.
cie in the gas chamber for the Nov. 11,1987,stran- ogist indicating that Brewer may not be compe- Attorney General’s Office spokesman Steve:

¢ ling of his pregnant girlfriend, Rita Brier, at their tent to make legal decisions for himself.because .Tseffos said Brewer has consistently insisted he,
Flagstaff apartment. Ret pesca Wa NE RA

“he wishes to die. Brewer said the doctor never wants no appeals filed on his behalf. |

Brier aad said she wanted to leave Brewer | interviewed him, and he noted that two psycholo- © The Arizona Supreme Court has yet to issue a
because he was dominated by his mother. After gists found him to be sane in 1988. . warrant scheduling Brewer's execution, Depart-
strangling her with a necktie at the end of a 45- When the judge asked one last time ifhe un- ment of Corrections spokesman Michael Arra
minute beating, Brewer had sex with her corpse, derstood he was giving up his right to appeal, said. P :

Ghe Arizona Daily Star

Tucson, Wednesday, November 25, 1992

wd ake fy Eg Wik gy aid a ee \ Wt A ee Ld

The Arizona Republic . ‘Monday, November 23; 1992

acest CAT COR +O ae

‘My life is forfeit’: Murderer
wants to die, has 1 hearing left

By Charles Kelly telephone interview from death row. oA
The Arizona Republic _ “My life is forfeit because of the crime I AES 2
John George Brewer, an Arizona death-row: committed. They have no business coming in John George

here and telling me what to do.”

_. Brewer / Inmate
In fact, his. lawyers:say they aren’t pushing

complains that

inmate nearly as mother-obsessed as the killer in
the Psycho movies, wants to die.

And Arizona wants to execute him. -appeals of his conviction and death sentence his lawyers,
But Brewer complains that his lawyers, now. But a state prosecutor says the defense against his,
against his wishes, continually try to keep him lawyers have gone out of their way to try to save wishes,
alive. Brewer from himself. And he won’t be surprised continually try to
“I committed murder,” he said recently in a — See MURDERER, page A7 keep him alive.

Murderer wants to die, |
has 1 hearing left to go

_— MURDERER, from page Al

if they keep doing it.

Brewer, 27, a TV and computer
addict who worked in a Jack in the
Box restaurant in Flagstaff, strangled
his pregnant girlfriend, Rita Brier, on
Nov. 11, 1987.

He and Brier had moved to”
Arizona from his mother’s home in *

Greensburg, Pa., two months earlier.

After the murder, court records.
say, Brewer told his parents in a
phone conversation that. he killed
Brier “because she wanted me to live
a life of my own without Mom having
her mental hold on me.” —.

Brewer, an articulate man with an
IQ of 132, carried out the murder in
the course of a horrific hand-to-hand
struggle that may have lasted as Jong
as 45 minutes, court records say.

“I proceeded to beat her, strangle
her, pound her, throw her, bash her
head against the wall, tried to break
her arm, so she couldn’t claw my eyes
out,” he told police.

“I thought I'd put her eyes out a
couple of times. I’d say, ‘You want to

. $ee how that hurts?’ I would put my
fingers right into her eyes.”

Eventually, Brewer said, he got his
hands on one of his ties and strangled
Brier. Twice she appeared to be dead

‘but began to breathe again “in a.

rattling kind of way,” he said. The

; third time he applied the tie, she died. -

Brewer told police that he then
took a shower, returned to where
Brier’s body lay and had sex with the
corpse.

“I could not have her alive, but

please understand, I love her,” Brewer
told police. i
“I just could not leave (sic) my

(feelings toward my mother interfere

iwith our relationship. I could not, I
‘repeat, could not, break this mental
hold my mother has on me.”

Brewer admitted he is pathologi-
-cally dependent on his mother, who
:he says has “a tongue like a laser
i beam.”

: “Nearly everything I do is checked
with my mental mother,” he told a
police detective.

His words recall Norman Bates, the
character played by the late Anthony
Perkins in the Psycho movies — a
killer possessed by the personality of
his dead mother.

When Brewer pleaded guilty to the

_ wasn’t mentally

Peak
baa. sea Li
athleen

Kelly / Attorney
says Brewer

Paul
McMurdie /
Says Brewer's
attorney sought
appeal without
client's consent.

competent to
plead guilty.

murder of Brier, 23, he said he was
sorry that he had committed a terrible
crime but wasn’t sorry that he had
killed her. -

It was only right that he ‘be
executed, Brewer said, and he didn’t
want to appeal his conviction or
sentence of death.

But Arizona mandates an appeal in
capital cases, and Kathleen Kelly, his
court-appointed attorney, did appeal.
She was joined by lawyers for the
Arizona Capital Representation Proj-
ect, a Tempe-based non-profit group
that gives legal help to defendants in
death-penalty cases.

When the state Supreme Court
denied the mandatory appeal, Kelly
went a step further and appealed to
the U.S. Supreme Court, saying
Brewer wasn’t mentally competent to
plead guilty.

That appeal, too, was turned down.
A psychiatrist and a psychologist who
examined Brewer after the murder
had termed him legally sane.

But Kelly said it was her profes-
sional responsibility to file the appeal
because Brewer’s desire to be executed
could be rooted in his mental
problems.

He told police that, before the
murder, he had attempted suicide 20
or 30 times. ;

“His desire to die is part of the
problem he experiences mentally,”
Kelly said.

However, she said, she did not ask
the country’s highest court to consider
other issues raised on the mandatory
appeal, such as whether Arizona’s
death-penalty statute is constitutional.

“I’m not appealing all these other

issues against my client’s wishes,”
Kelly said.

Paul McMurdie, chief counsel for
the Arizona attorney general’s crimi-
nal-appeais section, said Kelly filed
the U.S. Supreme Court appeal
without Brewer’s consent and without
telling him she was doing it. Kelly
conceded that she didn’t tell Brewer
about the appeal.

McMourdie said Brewer has com-
plained that Capital Representation
Project lawyers tried to force him to
take a mental exam and otherwise
interfered in his case. The group’s
spokesman declined comment. .

McMurdie said Kelly also asked for
a post-conviction relief hearing that
Brewer didn’t want. Kelly said the
hearing is required before an execu-
tion warrant can be issued and it was
her duty to point that out.

All that now stands . between
Brewer and execution is that hearing,
which will consider any new issues,
such as newly discovered evidence.

Judge Jeffrey Coker of Coconino
County Superior Court is to confer
with Brewer, the prosecution and
defense today to see what issues may
be presented at the hearing, which has
not been scheduled.

In fact, McMurdie said, it appears
Brewer will ask that Kelly’s motion to
hold the hearing be dismissed. : -:

If the execution warrant is issued,

:McMurdie said he would be surprised
if the Capital Representation Project °

did not try to file an appeal. Because
of his stance against any appeals,

Brewer is among a small group of”

death-row inmates likely to be exe-
cuted next year, McMurdie said. .
Currently, Brewer is the only

’ Arizona death-row inmate, asking that
his case not be appealed, .McMurdie:

said,. although two others have.done..
so in the past few years. Both of them’:

eventually agreed to cooperate in the

appeals process, the prosecutor said.

Across the country, he said, a
number of inmates have been executed
after dropping all appeals. They did
so, -he said, primarily because the
prospect of spending years in. “an
isolated cage” didn’t appeal to them.

Brewer said his motivation is
different. Execution is simply his idea
of the right thing for him, he-said.

“It’s just the way’ I am,” he
explained. “It’s the same reason. I
prefer Pepsi over Coke. I just do.”

the petition

t ourt.!

TITLED TO
Y UNDER
22-3

whether this
stay of exe-
ule 22-3(c),

‘it of habeas
wS.C. § 2254
sentence of
ybable cause
ve not been
rt ... upon
a certificate
ssued and a
nted by this
of its man-

‘itioner Elsie
end of John
‘jitioner” for
establishing
1. We hold
Bi r dem-
gw vring a
she may not
1e execution
iections. To
for the entry
‘next friend’
lefendant is
lf would be
in Demosth-
'7, 110 S.Ct.
(1990), that

sion [that Mrs.
vould be if the
n] was incom-
2al.”).

that the auto-
appellate pro-
1 for a writ of
to 28 U.S.C.
a sentence of
is corpus shall
to a particular
subsequent or
‘jling was not

BREWER y. LEWIS 1025
Cite as 989 F.2d 1021 (9th Cir. 1993)

Bis granting a stay, ... federal
ourts must make certain that an adequate
‘basis exists for the exercise of federal pow-
4 er. “99 .
- [2] The dissent to this order asserts
‘that we are “reading language into the
rule” on first petitions. We read nothing
into the rule. We simply apply the rule in
light of the fundamental principle of juris-
diction that a party must have standing to
iitigate i in federal court. A grant of a stay
is an exercise of judicial power, and we are
Rs authorized to exercise such power on
half of a party who has not first estab-
lished standing. See Warth v. Seldin, 422
1U:S. 490, 498, 95 S.Ct. 2197, 2204-05, 45
E:Ed. 2d 343 (1975) (“In essence the ques-
tion of standing is whether the litigant is
éntitled to have the court decide the merits
of! the dispute or of particular issues.”).
‘Standing determines the power of the court
fo entertain a suit. Jd.

wo The dissent further contends that
wwe have decided the “merits” of the peti-
tioner’ s claim, and that this indicates we
lacknowledge she has made a colorable
[claim of standing. We have simply decided
funder relevant Supreme Court authority
that the district court correctly concluded
ithat petitioner has failed to establish her
standing to petition. the federal courts.
Standing: is’ a jurisdictional question that
must be addressed at the threshold of any
case, ; on” pnt heel!

2 Finally, the dissent’s citation to Bell v.
t Hood, 327 U.S. 678, 66 S.Ct. 778, 90 L.Ed.
939 (1946), does not support the argument
that we have jurisdiction to consider peti-
tioner’ s appeal. That-case did not concern
standing but rather the question whether
ithe plaintiff had stated a cognizable cause

‘of action. The Supreme Court: has never

‘cited Bell for the proposition that a party
thas standing as long as her claim is not
Wholly insubstantial.” |

HI. PETITIONER HAS FAILED TO ES-
Fo, TABLISH HER STANDING

.* [4]. The district court held a hearing on
‘February 28, 1998, for the purpose of de-
}termining whether petitioner has standing
/as next friend of John Brewer, and correct-

ly concluded she does not. The facts of the
present case are closely analogous to those
presented to the Supreme Court in Baal,
495 U.S. at 731, 110 S.Ct. at 2228. In Baal,
the defendant’s parents filed a habeas peti-
tion in the district. court hours before
Baal’s scheduled execution. The only evi-
dence the petitioners presented in support
of their petition was the affidavit of a
psychiatrist who had not examined Baal,
and who opined that Baal “may not be
competent to waive his legal remedies.”
Id. 495 U.S. at 736, 66 S.Ct. at 2225 (empha-
sis in original). The district court then
conducted a hearing, after which it conclud-
ed that petitioners failed to establish their
standing as next friends. Jd. at 733, 66
S.Ct. at 2224. Upon review of the record,
the district court found that all the evi-
dence, other than the newly submitted affi-
davit, established Baal’s legal competence,
and that the affidavit was conclusory and
lacking in sufficient foundation to warrant
additional examination of Baal. The Su-
preme Court ultimately held that because
petitioners had not come forward with
“meaningful evidence” of Baal’s incom-
petence, the district court correctly found
that petitioners. had not established stand-
ing, and correctly denied their request for a
further evidentiary hearing on the question
of Baal’s competence to waive his right to
proceed. Jd. at 736, 66 S.Ct. at 2225.

The hearing which the district court be-

low held on February 28, 1993, was analo-

gous to the hearing which the district court
held in Baal. The hearings in both cases
provided the petitioners an opportunity to
attempt to. establish their standing. . The
district courts in both instances found that
the petitioners had not presented sufficient
evidence to establish standing. In Baal,
the Supreme Court held that because the
petitioners had not supplied the “meaning-
ful evidence” necessary to support their
claim of standing, they were not entitled to
a further evidentiary hearing to explore the
question of the defendant’s competence.
In the present case, because Ms. Brewer
has likewise not presented such “meaning-
ful evidence,” she was not entitled to a
further evidentiary hearing on her son’s

le petition

h urt.}

ITLED TO
UNDER

2-3

iether this

tay of exe-
e 22-3(c),

-of habeas
nC. § 2254
mtence of
able cause
* not been

. upon
certificate
wed and a
ted by this
f its man-

ioner Elsie
id of John
loner” for
stablishing

We hold
* dem-
t ng a
e may not
: execution
ttions. To
r the entry
ext friend’
fendant is
f would be
Demosth-
, 110 S.Ct.
1990), that

mo [that Mrs.
ald be if the
was incom-

L”).

at the auto-
ypellate pro-
‘or a writ of
> 28 U.S.C.
sentence of
corpus shall
\a particular

bsequent or

ing was not

e er.
| . [2] The dissent to this order asserts.
| that we are “reading language into the
| rule” on first petitions. We read nothing
> into the rule. We simply apply the rule in
| light of the fundamental principle of juris-
| diction that a party must have standing to
| litigate in federal court. A grant of a stay
» is an exercise of judicial power, and we are
© not authorized to exercise such power on
| behalf of a party who has not first estab-

BREWER v. LEWIS 1025
Cite as 989 F.2d 1021 (9th Cir. 1993)

4 “TbJefore granting a stay, ... federal
» courts must make certain that an adequate
} basis exists for the exercise of federal pow-

a5 99

lished standing. See Warth v. Seldin, 422
U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45
L.Ed.2d 348 (1975) (“In essence the ques-

- tion of standing is whether the litigant is
E entitled to have the court decide the merits
| of’ the dispute or of particular issues.”).

Standing determines the power of the court

' to entertain a suit. Jd. uM

[3] The dissent further contends that
we have decided the “merits” of the peti-

|. tioner’s claim, and that this indicates we

acknowledge she has made a colorable
claim of standing. We have simply decided
under relevant Supreme Court authority
that the district court correctly concluded
that petitioner has failed to establish her
standing to petition the federal courts.
Standing is‘a jurisdictional question that
must be addressed at the threshold of any
case.

Finally, the’ dissent’s citation to Béll v.

Hood, 327 U.S. 678, 66 S.Ct. 778, 90 L.Ed.
939 (1946), does not support the argument
that we have jurisdiction to. consider peti-
tioner’s appeal... That case did: not concern
standing but ‘rather the question whether
the plaintiff had stated a cognizable cause
of action. The Supreme Court: has. never
cited Bell for the proposition that a party
has standing as long as her claim is. not
“wholly insubstantial.” es

III. PETITIONER HAS FAILED TO ES-
. ‘TABLISH HER STANDING __
[4]. The district court held a hearing on
February 28, 1998, for the purpose of. de-
termining whether petitioner has standing
as next friend of John Brewer, and correct-

ly concluded she does not. The facts of the
present case are closely analogous to those
presented to the Supreme Court in Baal,
495 U.S. at 731, 110 S.Ct. at 2223. In Baal,
the defendant’s parents filed a habeas peti-
tion in the district. court hours before
Baal’s scheduled execution. The only evi-
dence the petitioners presented in support
of their petition was the affidavit of a
psychiatrist who had not examined Baal,
and who opined that Baal “may not be
competent to waive his legal remedies.”
Id. 495 US. at 736, 66 S.Ct. at 2225 (empha-
sis in original). The district court then
conducted a hearing, after which it conclud-
ed that petitioners failed to establish their
standing as next friends. Jd. at 738, 66
S.Ct. at 2224. Upon review of the record,
the district court found that all the evi-
dence, other than the newly submitted affi-
davit, established Baal’s legal competence,
and that the affidavit was conclusory and
lacking in sufficient foundation to warrant
additional examination of Baal. The Su-
preme Court ultimately held that because
petitioners had not come forward with
“meaningful evidence” of Baal’s incom-
petence, the district court correctly found
that petitioners had not established stand-
ing, and correctly denied their request for a
further evidentiary hearing on the question
of Baal’s competence to waive his right to
proceed. Jd. ‘at 736, 66 S.Ct. at 2225.

The hearing which the district court be-
low held on February 23, 1998, was analo-
gous to the hearing which the district court
held in Baal. The hearings in both cases
provided the petitioners an opportunity to
attempt to establish their standing. | The
district courts in both instances found that
the petitioners had not presented sufficient
evidence to. establish standing. In Baal,
the Supreme Court held that because the
petitioners had not supplied the “meaning-
ful evidence” necessary to support their
claim of standing, they were not entitled to
a further evidentiary hearing to explore the
question of the defendant’s competence.
In the present case, because Ms. Brewer
has likewise not presented such “meaning-
ful evidence,” she was not entitled to a
further evidentiary hearing on her son’s

1026 989 FEDERAL REPORTER, 2d SERIES

competence, and therefore the district
court did not abuse its discretion by deny-
ing her. additional time to examine Brewer
or conduct other discovery.’ |

[5] The district court determined that
petitioner did not meet her “burden of
proving by clear evidence” that the defen-
dant is incompetent to waive his appellate
rights. The standard which the district
court applied in reaching its determination
is consistent with the Supreme Court’s dec-
laration in Whitmore v. Arkansas, 495
U.S. 149,.110 S.Ct. 1717, 109 L.Ed.2d 185
(1990), that the “burden is on the ‘next
friend’ clearly to establish the propriety of
his status and thereby justify the jurisdic-
tion of the court.” Jd. at 164, 110 S.Ct. at
1727-28 (emphasis added). In order to
clearly establish standing, a petitioner
must present “meaningful evidence that
[the defendant] was suffering from a men-
tal disease, disorder, or defect that sub-
stantially affected his capacity to make an
intelligent decision.” Jd. at 166, 110 S.Ct.
at 1728-29. The Court reiterated this re-
quirement in Baal. 495 U.S. at 786, 110
S.Ct. at 2225-26.

The district court did not err in determin-
ing that Ms. Brewer failed to clearly estab-
lish her standing, because the record shows

3. Rule 6 of the Rules Governing Section 2254
Cases in the United States District Courts explic-
itly leaves the decision whether to permit dis-
covery to the discretion of the district court.

4. The Supreme Court stated the test for deter-
mining whether a habeas petitioner is compe-
tent to waive his right to federal review of his
conviction and sentence in Rees v. Peyton, 384
U.S. 312, 314, 86 S.Ct. 1505, 1506-07, 16 L.Ed.2d
583 (1966): : .

whether he has capacity to appreciate his po-
sition and make a rational choice with respect
to continuing or abandoning further litigation
or on the other hand whether he is’ suffering
‘froma mental disease, disorder, or defect
which may substantially affect his capaci-
ty....

5. . Dr. Alexander Don, an independent psychia-
trist retained by the state, examined Brewer in
“early February 1993, and specifically concluded
‘that Brewer evidenced very little mental deterio-
ration due to his five-year incarceration and

“does not manifest any signs of a psychotic
illness.” ,

6. The only evidence that the state’s, experts did
not consider was two letters written by Brewer

that she did not provide the meaningful
evidence which Whitmore and Baal de-
mand. The evidence which she submitted
is indistinguishable from that which the
petitioners submitted in Baal, and which
the Supreme Court found insufficient. In
Baal, the petitioners presented an affidavit
of a psychiatrist who had reviewed and
disagreed with reports of experts who had
examined Baal and found him competent,
but who had never personally observed
Baal. Jd. at 735-86, 110 S.Ct. at 2225-96.
Here, petitioner has submitted brief affida-
vits of two doctors who have never met
Brewer, as well as an affidavit of Dr. Bay-
less, who examined Brewer and found him
competent in 1988. Dr. Bayless speculates,
based on information not available to him
at that time, that Brewer’s mental condi-
tion may have deteriorated during his in-
carceration, and that Brewer may now suf-
fer from a major depressive disorder.® As
in Baal, this conclusory evidence is insuffi-
cient to outweigh the substantial evidence
in the record demonstrating the defen-
dant’s competence. Within the last two
and one-half months, no less than four psy-
chological experts have personally exam-
ined and tested Brewer and found him com-
petent.®

in which he appears to assert a belief that Rita
Brier is now living on another planet, and that
he will join her there after his execution. Dur-
ing Dr. Don’s.examination of him, Brewer spe-
cifically denied that he believes in the existence
of this planet, although he admitted his religious
beliefs are unusual. Dr. Don did not review
Brewer's letters, but testified at the district court
hearing that Brewer's belief that he would join
Brier in an afterlife was not “indicative of any

. mental instability.or problem.” . These religious

beliefs, including the existence of the planet
Terracia, did not emerge for the first time in the
two letters, but had been a part of Brewer's
discussions and beliefs long prior to the. mur-
der. pie

Ms. Brewer also presented affidavits from sev-
eral friends and family:-members, all of whom
agreed Brewer had a difficult childhood and
showed signs of mental disorder from an early
age. These statements do not contradict the
district court's findings. The four experts who

_ examined Brewer determined he suffers from a
personality disorder, but all agreed that Brewer
‘is competent. ne

IV. THE ARIZ
DETERMI}
COMPETE!
A PRESU]
NESS _

[6] Our conc
has not establish
of John Brewer
gation to accord
ness to the sta
his competence.
held that a sta
ing a defendant’
presumption w
by the record.”
S.Ct. at 2225;
111, 117, 103 S.
794 (1983).

[7] The stat
nation that Bre
guilty is withou
record. The s
based upon psy
Bayless and Dr
uated Brewer’s
as well as his 1
of the offense
court conducte
Brewer conce
guilty and his
stances.

On Novemb
court again fo
hearing on Br

automatic noti
At this hearin
examined Bre
for wishing to
proceedings.
ments in court
of the. entire
cluded: that it
previous findi
tent to act on

Nov. 28, 1992,

further that

submitted by »
insufficient tc

Brewer’s com

and a half p

conclusory fa:

cal examinati

1024

affidavit from a Dr. Rollins stating that
Brewer was not competent to proceed. Dr.
Rollins’s affidavit was not based on a per-
sonal examination of Brewer, was inconsis-
tent with the opinions of two experts who
had examined Brewer, was contrary to the
trial court’s previous holding and the Ari-
zona Supreme Court’s finding on appeal,
and was not supported by any reports from
the Arizona Department of Corrections,
which is required by law to file a statement
in state court if it determines Brewer has a
psychological problem. The. trial -court
ruled that Brewer’s competency “has al-
ready been determined. It has already
been addressed by the Supreme Court of
this state. I do not see sufficient informa-
tion in the Affidavit of Dr. Rollins to
change my position, nor do I suspect that
the Supreme’ Court would change its posi-
tion.” After extensively examining Brew-
er regarding his request to dismiss the
state post-conviction relief proceedings, the
trial court found Brewer competent to file
the motion to dismiss and granted the mo-
tion. The Arizona Supreme Court then is-
sued a warrant of execution for March 3,
1993.

Thereafter, Brewer’s mother filed her pe-
tition in the district court as next friend of
Brewer, which we review herein. The dis-
trict court, after hearing evidence, deter-
mined that Elsie Brewer

has failed to sustain her burden [of prov-
ing that she has standing] and thus the
Court lacks jurisdiction to act on .the
motion for stay of execution and it lacks
jurisdiction to act upon the petition for
writ of habeas. corpus on behalf of a
person in state custody. And according-

1. The court also held Ms. Brewer lacks individu-
al standing to move for a stay of her son’s
execution. Ms. Brewer does not appear to raise
this argument on appeal, and we are not aware
of any authority that would support her claim
to individual standing, as distinguished from
standing as “next friend” based on her son’s
incompetence. See Whitmore v. Arkansas, 495
U.S. 149, 165, 110 S.Ct. 1717, 1728, 109 L.Ed.2d
135 (1990) (“one necessary condition for ‘next
friend’ standing in federal court is a showing by
the proposed ‘next friend’ that the real party in
interest is unable to litigate his own cause due
to mental incapacity ...”);. Gilmore v.. Utah, 429
U.S. 1012, 1014, 97 S.Ct. 436, 437-38, 50 L.Ed.2d
632 (1976) (Burger, C.J., concurring) (“The only

989 FEDERAL REPORTER, 2d SERIES

ly, the motion for stay and the petition
for writ are denied.

Elsie Brewer then appealed to this court.)

II. PETITIONER IS NOT ENTITLED TO
AN AUTOMATIC STAY UNDER
NINTH CIRCUIT RULE 22-3

[1] We must first consider whether this
case qualifies for an automatic stay of exe-
cution under our Circuit Rule 22-3(c),
which provides:

On the first petition [for a writ of habeas
_ corpus filed pursuant to 28 U:S.C. § 2254

for a petitioner under a sentence of

death], if a certificate of probable cause
and..a stay of execution have not been
entered by the district court .... upon
application of the petitioner a certificate

of probable cause will be issued and a

_ Stay of execution will be granted by this

court pending the issuance of its man-
date.

The issue here is whether petitioner Elsie
Brewer, as purported next friend of John
Brewer, qualifies as the “petitioner” for
purposes of our rule prior to establishing
her standing as a next friend. We hold
that she does not. Until Elsie Brewer dem-
onstrates that she has standing to bring a
petition on behalf of her son, she may not
obtain an automatic stay of the execution
of Brewer over his strong objections. To
interpret the rule as providing for the entry
of a stay at the request of a “next friend’
without. a showing that the defendant is
unable to act.on his own behalf would be
inconsistent with the holding in Demosth-
enes v. Baal, 495 U:S. 781, 737, 110 S.Ct.
2223, 2226,°109 L.Ed.2d 762 (1990), that

‘possible exception to this conclusion [that Mrs.
Gilmore does not have standing] would be if the
_Yecord suggested ... that [her son] was incom-
petent to waive his right of appeal.”).

2. Circuit Rule 22-3(a) provides that the auto-
matic stay ‘rule “shall apply to appellate pro-
ceedings involving .a first petition for a writ of

habeas corpus’ filed pursuant to 28 U.S.C.
§ 2254 for a petitioner under a sentence of
death. A ‘first petition’ for habeas corpus shall
mean: the original filing relating to a particular

|, conviction or sentence, and a subsequent or
amended filing if the original filing was not

- dismissed on the merits.” fest

seers

“{blefore
courts mus
basis exis
er.”

[2] The
that we a
rule” on fi
into the ru
light of the
diction that
litigate in f
is an exerci
not author
behalf of a
lished stanc
US. 490, 4
L.Ed.2d 34:
tion of star
entitled to |
of the dist
Standing de
to entertair

[3] The
we have de

'. tioner’s clai

acknowledg:
claim of stai
under relev
that the dis
that petitior
standing
Standing: is
must be ‘adc
case,

_ Finally, t
Hood, 327 U
939 (1946), ¢
that we. hav
tioner’s appe
standing’ but
the plaintiff
of action. 1
cited Bell fo
has standing
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| February 23,
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as next frien

The information ‘contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.

By LUNA I. SHYR

Associated Press Writer

FLORENCE, Ariz. (AP) -- Daren Lee Bolton fired his lawyers and
refused to appeal his death sentence for raping and murdering a
2-year-old girl in 1986, saying he would: rather die than spend his life
in prison.

Wednesday he got his wish.

He was executed by lethal injection.

Bolton, 29, was caught four years after the murder of Zosha Lee
Pickett through a new computerized fingerprinting system.

Sentenced to death in 1993, Bolton fired his lawyers after losing a
mandatory appeal with the state Supreme Court and then acted as his own
lawyer, refusing to appeal his sentence.

Bolton spent several hours Tuesday afternoon with a sister and two
people identified only as parents or stepparents.

As midnight arrived, he was led into a room with a glass windaw. On
the, other side were about 30 witnesses standing silently. In the front
row was Zosha’s father and mother, who held a picture of the slain
og

A bell chimed and the injection process began. A blue curtain closed
across the window immediately following the execution.

“The death that he just received is nothing compared to the terror
and agony he put Zosha through," Zosha’s father, Allen Pickett, told
reporters later.

Zosha was kidnapped from her Tucson home in June 1986. She was
raped, stabbed and left to die in an abandoned taxi a few blocks away.

Illinois police linked Bolton to Zosha’s death in 1990.

While training on a new computerized fingerprinting system that had
Bolton’s prints on file from previous assault convictions in Champaign,
Ill., they matched- his prints to those found on Zosha’s bedroom window
and in the taxi. ;

Bolton was also charged with murder, sexual assault and kidnapping
in the October 1982 death of 7-year-dld Cathy Fritz, who was abducted
while walking home from a neighbor’s house in Tucson. His trial in that
case had been set for September.

Bolton maintained his innocence in both slayings.

Cathy’s father and several brothers witnessed Bolton’s execution.

“Even though Cathy’s trial will never happen, we have no doubt in
our mind that Cathy was murdered by Daren Bolton," said one brother,
Jim. “We have no doubt that justice has been served."

Court upholds death penalty for child killer

The Arizona Supreme Court has upheld the conviction and death sentence of
child killer Daren Lee Bolton, who was linked.to the crime more than four .
years later through a fingerprint computer. af

In a unanimous decision issued Tuesday, the high court said the murder of
Zosha Pickett, 2, was especially cruel. | fo

Bolton, now 28, kidnapped Zosha from her Tucson bedroom in June 1986.
Her body, with a stab wound in the chest, was found four days later in an
abandoned vehicle several blocks from her home.

Tucson police, after failing to match fingerprint samples from the vehicle and
Zosha’s bedroom to anyone, began distributing them to other agencies. In
November 1990, Illinois police used a computer system to match a print from
the bedroom-window screen to Bolton, who had an assault conviction in that
state.

Bolton by then was serving a prison term in Arizona on unrelated charges of
kidnapping, sexual abuse and indecent exposure. |

B2 The Arizona Republic Friday, June 16, 1995

VALE STATE

Arizona Inmate Executed

AP 19-Jun-1996 5:11 EDT REF5083.

The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.

By LUNA I. SHYR

Associated Press Writer : rk Mok 0 Ae ae
FLORENCE, Ariz. (AP) -~ A man who fired his lawyers and refused
legal appeals was executed by injection éarly Wednesday for raping and
murdering a 2-year-old girl in 1986. ce eee
Daren Lee Bolton, 29, was caught four years after the murder through
a new computerized fingerprinting system. =
Bolton was sentenced to death in 1993 in the-murder of Zosha Lee
Pickett. He fired his lawyers after losing a mandatory appeal with the
state Supreme Court and then acted as his own lawyer, réfusing to
appeal his sentence. ue: GE age a nent de
Bolton maintained his innocence but said he would rather be executed

than spend the rest of his life in prison.

Zosha was kidnapped from her Tucson home in June 1986. She was
raped, stabbed and left to die in an abandoned taxi a few blocks away.

Bolton wasn’t linked to Zosha’s death until four years later.

Illinois police, who had Bolton's prints on file from previous »
assault convictions in Champaign, Ill., were training on a new
computerized fingerprinting system when they matched his prints to
those found on Zosha’s bedroom window and in the taxi.

Bolton was also charged with murder, sexual assault and kidnapping
in the October 1982 death of 7-year-old Cathy Fritz, who was abducted
while walking home from a neighbor's house in Tucson. His trial in that
case had been set for September. Cir:

DNA evidence from a pubic hair linked Bolton to Cathy's death in
1994, is yaa

By William Hermann
Staff writer

FLORENCE - Daren Lee Bolton, who raped and murdered a 2-year-old girl 10 years
ago, took only two minutes to die early this morning (6/19) inside the Arizona
State Prison.

Bolton showed no sign of fear, anger or remorse as he lay strapped to a
white-sheeted gurney. Moments later, at 12:02 a.m., deadly pancuronium bromide
and potassium chloride were sent coursing into his right arm.

He took a breath and blew it out, and his stomach convulsed nearly a
half-dozen times. Then his body fell still.

Department of Corrections Director Terry Stewart pronounced him dead at 12:04
a.m.

Bolton’s death was witnesses by the parents of Zosha Lee Pickett of Tucson,
the 2-year-old he raped and stabbed to death in 1986.

Linda Smith, the little girl’s mother, stood at the window that separated the
witnesses from the death chamber and held up a photo of Zosha.

‘’I made sure he saw my daughter’s picture before he died,’’ she said later.

Bolton, 29, had claimed his innocence all along, but he did nothing to appeal
his 1992 death sentence.

At his trial, prosecutors said Bolton had snatched Zosha from her bed, dragged
her through the bedroom window and carried her to an abandoned car, where he
molested her before stabbing her in the chest.

Zosha’s body was found four days later, and investigators concluded that she
had lived about a half-hour after the stabbing, vainly tapping on the window.

After Bolton was charged with the murder, detectives linked him to the 1982
sexual assualt and slaying of 7-year-old Cathy Fritz, also of Tucson.

Bolton had been charged with Cathy’s death, too.

(Copyright, Phoenix Newspapers Inc.)

6-19-1996 America Online:Galba33 Page 1

Trial

Continued from Page One

touched the car “‘all over” before he
and Phil abandoned the idea and
left the lot.

Bolton said he and Phil also got
together on June 27, 1986 — the
night Zosha was kidnapped — and
decided to break into a house that
Phil believed contained money and
crugs.

That house, in the 1400 block of
North Dodge Boulevard, was where
Zosha lived with her parents, Alan
and Linda Pickett. Bolton said that
while he assumed Phil knew who
lived there, he did not.

Bolton said he removed a window
screen, coincidentally choosing
Zosha’s bedroom window because
of a small defect in the frame that
made the screen easier to remove.

He said he was climbing inside be-
tween 11 p.m. and midnight when he
‘Saw a dog in the open bedroom door-
way. He said he and Phil then fled,
parting company for the night as
they approached the nearby Cata-
lina High School campus.

Bolton said he ran into Phil about
a week later, and invited him to take
a trip into the desert “for a party.”
He said he stole a Datsun and drove
into the desert ‘‘between the Cata-
lina Mountains and Picacho Peak —
I don’t know where.”

He said he then questioned Phil a-
bout Zosha’s death, and shot him
when he admitted responsibility. He
Said he buried him, but did not men-
tion the shovel until Mayer asked
him on cross-examination how he
managed to dig the hole.

Bolton’s response — that he car-
ried the shovel with him to meet
Phil and steal the car — evoked

laughter from Zosha's relatives and
others packed into the courtroom.

Much of Bolton’s testimony con-
formed to details that the Picketts,
police and other witnesses offered
during his two-week trial on charges
of first-degree murder, kidnapping
and burglary.

Mayer implied during her cross-
examination that he may have sim-
ply crafted his story to match evi-
dence in the case. But Bolton’s sis-
ter, who watched from the gallery,
said her brother had told that story
“for two years.”

Bolton did not have to testify —
the Fifth Amendment protects him
and all defendants against being
compelled to incriminate them-
selves.

Allowing him to take the stand is
considered risky defense strategy,
particularly because it allows prose-
cutors to tell jurors about his prior
criminal record.

Bolton was convicted of two as-
Saults on women in Illinois, and is
serving the fifth year of a 1514-year
sentence in the Arizona State Prison
for kidnapping, sexual abuse and in-
decent exposure. ;

Those charges stem from an Aug.
20, 1987, incident in which he ex-
posed himself to two women walking
in a midtown crosswalk, grabbed
one of the women and held her for
10 minutes while fondling her
breasts. _

Those prior convictions could
serve to support Mayer’s contention
that Bolton kidnapped and killed
Zosha in order to rape her. Coroners
could not prove Zosha was sexually
assaulted, but Mayer said other evi-
dence indicates she was raped in the
cab where her body was found.

Closing arguments in Bolton’s trial
will be held tomorrow in the court-
room of Judge William Scholl.

Bolton says he slew

By Joe Salk ki [- =
Fede Semone |] {-92.

Daren Lee Bolton took the witness
_ Stand yesterday to deny one killing
: and admit to another one.
| Bolton, charged with kidnapping
_ 2-year-old Zosha Lee Pickett from
» fer bedroom and killing her in June
71986, said he shot the girl’s real
‘killer and buried him in the desert
‘northwest of Tucson.

He testified that he and a man he
"called only “Phil” attempted to
break into Zosha's house the night
~ She was kidnapped but were scared
- Off by a barking dog.

After seeing media reports of
Zosha’s death, Bolton said he sus-
pected that Phil had returned to the
house alone and snatched her. Bol-
ton said he first met Phil at a mid-
town pool! hall.

Bolton said he later stole a car and
took Phil to the desert, where Phil
admitted killing Zosha. He said he
then shot Phil with a .38-caliber pis-
tol and buried him — using a shovel
he said he carried with him in the
theft of the car.

“It was just a reaction,” Bolton
told jurors in his Pima County Supe-
rior Court trial. “Just that I was

ARIZ “Daily Stor — TU CI AN

pissed off at what had happened.”

Tucson Police Detective Joe
Godoy said police have never heard
of Phil, and said officers were try-
ing to match Bolton’s scant descrip-
tion of Phil — blond hair, blue or
green eyes, medium build — to any
data on missing persons.

But neither he nor Deputy County
Attorney Kathleen Mayer seemed
inclined to believe Bolton’s story.

‘Do you expect the jury to believe
this?” Mayer asked. “No descrip-
tion, no last name — you’re kind of
in a nice position here, aren't you?
Nothing here to charge you with

SS -f/~F2

, buried real killer of toddler

Phil’s murder.”

During nearly an hour of mum-
bled testimony, Bolton tried to ex-
plain why his fingerprints were
found on Zosha’s bedroom window
and on the abandoned taxicab
where her body was found four days
after her highly publicized disap-
pearance.

Bolton said that a few days ear-
lier, he and Phil visited the taxi,
which was sitting in a vacant lot two
blocks from Zosha’s home.

“My idea was to steal parts from
the car,” Bolton said, adding that he

See TRIAL, Page 2A

I -W- 92.

ARIZOVA DRMLY SHAR.

|
‘ |
|

Bruce McClelland, The Arizona Daily Star
Daren Lee Bolton, testifying in his own defense, says an acquaintance named ‘‘Phil"' kidnapped and killed 2-year-old Zosha Lee Pickett

Motive in Zosha Pickett Slaying

was ra

TV CSow

By Joe Salkowski :
The Arizona Dally Star | 0 3 0 4 u

Daren Lee Bolton snatched 2-year-old Zosha Lee
Pickett from her bedroom in the middle of the night
and murdered her in order to rape her, a prosecutor’
argued yesterday.

Bolton, 26; is not charged with sexually assaulting3;t3'

Zosha, who was abducted from the bedroom of her®

family’s midtown home and Stabbed to death in the.”

dark, early morning hours of June 27, 1986.

But as his trial for the highly publicized killing
began yesterday, Deputy County Attorney Kathleen
Mayer said blood
Suggest she was raped. ;

Doctors were not able to prove the claim because
Zosha’s body had decomposed in the four days before
it was found in an abandoned car two blocks from her
home, Mayer said.

Prosecutors are relying on Bolton’s fingerprints —
found on Zosha’s bedroom window and on the front-left
door of the car — to prove he is guilty of kidnapping,
burglary and first-degree murder.

“Crimes like these — heinous, cruel,
crimes — don’t have eyewitnesses,” Mayer told jurors .*
during opening arguments in Bolton's trial.

“Murderers don’t leave behind their names,” she
Said. “They leave behind their fingerprints.”

pe, prosecutor tells court

and semen found near Zosha’s body -.

depraved ..,

_ Bolton! was linked t
when Illindls'police tinkerin I
fingerprint system happened to mat¢h his
prints

SiS ss

cé could
¢ the win-
‘dow. nd said some of those prints
were left by Zosha’s real killer.

_. Higgins said there were two types of blood found in
the car, neither of which belonged to Bolton. And he
promised jurors that he would show how the arrange- |
ment of debris found inside the car proves someone |
other than Bolton killed Zosha.

: “The vast quantity of evidence in this case Points
directly away from that man,” Higgins said, Pointing at

; Bolton.

* Bolton, who was convicted of two assaults on

‘. Women in Illinois, is serving his fifth year of a 1514-year

“Sentence in the Arizona State Prison for kidnapping,

See TRIAL, Page 5B

over en ~ a CIEE RR ARTE T

re [ae | ee oie

J ra 2 ——

Killer may get death wish, but some call it suicide

finally loosens the grip his mother holds on
his life.

But. relatives and ifstiiinbamees of
Brewer say the execution will be his way of
finally committing suicide, something: ~
Brewer has failed to eccomplish in several
previous attempts. “

Since he strangled Rita Kathleen Brier
on Nov. 11, 1987,Brewer has insisted he

Says he’s a ‘cancer’
that must be removed

By Mark Shaffer and Pamela Manson
‘The Arizona Republic

society having it any other way.”

The condemned killer, who is to be
executed Wednesday by lethal injection,
said he is not making any great statement

— See KILLER, page A25

--“For-me, it is an automatic. Execution
follows murder,” Brewer said in a letter to
an Arizona Republic reporter from his cell
at the Arizona State Prison at Florence. “I
cannot conceive of any just and decent

_To John George Brewer, his execution
for the murder of his pregnant fiancee will
be just punishment, as well as the act that

eniss ti Rlinatasntlees J a cited Litt. teen od while L = se . Mens “piste : een och
-
The Arizona Republic Saturday, February 27, 1993
m x A |
A24__The Arizona Republic Saturday, February 27, 1993 al SIU iia

deserves the death’ penalty.

| of 2.

John George

Brewer

Mother asks 9th Circuit Court to halt execution

” The Art ona Republic

Th mother of condemned. killer
John George Brewer has turned to the

9th US. Circuit Court of Appeals. in

an effort to stop his execution, which
is scheduled for Wednesday.
In a request for a stay filed late

Thursday -with the court in San _

Francisco, Elsie Brewer of Greens-
burg, ‘Pa., claims that her son is

decisidns.
Ai three-judge panel is scheduled to

hear: oral arguments in Pasadena, -

‘Calif,,'at 3:30 p.m. Monday (4:30 p.m.
Arizona time).

In ‘ anticipation of an appeal,
lawyers with the Arizona Attorney
General’s Office eltcady had filed

_ briefs opposing a stay. They claim

Elsie Brewer has no standing to
appeal on behalf of her son, who says
he wants to die for strangling Rita
Kathleen Brier in 1987.

In addition, the Attorney General’s
Office has filed similar “anticipatory”
arguments with U.S. Supreme Court
Justice Sandra O’Connor, should the
9th Circuit issue a temporary stay.

John Brewer, 27, has insisted since
his sentencing in 1988 that he wants
to die for the murder. He has fought
all appeals and, after winning the
right to represent himself, fired his
court-appointed attorney in Novem-

ber.

A Phoenix attorney later agreed to
help him on his case.

On Feb. 18, the Arizona Supreme
Court turned down Elsie Brewer’s
request for a stay of execution. On
Tuesday, Judge Roger Strand of U.S.
District Court in Phoenix also refused
to block the execution, ruling that she
had failed to prove that her son
cannot make his own decisions.

If he is put to death as scheduled at
12:05 a.m. Wednesday, Brewer will be
the first Arizona inmate to die by
lethal injection.

Arizona’s first execution in 29
years came April 6, when Don Eugene
Harding died in the gas chamber.

Voters in November approved an
amendment to the state Constitution
that replaces the gas chamber with
injection as the method of execution.

om |

[REBELS WZ 4

| Judge rejects mother’s plea
-to stay her son’ s execution

By Joe ‘Salkowski
_ The Arizona Dally Star

_” PHOENIX — A federal judge yes-
' terday ‘denied a request by the
mother of death-row inmate John
- George Brewer that her son’s sched-
‘led March 3 execution be stayed.
_~ U.S. District Judge Roger Strand
- ruled that Elsie Brewer has no right
to contest:the death sentence given
to her son, who has fought her ef-
forts to block his execution. The rul-
ing is expected to be appealed. —
| ‘Brewer, 27, has said consistently
| that he wants to be executed for
beating and strangling his pregnant
girlfriend to death during a No-
vember 1987 fight in their. Flagstaff
home.

He turned himself in to police
after the incident, pleaded guilty to
first-degree murder and was sen-
’ tenced to death in August 1988 by
Judge Jeffrey Coker, of Coconino
County Superior Court.

. “He has repeatedly stated that the
death penalty is the appropriate
punishment for the act he commit-
ted,” said Lisa M. Sommer, a Phoe-
nix attorney retained by Brewer in
recent weeks. “He told me he was

}

$$ —----— 0

happy with the ruling.”

Brewer, whose previous attorney
filed an appeal against his wishes,
had _ represented himself since
Coker ruled he was competent to do
so in November. He subsequently
waived his rights to further appeals.

But after contacting Sommer in-
formally several months ago,
Brewer decided to retain her in re-
cent weeks because developments
in his case were happening “more
and more quickly,” she said.

“I finally have counsel that is act-
ing in my own interests,” Brewer
told Strand yesterday. “I do not feel
further review or appeals are neces-
sary, since I am the person whose
name is on the case, and I don’t op-
pose the sentence.”

Brewer, dressed in prison-issue
jeans and a blue shirt, spoke clearly
and logically from the witness stand
yesterday, telling Strand he is com-
fortable with his ability to make his
own decisions.

But attorneys for his mother con-
tended that Brewer is mentally ill
and unable to act in his own best

See BREWER, Page 2A
by se hee re) ae ~~

ARIZONA DAILY STAR Tucson, Wednesday, February 24, 1993

—

| rato greet him after. his death.
ee But Dr. Alexander Don, a Phoenix

Continued from Page One

interests.

“‘There’s no real dispute that Mr.
Brewer is a smart fellow with a high
IQ, capable of being logical and of

_ articulating and understanding legal |
concepts,” said Robert Bartels, an
Arizona State University law pro-

' fessor who is representing Elsie

- Brewer.

_. “But that’s not the point,” Bartels
told Strand during a court hearing

xs¥ esterday. “He does not have the
webility to make rational decisions

‘*that are not affected by a mental

“>defect.”

Bartels cited the testimony of psy-

¢hologist Michael Bayless, who told

“Strand he believes Brewer suffers

‘from emotional disorders that di-

veminish his ability to make decisions

“about his future.

<i: “What we are seeing here is a
"young man with a mental distur-
bance,” said Bayless, who reviewed
records from Brewer’s case but has
not interviewed him since 1988.

Bayless said Brewer’s mental in-
Stability is evidenced by repeated
childhood suicide attempts, his
treatment by his ‘‘overbearing and
overprotective” mother and his

tated belief in a “magical” world

heré his slain girlfriend‘is\ fing”

*“Dsychiatrist who examined. ‘Brewer
‘tecently at the request of :prosecu-
vstors, testified yesterday that he
+*found no indication of mental illness
**in Brewer.
we “He clearly und derst ith
‘of what is happening to him,” Don
qysaid. Asked about Brewer's ‘beliefs,
ibe told Strand that “many religions
eeembrace the concept of an after-

* life. m

* me

on Brewer would be the first Arizona
2 State Prison inmate to.-be: put to
‘= death by lethal injection, a method
t ‘approved by state voters last year
« ~ after: Don Eugene Harding was exe-
jcuted by lethal gas on April 6.
re Harding, 43, was the first inmate
‘executed in Arizona since 1963.
«’ Elsie Brewer’s attorneys are ex-
“pected to appeal Strand’s ruling to
the 9th U.S. Circuit Court of Appeals,
“perhaps as soon as today. In turn,
: that court’s decision is likely to be
-reviewed by the Supreme Court be-
fore Brewer is executed.

Bartels: would not.comment on
“yesterday’s ruling. The Arizona Su-
a preme Court denied his motion for a

v« Slay of execution last Wednesday,

},-and Coker, of Coconino County, has
i refused so far to rule on motions
band asking him: to reconsider his deci-
ty: sion finding | Brewer competent

SSEESEAS ESE ASES SHR ES H

Killer may get death wish,

‘but some call it suicide

— KILLER, from page A1

by seeking to be put to death. He
claims it is the duty of a just society.
“Just as cancer cells are removed to
save the body, so too must the cancer
+in the body public be excised and
removed,” Brewer wrote.
Many say that Brewer, 27, is trying

to manipulate the state into facilitat-

ing his suicide.

Brewer had a troubled childhood in
| Greensburg and several small, rural
| communities in western Pennsylvania.
| ‘Court documents reveal an obese
| computer nerd who was dominated by
| his mother and never knew who his
true father was. Picked on relentlessly
| by peers, Brewer retreated into a
world of science fiction and fantasy.

“John tried committing suicide
around two dozen times growing up,”
his mother, Elsie Brewer, said in court
documents. “He would take pills or
slit his wrists. Anything could prompt
John to try to kill himself. If anyone
said anything bad to John, he tried
killing himself.”

Brian McKee and other high-
school friends in Greensburg saw
clues to Brewer’s troubled personality.

Brewer carried a_ briefcase to
school, claiming he had a nuclear
bomb inside, McKee said in an
affidavit. In addition, he said, Brewer
gave nicknames to his hands — Talon
of Death and The Grip of Pain.

Brewer also was fascinated with
extraterrestrial matters, McKee said,
adding that at the time of Brier’s
murder, Brewer was working on a
book about a planet called Terracia
ruled by a god known as Dantain.
Eventually, he said, Brewer came to
believe that the planet and god were
real.

“Up through the last time I
communicated with John, he still
believed that when he is executed, he
will go to Terracia, where Rita is
waiting for him,’ McKee said.

One night in 1987, before Brewer
and Brier moved to Arizona, Brewer
went to a dam in Pennsylvania so he
could be picked up by a UFO. But it
didn’t show up, McKee said, and
Brewer stabbed himself in the stom-
ach as a punishment from Dantain.

Such strange behavior also was
evident at Thiel College in Greenville,
Pa., which Brewer attended in the
early 1980s. Classmates there nick-

named him Strange Brew because “he
was so weird,” said Richard King,
head resident of student housing.

King said he once found Brewer in
his dormitory room, staring incoher-
ently at a blank computer screen, with
empty bottles of sleeping pills next to
him. Brewer was taken to the hospital
to have his stomach pumped.

“The doctors told me that if I had
not found John when I did, he would
have been in a coma in less than 20
minutes and probably would have
died,” King said.

Child-psychiatrist Dale Fruman ex-
amined Brewer in 1981 after the
teen-ager cut his image out of family
pictures and said he didn’t care
whether he was dead or alive.

Fruman described Brewer as a.

talkative youngster filled with “ratio-
nalization, hair splitting and justifica-
tion laced with a lot of denial.”

“It is a recipe for suicide,” he said.

He also wrote that Brewer would
likely be intolerant of any relationship
other than the one with his mother.

Cindy Baldinger, a cousin of
Brewer, said Elsie Brewer controlled
her son’s thoughts and behavior. Even
at age 17, John Brewer was not
permitted by his mother to leave the
house by himself, she said.

“I do not remember one single time
that John brought a friend home from
school,” Baldinger said, adding that
his home life was “like being in a
detention camp.”

According to a report filed by
Flagstaff police after Brier’s murder,
Brewer called his mother overbearing.

“Nearly everything I do is checked
with my mental mother,” he told a
police detective.

Brewer had moved to Flagstaff
with Brier in September 1987 in an
attempt to break free of his mother.

The effort proved futile.

The day before the murder, Brewer
talked by phone with his mother,
according to a police report. She told
her son it was irresponsible for him
and Brier to have moved to Flagstaff.

That night, Brewer got into a long
quarrel with Brier and a female
roommate living with them. The
roommate claimed that Brewer had
switched from dependence on_ his
mother to dependence on Brier.

Brier suggested she move out so he
could learn to be more independent.

The next morning, the fight rekin-

dled after the roommate had left. At
some point, Brewer launched a
45-minute assault on his fiancee, who
was 22 weeks pregnant.

“I proceeded to beat her, pound
her, throw her, bash her head against
the wall, tried to break her arm so she
couldn’t claw my eyes out,” he told
police.

Eventually, Brewer ‘said, he got a
necktie and strangled Brier. Twice she
appeared to be dead but began to
breathe again. The third time he
applied the tie, she died.

Brewer claims he then took a
Shower and had sex with Brier’s
corpse.

- After the murder, Brewer called
police. When officers arrived, he
calmly told| them, “My name is John
Brewer, and I just killed my
girlfriend.” |.

At the police station, Brewer said
he still loved Brier but would kill her
again “if she failed to realize that my
mother’s hold is unbreakable.”

Brewer called his mother from the
station and seemed to be blaming her
for what happened, according to a
police report.

“You never killed my body, but
you killed me,” he told her.

Since his arrest, Brewer has insisted
that he wants to die for his crime.

He pleaded guilty in July 1988 to
first-degree murder. Although prose-
cutor Fred Newton recommended a
life sentence, Judge Jeffrey Coker of
Coconino County Superior Court
imposed the death penalty.

Brewer has spent his time on death
row writing numerous letters, many of
them asking courts how to speed his
execution date. He also is working on
his novel about Terracia.

Jeffrey Reid, a Phoenix photogra-
pher, said Brewer began writing him
two years ago after Reid appeared on
a television show about pets.

The two have exchanged numerous
letters, Reid said, and Brewer is
leaving him his novel in an attempt to
get it published.

Reid has visited Brewer three times
in Florence. He will see him one more
time — Wednesday, when Brewer is
strapped to a prison gurney and lethal
chemicals are injected into his veins.

“This will be hard to watch,” Reid
said. “I’m not looking forward to it,
but John’s a friend of mine, and I told
him I would be there until the end.”

The Arizona Republic A25.

A oer X

Saturday, February 27, 1993

Tucson, Tuesday, March 2, 1993

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— i Mr. Brewer had admitted beating
a and strangling his 23-year-old fiancée,
bet Rita Brier, who was 22 weeks pregnant,
at their apartment in Flagstaff in 1987.
Although he contended that he de-
served to be put to death, his mother,
Elsie Brewer, struggled in the Federal
courts and before a state pardon board
to have the sentence commuted.

“I’ve been trying to prevent him
from committing suicide ever since he
was a small child,’’ Mrs. Brewer told
the Arizona Board of Pardons and Pa-
roles at a hearing on Tuesday. ‘‘Today
I was trying to prevent him from com-
mitting suicide again.”’

But her son told the board, ‘‘I com-
mitted this crime and | feel it is an
appropriate penalty for the crime.”

The board agreed with the con-
demned prisoner, who was executed an
hour and a half after the United States
Supreme Court, on a vote of 7 to 2, lifted
a stay that his mother’s lawyers had
obtained from a Federal appeals court.

Unlike Mr. Brewer’s family, Mr..Red FE: fr
Dog’s family supported his decision not ares om
to fight his sentence. Mr. Red Dog’s

relatives said in a statement that he LaGuardia, Newark,

was going to his death with dignity and

; that he was “proud that he’s giving in : :
return for what he took: a life.” Or te all iS to:
The two executions brought to 193
the number of prisoners put to death

around the nation since the Supreme ;
Court in 1976 allowed the states to Florida
resume Capital punishment. Fort Lauderdale $150 50

e. Cuilty | Fort Mye |
Wife Guilty in Death a $150.50

| Miami $150.50
Of an Alabama Doctor Oise $131
TUSCALOOSA, Ala., March 3 (AP) Sarasota $150.50

— A 47-year-old woman was convicted Tampa $150.50

here today of arranging the murder of

her husband, a prominent ophthalmolo- West Palm Beach $150.50

gist, in a scheme that prosecutors say
she plotted With her twin sister to in-

Tn Na ee ke California and the West

ee ee Los Angeles 5169
prison, Prosecutors had decided net to | Orange County $169
sak the dea pana after comeing San Diego $209
sald chose “sb be Mee uTG lee San Francisco $179
who had shown no mercy.” Seattle $159

During the trial, the prosecution con-
tended that Mrs. Wilson and her sister,

Peggy Lowe, had hired a handyman to . bi

kill Dr. Jack Wilson, Mrs. Wilson’s hus- Other Cities

band of 17 years, at the couple’s home

in Huntsville, Ala., last May 22. But the Albuquerque : $189

defense asserted that the handyman,

James D. White, had killed Dr. Wilson Denver $178.50

on his own while burglarizing the Wil-

cre? Histo. | New Orleans | $119
Mrs. Lowe is now free on bond and .

sull awaiting trial. Mr. White testified Fares are each way based on roundtip purchase.

against Mrs. Wilson in a plea bargain Call for fares and schedules from Islip. °

that allowed him to avoid the electric
chair and instead serve a sentence of
life imprisonment.

her ow ite Ol en LA IW FARE REQUIREMENTS: Fares are cach way based on roundtrip coach travel. Ro
out of the courthouse in handcuffs to- ticketed, however, all changes must meet conditions of applicable fare. Tickets must be pi
day that her story had not been told at Reservations must be made at least 14 days prior to departure and tickets purchased withi
the trial. Her lawyer, Bobby Lee Cook, limited and may not be available on all flights on all days. Does not include New York
said he would appeal the verdict. Senior citizen discount does apply, however no other discounts including coupon offers a

Although the killing occurred in only. Travel to/from Orlando and Tampa not valid 4/8/93-4/18/93. Fares do not apply on

Huntsville, the trial was held here in USAir jets. Other substantial restrictions may apply. Please ask about specific details regar
luscaseosa, 150 miles toethe south, a A Ne
result of pretrial publicity.

1022 989 FEDERAL REPORTER, 2d SERIES

1. Habeas Corpus ¢662.1 . 6. Habeas Corpus ¢771 . Bei 1 cou
Mother of prisoner sentenced to death Court of Appeals is obligated to accord .. F sthes
had to establish her standing as next presumption of correctness to state court’s . a ‘he conse
friend, to bring petition for writ of habeas determination of Prisoner’s competence, =. ine if |
corpus on behalf of prisoner and thereby where determination is fairly supported by 4 im vite iol
obtain automatic stay of execution over _ record. oe ee The state
prisoner’s strong objections. 28 US.C.A. 7. Criminal Law ¢=273(2) | ports of I
: ae = ni of App. 9th CirRule 22- State court’s determination that prison- : : stating tl
, etc er was competent to plead guilty was sup- @® tera ples
2. Criminal Law ¢1001 ported by psychological reports which eval- a questione
Grant of stay of execution is exercise uated p risoner’s pees stence: to stand trial q from a
of judicial power, and Court of Appeals is and his mental condition “ unis of offense q ~
not authorized to exercise such power on 224 court’s extensive examination of pris- BE On er
behalf of party who has not first estab- sesianibanina tia 7 is guilty plea and later, .. defen ;
lished standing. his reasons for wishing to forgo postconvic- EY come
tion relief proceedings. : -. the ch
3.- Federal Civil Procedure ¢103.2 | @ Murde
Standing is jurisdictional question that Robert Bartels, Arizona State Univ ersity [3 ‘find 4
must be addressed at threshold of any College of Law, Tempe, AZ, for petitioner- Beal rel
ee . appellant. —— - '/™ ~ dant, |
4. Habeas Corpus 662.1 Paul J. McMurdie, Chief Counsel, Crim. ries, |
District court did not abuse its discre- Appeals Section, Office of the Atty. Gen., > . quence
tion in denying mother of prisoner sen- Phoenix; AZ, for respondents-appellees. ba able :
tenced to death, who was trying to estab- . Lisa M. Sommer, O’Connor, Cavanagh, Lf a '
lish her standing to bring petition for writ Anderson, Westover, Killingsworth & é , ay
of habeas corpus, additional time to exam- Beshears, Phoenix, AZ, for the real party ie a
ine prisoner or conduct discovery, as she _ in interest. | pie
did ae hares meaning? ul evidence of Appeal from the United. States District accept
prisoner's incompetence and therefore, was Court for the District. of Arizona : |
not entitled to further evidentiary hearing me Da: ; me ‘
on competence. S.C.A. ; ; afl ere
Govan Naber Cae. "hae "6 as Before: BROWNING, NORRIS, and BD igation
U.S.C.A. foll. § 2254, HALL, Cireuit Judges. . m At =
5. Habeas Corpus $662.1 CYNTHIA HOLCOMB HALL, Circuit great p
Mother of prisoner sentenced to death U98¢ | , : jail pas
did not have standing to petition for writ of Elsie Brewer seeks to appeal the district express
habeas corpus, as she did not provide court’s denial of her petition for habeas his acti
~“ingful evidence that. prisoner was suf. Corpus and: motion for stay of execution Dr. Ba
~ mental disease, disorder, or filed on: behalf. of her son, John Brewer, Bayless
‘ally affected his capac- Who is scheduled to be executed on compete
““on. and: made Wednesday, March: 3, 1993. ed that
~“llate 3 Po nations
“a ver 1. FACTUAL: BACKGROUND . less sta
aid who — A’ complete description of Brewer’s of- on his 1
fg yhich fense and the state court proceedings ap- He stat
ae a | “May pears in State v. Brewer, 170 Ariz. 486, 826 Brewer
by his gud ration, P.2d 788 (1992). On November 19, 1987, Brewer
would 4 “ S stantial Brewer was indicted for the murder of Rita Solntans
and geal na on ipetence. Brier. In‘J uly 1988, Brewér expressed his ted
esty, he would stea desire to plead guilty to the charge. The cae >

Ward

squarely
ree exer:

Ladldy

‘ate what
ve all. his
is he can:
assert the
of others,
izer, 830
ard also
hich | we
nt: of. 2 a

sad

29h:
ing: vig
fendanit’s
ruth’ ’ and

ina

J’ ” m ir-

lla 38 ae
view ba. of Ps
D U.S. '707,
.Ed.2d ':624 aap

wey i 4 o> FIST.
Ls ed. (T73 a’! = 1021

Cite as 989 F.2d 1021 (9th Cir. 1993)

thodox belief in God.” Mason v. General
Brown Central School Dist., 851 F.2d 47,
51 (2d Cir.1988). A “purely secular philo-
sophical concern”’ is not enough to override
the state’s interest in’ uniform ' regulation.
Callahan v. Woods, 658 F.2d 679, 683 (9th
Cir.1981); see also Johnson v. Moore, 948
F.2d 517, 520 (9th Cir.1991).

I believe that Ward’s ‘objection to the
oath ordinarily required of witnesses by
Fed.R.Evid. 603 amounts to nothing more
than a philosophical predilection. . Ward
does not tell us how his concerns about the
misuse of the word “truth” affects his abil-
ity to cope with the’: pressures: and chal-
lenges of his daily life. He does not en-
lighten us as to how habitual application of
the term “honesty” provides him spiritual
growth, relates to his understanding of
life’s purpose and meaning, or guides his
daily routine. He does tell us that “hones-
ty” means that all of the world’s problems
will disappear because then: we will all
know people are not lying, but I fail to see
how this prediction satisfies the. require-
ment that Ward’s preference for a particu-
lar word be as important, or even as rele-
vant, as religion is in the lives of many
people.

Even were I to give Ward the benefit of
the doubt and ascribe religious significance
to his “ultimate concern” with the merits
of the word “honesty,” I would still decline
to require the district court to accommo-
date his objection. The district court must
modify the oath to reflect genuinely held
objections to it, but the court must also
satisfy itself that the witness has commit-
ted himself to speak the truth. It is not
enough that the witness says he knows of
his obligation to do so; there must be a
promise based on the awareness that fail-
ure to be honest is punishable under our
law. See United States v. Looper, 419
F.2d 1405, 1407 (4th Cir.1969); Wilcoxon v.
United States, 231 F.2d 384, 387 (10th Cir.
1956), cert. denied, 351 U.S. 948, 76 S.Ct.
834, 100 L.Ed. 1469 (1957); Gordon v.
State of Idaho, 778 F.2d 1897, 1401 n. 2
(9th Cir.1985) (Weigel, J., dissenting).
Ward’s proposed alternative oath does not
contain an acknowledgment of the duty to
speak truthfully and does not ensure that

the defendant is aware of the cost of ‘diae
honesty.

The majority’s accommodation of Ward’s
“purely secular philosophical concerns,”
Callahan, 658 F.2d at 683, will. result not
in protection of a valuable, Constitutional
right but in numerous wasteful and time-
consuming attacks on the oath mandated

expediting the administration of justice. I
dissent.

sums

Elsie BREWER, individually and as next

friend of John George Brewer, 4
Petitioner—-Appellant, ~

Vv.

Samuel LEWIS, Director of the Arizona
Department of Corrections, et al.,
Respondents—Appellees,

John George Brewer, Real
Party In Interest.

No. 93-99003.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted March 1, 1993.
Decided March 2, 1998.

Following affirmance, 170 Ariz. 486,
826 P.2d 783 of murder conviction, mother
of prisoner sentenced to death filed petition
for writ of habeas corpus. The United
States District Court for the District of
Arizona, Roger G. Strand, J., denied peti-
tion for writ and motion for stay. Mother
appealed. The Court of Appeals, Cynthia
Holcomb Hall, Circuit Judge, held that
mother failed to establish her standing as
next friend of prisoner.

Appeal dismissed.

William A. Norris, Circuit Judge, dis-
sented and filed opinion.

bligated to accord
ss *~ tate court’s
te: sompetence,
uirly supported by

aation that prison-
d guilty was sup-
2ports which eval-
nee to stand trial
it time of offense
mination of pris-
y plea and later,
forgo postconvic-

State. University
Z, for petitioner-

f Counsel, Crim.
' the Atty. Gen.,
2nts-appellees.

anor, Cavanagh,
illingsworth &
r the real party

| States District
Arizona.

[(ORRIS, and
TALL, Circuit

peal the district
jon for habeas
y of execution
, John Brewer,
: executed on

IND

if Brewer's of-
wroceedings ap-
0 Ariz. 486, 826
mber 19, 1987,
murder of Rita
* expressed his
» charge. The

BREWER y. LEWIS _ 1023
Cite as 989 F.2d 1021 (9th Cir. 1993)

trial court held a hearing to determine
whether Brewer understood his rights and

‘ the consequences of his plea, and to deter-

mine if he was competent to ignore the
advice of his attorney and plead guilty.

* The state trial court had before it the re-
» ports of Dr. Gerstenberger and Dr. Bayless
® stating that Brewer was competent to en-
- tera plea. At the hearing, the trial judge

questioned Brewer at length and heard
from his trial attorney. The court ea
ed: —
- On the basis of the record I find that the
defendant knowingly, intelligently and
- voluntarily enters into a plea of guilty to
the charge of First Degree Premeditated
Murder. That there is a factual basis for
it.
I find that upon review of the psychologi-
‘eal reports, the demeanor of the defen-
dant, his responses to the court’s inqui-
ries, his full understanding of conse-
quences of the sentencing options avail-
able to the court, and there being only
two, Mr. Brewer. Further in light of his
_ education he has versed himself fairly in
_ legal procedures and he does understand
the complexities of this case.
Based upon all of the foregoing I hereby
accept the plea of guilty.

The court, over Brewer's objections, or-
dered Brewer’s trial counsel to present mit-

_ igation evidence at the sentencing hearing.

At the sentencing hearing, the state pre-
sented evidence ' that the. victim suffered
great pain. Brewer’s attorney called the
jail pastor to testify that originally Brewer
expressed bewilderment and remorse for
his actions. Brewer’s attorney also called
Dr. Bayless to testify in mitigation. Dr.
Bayless testified that Brewer was legally
competent and has an IQ of 132. He stat-
ed that Brewer showed no signs of halluci-
nations or delusions. However, Dr. Bay-
less stated that Brewer had a dependency
on his mother and a phobia of being alone.
He stated further that when Rita Brier told
Brewer that she was going to leave him,
Brewer’s willingness to look at reasonable
solutions and to depend on himself became
impaired, ‘and he lashed out in anger and
killed her. Dr. Bayless stated, . though,
that Brewer was oriented to reality and

definitely had a capacity to appreciate the
difference between right and wrong.

Brewer addressed the court. at length, ~

and said that he killed Rita Brier and that
he believed execution was the only proper
punishment for the premeditated murder of
which he was guilty. The sentencing court
found the aggravating factor that the mur-
der was committed in an especially heinous,
cruel and depraved manner, and that Brew-
er’s capacity to appreciate the wrongful-
ness of his conduct was not impaired. The
court found that the evidence and argu-
ment in mitigation was insufficient to out-
weigh the aggravating circumstances, and
imposed a sentence of death.

Brewer then filed a letter with the Ari-
zona Supreme Court requesting that he be
allowed to abandon all appeals. The Ari-
zona Supreme Court denied his request be-
cause a direct appeal in a capital. case is
mandatory under Arizona law. . Brewer,
170 Ariz. at 498, 826 P.2d at 790. The
court affirmed Brewer’s conviction and
sentence, stating with respect to Brewer’s
competency that there was “sufficient evi-

dence to conclude that [Brewer's] ability. to’

make rational choices and to understand
the attendant consequences ,.was not sub-
stantially. impaired at the time of.the guilty
plea.” Jd. 826 P.2d at 793. _.

Brewer’s attorney filed a petition for cer-
tiorari without Brewer’s knowledge or con-
sent. After the United States Supreme
Court denied certiorari, —- U.S. ——, 118
S.Ct: 206, 121 L.Ed.2d 147 (1992), and pur-
suant to the Arizona Rules of Criminal
Procedure, the clerk of the Arizona Su-
preme Court filed an automatic notice of
post-conviction relief on November 6, 1992.
Brewer then filed a motion to dismiss’ the
post-conviction relief, and on November 23,
1992, the trial court held a hearing on
Brewer’s motion.

At that hearing, the trial judge ad-
dressed Brewer personally, and after as-
suring himself that Brewer understood his
right to have counsel, found Brewer compe-
tent to represent himself in the proceeding.
Brewer’s former attorney requested: that a
competency hearing be held in light of an

Judge sets $4 million bond for suspect |
in 86 murder of Zosha Lee Pickett, 24)

- By Margo Hernandez 3- 7.

The Arizona Dally Star

Bond of $1 million was set in Pins
County Superior Court yesterday for
Daren Lee Bolton, accused of the
1986 murder and kidnapping of 244-
year-old Zosha Lee Pickett.

Bolton, 24, is serving a 1544-year
sentence in the Arizona State Prison
on convictions of kidnapping, sexual
abuse and indecent exposure stem-
ming from a university-area attack
on two women in 1986. ;

Judge Pro Tem Walter Weber set
the bond during Bolton’s initial ap-

‘pearance. ‘and arraignment. Weber

entered an automatic innocent:plea
for Bolton to charges of first-degree

murder, kidnapping and second-de-

gree burglary.
Bolton also is suspected in the

murder: of 7-year-old Cathy Fritz,

who disappeared in October 1982 as
she’ walked home. Nearby, nearly
1,500 people marched in a “Take
Back the. Night” rally to protest
crime. .

The child’s beaten and slashed
body was found the next day. be-
tween two buildings in the 3500

block of East Speedway. Soe

' Zosha was kidnapped from here’
bedroom in the. middle of the nigh

on June 27, 1986. Her body wash
found four days later in the backs:
seat of an abandoned taxicab in au
vacant ‘lot a’ few blocks from her
central Tucson home. é

:
During yesterday’s hearing,

Weber also set Bolton’s next cory

date for May 1. 5 |

The judge appointed the Pimai
County Public Defender’s Office tox

represent Bolton. x
4

Oa _

: ~ eee

‘We're satisfied - we believe he did it," said Robert F. Fritz, Cathy's father. Fifteen hours earlier, Fritz
and his four sons had watched Bolton executed by lethal injection at the Arizona State Prison at Florence.

~**Now I don't have to wake up every morning knowing that he's there, sitting in prison,” said Steven
Fritz, one of Cathy's brothers. *‘Now he's dead, and I hope he rots in Hell."

Cathy disappeared after leaving a neighbor's house around 8 p.m. to walk less than 20 feet to her home
near East Speedway and North Country Club. Her beaten and badly cut body was found the next day
between two buildings less than a block away.

Investigators believe Cathy interrupted her trip home to investigate the commotion caused by an
anti-crime rally staged in her neighborhood that night. Footprints found the next day indicate she walked
through a row of oleander bushes toward the rally, Tucson Police Detective Steve Bunting said.

Police also found prints from a pair of men's Nike tennis shoes that began where Cathy's footprints ended
and led to the alley where her body was found.

The shoes were one of only two Nike models sold in Tucson at the time, Mayer said. And Bolton was
wearing those shoes when he was arrested on unrelated charges three months later, she said.

A woman who worked at a bakery near the alley was taking a cigarette break the night Cathy was killed
when she saw a man bending over in the alley with his hands on a smaller person, Mayer said.

Under hypnosis, the woman offered a description of the man that matched Bolton. And after Bolton was
arrested in Zosha's case, the woman picked his photo out of a lineup and said it was the man she saw,
Mayer said. But because the woman was hypnotized, Mayer said her testimony would not have been
admitted as evidence in court.

Meanwhile, bloodhounds traced a scent from the alley where Cathy's body was found to a midtown home
where residents said Bolton arrived for a party around 9 p.m. the mght Cathy disappeared.

A person at the party said Bolton arrived with blood on his clothes, which Bolton explained by saying
he'd been attacked, Mayer said.

A few days earlier, Bolton had invited Cathy's brother Brian to that same party. Both boys attended
Catalina High School, and they became acquainted when Bolton's father rented a house near the Fritz
home. But Bolton's father had long since moved out, and Bolton had not visited the Fritz home for
months before that day, Mayer said.

Someone else who lives in that area also saw Bolton near the Fritz family's home around the time Cathy
disappeared, Mayer said.

Still, prosecutors did not believe they had enough evidence to charge Bolton until 1994, when lab
workers matched his DNA to a pubic hair found in Cathy's left hand. The match is not entirely conclusive:
Roughly one in 22,000 men would match the DNA fragments taken from the pubic hair, Mayer said.

But combined with the other evidence - including tests that showed semen found at the scene matched

soon

lye LT OW > Darke aJ AZ SP lo [/ ¢ /i7 q 6

Benjie Sanders,

§ The Arizona DailyStar

Gloria and Robert Fritz talk about the evidence that
could have been used to convict Bolton of their

Ff daughter's murder.

By Joe Salkowski 6-20-96
The Arizona Daily Star

Hours after 7-year-old Cathy Fritz disappeared from her midtown neighborhood, a 16-year-old boy
named Daren Lee Bolton called his girlfriend with what sounded like a frightening premonition.

‘He said, ‘I've just been part of a search party for my friend Cathy Fritz,'" said Deputy County Attorney
Kathleen Mayer, reporting what the girlfriend has told her of the Oct. 1, 1982, conversation.

“He said, ‘It's real sad, but I just know they're going to find her dead.’ "

Authorities now say Bolton wasn't part of that search party - he was the reason for it.

Bolton, 29, who was executed early yesterday for the 1986 murder of 2-year-old Zosha Lee Pickett, was
linked to Cathy's death by evidence that included the phone call, footprints, bloody clothes and a DNA

test.

He also was connected by fingerprint evidence to a brutal 1986 rape and suspected of murdering an
Illinois woman who worked for his wife's therapist, Tucson Police Detective Joe Godoy said yesterday.

Last year, Bolton was charged with first-degree murder, kidnapping and sexual assault in Cathy's death.
But since he did not live long enough to face those charges in court, prosecutors presented their case
against him to reporters.

‘Without a doubt, Daren Bolton murdered Cathy Fritz," Mayer said yesterday in a news conference held
to prove to Pima County residents that Cathy's high-profile slaying has been solved. ‘Justice was done."

Bolton's trial attorney in both slayings has said the evidence against him in Cathy's death was not as
strong as that introduced during his 1992 trial for Zosha's murder. And while Bolton waived appeals that
would have put off his execution, he consistently maintained his mnocence in both cases.

But Cathy's parents and brothers say they've known for years that Bolton killed the girl they loved.

~ Bolton's blood type - the DNA link prompted prosecutors to charge Bolton with Cathy's death.
Police interviewed Bolton a few days after Cathy's death, but he was not considered a suspect.

‘He showed absolutely no remorse, and there wasn't any indication of psychological trauma," said
Detective Bunting, one of two investigators who interviewed Bolton.

‘We came out of the trailer and said ‘The kid's a jerk,'" Bunting said. ‘He obviously didn't like cops.
But we saw no sign that it was for any reason other than that he was a teen-ager."

But police later learned Bolton was no normal teen. While he had been arrested several times before
Cathy's death, afterward he embarked on a series of assaults, thefts and sex crimes that ended with a
15-year prison term imposed in 1988 for sexual abuse and kidnapping.

During that time, he also kidnapped Zosha Pickett from her midtown home, took her to an abandoned
taxi cab in a nearby vacant lot and plunged a knife through her chest.

He was charged with Zosha's death in 1990, convicted in 1992 and sentenced to death in 1993 by Judge
William Scholl of Pima County Superior Court.

Godoy said Bolton also was a suspect in the early 1980s murder of an Illinois woman who worked for a
therapist Bolton's estranged wife was seeing. The woman was found dead shortly after the therapist tried
to set up a meeting with Bolton, Godoy said. He had no more information about the case.

Bolton's fingerprints also were found at the scene where a woman was raped and beaten in a Danville, Ill.,
parking garage.

He was linked to that case at the same time his fingerprints were matched to those found at the scene of
Zosha's death, Godoy said. Illinois police declined to press charges against Bolton because they did not
want to interfere with the Tucson murder case, he said.

Gloria Fritz, Cathy's mother, said her family has struggled to remain silent about Cathy's death while
awaiting her killer's trial. ‘Sometimes I just wanted to scream," she said.

So she made the most of yesterday's news conference, bringing several framed pictures of Cathy to show
reporters who had only seen the portrait that invariably accompanied news accounts of the girl's death.

One showed Cathy hugging a friend and smiling ear to ear. Another showed her enjoying a trip to
Disneyland. In a third, a pony-tailed Cathy was happily feeding a group of ducks at Reid Park.

‘She had a good seven years, and that's how I'd like to remember her," Gloria Fritz said. ** And now she's
in a far better place than Daren Bolton is going to be."

o_—

'
‘

:Prisons chief
“keeps Brewer’s
=words a secret

‘A PRISONS, from page BI

ix injection chamber. Bentley said Ken-
[o ney, an assistant department director,
itshas been forbidden by Lewis to

x discuss Brewer's final words.
j- Kenney was in the room, Rentley
j~ Said, “in case Mr. Brewer changed his
‘Zmind or said anything of importance

~about whatever, and supposedly he

_ = didn’t.”

‘S , But there is no doubt that Brewer
izsaid Something.

i+: Witnesses said Brewer appeared to
‘fbe talking to himself, staring at the
‘ceiling, os he laid Strapped on a
‘Pgurney with intravenous tubes in each
earn,

- Several witnesses said they could
tit understand what he was saying,
except that he possibly said, “Go, go”
c minutes before the first of three lethal
‘» drugs coursed into his veins.

‘=, Arizona Republic reporter Abra-
i» ham Kwok, a witness, said he initially
% thought Brewer said, “No, no," but he
later decided the condemned must’
ss have been saying; “Go, po.”

ne As Brewer said those words, he
‘E looked in the direction of his lawyer,
Lisa Sommer, and several friends
'samong the witnesses. After that,
Sommer and three friends IeQ the
‘Zwitness room under an arrangement
»they had- made with Brewer at his
‘= reqiiest, sind the execution proceeded.

= Sommer also said she suspects that

ee Brewer said, “Go” of “That's OK.”

FLORENCE (AP) — A,death-row
inmate at the, Arizona State Prison

says ‘he hopes he gets what he calls .
his “right and just punishment” for"

killing his pregnant girlfriend — a
trip to thé gas chamber."

. John George Brewer, 24, of Flag-
staff, is one of 84 Arizona killers who
are on death row, sentenced to the
‘gas chamber for the 1987 beating

and strangulation of 23-year-old

Rita Brier.

_ “My fears don’t matter one way or
the other,” Brewer said in a tele-
hone interview with the Arizona
‘ epublic last week. “The fact is that
Wi killed, and the right and just pun-
_ashment for someone who kills.is ex-
‘pegution.” =
go; But Brewer’s lawyer and the state
courts have consistently opposed his
,fvish to become the first person to be
) ‘executed in Arizona since 1963.

‘gt: Although, last week, the U.S. Su-
spreme Court ruled that condemned
‘amurderers who waive their right to

appeal may be executed even if no
,appellate. court reviews their cases.
otThe court's opinion came ina Mis-
aissippi :case’ in which a fellow
sdeath-row inmate’of mass murderer

Ronald¢Gene Simmons. had asked ~

for-a ruling that;would. make state
appeals courts review all death sen-
380.
ioe

fences, even when not asked to do .
IY ietaers S84 ~~ least you'll be dead.’”

4.-30-
Go

justice — his execution

The supremne Court said that the

- friend did nqtihave the legal stand-
ing to make’such an argument on
Simmons’ behalf. That will allow Ar-
‘kansas authorities to execute Sim-
- mons,'who killed 16 relatives and ac-

quaintances during a 1987 rampage.
Last summer, Brewer, who was
declared mentally competent by a

Coconino County Superior Court

judge, asked the Arizona Supreme
Court to waive his right to appeals,
which can take years.

The court denied his motion.

Now, the mandatory appeal is ex-
pected to be argued . before the
state’s high court. beeen,

Assistant Attorney General Paul
McMurdie, who is representing the

_ state in the Brewer case, agrees that

Brewer should be executed.

“It was a pretty heinous crime,”
McMurdie said. “He beat her for 45
minutes, strangled her, took a

shower and then had sex with the -
corpse.” : ¥
_. Brewer murdered Brier after she
threatened to leave him because he»
was too dependent on his mother,

McMurdie said.
“?’ll tell you this,” Brewer told the
newspaper last week. ‘“‘As I was per-

‘forming it (the murder), she said to. |

me, ‘You kill me, you'll go to jail.’ -

_ “My. response was, ‘So what? At

- Sy [|

oyqnday suozuy ayy

Yiu 0

£661 “9 YTB “ABpaniEs

: divulge his last words.

‘in, case Brewer,

are a Secret

Prison aide’s silence is ordered

By Susan Leonard
The Arizona Republic

John George Brewer had plenty
to say in the minutes before his
execution carly Wednesday.

But what he said may never be
made public because the Depart-
ment of Corrections refuses to

The order to keep Brewer's words
Secret came from department Diree-
tor Sam Lewis, who Loievel that the
public has no right to know what the
condemned murderer said in the

Soundproof injection chamber of the

Arizona State Prison at Florence.
“Mr. Lewis has said no, he's not

:oing, to release that information,”
‘Jim: Bentley,
ministrative officer for management,
Said Thursday. “I do not have a
‘Teason. .,. He just said he is not
* going to discuss it.”

the department's ad-

Lewis had arranged for one of his
assistants to be inside the chamber
who had insisted
that he wanted to die for the 1987
murder of his pregnant fiancee, had
a last-minute changé of heart and
opted to appeal his death sentence.

Lewis and Attorney General
Grant Woods had promised that,
right up to the end, if Brewer backed
out, the state would halt the
execution and allow him to try to
fight his sentence.

Corrections Department spokes-
man Michacl Arra said Brewer did
not change his mind about wanting
to die.

Woods, an execution witness, said

that he would have been able to tell

if Brewer had changed his mind and

that he is satisfied that Brewer did
not.

But a lawyer who tried to stop the
execution said he would like to
know Brewer's fast words, in part

use they’ may provide - insight
into his mental capacities. ;

Jeff Kirchmeier, a lawyer with the
Arizona Capitol Representation
Project, which represented Brewer's
mother in her efforts to save het
son's life, wonders whether Brewer
talked about the imaginary planet
Terrecin, which was part of a
science-fiction manuscript he wrote.:

If Brewer was expressing belief
that he was going to Terrecla, as he
previously had expressed to others, . -
It could indicate that he "WAS.
mentally incapable of taaking deci. ° »
sions about his execution. Project. -
lawyers had used that argument in
unsuccessful appeals to save Brewer. -

“It seems suspicious that they :
won't tell us what he said,” -

= mee

a oe a

Kirchmeier said Thursday. “OM: |.

hand, it doesn't seem appropriate.
"I have questions about it, but.
they (department Officials) may have
reasons for it.”

If officials do have reasons, they
aren't saying what they are.

Arra first refused to release
Brewer's last words Wednesday.

On Thursday and again Friday,
Bentley reiterated that it was Lewis’
decision to keep the words secret.
Bentley also said he doesn't know
why.

There also won't be any informa:
tion forthcoming from J.C. Kenney,
the only person with Brewer in the

— Sce PRISONS, page BI

@
L

“Just punishment’

s mm by killer
— own execution

— ‘Wst Pons " from page B1 state. And she is fighting attempts by
state attorneys to have the Arizona

aye Supreme. Court. decides whether an.
indiyidual,.can be. 2W

eath, sentence,
eee ‘
enied his ‘moto A
peal..is “expected te
oe mee s high court!
ne onal ; a

a) Alodaie ee “origina
el ‘murdering.
and her: ety ‘ Coke

Casi
mats 4

e iy ne b tpye :
A Py epresenti a

ate in Brewer” Case, agrees | tae : ae eee sour
rr the Sa CoAritont Roprener cau

1% he oo Flagstaff. man* she id PS
i Peis “expected: to address, the. a Or

Ete o ecuted in the gas chambet segs cd

A whethel jautomaticyappeals an!
: ‘waived |.in\, instances..J0 W ich §
| defendant requests ities ee
“Tt isn’t just a defendant's petspe
tive,” Kelly said- arene
sis“The state-has an-interest: and:
im because . ches s jpeonke ane an interest ip making? r
n his ig smathieng 4 that awe vonly . execute’ peop! les, th
) hould. he Executed. WORE MIRNA
johny jannah, staff a store, ees

fis Briers

fect, S
Rone vel ihe a ie Laie case,
if you ee ot 2 cS mee

my i ASCS,. am Soe aie rs apne
Remorse. I re =a by the State Bars
! F a of Ariz na and the, ‘Judicial, Confer- 54
t ‘ st ence of the United aa to" aid
rome ag 1 defense attor eys in. capit he

support.

Le My. y_ Tesponse wah, (0S _. However, Brewer: sai

° east you'll be, dead... ho" -) ‘trated because his. otters) Fr opesing
, ae Mc Murdie” ‘said, “The interesting! his wishes. feet e Sek
i » Brewer. is that_he has: se A

ief’ that’ challenged the “It, is my. case, ‘and even Prioush: a

and challenged the sen- ° “don’t, sign her ‘paycheck, she’s still

“Brewer's s belief is, “If you do a. representing me in’ the matter and

a ae

what I did, you. ‘should be executed.” |" therefore. “must concede O°
« wishes,-he said. (3

: But Brewer, court-appointed attor- ee
me ete Kelly, gisagrees, thatg: © “There is no need for a t . Lam
1 > he “forme fast-food- -restauran t = guilt Trials. ‘and. la\ manne ‘nly,
eee. yorker should ae Fat ps a4 needed, for those. whi? aré, innoc 24 oft ‘
a aa The “prim 1 this case. 18 hings they’are accused 0 F inst 4
4g. > 4. ¢What’s most. “upsetting. ‘is for.

ae stability to,be ‘challenged:
Am 1 ‘textbook. pnorpall

Sige und My I Je )

By Jim Erickson
The Arizona Daily _ Oe

In the.final sec-
_onds before the first
~ pulse of poison hit,

-John George

Brewer’s probing

brown eyes scanned
. the witness gallery
i for familiar faces,
| _.and his gaze crossed
‘mine fora moment. [f
.. I was front-row
18 ‘center, six or seven ‘Erickson

, : with curiosity, not terror: It seemed like he

; a _ Brewer's, eyes were still half-open two.
“minutes and19 seconds later, ‘when the ver: °

Flor
those? reyes throughout most of yesterday

: itnessed ¢ a remarkable transformation.

ifs. Other: witnesses have compared. the
yw Brewer execution to watching someone
hae drift off.to sleep, That’s a epenorting image,

li sy POY eghoae whatI saw. - ;.

| beams that froze, dimmed, flickered and
bg “went dark.
‘AS: poison «seeped: into his_ veins, life
“Meeeped out of him, and a sentient’ being be-
-.came a: hunk. of meat. The glaz
> evacant ‘look in his dead eyes was he same “
look I saw two months ago in the Baboqui-
vari Mountains, minutes after a bullet from
my .280 Remington pulverized the top half

a B.

: iy ‘eat from him, and he peered deep into me

pu ‘tical: Zblinds ° in the’ witness gallery at
‘< ence State. prison. closed... I stared_into..,

orning’s: lethal-injection: execytion, and 1):

. zona Department of Corrections.
evesiwere’ bright darting ‘flashlight
pursued. his own death vigorously. I’m not

9 fm, ‘

5 Lethal injection is clean
and quick b but still killing

of: a white-tailed deer’s heart.

The execution was quick and clinical, ok
ficient and antiseptic, probably painless. No
unseemly writhing, gasping or straining.

Strapped to a table in blue jeans, a blue
T-shirt and white socks, Brewer lifted his’ -
. head and craned his neck to the right to look
at the witnesses, then seemed to call out the
names of a few friends.

He flashed a thumbs-up sign to a cler-
gyman on my right, then started to talk rey
idly. me

‘About one minute after. the blinds opened
“+r. approximately 30 seconds after the first
of. three killer drugs was administered — .
- Brewer: jerked: his: neck: sharply to the left,
» inthe «direction of the executioners: in the

“operations room,” then stared back at thé

~Geiling. His chest.heaved,. then.he.was.mo- 4% :

s tHonless.

«One minute.and,15 seconds after the cute Bau
tains opened, “Brewer's eyelids, dropped a.

bit, and the eyes, started to. glaze. He. was | i
declared dead at 12:18 a.m., a minute after |
_ the injections began, according to the Ari- i

, Brewer confessed to a heinous crime toa

here to defend John George Brewer or to |
» (rail against capital punishment. Shrug. it:!
_ off and say he deserved it, I don’t care.

, But don’t let anyone tell you that John |
ihGeores Brewer “went to sleep” yesterday...
morning in Florence. We killed him.

Star reporter Jim Erickson was one of 1 0
media witnesses to Brewer’s execution.

naa
teste ae al aeeoeey errs Tabs iat Sore bn =

r | @4@ Gea =

6 25

Tucson

Associated Press

SMYRNA, Del. — James Allen
Red Dog received final rites from
a medicine man, told his wife
“I’m going home, babe” and was
executed by injection Wednesday
for slitting a man’s throat in a
drunken rage.

Hours earlier, Arizona execut-
ed John George Brewer, who ad-

mitted he strangled his pregnant _

Ann
han ;

ai ee ma an gem See en

Thursday, March 4, 1993/Las Vegas Review-Journal/5A

Inmates executed in. Delaware, Arizona

fiancee, then had sex with the

corpse. —_
Neither man made a legal ap-

~ peal to save their lives. Their exe-

cutions were the second for each
state since resuming capital pun-
ishment.

After a prayer ceremony with a
medicine man, Red Dog, 39, a
Sioux Indian, said: “I’d like to

thank my family and friends and _

(attorney Edward) Pankowski for
supporting me and all others who
treated me with kindness.

Brewer, 27, was executed 1%
hours after the U.S. Supreme
Court voted 7-2 to lift a stay im-
posed by a federal appeals judge.

Brewer gave a thumbs-up sign
to his minister just before the le-
thal injection and died within a
minute.

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Foes stage
cold vigil at
State prison

By Kristen Cook
The Arizona Daily Star

FLORENCE — Prison officials
last night had prepared for two large

groups of protesters — those sup-

Porting and those opposing the ex
cution of John George saleur: ng

Only one small

to show. —

_. Near the state prison’s entranc
about 30 people gathered an Sone
before the execution to protest the
death penalty. They stood carrying
dripping candles and an abundance
of signs. One woman held a sign with
a picture of Jesus Christ nailed to the
cross, and the words: “Maybe the
death penalty should have been eli-
minated a long time ago.”

Braving the cold and occasional
jeers from passing motorists, the
protesters held their candlelight
pa quietly outside the prison

“I have been all my life an oppo-
See PROTESTS, Page 6A

Protests

| Continued from Page One

nent of the death penalty,” said |
Archdeacon Bill Jamison, with the

But apparently, the prisoners are ~-

not. s

Steve Litchfield, 40, was working

the counter at the True Value Hard-

speaks very poorly of civilized so-
ciety that the only way to solve our .
* problem is to kill them.”
But scarcely half a mile away, '
where death penalty supporters |
were scheduled to protest, a high-: ,
powered light illuminated an empty. ,
lot. By 11:30 p.m., still no death pen-. ~
alty supporters had shown. .
“I don’t know,” said one prison .
guard as he looked out over the area |
| blocked off for protesters. “Maybe it ;
| was too cold.”
Although no official death peti’.
; alty supporters showed, one resident +
waged an informal protest from the
back of a pickup truck across the .
street from the prison. — :
Local resident and correctional, -
officer Darrell S. Steinbrecher sold, 4
T-shirts bearing a picture of a sy-.,
| ringe and the motto, “For all you do,: 1
| this shot’s for you.” res
_ Last year the anti-death penalty
protesters received the “lion’s share ,
of the media” attention, Stein- +
brecher, 33, said. '

' reported that the inmates: were -
| “jumpy and upset,” he said. «° .

And he wanted to make sure that ..
~ didn’t happen again. 1s 4

T-shirts for the people of this town

and my fellow correctional officers ~

to wear to denote support for the ex-
~ ecution,” he said. Steinbrecher sold

the souvenir shirts for $10 apiece or
‘two for $18. He said he sold more ~
than 100 shirts.

_ But while anti-death penalty -

“This year I thought I'd get these ~|

groups held a vigil last night, many ~
town residents accepted the execu- ~
tion as just one of the facts of life ina

- prisontown. . ee

“We really don’t think too much ~

' about it,” said 22-year-old-Bob John- °
_ ston as he waited on customers ata -"

* local Circle K convenience store?’

A six-year resident of Florence, *:
Johnston said he missed' the -exe- ~
cution of Don Eugene Harding ‘last -’

“Last time, the media talked °-
about people getting beer and yell- - '

ing at the protesters, and they’re
| like ‘Is everybody in Florence cold-

| Johnston said as he rang up a couple *

of cartons of cigarettes. “It’s just that *
_ the prison’s right there, and we’re -'

“used to it.”

Many prison employees came in and :

“Most (other) people seem to.
have a pretty light attitude about *
it. Especially since the guy wants -*
to die,” Litchfield said. :

Though Brewer has asked for his ‘
execution, prisoners’ advocate -
Donna Hamm was among those —
praying against his wish. Hamm, of” -
Phoenix, is the director of the prison -
reform and family advocacy group -°
Middle Ground. fT

“I would be one of those people ° -
on his mother’s side,” said Hamm, 2”
who testified during a parole board
hearing where Elsie Brewer and her ~*.:
attorneys fought to prevent her son’s *
execution. a

Hamm also made the journey to__
Florence last April, when Harding * -

atte

was executed for the brutal slay-~...

ings of two salesmen at a Tucson
motel 13 years ago. Hamm wit-_ -

nessed Harding’s death in the state’s *-
gas chamber. But even if Brewer -*

had asked, she said, she would not ":

enough,” Hamm said. “Tt was a

pretty devastating experience”. “~ —
to>-*
die by lethal injection — a quick and~“

And even though Brewer was

supposedly painless process’ ap-
proved by

' be a witness to his execution. vate
“1 watched one, and that was quite-

state voters last year —“~

mane way to kill someone,” she’-

said. *:
- -¥Jamm said she fears that death *

. by ‘lethal injection will make her’~

job harder. “Because this is so vis-

ually sanitized, it becomes'too mun-~ *:

dane,” she said. “Those of us who”

harder to get out the word that the~

death penalty is wrong.”
One Coolidge resident in town for

the day selling arts and crafts to"

should not be executed. *

should instead be life.
“I think he should be left alive,

local stores agreed that Brewer"

‘are opposed to this have ‘to work'-

¢
'

7;
Ve

His punishment, said the woman, ”’-
identifying herself only as J ennifer, “

>»

Jennifer said. “He should live with’ -

the guilt. a

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Prison aide’s silence is ordered

By Susan Leonard | :
The Arizona Republic PEE SU Saath

John George Brewer had. plenty, ;
to say in’ the ‘minutes ‘before’ his’
execution early Wednesday.

But. what: he -said may never: be :
made public because the Depart-
ment of Corrections refuses to
divulge his last words. ats

The order to keep Brewer’s words
secret came from department Direc-
tor Sam Lewis, who believes that the
public has no right to know what the
condemned. murderer said «in ‘the
soundproof injection chamber of the
Arizona State Prison at Florence.

“Mr. Lewis has said no, he’s not
going to release that information,”
Jim Bentley, . the department’s ad-
ministrative officer for management,
said Thursday. “I do not have a
reason. ... He just said he is not
going to discuss it.”

Lewis had arranged for one of his
assistants to. be inside the chamber
in case Brewer, who “had insisted
that he wanted to die for the 1987
murder of his pregnant fiancee, had
a last-minute change of heart and
opted to appeal his death sentence.

Lewis and Attorney General
Grant Woods had promised that,
right up to the end, if Brewer backed
out, the state would halt the
execution and allow him to try to
fight his sentence.

Corrections Department spokes-
man Michael Arra said’ Brewer did
not change his mind about wanting
to die.

Woods, an execution witness, said
that he would have been able to tell
if Brewer had changed his mind and

“not.

But a lawyer;who tried to stop the :

execution ‘said he “would. like to.

_ know Brewer's Jast words, in part’

because they may : provide insight

into his mental capacities. reg hy
Jeff Kirchmeier, a lawyer with thé ve
‘Arizona Capitol. .Representation ~

»mother in her efforts to save her 4

son’s life, wonders whether; Brewer, \' /

talked about the imaginary planet” 7 '

Terrecia; gwhich was part of a
science-fiction manuscript he wrote.’
If Brewer. was expressing belief
that he was'going to’ Terrecia, as he
previously had expressed to others, ~
it could indicate that he " was
mentally incapable of making deci-
Sions about his execution. Project
lawyers had used that argument in
unsuccessful appeals to save Brewer.
“It seems. suspicious that they
won’t tell - us” what he said;”

‘Kirchmeier said Thursday. ’ “Off-

hand, it doesn’t seem appropriate.

“I have questions about it, but.
they (department Officials) may have -
reasons for it.”

If officials do have reasons, they
aren’t saying what they are.

Arra_ first. refused to release
Brewer’s last words Wednesday. ~

On Thursday and again Friday,
Bentley reiterated that it was Lewis’
decision to keep the words secret.

that hhe is satisfied that’ Brewer did.

oS ew
Sa

Bentley also said he doesn’t know ot

why.

There also won’t be any informa-
tion forthcoming from J.C. Kenney,
the only person with Brewer in the

— See PRISONS, page B3

|
i
H
|
}

‘Prisons chief

:keeps Brewer’s. |
| swords a secret |

— PRISONS, from page BI

‘has been forbidden by

Lewis ‘to
discuss Brewer’s final words. on
ro]

w= Kenney was in thie room, Bentley . '

it'said, “in case Mr. Brewer changed his.
‘=mind or said anything of importance’ |,
and supposedly’ he}

” about whatever,
‘w didn’t.”

«But there is no doubt that Brewer ;

» Said something.

~ = Witnesses said Brewer appeared to

~be talking to himself, Staring at the
ceiling, as he laid strapped on a
. gurney with intravenous tubes in each
~ Several witnesses said they could
«not understand what he was saying,
xcept that he possibly said, “Go, go”
~ minutes before the first of three lethal

‘drugs coursed into his veins.

«Arizona Republic reporter Abra-
“ham Kwok, a witness, said he initially
thought Brewer said, “No, no,” but he
later decided the
~ have been saying, “Go, go.”

~ As Brewer said those words, he
= looked in the direction of his lawyer,
«Lisa Sommer, and: several friends
~among the witnesses. After that,
~Sommer and three friends left the
= Witness room under an arrangement
“they had made with Brewer at his

‘stequest, and the execution proceeded.
‘= Sommer also said she suspects that
=, Brewer said, “Go” or }, That’s OK.”

uff

re —

‘injection chamber. Bentley said Ken.
“ney, an assistant department director,

condemned must’

tata

ree.

Continued from Page One

from a prison chaplain, and was left
with Schaumburg and his attorney,
Lisa Sommer. Schaumburg was re-
quired to leave at 10 p.m., but Som-
mer was allowed to stay with
Brewer until a half hour before his
scheduled execution.

The U.S. 9th Circuit Court of Ap-
peals had issued a stay of execution
in Brewer’s case at about 2:30 p.m.
yesterday, about the same time a
state parole.board voted to allow his
execution to proceed.

But the U.S. Supreme Court over-
turned the stay at about 10:40 p.m.,
reported Steve Tseffos, spokesman

for the Arizona Attorney General's

Office. The vote was 7-2 with justices
Harry Blackmun and John Paul Ste-
vens dissenting.

Attorneys for Brewer’s mother
filed additional appeals with the 9th
Circuit and the Arizona Supreme
Court, where justices were hearing
oral arguments in the last 10 min-
utes before Brewer’s scheduled exe-
cution.

Those appeals failed.

The Supreme Court frequently

has overturned stays of execution is-.

sued by the more liberal 9th Cir-

cuit, including one issued days be--

’ Harding gasped and strained at
his restraints for the first six min-
utes of his execution, eventually
dying 11 minutes after cyanide

fumes began seeping into the cham- .

ber.

Some witnesses described. Hard-
ing’s death as torturous, and sup-
porters of lethal injection promised
it would deliver a quick and painless
death.

The same cannot be said of Rita

Brier’s death. Brewer spent 45 min- |

utes beating her, gouging her eyes
and slamming her against walls and
furniture before strangling her to
death with a nécktie. -

. He said he then showered and had
sexual intercourse with her corpse
before walking across the street to

call police from a public phone and.

confess to the murder.

“I do not feel she suffered
enough,” Brewer said yesterday
during a meeting of the Arizona
Board of Pardons and Paroles,
which voted to allow his execution to
continue.

“If the same situation arose —

- and I take no pride or happiness in
, saying this — I would carry it out:

again,” Brewer told the panel. “But I
would take steps to make sure it
lasted longer.” ,

Brewer's mother, whose Storey

Tucson, Wednesday, March 3, 1993

fhe Arizona Dailn Star

mounted a legal battle to stay the
execution, testified yesterday that
her son has been suicidal and men-
tally ill since his early childhood.

“I’ve been trying to prevent him
from committing suicide ever since
he was a small child,” Elsie Brewer
said, reading from a wrinkled writ-
ten statement she had clutched ner-
vously throughout yesterday’s hear-
ing.

“Today, I am trying to prevent
him from committing suicide
again,” she said between sobs.
“Please don’t kill my son. I love him
very much.”

Brewer, separated from the audi-
ence at yesterday’s hearing by a
thick, metal cage, sat stoically and
conferred with his attorney during
his mother’s speech and the testi-
mony of other witnesses.

Repeating a theme that doar
ated a series of recent interviews
with reporters, Brewer told board
members his impending execution
did not change his belief that capital
punishment is the only proper pun-
ishment for murder.

“I am doing this because I do not

believe I have the right to live. I

killed,” Brewer said, standing in his

: ‘prison-issue jeans and blue, long-
Y sleeved shirt.

ae aaah nies at st

“lam standing here, nervous and
shaking,” he said, his voice quiv-

_ ering slightly near the end of the 6-

hour meeting. “I realize there are
only 10 hours left — I know this very
much.

“I’m not igtinn the board to kill -

me,” he said just before \being
escorted out of the hearing room by
prison guards. “Just render an ap-
propriate penalty.”

The board voted 4-3 to allow
Brewer's execution to continue,with

’ members ' Stan Turley, Kathryn

Brown, Robert Tucker and Craig
Runbéck in the majority.

Men bers Duane Belcher and’ ‘Ed-
‘Leyva sided in dissent with
Anna May Riddell, who suggested
the exécution be put off until Brewer

could undergo an independent psy-
chiatri¢ evaluation.

“I’m not opposed to the death pen-
alty in certain cases, but in this case
I have certain problems with it,”

Leyva said. “Whether he is compe-.
. tent enough to fully understand what

he is doing is an issue.”

But Runbeck said that while he -

thought it was “clear to everyone

that there is some mental illness in-;,

volved,”: he believed . Brewer
seemed. ( aap of makiaa his own |

Executing an execution

The insanity of taking a moralistic approach to the death penalty ie

The Arizona Dally Star

n “Catch 22,” Joseph
[ines scathing satire

of World War II, logic
fell easy victim to burea-
cratic needs.

The pilots, driven in-
sane by the endless bomb-
ing missions they had to
fly, would ask time and
again to be relieved of
those duties, citing their in-
sanity.

Tom Beal

The answer was always
the same, contained in the
basic ‘Catch 22” of Heller’s fictional military code: If
you asked to be taken off the roster of bombing raids,
you were making a sane request, and therefore, were
sane enough to continue flying them. The act of
seeking to escape death was a sane one.

Arizona is currently going through its latest
exercise in convoluted logic as it prepares to execute
John George Brewer early tomorrow morning for
killing his wife in August 1988.

The arguments seem even more twisted and
insane than Heller’s fictional ones.

Regard the comments of Dr. Celia Drake, who
examined Brewer on behalf of the state prosecutors
who want to grant Brewer’s own request that he be

executed for his crime: “Mr. Brewer is cognitively
competent. Psychologically, he exhibits no major
mental disorder that would deem him incompetent to
be executed,” Dr. Drake wrote.

And Dr. Alexander Don testified: ““While it might
be considered that John Brewer’s refusal to appeal
his death sentence would be regarded as alien to the
majority of human beings, this eccentricity of purpose
is not considered to be reflective of any impairment.”

Brewer, it seems, is not insane, simply eccentric.

Lawyers and psychologists working for Brewer’s
mother have a different opinion, of course. They

argue that Brewer, who made his first suicide attempt i

at the age of six, is mentally ill. Totally and
abnormally reliant on his mother throughout his life,
Brewer is now suffering the effects of being removed
from her in prison for the past five years. He is
depressed and seeking escape through death. The
state, in essence, is simply aiding him in his latest
suicide attempt by scheduling him for lethal injection
shortly after midnight tomorrow.

Of course, great pains are taken on Death Row to
insure that Brewer or any other inmate facing a death
sentence is not allowed to commit suicide. Brewer
and the others are guarded closely, watched
constantly, never allowed to have any sharp objects or
drugs that could be used for an overdose.

If he were to find a way to attempt his own
suicide, he would be rescued if possible, and no
medical expense spared to revive him and nurse him

‘Tk

ETE ELT ES
Arizona is currently going =
through Its latest exercise in
convoluted logic as It prepares to
execute John George Brewer.

back to health so that he might be killed in official
fashion later on. r

Why? _

Because we are one of the few remaining societies .
on this Earth that believes in executing certain
murderers for their crimes. In order to do that
without violating our basic morals and constitutional
priniciples, we have devised a complex series of rulés
and court hearings and appeals.

One of the rules we must follow is that we don’t ~
execute the incompetent. So we must officially rule
Brewer competent before we kill him. ae

Then we can kill him with Arizona’s brand-new
“humane” method of execution. Brewer will be the \-
first to die in Arizona by lethal injection. a

This execution should be easy. Brewer wants to >
die; we’re going to kill him kindly. e

But the basic premise remains illogical,even' ~
insane. This society deplores murder so much that it,
kills its murderers. ©,

Tom Beal is a columnist and member of the
editorial board at the Star. a A

The Seineas ‘Bailn Star

Tucson, suesey: March 2, 1993

Paes

2) IPRIDAY!! =

FEBRUARY 19, 1993}: :

‘March 3 execution.
-.., Without comment, the high court declined.to ,

‘block: the execution of Brewer, who killed .his..
pregnant, girlfriend in Flagstaff in 1987. .

Elsie Brewer’s appeal to the Supreme Court ..
was the best chance she had to save -her. son,

according to prosecutors. John Brewer, 21
insists he wants to die for his crime and has
fought all appeals.

~ Arizona Attorney General’s Office.
Appeals can be made in federal court, ,

-McMurdie said, but he predicted that they will °

be rejected there as well. And even if Brewer

~ changes his mind, McMurdie’s office will fight .

to have the execution carried out, the official |
said. Robert Bartels, a Tempe attorney. repre-
senting Elsie Brewer, declined to comment |

tay Thursday.

If John Brewer was put to death as scheduled,
he would be the first Arizona inmate to die by:
lethal injection. On Feb. 11, he chose to die by |

that method rather than the gas chamber.

The justices decided Wednesday to decline :

* the request for a stay’ of execution. - ‘Their’

rt decision was made public Thursday.
Brewer was sentenced’ to death for killing

Rita Brier, who was five months pregnant, 'in
‘November 1987 at their Flagstaff apartment.

He said’ the murder was sparked by Brier’s |
complaints that he was too dependent: on ‘his:
mother. The couple had:moved to Arizona from:

Elsie Brewer’s home in Greensburg, Pa., two: |

“months earlier. John Brewer killed his 23-year-
%, _old girlfriend in the course of a horrific struggle .
that may: have lasted as long as 45 minutes,

| “The state is done with the case,” said. ‘Paul
*. McMurdie of the criminal-appeals section of the

‘Brewer /“|.AM
‘a murderer, and

‘ letter to the:
saree Court.

ustices reject
alt of executi

roa ie}
¢ 3 :
¥ ‘

Mom appeals, buts son’ : ready to dies.

By Pamela Manson
The Arizona Republic _ .

court, records say. He siding that "he hiad 79x: 4
. with the corpse, but defense attorneys sag fete ¥2
The Arizona Supreme Court has tuinéd dows yi \,

a request by the mother of death-row inmate »,
-» (John «George Brewer to stop. his scheduled .,;

was no physical evidence of that. ° vet
. Brewer pleaded guilty ‘to first-degree murder. q

a aad insisted. he ;;wanted.thedeath,, penalty. - -
Although the prosecutor : eer 4 -

. prison, Judge Jeffrey Coker, of Coconino
‘Superior Count imposed death: tod ed
‘Since, the sentencit gim"::
August , 1988, Brewer “has: it
“remained steadfast, i his. * |
request.to be put to death; on
He. claims he. is, porry 4

unty: . .

but not. sorry that. Brier! is - .
dead. He spends much | “of oy
his time writing letters to ; «
defense attorneys, the At-:«

John George
Supreme Court asking to ‘be: 4
‘put todeath. a
“TAM a riuktdeter, ant .
‘murderers ‘ must. be' exe--
cuted,” Brewer wrote :in -.
one letter to the Supreme: Ke
Court. : ;
Arizona’s first execution’ e

murderers must °
be executed,” he
wrote in one

in 29 years was‘carried out April 6, when Don, | /

,Eugene Harding was executed: in « the’. gas: ‘ea

- chamber. His execution attracted extensive! news. ’

‘coverage, including graphic descriptions. of his ‘ ‘

. death convulsions.

Voters in November. ovebwhelmingl as a

“proved an amendment to the Arizona Constitu-:
tion that replaces the gas chamber with injection: «
as Arizona’s method. of execution.. However, the. om
109 inmates sentenced.to death, before Nov. 23, <5

when the measure was certified as having -
“passed, are given a choice between th¢.gas.-
chamber and lethal injection...) ) visa Soitts "

eis sau ae ae A
a 4%. foe, i

that he committed a Crime.‘ ~

torney.General’s. Office atid’ »“
the clerk of the Arizona: ie

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Inmate, 27,.
dies in just «
one minute °

By Joe Salkowski
The Arizona Daily Star .

FLORENCE — John George
Brewer, who had asked to be exe?
cuted for brutally murdering his
pregnant girlfriend, was put to death
by lethal injection early this ear’
ing.

Brewer, 27, was the first Arash
inmate to be executed by lethal in-
jection, a method approved by state
voters last year after Don Eugené
Harding was put to death in the
state’s gas chamber last April. << -

The execution took one minute. It
began at 12:17 a.m. and ended at
12:18, said Arizona Daily Star re’
porter Jim Erickson.

Brewer's last words were “I have |
givena media statement to my attor-
ney” Brewer said to Sam Lewis, De-
partment of Corrections director.

“It was quick, the blinds opened.
He looked through the picture win-
dow. It looked like he was searching
for faces,” said Erickson, one of the
official o observers.

"When Brewer spotted a pie, hel
gave him a thumbs up signal, Erick
son said.

“After giving that thumbs up, he»
kept looking through the crowd and ‘
he was talking rapidly,” Erickson |
Said. He appeared to be looking for
faces he recognized, Erickson said.

At about one minute after the |

ep se th’ Ge

ie ¥

_ blinds opened, his chest heaved, he ! 17

turned his head to the left and then |
looked back up at the ceiling. vO |

Erickon said that one minute and ;
15 seconds after the execution |
began, Brewer’s eyes glossed ovei’
and remained partially open. “He
was inert, motionless. His eyes fe-
mained about half open,” Erickson
said.

By that time, Erickson said,
Brewer was pale and his skin was _
white.

His head turned back, “that’s
when he stopped breathing.”

“The voters did the right thing,” in +
changing the method of execution
from lethal gas to lethal injection;: -
Attorney General Grant Woods said
in a brief statement after the execu-
tion.

Between 3 p.m. and 6 p.m.,
Brewer was visited by his attorney, a
friend and the Rev. John Schaum-
burg, a Flagstaff pastor who has cor-
responded with him since his ar-
rest.

At 4 p.m. he was served a last
meal that included pork chops, beef-
flavored Rice-A-Roni, ginger ale
and a slice of coconut cream pie. He
ate the meal with Schaumburg.

At 7 p.m. he received communion —

See BREWER, Page 6A +

f Ny

ah 4k,

[.F 2

Said the condition, combined with
Brewer’s overdependence on his
. Mother, has driven him to suicide.
“Right now, John would rather die
than take control of his life,” Bayless
Said. “If you give him the proper
medication ... I submit John would
change what he thinks about what is
happening and would choose life
over death.” a

Elsie Brewer’s attorneys also
questioned whether Brewer’s Stated
desire to die was legitimate, citing a
letter Brewer wrote to an acquaint-
ance during the past year.

“Sometimes I believe the lies I tell
others, that lam glad she’s dead,” he
wrote in the letter. “I want to live, I

- Teally do!”

But Brewer discounted the con-
tents of that and other such letters,
which included various references
to the fantastical characters and
80ds he says were included in a sci-
ence fiction novel he has written in

- prison. .

The letters read as though Brewer
believes in Terracia and its god,
Dontain. But he Says he simply was
writing the letters “in character,”
Pretending to be a character in his
book. And, he said repeatedly, he
does indeed want to be executed.

But Sommer, Brewer’s lawyer,
Said several mental health experts
who recently examined Brewer
; found he was not mentally ill and
_ fully capable of making his own de-

Attorneys from the Arizona Capi-- — wns bie met
tal Representation Project, a state Mr. Brewer's position isn’t really
and federally-funded legal aid that difficult to understand — like
_ group that has represented | Elsie ™any People, he’s in favor of the
| Brewer, said Brewer is mentally in- death penalty,” she said. “He has the
_ Competent to act in his own best in- honesty and the integrity to say that
| terests, the death penalty should be imposed.
| “Even what Mr. Brewer saiq~ °F alm.
| today is another example of the. Brewer told Police he killed Brier
-Mental illness he suffers,” attorney because she had threatened his rela-
Hal Sheets said. “His mental illness tionship with his mother, who he
controls his actions on a day-to-day’ _Said controlled his thoughts and ac- -
week-to-week, year-to-year basis.” —_ tions. wie
Brewer has been diagnosed with “I could not, I repeat, could not
_ borderline Personality disorder, a break this mental hold my mother
.condition that subjects him to sud- hason me,” he said after his arrest.
den, inappropriate mood swings and “Nearly everything I do is checked.
_- impulsive, Self-destructive acts. with my mental mother.”

“People with borderline Personal- Brewer said he also had ‘become

ity disorder are not crazy — they go — overdependent on Brier in the
crazy too easily,” said Dr. Leland months since they had moved to

Heller, a psychiatrist who special- _ Flagstaff from a shared apartment.

izes in treating the condition. in his mother’s Pennsylvania home.
The condition can be treated with

. Proper medication, but Brewer has _ The night before the attack, he
poroee received such treatment. Said, she told him he was too depen. 73 c 4
0

@he Arizona Daily Star

Tucson, Wednesday, March 3, 1993

k, *
AAS “tbs
at
LAX yt oa . * ‘
ee Pe ee

| AAA CRY TICES

* Without ‘Medication, Heller - said, dent on both her and his mother.
Such individuals are bound to sufter The next day, she told him she
-from dysphoria, a painful combina- | Would stop dating him to pr ove he
_tion of depression, Tage and despair Could live without her.

that often» precedes violent out- “Well, that was it,” he said. “I
ig eee ere _ Started. screaming and yelling ...
. Dr. Michael. Bayless, a psycholo- “Why think about if you were dead?
who'examined Brewer in 1988, ___ PI kill you.” Re pik

pet ar Leas 3

John G., wh, <7, LI AZSP. (Coconino) 3/3/1993. |
i
| ij _ 2 one al [ aaa | [ er seas |e | : |
ia " |
| a )
| ey | .
| . ee Aa L L \. oe
Published Annually

Publisher

Glenn Hare
Vice President Art
Gerald Mortimer Margaret Anderson
Heidi Olsson
Editor Kathy Bergmann
Dan Burger Paula Micallef
Editorial Assistant Typesetting
Amy Little June Roper
Contributors

Steven J. Casey, special assistant to the San Diego County district attorney
Karen Clarke, freelance writer, contributor to The Day in New London, Conn.
Greg Dennis, freelance writer, contributor to the San Diego (Calif.) Union :
Kathy Fair, freelance writer, contributor to the Houston Post '
Bob Levenson, reporter for The Orlando (Fla.) Sentinel

Kent Marts, reporter for the Bentonville (Ark.) Daily Record

Martin Melendy, reporter for the Spartanburg (S.C.) Herald-Journal

“Ted hiorrow, reporter for The Pueblo (Colo.) Chieftain

Johu F, Patton, reporter for The News-Gazette in Lexington, Va.

Jeff Shervell, published author and freelance writer

Lynne Tuohy, reporter for the Hartford (Conn.) Courant

Brent Whiting, reporter for The Arizona Republic in Phoenix

Brian Wice, attorney and freelance writer

Tim Woodhull, reporter for The Daily Breeze in Torrance, Calif.

ISBN 0-9624857-1-3 i

Niue sr a RR ee n RE
——

INMATE STATE SEX RACE
Bradford, Gayland Texas M B
Bradford, Mark A. California M WwW
Bradley, Danny Joe Alabama M W
Bradley, William Ohio M B
Branan, Danny Tennessee M W
Brantley, J. David Georgia M W
Breakiron, Mark Pennsylvania M W
Breaux, David California M WwW
Brecheen, Robert Oklahoma M W
Breedlove, McArthur Florida M B
Brenk, Herbert Arkansas M W
Breton, Robert Connecticut M W
Brewer, Benjamin Oklahoma M B
Brewer, Brett Texas M W
Brewer, David Ohio M W
Brewer, James Indiana M B

Brewer, John —
John Brewer and his girlfriend, Rita Brier, were havir

ment when Brier told Brewer that she was going to. leave him. Brewer

then locked the bedroom door and began to beat and strangle Bric

After a lengthy struggle during which Brewer bit Brier, tried to gou

her eyes out, and choked her with his hands, Brewer killed Brier by

strangling her with a tie. Brier was 22 weeks pregnant at the tim

After resting, Brewer took a shower. He then had sexual intercourse with Brier's corpse, :
Brewer walked to a nearby bowling alley, called the police, and turned himself in. Brewer.

pleaded guilty to first-degree murder.

Briddle, James M. Texas M W
Bridge, Warren E. Texas M W
Bright, Kenneth Georgia M W
Briley, James Virginia M B
Briley, Linwood Virginia M B
Brimage, Richard Texas M W
Brimmer, David Tennessee M WwW
Brisbon, Henry Illinois M B
Britz, Dewayne Illinois M W
Brock, Kenneth Texas M Ww
Brogden, Donald R. North Carolina M W
Brogdon, John Louisiana M W
Brooks, Charlie Texas M B

126

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Metadata

Containers:: Box 2 (2-Documentation of Executions), Folder 18
Resource Type:: Document
Description:: Daren Lee Bolton executed on 1996-06-19 in Arizona (AZ)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: June 27, 2019

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