Texas, R, 1926-1998, Undated

Routier trial
renews interest

)

= in women’s fate

vs ee NGS] KERRVILLE —
fae BG:] All the news re-
‘ ports say Dallas
7’.| County's Darlie
| Routier, accused
of murdering two
of her little sons,
is on trial for her
life.

BIFFLE’S Odds are over-
TEXANA whelming that
she’s not.

Nearly 1,000 criminals have been exe-
cuted since Stephen Fuller Austin found-
ed his Anglo colony in Mexican Texas 175
years ago.

Just three were women.

Populating death row in Texas, at the
moment are 444 men. There are six con-
demned women. The men should live so
long. Five males — and no females — are
scheduled to die before May 15.

Texans haven't formally killed a wom-
an since the Civil War.

One may argue that Bonnie Parker was
executed with bandit Clyde Barrow by
Texas Ranger Frank Hamer’s 1934 firing
squad. But that was in Louisiana. Besides,
Bonnie Parker was never convicted of a
crime. -

Until recent years, many Texas histori-
ans believed that only one woman was
legally executed in Texas, an error still
found in history books.

“Two female executions are counted in
The New Handbook of Texas, published
last year by the Texas State Historical
Association.

3 discovered

After sweatneck research, we've found
three — two black slaves and an old Te-
jana. By 1997 standards, they were luck-
less and near lawyerless.

Ms. Routier is more fortunate. Her
trial was moved from Dallas County to
Kerr County on a change-of-venue motion
by her first defense team; she’s since
hired a lawyer with winning ways, Doug
Mulder of Dallas.

In contrast, none of the hanged fe-
males was vigorously defended.

Slave Jane Elkins was launched into
eternity in 1853. Death awarded her two
distinctions. She was the first person
hanged by law in Dallas County and the
first woman legally hanged in Texas.

Like her sisters of the noose, she’s a
dim and distant figure. Four decades af-
ter Ms. Elkins hit the hemp, settler W.P.
Overton reported:

“The first legal hanging was in 1853.
[She] was executed for knocking a man
in the head with an ax at Cedar Springs.
He had hired her and she murdered him
while he was asleep. I can't recall their
names.”

Forget and forgive

Mr. Overton will be forgiven for for-
getting Jane Elkins and her victim, aman
named Wisdom. Almost everyone did.

@ - But the case, presided over by Judge

John H. Reagan, a leading jurist, is docu-
Please see WOMEN on Page 40A.

I~ 12-99

DALLAS MoRN s
a a ING- UEWS

Women rarely met Texas’ noose

Continued from Page 39A.

mented in a volume of district court records
preserved in the Texas-Dallas History and Ar-

chives Division of the J. Erik Jonsson Central
Library.

“We the jury find the defendant guilty of
murder in the first degree. We further find that
the defendant is a slave of the value of $700 and
that the owner of the defendant has done noth-
ing to evade or defeat the execution of the law
upon said defendant.”

And on May 17, 1853:

“It being demanded of said Jane if she had
anything to say why judgment and sentence of
death should not there be passed upon her and
the said Jane saying nothing thereto, it is decreed
by the court that the sheriff of Dallas County
keep the said Jane in close confinement in the
common jail of Dallas County until Friday the
27th of the present month of May, and that be-
tween the hours of 11 o’clock a.m. and 3 o'clock
p.m. the sheriff ... convey her to a gallows
erected for that purpose and there hang the said
Jane by the neck until she is dead.”

Five years after Jane Elkins was hanged, an-
other female slave — called “Lucy” — was legally
executed on Galveston Island.

Lucy, 39, lived in Galveston’s ramshackle Co-
lumbia Hotel, run by her owner, Maria Dougher-
ty.

Gulf Coast historian W.T. Block reported this
case to me: “In December 1857, Lucy was pun-
ished for some minor infraction. In retaliation,
she set fire to the hotel. The small blaze was
quickly extinguished, but this time she was pun-
ished more severely. She swore vengeance.

“On Jan. 3, 1858, Maria Dougherty disappeared.
Her body was soon found, floating in an under-
ground brick cistern. Her head had been crushed
by blows from a club. Shown the corpse, Lucy
cried out, ‘Yes, I killed her and I would do it
again.’

“On Jan. 8, Lucy was indicted for murder. She
went to trial four days later before Judge Peter
Gray, who appointed a lawyer, Major R.H. How-
ard, to defend her. Her plea was ‘not guilty.’ But
evidence persuaded the jurors to convict her.”

Before taking the scaffold on March 5, 1858,
she told a priest she’d found religion. She ex-
pressed her willingness to die and her hope for
forgiveness in the afterworld.

The hanging of Chipita Rodriguez on Nov. 13,

1863, is notorious. Many accounts of her case have
been published, counting a book still in print
that blindly insists that she was the only woman
hanged in Texas.

I once read a long poem she inspired. But I’ve
never heard a note of the two operas said to sing
her tragedy. Truth to tell, no one knows much
about the old keeper of a flophouse in San Patri-
cio County. She was-convicted in the ax murder
of a horse trader named John Savage.

If it wasn’t a bum rap, it was a bum trial. I'll
explain.

The sheriff who arrested the aged woman was
also the foreman of the grand jury that indicted
her. Apparently three members of that grand jury
later served on her trial jury.

Several grand jurors were employees of San
Patricio County. Others had lawsuits pending
before the trial judge. Four grand jurors and trial
jurors had been variously indicted for felonies.
Two indictments against the prosecutor were
dropped before the trial.

Injustice was swift. Two days after her indict-
ment, she was convicted. The next day, she was
sentenced to die 34 days later — on a Friday the
13th. While the prisoner sat in leg irons smoking
corn shuck cigarettes, her lawyer withdrew a
motion for a new trial. And the judge ignored the
jury’s recommendation of mercy for her.

Her ghost got a surprise 122 years later when a
vote by the 69th Texas Legislature absolved her
of the murder. To be sure, lawmakers were play-
ing politics. She may have been guilty as sin.

If Darlie Routier is sentenced to die by the
Kerr County jurors, she’s still a long reach from a
fatal needle. If appeals fail, there’s always the
governor. And Texas governors are pushovers
for women. Gov. Mark White, for example, signed
the bill exonerating Ms. Rodriguez.

More to the point is the case of Emma Oliver, a
San Antonio prostitute who was arrested four
times for murder, seven times for aggravated
assault and once for attempted murder.

Convicted of murder in 1947, she was released
from prison after serving 18 months. In the fol-
lowing year, she was arrested three times for
aggravated assault. In 1949, she was convicted of
murder with malice and sentenced to death for
killing a man in a fight over $3. One might say
she had a flair for the chair. But, hold on.

Emma Oliver was plucked from death row in
1951 by Gov. Alan Shivers and died from cancer
in prison a dozen years later.


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New Mexico, Texas Each

‘Sent Womar, To Gallows |

EL. PASO TuMkR, MONK LOFTON

Written Especially for Sundial
Not to be outdone by the messy affair of the hanging of Paula

Angel by the Territory of New Mexico, little more than two |
years from April 26, 1661, when Paula was to become the first - |
and last woman up to the present date ever to be executed |
in New Mexico, a woman by the name of Chipita Rodriguez |
was doomed to share equal recognition as the first and last
woman to be legally executed

be

‘{im the state of Texas.

The similarities of both af-
fairs of execution did nothing
to bring credit to law enforce-
ment of either of the frontier
states at the time, and has
done nothing since toward glam-
ourizing female executions, re-

the crimes involved. _

* Paula Angel, age unknown,
; was convicted of the knife-slay-
ing of her lover, Juan Miguel

_\} Martin, during the final em-
brace after an affair terminated

> | by the deceased. She pleaded
.| innocent.

After. being arrainged on
March 23, 1861, she was tried

‘i only five days later, on March

../ 28th at which time she was
/ sentenced to be hanged in Las

’ |Vegas, N.M., by Judge Kirby

»|Bennedict on April 26th, less
| than one month after her con-
| viction.

So savage were the ghastly de-

tails of Paula Angel’s hanging
‘* | that actual records of the af-
\-| fair have no doubt purposely
.\‘been destroyed.

It is known, however, that
Paula’s hangman was a sheriff
by the name of Herrera, who
taunted her both before and at

_ | the time of her date with death

‘;at the end of a, rope dangling
from the limb of cottonwood
tree.

| RODE ON COFFIN

Riding on her own coffin in
‘| @ wagon drawn up under the
{° | hangman’s noose, Paula was
twice hanged on the same day
before an excited crowd of

-| she denied she ever committed.

The first time the wagon was
being driven out from’ under
her after the application of the
{1 noose, upon noting he had for-
{,gotton to tie her hands, the
_ {sheriff left the wagon long
| enough to return to his dangling
prisoner for a few sturdy jerks
in an effort to release her grasp
of the rope; but upon finding

is said to have been cut down
from the cottonwood tree by
distraught spectators.

The second attempt, however,
proved successful, from which a
legal execution of a condemned
woman was claimed for the Ter-
ritory of New Mexico. It was

null and void of dignity.
There was some difference,
both in the methods of proce-

both the New Mexico and Tex-
as women were convicted, and
in the details of the final execu
tions. E

Whereas the crime of the New
Mexico woman had the aspects
of both youth and romance, the
Texas conviction of Chipita Rod-
riguez in San Patricio was
based solely oa the motive of
robbery.

of murder, but Chipita, being a
boarding-house matron past mid-

aes

gardless of the justification by

curosity seekers for the crime.

‘his efforts futile, Paula Angel -

a claim, of course, completely .

dure in the crimes for which ~

Both women were convicted -

-dle-age inspired no romantic il-
lusions by the crime for which
she was convicted of the mur- |
der of John Savage with an ax
for the gold he carried in his} .
saddle bags. epee

Both women pleaded innocent, | "
but despite the recommenda-,
tion. for mercy by the jury in }. ;
the trial of Chipita Rodriguez, .
Texas Judge Benjamin Neal of :
the 14th District Court of San
Patricio, sentenced her to be

hanged on circumstantial evi-

* ‘dence.

Like Paula Angel had done in
the Territory of New Mexico,
little more than two years be- |
fore, in November, 1863, Chi- ,

pita Rodriguez rode to her final | *.; |

fate in a wagon, seated on her |
own coffin.

BLINDFOLD FORGOTTEN

It was not the shackles, how- '. -

ever, that were forgotten by
hangman John Gilpin of San
Patricio, Tex., as was the case
in the bungled hanging of the
New Mexico woman. It was the
blindfold that was omitted in
the hanging of the Texas wom-
an. The horrors of her strangu-
lation were so repulsive to those :
who stood eyewitness, that aft- |
er 100 years, legends still have ©
it that many people have seen
Chipita walking aimlessly along
the banks of the Nueces River
in the vicinity of San Patricio
with the frayed end of a rope
dangling from a noose around
her neck.

There are many other leg-
ends of course in connection
with both the two unacclaimed’
convictions of women murderers
‘in Texas and New Mexico. Both ©
women are still believed to have
been innocent by many; but
despite their guilt or innocence,
there remains only abhorence . ‘
for the methods used in execu-

tion of the only two women ever. |

legally condemned to death -by
hanging in the two states of
. Texas and New Mexico,

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Sinton, Texas 78387

.

By KATHY FAIR
Houston Chronicle

HUNTSVILLE — Comparing him-
self to the Apostle Paul, Lionell
Rodriguez said Wednesday he has
never been happier since finding God
and arriving on Texas’ death row.

“I’m not the same person I was
before,” the 20-
year-old Rosen-
berg man said in
his first inter-
view since being
condemned to
die for the Sept.
5, 1990, slaying
of Tracy Gee.

“I turned my
life over to
Christ,” he said.
“I’m happier :
now than’ Tve Rodriguez
ever been, even when I was free.

“Td rather be a Christian in prison
than a non-believer in the free
world,” Rodriguez added. “I know
where I’m at, I know what I’m doing
and I know where I’m going.”

The conversion occurred, he said,
in the Harris County Jail after he
was convicted of capital murder in
che shooting of the 22-year-old tennis
oro shop worker. Gee was shot in the
ead as she waited at a traffic light

Thursday, July 4, 1991

at North Braeswood and Rice Boule-
vard, three blocks from her home.

Rodriguez claims deputies treated
him “like garbage,” but then “some-
thing snapped,” he said, and he saw
the light.

He has difficulty explaining what
happened, but likens his religious
awakening to that of the Apostle
Paul, whose conversion to Christian-
ity is recounted in the New Testa-
ment. Paul reported that he was on
the road to Damascus when a bright
light and a voice from heaven made
him change his ways.

Rodriguez did not testify at his
trial, but in his confession said Gee
had been selected randomly — a
victim who had the misfortune of
being there just as the car in which
Rodriguez was riding was nearly out
of gas.

So he fired a single shot at Gee
with a .30-caliber M-1 carbine he had
stolen from his stepfather.

Is he sorry for what happened?

“It’s only right to be sorry,” he
said. “It’s only right ...”

The thought went unfinished as
Rodriguez shifted his focus away
from the victim and back to himself.

“The prosecutor painted me as
cocky and arrogant,” he said. “I don’t
even know what arrogant means.”

He also dodges questions about

Houston Chronicle

‘I’m not the same person’ .

Man convicted of killing woman says he has seen the light

35A

ee
ee
, Te
ge
ne

oe
>.

whether he has considered confaét-
ing Gee’s family to express remorse.

“I think about the victim —lafiean
the woman,” he said. “I can’t explain
the feeling. What can I say? I-don’t
want to sound cold or like ‘L.don’t
care.”

ie as
Indeed, he said, his concern*a¥éut
the way prosecutors and the métia
portrayed him during the-trial
prompted him to grant an interview
after rejecting earlier requests=2*
Witnesses at the trial descrfféd
Rodriguez as cocky, uncaring "tp-
morseless and even grinning during
the hours after his arrest. | -:=.-

“At one time that was me,” he Said.
“But I’m not the cold-blooded ‘tipe.
It’s not like I’d steal my mother’s
money. I know for sure I’m not the
Same person I was a year ago.” -

He said drugs got him into the
trouble he’s in today, as well as his
prior burglary conviction.

Although his conviction has nbt
been appealed, Rodriguez is con-
vinced the Texas Court of Criminal
Appeals will overturn it three to
seven years from now. He even toys
with the idea that someday he might
walk out of prison. :

“If I ever go free or not, it doesn’t
matter,” he said. “I’m a Christian
and I know where I’m going.” =

San tin

. On death row

Palestinian looks forward to freedom

“By The Associated Press

_ Muneer Mohammed Deeb,
‘whose death sentence and con-
viction for his role in the
torture-slayings of three teen-
agers in 1982 was thrown out
last week, said Wednesday he
was confident any retrial
would vindicate him.

And Deeb, who says he is
the only Palestinian on death
row in the United States, said
he was looking forward to re-
turning home to the Middle
East.

. “I am trying to get me a
lawyer right now,” said Deeb,
| whose own motions after 7%
| years on death row convinced
_the Texas Court of Criminal

| Appeals last week that hear-
| Say evidence improperly was
used to convict him of what
became known as the “Lake
Waco Murders.”

HUTS VILLE
ITEN

“The appeal is easy,” he
said. “The actual trial is diffi-
cult. This time I’m going to
get the best lawyer money can
buy.”

Deeb, a 32-year-old Jorda-
nian native and former conve-
nience store owner, received
the death penalty for partici-
pating in the deaths of Jill
Montgomery, 17, Raylene Rice,
17, and Kenneth Franks, 18,
all of McLennan County, on
July 18, 1982.

Deeb was accused of hiring
David Wayne Spence, 33, to
kill Gayle Kelley, a woman
who had spurned Deeb’s
advances.

Spence, who also is on
death row, and two other men
apparently mistook the three
teen-agers for Ms. Kelley and
her friends, and were
convicted of abducting them.

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_ November 13th, 1863 |
“RODRIGUEZ, Chipdta © = Sge. ange card... 2. =.

Urs. Rodriguqz and her son, Juan Silvera, ran a small im.
—in-San-Patricio—Co.;-Texs—A-horse=trader-namedJohn-Sa=—
.vage had sold some horses to the Confederate Army_and_stay-
_ ed overnight at the inn on his way home. A week later, his
body, wrapped—in-burlap;-was—found-floating-in-the Nyeces —
_ River and Mrs, Rodriguez and Silvera were arrested. and
charged with the‘crime for the purpose of robbery. Even
—before—the-trial, Savage!s—sadddlebags -were-found with-over
$600 which disputéd the motive. At the time of their
arrests, both Mrs, Rodriguez and Silvera protested their
innocence y-but—when-placed-on-trial.,—neither-would-—say—a—-
worde It is believed that eafh believed the other guilty

oy

“e

re

/ and refused to say anything for this reason, -Mrs,-Rod- :
 -riguez was found guilty with a recommendation for mercy
which the judge ignored and he sentenced her to hang.
“Silvera received a five year sentence, Mrs. Rodgiguez
became the first and only (?) woman to be legally execu-
ted in Texas wh8n she was hanged at San Patricio on

Nov. 13, 1863, Years later an old man who lay dying con:
fessed that he had murdered Savage himself = not for
moneys; but to salvage a personal grudges

OLD WEST, Winter, 196f7 pea 2.


RODRIGUEZ, Chipita November 13th, 1863:

Mrs. “odriguez, a Mexican widow, and-her son, Jaan Silvera, ran a
small in at San Patricio, Tex. In 1863, a Corpus Christi horse-
trader returning from Yan Antonio where he had sold some horses to
the Cofifederate Army stopped overnight at the inn. 4 few days

later, his body, wrapped in burlap,was found floating in a river.

He had been hacked to death with an ax and as he was last seen at
the im, ‘rs. Rodriguez and Silvera were arrested and charged with
having killed him for the money that he was known to be carrying e
When first arrested, both protested their innocence, but at their

trial. they said nothing, each evidently believang the other to be-
. Builty. The evidence was flimsy and circumstantial and the motive

had Leen disproved before the trial when John Savage, the trader,

- saddle bags. containing $600 were-found,. —Nonetheless; both were-
convicted and Silvera received a five year sBntence s _ His mother, _

in spite of a recommendation for the mercy by the jury, was sen-

~-tenced- to-hang-by the judge-and- she-was-publicly- executed at
San Patricio . on Nov. a3,-1863.

OLD WaST, Winter, 1968. "The Curse that Killed San Patricio Town" -+

by Ruel McDaniel. Page 32.
HL PASO TIMES, EL Paso, Texas, Feb. 2, 195).


i J. E. STOWE

alice Department
ESSE SIMMONS

was moaning over
that bleak day. of
1924, when a shrill
‘whistle of the Gal-
“w & San Antonio
was exactly 11:30
i, driven viciously
‘rra de Madre range
in border was hazy
‘ss, like the moun-

he rising sun had
‘din color. The su-
ve said that it was
his howling March
ined to be chroni-

vere a prearranged

dust gusted into
street two blocks
d shops.

of dust emerged a
Four men were in
hine —- alert’ men
tcross their knees.
id guards from'the
sanking Company
‘(0 cash payroll to
ary procedure, the
rain Street at the
sheps which was
reet from the Van
read concession.

The tellers climbed from the car
hands clutching heavy money bags
William Meers, veteran bank guard,
was leading the way to the Van Noys
lunchroom. Through a cubby-hole
window in a rear compartment of
this building the workers’ checks
would be cashed when: the second
whistle blew at 12 o’clock.

Suddenly the air became tense as
a hard voice clipped in brittle Eng-
lish:

“Drop the money bags, senors!”’

Instinctively the advance guard
whirled, ripping a .45 pistol from his
bolster.

In a flash he saw five grim men
standing in a row. Five swarthy-
faced desperadoes with sneering
faces. Like an execution squad, they
stood with leveled guns in nervous
hands—Mexican bandits!

It was only a flash that Mcers saw.
For even as he turned, hell broke
loose and five pistols thundered. Di-
rectly over his heart his white shirt
became soaked with crimson before
he crumpled to the ground.

As Meers fell, gasping, his own gun
roared. One of the bandits flopped to
the ground with squeals and curses.

One teller dropped his bags and
Sed panic-stricken down the street.
The other teller snatched them up on
the run. Ignoring the blazing guns,
he raced for the Van Noys lunch-
room with the payroll treasure. Hot
‘ead cut him down before he had
taken three strides.

Charlie Bittick, the other guard,

Above: Bank Teller George Reed, seek-
Ing to protect the payroll, was cut down
by bandit bullets ‘during the rald.:

Above: Charlie Bittick, a guard,
routed five killers single-handed,
after they had taken a ghastly toll.

Above: Mr: and Mrs. Jeff Meers suf-

fered a strange family tragedy as a
direct result of the March massacre.

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BY CAPTAIN J. E. STOWE
EI Paso, Tex., Police Department

AS TOLD TO JESSE SIMMONS

HIGH WIND was moaning over
A El Paso on that bleak day of
March 18, 1924, when a shrill
blast came from the whistle of the Gal-
veston, Harrisburg & San Antonio
railroad shops. It was exactly 11:30
A. M. Dust swirled, driven viciously
by the gale. The Sierra de Madre range
south of the Mexican border was hazy
and appeared lifeless, like the moun-
tains of the moon.

That morning the rising sun had
been a fiery ball, red in color. The su-
perstitious may have said that it was
an omen and that this howling March
day was fore-ordained to be chroni-
cled in blood.

As if the whistle were a prearranged
signal, a cloud of dust gusted into
South St. Vrain Street two blocks
north of the railroad shops.

From the cloud of dust emerged a
large black sedan. Four men were in
the rumbling machine — alert men
with carbine rifles across their knees.
They were tellers and guards from the
El Paso Trust & Banking Company
bringing the $18,000 cash payroll to
the railroad workers.

Following customary procedure, the
car halted on St. Vrain Street at the
east entrance to the shops which was
directly across the street from the Van
Noy lunchroom, a railroad concession.

—

laa a
BeOS * i:

The tellers .
hands clutchi:
William Meer:
was leading th
lunchroom. T
window in a
this building
would be cas!
whistle blew :

Suddenly tt
a hard voice «
lish:

“Drop the n

Instinctivel.
whirled, rippi:
holster.

In a flash }
standing in
faced desper:
faces. Like an
stood with le:
hands—Mexic

It was only .
For even as !}
loose and five
rectly over hi:
became soake:
he crumpled tc

As Meers fel
roared. One of
the ground wi

One teller «
fled panic-stri
The other telle
the run. Igno:
he raced for
room with the
lead cut him
taken three st

Charlie Bitt


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HUNTSVILLE, Texas (AP) —

Charles Rumbaugh, 28, convicted of a

murder he committed during a robbery

at age 17, was put to death today.
Rumbaugh told the witnesses to his

lethal injection, “Even though you don’t

“<< forgive me for my trangressions, I for-

give you for yours against me. I’m
ready to begin my journey.”

_.. He was pronounced dead at 12:27 |
a.m., the first person in more than two

‘decades to be put to death for a crime

~eommitted while under the age of 18.

Attorney General Jim Mattox, asked
whether such crimes by juveniles
should merit the death penalty, noted
that the case went before two juries
and “each determined he should be |!
punished by death.”

Amnesty International argued that
Rumbaugh’s death violated interna-

tional agreements — never confirmed
by the U.S. Senate — that bar execu-
tion of people convicted of crimes com-
mitted when they were under 18.
Across the country, 32 juvenile crim-
inals are on death row, according to

Victor L. Streib, a professor of the.
Cleveland Marshall College of Law at-

Cleveland State University.
Rumbaugh rejected any lavish final

1985

pte,

ix, shosdut™ |
"Man Bonvictod | as s teen ‘executed ©

i HUNTSVILLE, Texas (AP) — Charles Rumbaugh, convicted of: a
murder he committed during a robbery at age 17, was put. to death...
today in an execution a human rights Pose said violated inter-
‘national agreements. °
‘‘About all I can say is goodbye,” Rumbaugh: 98, told his pergonal
witnesses in the death chamber. Then he said to the other two dozen
people who watched the lethal injection; ‘‘For the rest of you, even ©
though you don’t forgive me for Ay trangressions, I forgive ve ‘for
yours against me. :
. “That’s all I wish to say. I'm ready to begin my journey.’ Yt:
, His breathing became labored as the drugs took effect, he eles
and coughed twice. Two physicians pronounced him dead at 12:27
a.m., the first person in more than two decades to be put to Geath
for a crime committed while under the age of 18. Eee SS S|
Rumbaugh left instructions that his body be cremated and the
remains be placed in a tiny coffin he constructed hiniself. Of
matchsticks, lined with velvet and a red bandana, said D. J. Stub-
ben, who wrote a book about the convict. 38k oe

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and glass of water.

Rumbaugh’s troubles with the law

started at age 6 with a break-in. He

committed his first armed robbery at

12 and spent most of his life in reform
schools, mental institutions and jails.
He was the 48th person executed

ee , since the Supreme Court allowed states

to restore the death penalty in 1976.


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NEW. YORK TIMES, THURSDAY, SEPTEMBER 12, 1985; | 11

; Texan Executed for M urder
Committed at the Age of 17

: HUNTSVILLE, Tex., Sept. 11 (AP)
“|. Charles Rumbaugh, convicted of a
«') murder he committed in a robbery at
7. \'| the age of 17, was put to death today in
jan execution a human rights group
| charged violated international agree-
*|ments. - ee.

‘About all I can say is goodbye,”’ Mr.
Rumbaugh, now 28, told his personal
2] witnesses in the death chamber. Then

‘he said to the two dozen others gath-
ered to watch the lethal injection: ‘‘For
the rest of you, even though you don’t
forgive me for my trangressions, I for-
give you for yours against me. —
“That’s all I wish to say. I’m ready to
begin my journey.” :

His breathing became labored as the
drugs took effect, he gasped and
-|coughed twice. Two physicians pro-

nounced him dead at 12:27 A.M., the
first person in more than two decades
to be executed for a crime committed
under the age of 18.

Mr. Rumbaugh left instructions that
his body be cremated and the remains
be placed in a tiny coffin he had con-
structed of matchsticks, lined with vel-
vet and a red bandana, according to
D. J. Stubben, who wrote a book about
him.

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Attorney General Jini Mattox, asked
whether crimes by juveniles should
merit the death penalty, noted that the
case had gone before two juries and
“each determined he should be pun-
ished by death.” %
Amnesty International argued that
Mr. Rumbaugh’s death violated inter-
national agreements, never confirmed
by the Senate, that barred execution
for crimes committed before the age of
18. ;

Around the country, 32 juvenile
criminals are on death row, according
to Victor L. Streib, a professor of the
Cleveland Marshall College of Law at
Cleveland State University.

Texas held its last such execution
May 7, 1964, when James Andrew
Echols was executed for a rape com-
mitted when he was 17.

Amnesty International members
telephoned Gov. Mark White’s office to
try to halt the execution, according to
the Governor’s legal counsel,’ Leslie
Benitez. ayy

‘You’ve Got to Accept This’

In his last interview with reporters a
week ago, Mr. Rumbaugh said the’
rights group’s protest was not going to
have any effect. ‘‘Look where it’s at
now,” he said. ‘‘I have no more ap-
peals. You’ve got to accept this some

itime.”’ ;

About a dozen opponents of the death

“41 penalty carried candles outside the.
‘| prison.

The convict rejected any lavish final

‘| meal, choosing instead a tortilla and a

glass of water.

‘He believes the purpose of food is to
sustain life,’ said Mrs. Stubbeh, who
visited with Mr. Rumbaugh for about

two hours Tuesday, ‘‘so why should

“‘Ithey give him food to sustain his life

when they’re going to kill him in a cou-

cal to him.”’

‘| Mr, Rumbaugh spent his last hour
4a lying on a bunk, listening to the radio

and typing a letter to Mrs. Stubben’s
year-old daughter. The letter will be

=: opened in 13 years, she said, Mrs. Stub-
»!ben was a friend of Michael Fiorillo,
’<\the Amarillo jeweler slain by Mr. Rum-
“|baugh in a 1975 holdup: ‘‘He was des-
tined to end up where he is tonight,”’.

she said. “‘If he hadn’t killed Mr. Fioril-
lo, he would have ended up killing
someone else.”’ ; :

Mr. Rumbaugh’s troubles with the

law started at the age of 6 with a break-

ple of hours. It seems kind of hypocriti-

>| - Besides Mrs. Stubben, three sisters -
:S\ land a brother-in-law visited Mr. Rum-
-lpaugh. His mother went to the prison
‘y|but decided to not see her son. The
*t family would not talk to reporters. —

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_ By ROBERT REINHOLD ~_-
N.Y. Times News Service

HOUSTON — Texas plans to execute a man
Wednesday for a murder he committed at the
age of 17, focusing new attention on an poten-
tially emotional issue: should juveniles be sub-
ject to capital punishment?

The execution would be the first in more
than two decades for a crime committed by
someone under 18. Thirty-two others — all con-
victed of murders, three committed at the age
of 15 — await execution on death rows in the
United States. The most, nine, are here in
Texas.

The laws of 29 states permit such executions,
and one state, Indiana, explicitly permits ex-
ecutions of children as young as 10 years old.

Last week, Amnesty International, the Lon-
don-based organization that campaigns for the
rights of prisoners, said that Wednesday’s ex-
ecution would violate two international agree-
ments signed by the United States that forbid
capital punishment for crimes committed at
ages younger than 18. However, the two agree-

ments have never been ratified by the Senate.

The man scheduled to die Wednesday is
Charles Rumbaugh, now 27, condemned for
the murder of an Amarillo jeweler in a rob-
bery in 1975. He told an interviewer last week
that he had asked his lawyers to end their
efforts. “I’ve told them to leave it alone,’’ he
said. ‘I’ve been prepared for a long time.”’

Three of the other youths awaiting execution
were 15 at the time of their crimes. They are
-Leon Brown, convicted of the rape and murder

of an 11-year-old girl in North Carolina in 1983;

Wayne Thompson, convicted in Oklahoma last
year of the kidnapping and death by beating of
his former brother-in-law; and Joseph Aulisio,
for the 1981 murders of an 8-year-old girl anda
4-year-old boy in Pennsylvania.

The execution of juvenile criminals in the

noes)

Execution focuses

_ years,

d iS,
, pm ew
amen &: \ ae E: ws
“2's . Se oe “tn el eo ve
eS aa i,
; F i

United States is not new, though widespread
repugnance at the practice meant that it was
applied very unevenly over the years. Accord-
ing to research by Prof. Victor L. Streib of the

Cleveland Marshall’ College of Law at:

Cleveland State University, there have been
266 executions for child-age crimes since Col-
onial times; one of them as young as 10. The
professor traced the earliest to Massachusetts
in 1642 when a 16-year-old boy was put to death

* for the crime of buggery.

Over the years, 42 black youths under the
age of 18 were executed by Southern states for

the rape or attempted rape of white women.

The last child execution took place in Texas on
May 7, 1964, when James Andrew Echols, was
executed for raping a white girl at age 17.
Sixteen states explicitly permit executions
for under-18 crimes, setting the minimum
variously at 17, 16, 15, 14 and 10. The minimum
in New Jersey, for example,’ is 14. Eleven
other states have no minimum at all, although
the law there requires judges and juries to
consider age a mitigating factor when meting

~ out capital punishment. Three other states —

Delaware, Oklahoma and South Dakota —

_ Specify neither minimum age nor age as a |

mitigating factor and it is possible, in theory,

for a child of any age to be sentenced to death .
there. New York essentially has no death pen-

alty, except in very limited circumstances.
The minimum age in Connecticut is 18.

‘The impending executions raise difficult ©
_questions about. the capacity of children to

understand the difference between right and
wrong and whether the youthful criminal can
still be successfully rehabilitated. Lawyers for
them have argued that death is too severe a
penalty and the Supreme Court, while condon-
ing the death penalty generally in recent
has yet to rule specifically on
challenges to its juvenile application. In 1983,

on emotional issue

the House of Delegates of the American Bar

Association adopted a resolution opposing the

penalty for crimes committed under age 18.

Streib, an opponent of the death penalty,
maintains that whatever its retributional
value, the death penalty is a dubious deterrent
when it comes to adolescents.

“It seems clear that few adolescents have
any meaningful concept of death,’”’ he wrote
recently in Life Lines, published by the Na-
tional Coalition Against the Death Penalty. ‘‘In
fact, they seem to be attracted to death-defy-
ing behavior, so the threat of a death penalty
may actually encourage some juvenile crimes.
The entire gamut of justifications for the death
penalty in general seems to lose any per-
suasiveness when applied to adolescents.”’

On the other hand, some of their crimes
have been shocking. Johnny Frank Garrett of
Texas, for example, raped and killed a 76-
year-old nun in 1981 when he was 17. Lee Roy
Barrow was 17 when he beat to death a 70-
year-old paralyzed man in a wheel chair in
Texas. Frederick Lashley of Missouri robbed
and killed his handicapped mother in 1981
when he was 16, and Kevin Hughes raped and
murdered a nine-year-old girl in 1979.in Penn-
Sylvania at age 16. In New Jersey, Marko Bey
faces death, convicted of raping and killing
two teen-age girls in April 1983.

‘“‘The younger a person is the more reluctant
judges and prosecutors are to impose the
death penalty,’’ said James Farren, an assis-
tant district attorney in Potter County, in Tex-
as, where Rumbaugh was convicted of shoot-
ing the Amarillo jeweler. ‘‘There is more
chance of rehabilitation, but that must be
weighed against the seriousness of the crime.”’
When it comes to murder, he went on, ‘“‘What
is right and wrong is so obvious that a 17-year-
old should not have any difficulty making that
decision.”’ r

4

}


114

The sky tumbled on his head.

“Isn't that Villarreal? Isn't that the
man who murdered my father?” he
gasped.

“Blundering gringo idiot!” came the
reply.

It was as the officer said. Jeff Meers
--who had waited seven years in tor!
ture and madness to avenge his fa-
ther’s death — had killed the wrong
man!

Antonio Visconte had enemies—ene-
mies who had cunningly plotted his
death. Young Mcers had been putty in
artful hands.

Thus did the wheel of life and death
turn for Jeff Meers. For the “inexcusa-
ble murder” of Antonio Visconte he
was sentenced to the Chihuahua prison
for a twenty-year term. What was left
of his broken life was doomed to rot
in a Mexican cell.

OT LONG thereafter the real Man-

ual Villarreal was making love to
a beautiful senorita in an apartment
near the red light district in Mexico
City. He had just come from. the
mesquite country up north. He was in
an indolent, boastful mood,

“Whatoa brave man!” the senorita
purred,

“For hours I could go on,” Villarreal
whispered softly into her ear,

A harsh rap shook the door, Hastily
Manual strapped on his guns and fled
through a window. Lead splattered
against an adobe wall. He raced across
roof-tops, finally made his way to the
street. It seemed as if an army was fir-
ing upon his wiry, darting body.

Manual'’s guns began spitting lame.
The flame made a target. Manual Vil-
larreal tumbled headlong into a pud-

FRONT PAGE DETECTIVE

dle of mud—his gun silenced forever.

Villarreal, terror of the Border, out-
law par excellence, had been bested at
pistol shooting by two fast-trigger
agents of the Mexico Federal Police—
the G-Men of Mexico.

Jef! Meers' childhood sweetheart,
who had become his wife, was a fighter.
Night and day she worked to free her
husband from the hell-hole prison at
Chihuahua. We of the El Paso Police
Department helped her in her fight.

International political strings were
pulled. The idea was to trade prisoners
~Submarine Joe Carrasco for Jeff
Meers. The deal was effected on July
25, 1932; Carrasco was granted a full
pardon by Governor Ross Sterling of
Texas, and Jeff Meers was granted a
full pardon by Governor Rodigo Que-
vedo of Chihuahua. Each prisoner was
to return to his native land.

The arrangement was without prec-
edent. It took time for the complica-
tions to be ironed out. Finally the
transfer occurred at 3:10 a.m. on the
morning of April 20, 1933. Handcuffs
were taken from the two men in the
middle of the International Bridge
linking El Paso and Juarez.

Jef! Meers was met at the bridge by
his wife. They sobbed with joy in each
other's arms.

They went to Mrs. Meers’ apartment
and had breakfast at 4:30 a, Mm.

At nine o’clock that morning Jeff's
wife filed suit for divorce!

Dazed, broken, Jeff Meers left the
border, disappeared somewhere.

Submarine Joe, the killer who was
now released, walked down Juarez’
main street that morning and opened
a saloon. Guard Bittick had positively
identified only one killer—Submarine

Joe. He was now free. His pal Rueda’s
body was in a grave at the Huntsville,
Texas, penitentiary.

Early Spring of 1936 in El Paso was
like the Spring of 1924 when St. Vrain
Street ran with blood. In Charlie Bit-
tick’s memory that March day of 1924,
when the wind was howling and the
dirt flying, remained vivid. He hated
such days. Moreover, the years had
made him a sensitive and moody man.
Rheumatism from old wounds made it
possible for him to foretell the weather.

One early Spring day of 1936 exact-
ly paralleled that long-remembered
day of 1924. The sun rose like a giant
red fireball in a dust-laden mist. The
wind roared. ... . That morning Char-
lie Bittick walked into an El Paso sa-
loon.

“How are you this morning, Char-
lie?” the bartender greeted him.

Cheerlessly, Charlie Bittick replied:
“T have lived my life.”

“Shucks!” the bartender scoffed.
“You will always live in this town as
the greatest hero of them all, You
stopped the deadliest bandit gang in
border history. Damn_ it, Charlie,
you're a hero!"

“A hero?"

Bittick made the query cynically.

He added bitterly: “I’ve had too
many years whittled off my life with
bullets to be a hero or act like one.”

The old bartender studied Charlie
Bittick as he gulped a whiskey. Five
minutes later the bartender gulped a
stiff whiskey. He sopped tears from his
bleary cyes.

That was after Charlie Bittick, the
crippled hero, had jerked a gun from
his pocket and blown out his own
brains.

it with another man's wife.

Every woman in Stoddard County knew about
Art Robinson—and many a man in Stoddard
County hated him. For Robinson took his love

where he found it, and cared not at all if he found

‘So when Robinson's body was found hideously
burned to an unrecognizable mass near his lonely
shack, law officers well knew the motive for the
murder. They knew that literally dozens of men

were glad that the notorious wife-stealer was

MISSOURI'S MYSTERY OF THE SLAIN CASANOVA

For the amazing solution to this real-life, death
riddle, read INSIDE DETECTIVE for March, on sale

everywhere February Ist. In the same exciting

INSIDE DETECTIVE gives the inside story!

March INSIDE DETECTIVE

dead. But who was the guilty man?
It looked like an impossible case to solve—un-
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yt of pre-
someone

§ support-
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it to die.

kie Rum-
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ling to the

> had to be 7

and a nA ihe earns team a

Finding someone other than the
ACLU to listen to him became an
immediate problem. Rimbaugh
claimed that he was brutalized by
prison guards at Texas Youth Coun-
cil homes while incarcerated there
during the 1970s. He‘said while he
was at the Big Springs mental hos-
pital for a 90-day evaluation program
he was declared legally sane, mean-
ing that while in a confused state he
could not determine right from
wrong. He recited a chronicle of
drug-induced, self-mutilating inci-
dents. His parents’ motion before the
courts cited that since Chuckie was
13 he had a “history of self mutila-
tion and overt suicidal tendencies.”

The dramatic efforts of groups such
as the ACLU, and Amnesty Interna-
tional helped prevent the execution
of Chuckie Rumbaugh for two more
years. A spokeswoman for Amnesty
International argued that under an
agreement signed by the United
States in the 1960s, “Capital punish-
ment shall not be imposed upon per-
sons who at the time the crime was
committed were under 18 years of
age or over 70 years of age, nor shall
it be applied to‘pregnant women.”

Amnesty International sent a copy
of that statement with a letter to
then-Texas Governor Mark White in
July of 1985. The letter, in part:

“However heinous the crime, the
imposition on a young person of a
sentence of the utmost cruelty, which
denies any possibility of eventual re-
habilitation or reform, is contrary to
contemporary standards of justice
and humane treatment.”

Meanwhile, Rumbaugh insisted that
he wanted to die. He began to rave
incoherently, his sentences to re-
porters running down in spitted mad-
ness to shrieking curses, nasty words,
“Damn the ACLU! Damn Amnesty
International! Damn you all!”

His final appeals having run its
journey, his last day on earth began
at 3:20 a.m., Tuesday, September 10,
1985. Sleepy-eyed, he was awakened
by a burly guard at the Ellis Unit in
northeast Walker County. He ate a
breakfast of five pieces of bacon, 2
ounces of cereal, two eggs, three

pieces of toast and three ounces of

milk. .

After a hearty breakfast, Rumbaugh
showered and shaved and was asleep
again by 6:05 a.m.

One hour late he was awakened
and packed his belongings and was

escorted from the Ellis Unit at 8:37
a.m. He was taken to the Walls Unit
where the death chamber awaited
him.

He grumbled as he turned away
lunch, and said he did not want to
speak to any authorities of the state
or religious persons. At supper time
his stomach was still turning topsy-
turvy; he ate one flour tortilla and a
glass of water.

His visiting roster and witness list
to his execution consisted of his sis-
ter and brother-in-law; a male friend,
and his sister. Also on his visiting
list was his mother, but she decided
that she could not handle any last
goodbyes.

At 5:43 p.m., Rumbaugh changed
his mind about not seeing any reli-
gious persons. The prison chaplain
was summoned.

Asked if he had any last wishes,
Rumbaugh said he wanted to be cre-
mated and his ashes sent to a long-
time female companion. This grant-
ed, he immediately fashioned a
homemade, 8-inch-long coffin out of
matchsticks. A bell was attached.
Rumbaugh wanted to leave questions
and riddles behind. The prisoner was
escorted to the death chamber as a
bemoaning path of friends and rela-
tives bawled tears. Without flinch-
ing the condemned man took his
place on the gurney. As he was being
strapped down by heavy white straps,
he lifted his head and smiled unre-
morsefully at the mourning band.

The lethal dose of sodium thiopen-
tal, Pavulon (a muscle relaxant) and
potassium chloride was injected at
precisely 12:17 a.m. At 12:27 a
prison doctor pronounced him dead.

It took 30 seconds for the injection |.

to render him unconscious on the
gurney.

Charles Rumbaugh was the 10th
man to be executed in Texas since
the lethal injection method was first
used in December 1982. Before that, '
the last execution in Texas was car-
ried out in July 1964, by electrocu-
tion. Death by electrocution was
deemed “inhuman” in 1977 and the
method was changed to lethal injec-
tion.

While Rumbaugh was being put to

death, about 15 college-age students
and 13 members of Amnesty Inter-
national stood outside the prison, car-
rying lighted candles and protesting
the execution. The group said the ex-
ecution violated the international
agreements that barred executions of
persons under 18—an agreement
never ratified by the United States
Senate.

Justice Antonin Scalia confronted
that raucous controversy by saying:

“It is, to begin with, absurd to
think that one must be mature
enough to drive carefully, to drink
responsibly or to vote intelligently
in order to be mature enough to un-
derstand that murdering another hu-
man being is profoundly wrong, and
to conform one’s conduct to the most
minimal of all civilized standards.”

More than 2,000 condemned pris-
oners are now on death rows
throughout the United States, packing
facilities and pulverizing state and
federal appeal systems at a cost to
taxpayers that are said to be any-
where from $1 million to $20 million
from the time of an arrest to the time
of a final appeal. *

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414 Tex.

Charles RUMBAUGH, Appellant,
Vv

The STATE of Texas, Appellee.
No. 59940.

Court of Criminal Appeals of Texas,
En Banc.

June 20, 1979.
Rehearing Denied Nov. 28, 1979.

Defendant was convicted by a jury in
the 181st Judicial District Court, Potter
County, George E. Dowlen, J., of capital
murder, and was sentenced to death. De-
fendant appealed. The Court of Criminal
Appeals, Roberts, J., held that: (1) exclu-
sionary rules of evidence applied at punish-
ment phase of capital trial, and (2) statuto-
ry rule of evidence that excluded oral con-
fessions made in custody applied to punish-
ment phase of capital trial, and thus trial
court erred in admitting evidence of de-
fendant’s oral confessions, and recording
thereof could not be used at any retrial.

Reversed and remanded.
Dally, J., concurred in result.

Douglas, Odom, Tom G. Davis and W.
C. Davis, JJ., dissented.

1. Homicide @=354

Exclusionary rules of evidence applied
at punishment phase of capital murder trial,
where neither of sentences in applicable
statute on which State relied purported on
its face to change any rules of evidence
other than scope of relevance, history of
their origins demonstrated that there was
no intent that they make any additional
changes in law of evidence, and Legislature
had deliberately omitted a sentence that
would have abolished exclusionary rules of
evidence. (Per Roberts, J., with three
Judges concurring and one Judge concur-
ring in result.) Vernon’s Ann.C.C.P. art.
87.071(a).

589 SOUTH WESTERN REPORTER, 2d SERIES

2. Homicide @=354

The very choice by Legislature to es-
tablish a bifurcated procedure in capital
cases, like one in noncapital cases, evinced
its intention to eliminate rule of evidence
that excluded proof of extraneous offenses;
that is, by choosing a bifurcated procedure,
Legislature abolished rule of evidence that
excluded proof of extraneous offenses, and
by deliberately choosing not to abolish other
exclusionary rules of evidence, Legislature
had kept them in effect at punishment
phase of a capital trial. (Per Roberts, J.,
with three Judges concurring and one
Judge concurring in result.) Vernon’s Ann.
C.C.P. arts. 37.07, 87.07, § 3(a), 37.071.

3. Homicide ¢=354

Even if amendment to confession stat-
ute to make admissible electronic recording
of oral statement made as result of custodi-
al interrogation, but only for impeachment
and only when, among other things, accused
is told that a recording is being made, was
applicable to instant capital murder case,
trial court’s ruling would have been an er-
ror, for statements in question were used as
direct evidence and defendant was not told
that a recording was being made. (Per
Roberts, J., with three Judges concurring
and one Judge concurring in result.) Ver-
non’s Ann.C.C.P. art. 38.22.

4. Criminal Law ¢517(7)

With exception of res gestae state-
ments and statements that are found to be
true and to conduce to establish guilt
through finding of physical evidence, all
types of admissible oral and written confes-
sions require some formalities in their mak-
ing: written and signed statements that
show on their face that they were made
after statutory warnings were given, state-
ments made at an examining trial, and now
electronically recorded statements that
were made in presence of two witnesses
after warnings were given, including warn-
ing that recording was being made. (Per
Roberts, J., with three Judges concurring
and one Judge concurring in result.) Ver-
non’s Ann.C.C.P. art. 38.22.

RUMBAUGH v. STATE Tex. 415
Cite as, Tex.Cr.App., 589 S.W.2d 414

5. Homicide 354

Statutory rule of evidence that exclud-
ed confessions made in custody applied to
punishment stage of capital. murder trial,
and thus trial court erred in admitting evi-
dence of oral confessions, and recording
thereof could not be used at any retrial.
(Per Roberts, J., with three Judges concur-
ring and one Judge concurring in result.)
Vernon’s Ann.C.C.P. art. 38.22.

James D. Durham, Jr., Amarillo, court
appointed on appeal, for appellant.

Thomas A. Curtis, Dist. Atty., John By-
ron Reese and Steve Schiwetz, Asst. Dist.
Attys., Amarillo, Robert Huttash, State’s
Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

After he had been arrested on a charge of
capital murder, the appellant escaped from

_the Potter County jail. He and two other

inmates who escaped were arrested for a
traffic violation in Scurry County. As they
were being taken into the Scurry County
Courthouse, the three arrestees assaulted
the arresting officer and took his gun, but
they were recaptured immediately. After
they were taken before a magistrate (see
Article 15.17, V.A.C.C.P.), they were con-
fined in the Scurry County sheriff's office.
The arrestees did not know that their con-
versations were being recorded on tape as
they talked among themselves and with
other persons in the office.

At the punishment phase. of the appel-
lant’s trial for capital murder, and over the
appellant’s objection, the trial court re-
ceived in evidence portions of the long tape
recording. These portions included the ap-
pellant’s statement to the arresting officer,

1. “Q > [Evidently by a deputy sheriff]: Who'd
you kill?
“A [By the appellant]: A jewelry store owner.
“Q He pull a gun on you?
“A Yeah. He wasn’t fast enough. He wasn’t
fast enough. I shot him. Well, first I

“If I'd a-had a gun I sure as hell would
have shot you, man”; his statement to the
arresting officer explaining his plan to
“jump” the officer with a knife; his state-
ment to his companion, complaining about
not being given the officer’s gun so that he
could have staged a “showdown”; his state-
ment to officers that he doubted that he
would ever sit in the electric chair, and his
description of the capital murder.! These
damaging and inculpatory statements were
offered on the issues stated in Article 37.-
071(b), V.A.C.C.P. After hearing these
statements and other evidence, the jury an-
swered the issues “yes,” which fixed the
punishment at death.

In his twelfth ground of error, the appel-
lant contends that the court erred in admit-
ting into evidence one of the statements on
the tape (“If I’d a-had a gun I sure as hell
would have shot you, man.’’), because it was
not admissible under Article 38.22, V.A.C.
C.P. The appellant does not explain why
he mentions only that statement, for his.
objection applies with equal (or greater)
force to the later statements on the tape.
At trial the appellant objected on the same
ground to all the statements. The error
complained of embraces all the statements.

[1,2] The trial court overruled the ob-
jection on the ground that he was bound to
reject only evidence that was “in violation
of” the constitutions of the United States or
Texas. Similarly, the State argues on ap-
peal that the tape, although inadmissible at
the guilt stage of the trial, was admissible
at the punishment stage “because no consti-
tutional rights were violated.” The ruling
and the argument are based on the two
sentences of Article 37.071(a), V.A.C.C.P.
that are emphasized:

“Upon a finding that the defendant is
guilty of a capital offense, the court shall
conduct a separate sentencing proceeding
to determine whether the defendant shall
be sentenced to death or life imprison-

strug—you know, knocked him down a cou-
ple times, put it up to his head and shot. But
somehow it miraculously missed him, man,
not through no fault of my own. I think he
moved. Same time as I shot him in the
chest. He didn’t move any more.”

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416 Tex.

ment. The proceeding shall be conducted
in the trial court before the trial jury as
soon as practicable. In the proceeding,
evidence may be presented as to any mat-
ter that the court deems relevant to sen-
tence. This subsection shall not be con-
strued to authorize the introduction of
any evidence secured in violation of the
Constitution of the United States or of
the State of Texas. The state and the
defendant or his counsel shall be permit-
ted to present argument for or against
sentence of death.”

Although the first of these emphasized sen-
tences gives the trial court wide discretion
in determining the relevance of facts
sought to be proved in the proceeding, the
sentences do not abolish the rules of evi-
dence. Porter v. State, 578 S.W.2d 742, 748
(Tex.Cr.App.1979).

That the Legislature deliberately chose
not to abolish the exclusionary rules of evi-
dence is shown by considering the legisla-
tive history of Article 37.071(a). The revi-
sion of Texas’s law on capital crimes began
with House Bill 200 in the 68rd Legislature.
Not much of that bill (and nothing relevant
to this case) survived? After the bill
passed the House, the Jurisprudence Com-
mittee of the Senate recommended an
amended version which substituted an en-
tirely different bill. The procedural as-
pects of this bill were virtually identical 4 to
those of the Florida Capital Punishment
Act,’ which had been enacted only a few
months before. The pertinent portion of
the Senate bill? read:

“Article 37.071. PROCEDURE IN
CAPITAL CASE.

2. See “Comment, House Bill 200,” 11 Hous.L.
Rev. 410 (1974).

3. “Transcript of Debate on H.B. 200, May 23,
1973,” page 7 (Remarks of Senator Ogg). The
document is in the Texas Legislative Reference
Library file on H.B. 200.

4. “[I]t is basically like the Florida law.” Id. at
3.

5. 1972 Florida Laws, chapter 72-724; codified
as Fla.Stat.Ann., Section 921.141 (West Supp.
1979). The Florida act, in turn, is very much

589 SOUTH WESTERN REPORTER, 2d SERIES

(a) Upon a finding that the defendant is
guilty of a capital offense, the court shall
conduct a separate sentencing proceeding
to determine whether the defendant
should be sentenced to death or life im-
prisonment. The proceeding shall be con-
ducted in the trial court before the trial
jury, unless waived, as soon as practica-
ble. If the trial jury has been waived or
if the defendant pleaded guilty, the sen-
tencing proceeding shall be conducted be-
fore a jury empaneled for that purpose
unless waived by the defendant. In the
proceeding, evidence may be presented as
to any matter that the court deems rele-
vant to sentence, and shall include mat-
ters relating to any of the aggravating or
mitigating circumstances enumerated in
Subsections (e) and (f) of this section.
Any evidence that the court deems to
have probative value may be admitted,
regardless of its admissibility under the
exclusionary rules of evidence, but the
defendant shall be accorded a fair oppor-
tunity to rebut any hearsay statements.
This subsection shall not be construed to
authorize the introduction of any evi-
dence secured in violation of the Consti-
tution of the United States or of the
State of Texas. The state and the de-
fendant or his counsel shall be permitted
to present argument for or against sen-
tence of death. [Emphasis supplied]”
It will be noted that in this bill, between
the two sentences on which the State relies,
there was another sentence which would
have abolished the exclusionary rules of
evidence in the punishment phase of a capi-
tal trial. After the bill passed the Senate,
the House refused to concur in the amend-
ments, and the bill was referred to a confer-
ence committee.’ In the process of resolv-

like Section 210.6 of the Model Penal Code
(Proposed Official Draft 1962).

6. See Ehrhardt & Levinson, ‘‘Florida’s Legisla-
tive Response to Furman,” 64 J.Crim.L. & C. 10
(1974).

7. The bill is in the Texas Legislative Reference
Library file on H.B. 200.

8. ‘Comment, House Bill 200,” supra note 2, at
418 (citing House and Senate Journals).

A a eh tebe

RUMBAUGH vy. STATE

Tex. 417

Cite as, Tex.Cr.App., 589 S.W.2d 414

ing the differences between the bills, the
conference committee made many modifica-
tions.® The conference committee’s bill was
approved by overwhelming majorities of
both houses and was signed into law,! so
the actions of the conference committee
express the Legislature’s intent.

The conference committee made several
changes in Article 87.071(a). First, it re-
moved references to waiver of jury trial,
because it decided that no waiver would be
permitted." Second, it removed references

‘to aggravating and mitigating circumstanc-

es, because it substantially rejected that
concept. Third, and most significantly for
our purposes, it deleted the sentence that
would have abolished the exclusionary rules
of evidence in the punishment phase of a
capital trial. This can only mean that the
Legislature deliberately chose not to abolish
those rules. The legislative intent is clear.

Additionally, an examination of the con-
text in which arose the two sentences }3 on
which the State relies will show that these
sentences were not intended to abolish all
but the constitutionally mandated rules of
evidence.

The first of these sentences was the re-
sult of a disagreement in Florida over the
scope of the punishment hearing. The gov-
ernor of that state proposed a bill which
would have limited the evidence to matters
that were relevant to the enumerated ag-
gravating and mitigating circumstances.
The Florida Legislature amended the bill to
expand the scope of relevance to any evi-
dence that was relevant to sentencing, in
addition to the enumerated circumstances.
Thus, it may be seen that the effect of this
sentence is to expand the trial court’s dis-
cretion as to relevance, but it does not alter

9. Id. at 418-420 (Table 1).
10. Id. at 420.

Il. Id. at 419 (Table 1, no. 7); see Article 1.14,
V.A.C.C.P. (1973 Texas Acts, Chapter 426, Arti-
cle 3, Section 5).

12. “Comment, House Bill 200,” supra note 2, at

419 (Table 1, no. 8); see Article 37.071(b), V.A.
C.C.P,

other aspects of the law of evidence. We so
held in Porter v. State, 578 S.W.2d 742, 748
(Tex.Cr.App.1979).

The other sentence on which the State
relies is the one that deals with “evidence
secured in violation of the Constitution.”
The Florida Legislature added that sen-
tence in an evident abundance of caution, so
that no one could be misled by the preced-
ing sentence (which abolished “the exclu-
sionary rules of evidence”) into thinking
that the exclusionary rule of the Fourth
Amendment had been affected.5 Most (if
not all) of the significance of this sentence
disappeared when the Texas Legislature
omitted the sentence that abolished the ex-
clusionary rules of evidence. Thus it may
be seen that this sentence was intended
only as a caution, not as an abolition of all
the nonconstitutional rules of evidence.

Neither of these sentences on which the
State relies purports on its face to change
any rule of evidence other than the scope of
relevance. The history of their origins
demonstrates that there was no intent that
they make any additional changes in the
law of evidence. When we consider the
additional fact of the Legislature’s deliber-
ate omission of the sentence that would
have abolished the exclusionary rules of
evidence, we are compelled to hold that the
exclusionary rules of evidence do apply at
the punishment phase of a capital trial.

This holding is consonant with our earlier
holdings that the rule of evidence that ex-
cludes hearsay is applicable in the punish-
ment phase of a capital trial. See Porter v.
State, 578 S.W.2d 742 (Tex.Cr.App.1979);
Cortez v. State, 571 S.W.2d 308 (Tex.Cr.
App.1978).

13. “In the proceeding, evidence may be
presented as to any matter that the court
deems relevant to sentence. This subsection
shall not be construed to authorize the intro-
duction of any evidence secured in violation of
the Constitution of the United States or of the
State of Texas.” V.A.C.C.P., Article 37.07 1(a).

14. Ehrhardt & Levinson, supra note 6, at 16 n.
63.

15. Id. at 14-16, especially at n. 46.


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418 Tex.

There is no conflict between today’s hold-
ing and our earlier holdings that evidence
of unadjudicated, extraneous offenses is ad-
missible at the punishment phase of a capi-
tal trial. See Garcia v. State, 581 S.W.2d
168 (Tex.Cr.App.1979); Wilder v. State, 583
S.W.2d 349 (Tex.Cr.App.1979); Hammett v.
State, 578 S.W.2d 699, 709 (Tex.Cr.App.
1979). In each opinion we have said,
“Nothing in Article 37.071 requires that
there be a final conviction for an extrane-
ous offense to be admissible at the punish-
ment phase of the [capital] trial.” The
statement implies a comparison with Article
37.07, Section 3(a), V.A.C.C.P.,!6 which, in
the punishment phase of a non-capital trial,
does limit proof of a defendant’s prior crim-
inal record to final convictions and other
adjudicated offenses. The significance of
the comparison is this: In a non-bifurcated
trial, in which the issues of guilt and pun-
ishment are litigated at the same time,
there is a rule of evidence that excludes
proof of extraneous offenses because it con-
fuses and prejudices the issue of guilt. J.
Wigmore, Evidence, Section 55 (8rd ed.
1940). The purpose of a bifurcated proce-
dure is to eliminate the need for this exclu-
sionary rule of evidence. Garcia v. State,
581 S.W.2d 168 (Tex.Cr.App.1979); Ameri-
can Law Institute, Model Penal Code 74-75
(Tentative Draft No. 9, 1959). The very

16. ‘Regardless of the plea and whether the
punishment be assessed by the judge or the
jury, evidence may be offered by the state and
the defendant as to the prior criminal record of
the defendant, his general reputation and his
character. The term prior criminal record
means a final conviction in a court of record, or
a probated or suspended sentence that has oc-
curred prior to trial, or any final conviction
material to the offense charged.”’ Article 37.-
07, Section 3(a), V.A.C.C.P.

17. The issue that divided the court in Butler
(whether the rule applied to mere statements
that were not “confessions”) is not present in
this case, for at least two of the statements
were confessions to crimes: the appellant’s ex-
planation of his plan to jump the officer and his
description of the capital murder.

18. The appellant’s statements were made on
December 8, 1975. In effect at that time was
1967 Texas Acts, Chapter 659, Section 23.
That earlier version of Article 38.22 provided in
part:

589 SOUTH WESTERN REPORTER, 2d SERIES

choice by the Legislature to establish a bi-
furcated procedure in capital cases, like the
one in non-capital cases, evinces its inten-
tion to eliminate the rule of evidence that
excludes proof of extraneous offenses.
Had it wanted to limit the proof in capital
trials to adjudicated offenses, it could have
provided so in Article 37.071, as it has in
Article 37.07. There being nothing in Arti-
cle 37.071 to require such a limitation, this
Court cannot impose it. The net result is
that, by choosing a bifurcated procedure,
the Legislature abolished the rule of evi-
dence that excludes proof of extraneous
offenses; by deliberately choosing not to
abolish the other exclusionary rules of evi-
dence, the Legislature has kept them in
effect at the punishment phase of a capital
trial.

[3-5] The statutory rule of evidence
that excludes proof of an oral confession by
a person in custody has existed in Texas
since 1907. The history of the rule is sum-
marized in Butler v. State, 4938 S.W.2d 190
(Tex.Cr.App.1978),!”7 and is brought up to
date in Bubany, “The Texas Confession
Statute,” 10 Texas Tech.L.Rev. 67 (1978).
Since 1965, the rule has been codified as
Article 38.22, V.A.C.C.P. There were a few
exceptions in the statute that was in ef-
fect ® when ‘the appellant made his oral

“1. The oral or written confession of a
defendant made while the defendant was in
jail or other place of confinement or in the
custody of an officer shall be admissible if:

“(a) it be shown to the voluntary state-
ment of the accused taken in the presence of
an examining court in accordance with law;
or

oe * *

“(e) It be made orally and the defendant
makes a statement of facts or circumstances
that are found to be true, which conduce to
establish his guilt, such as the finding of
secreted or stolen property, or the instrument
with which he states the offense was com-
mitted.

“(f) Nothing contained herein shall pre-
clude the admissibility of any statement
made by the defendant in open court at his
trial or at his examining trial in compliance
with Articles 16.03 and 16.04 or of any state-
ment that is the res gestae of the arrest or of
the offense.”

|

JONES v. STATE Tex. 419
Cite as, Tex.Cr.App., 589 S.W.2d 419

confessions, but none of the exceptions ap-
plies here.

In 1977, four years after the capital pun-
ishment statutes !® were enacted, the Legis-
lature amended Article 38.22, V.A.C.C.P. to
make admissible an electronic recording of
an oral statement made as a result of custo-
dial interrogation, but only for impeach-
ment and only when (among other things)
the accused is told that a recording is being
made.” Even if this relaxation of the rule
applied to this case,” the trial court’s ruling
would have been an error, for the state-
ments were used as direct evidence and the
appellant was not told that a recording was
being made. We should not. be misunder-
stood as implying that the 1977 amend-
ments apply. The point is to demonstrate
the continuing strength of the Legislature’s
policy against the admission into direct evi-
dence of oral confessions made informally.
We note that, with two exceptions,” all
types of admissible oral and written confes-
sions require some formalities in their mak-
ing: written and signed statements that
show on their face that they were made
after statutory warnings were given, state-
ments made at an examining trial, and
(now) electronically recorded statements
that were made in the presence of two
witnesses after warnings were given (in-
cluding a warning that the recording was
being made). Article 38.22, V.A.C.C.P.

' Perhaps these requirements of formalities

are designed to guard against the danger
that casually made oral statements are “so
liable to be misunderstood.” See Pierson v.
State, 145 Tex.Cr. 388, 168 S.W.2d 256, 259
(1943). Especially might this danger be
great if an accused, who did not know his
words were being recorded, were engaged
in boasting and in making himself out to be
a fearsome desperado in the eyes of his
companions and in the face of peace offi-
cers. Anyone who listened to the entirety

19. 1973 Texas Acts, Chapter 426.
20. 1977 Texas Acts, Chapter 348, Section 2.
21. “This Act applies only to statements made

on or after its effective date [August 29, 1977].”
1977 Texas Acts, Chapter 348, Section 3.

of this recording would conclude that the
18-year-old appellant was doing just that.

However this may be, the wisdom of this
legislative policy is not a matter for this
Court. Butler v. State, 493 S.W.2d 190, 198
(Tex.Cr.App.1973). It is for us to hold that
the statutory rule of evidence that excludes
oral confessions made in custody does apply
to the punishment phase of a capital trial,
that the trial court erred in admitting evi-
dence of the oral confessions, and that the
recording may not be used at any retrial.

The judgment is reversed and the cause is
remanded.

DALLY, J., concurs in the results.

DOUGLAS, ODOM, TOM G. DAVIS and
W. C. DAVIS, JJ., dissent.

Ww
° £ KEY NUMBER SYSTEM
T

Kenneth Ray JONES, Appellant,
v.
The STATE of Texas, Appellee.

No. 61019.

Court of Criminal Appeals of Texas,
Panel No. 8.

June 20, 1979.
Rehearing En Banc Denied Sept. 19, 1979.

Probation was revoked by the 182nd
Judicial District Court, Harris County, Lee
Duggan, Jr., J., and defendant appealed.
The Court of Criminal Appeals, Odom, J.,
held that: (1) statute under which it was
necessary for State to prove, when revoking

22. The exceptions are res gestae statements
and statements that are found to be true and to
conduce to establish guilt through the finding
of physical evidence. The theory is that these
types of informal statements are verified by
external circumstances.


412

Lines, 583 F.2d 199, 202 (5th Cir.1978);
Backar v. Western States Producing Co.,
547 F.2d 876, 884 (5th Cir.1977).
these reasons, we defer to the trial court’s
expertise in such matters absent clear er-
ror. United States v. Hayes, 589 F.2d 811,
822-23 (5th Cir.), cert. denied, 444 U.S.
847, 100 S.Ct. 98, 62 L.Ed.2d 60 (1979);
United States v. Fratus, 530 F.2d 644, 647
(5th Cir.), cert. denied, 429 U.S. 846, 97
S.Ct. 130, 50 L.Ed.2d 118 (1976).!?

The measure of an individual’s competen-
cy under Rees to waive federal habeas re-
view in a death case is informed by consid-
erations very different from those underly-
ing the standard for competency to stand
trial. Focusing not merely on the minimal
cognitive and communicative capabilities
necessary to stand trial, Rees requires a
finding of incompetency if there is a possi-
bility that a mental disease or defect sub-
stantially impairs the individual’s rationali-
ty. Cf United States v. McEachern, 465
F.2d 838, 836-39 (5th Cir.) (holding that 18
U.S.C. § 4244 mandates inquiry as to com-
petency to stand trial upon mere possibility
that defendant is incompetent), cert. de-
nied, 409 U.S. 1043, 93 S.Ct. 539, 34
L.Ed.2d 494 (1972), discussed in United
States v. Crosby, 739 F.2d 1542, 1545-46
(11th Cir.), cert. denied sub nom. Hirsch v.
United States, US. , 105 S.Ct. 576,
83 L.Ed.2d 515 (1984). The type of “ration-
ality” relevant to waiving review is em-
phatically not congruous with that required
to stand trial. Rumbaugh, for example,
undoubtedly possesses faculties sufficient
- to preserve his right to a fair trial under
Dusky, but, as the discussion in Part II
above indicates, these faculties are not dis-

12. Fratus, cited by majority as sole authority for
applying clearly erroneous review in this case,
involved a competency to stand trial determina-
tion. The proper standard of appellate review
of a trial court ruling under Rees is an issue of
first impression in this and every other circuit.
While the majority seems to recognize the nov-
elty, one can only wonder at the statement,

We find no reported case applying the Rees
standard to a defendant's decision to forgo
further appeals and collateral proceedings
which decides how a court should treat a
mental disease which ... impacts only on ...
the person’s ability to make a rational choice

For all

753 FEDERAL REPORTER, 2d SERIES

positive of his competency to waive review

‘in the instant case. The particular exper-

tise of a trial court is of limited value
where the inquiry is shaped almost exclu-
sively by the reports and conclusions of
experts, especially where, as here, the
question requires the application of a com-

- plex legal standard to the doctors’ findings

and conclusions. The demeanor of the de-
fendant before the trial court is virtually
irrelevant. Rumbaugh’s initial refusal to
take the stand would have meant complete
reliance on expert opinion; to the extent
his appearance might have informed the
trial court’s conclusion, the discussion thus
far should indicate the limited value of
superficial observation in apprising the ef-
fects of Rumbaugh’s mental illness. See
supra Part II. Unlike the question of ca-
pacity to participate meaningfully at trial,
the question of capacity for rational choice
requires a more probing inquiry, where the
observer’s interpretation is of much great-
er consequence than his perception. Thus,
while both competency to stand trial and
competency to waive federal collateral re-
view are mixed questions of fact and law,
the former warrants clearly: erroneous re-
view by virtue of considerations that are
absent in the present case. An inquiry
under Fees is precisely the kind of mixed
question we decide after conducting a de
novo review. See United States v. Foola-
di, 703 F.2d 180, 183 (5th Cir.1983); Baty »v.
Balkcom, 661 F.2d 391, 394 n. 7 (5th Cir.
1981), cert. denied, 456 U.S. 1011, 102 S.Ct.
2307, 73 L.Ed.2d 1808 (1982); Washington
v. Watkins, 655 F.2d 1346, 1351-54 (5th
Cir.1981), cert..denied, 456 U.S. 949, 102
S.Ct. 2021, 72 L.Ed.2d 474 (1982); Ameri-

among available options. We must now ad-

dress that issue. We find it essentially to be a

factual question.
At 399 (emphasis added) (footnote omitted).
Facts inevitably inform the resolution of legal
rules, but the convergence of fact and law does
not magically convert a question of law into one
of fact. The question of “how a court should
treat a mental disease” could as well inquire as
to “the legal effect of a mental disease.” Be-
cause the issue requires us primarily to engraft
a legal norm onto a factual predicate—rather

. than to ask whether a trial court’s findings are

arguably correct—the essence of fact eludes me.

RUMBAUGH v. PROCUNIER

411

Cite as 753 F.2d 395 (1985)

certain substantive categorizations. When
we affix the label “competent,” for exam-
ple, we do not merely describe the person,
we also draw a legal conclusion about
him.!° We do not merely “see” his compe-
tency—we both see and interpret.

In the case of ‘‘competency” and “ration-
ality,” our inquiry is further clouded by the
fact that “competency” and “rationality”
are relative concepts, significant only with
regard to a given environment. As judges,
we pronounce that an individual may be
competent or rational enough to perform
some acts but not others. A defendant’s
competency to stand trial is gauged at a
level different from that of competency to
waive a trial right or to commit a pro-
scribed act. Westbrook v. Arizona, 384
U.S. 150, 86 S.Ct. 1820, 16 L.Ed.2d 429
(1966) (per curiam); Massey v. Moore, 348
U.S. 105, 75 S.Ct. 145, 99 L.Ed. 185 (1954).
These conceptual differences infuse a pro-
portional mix of fact and law that varies
among types of competency determinations
and that consequently entails shifting re-
sponsibilities as between the trial and ap-
pellate courts. As a result, in reviewing a
lower court’s decision, we cannot simply
take a problem, identify it as one of “com-
petency,” characterize “competency” as a
question of “fact,” and chant, “Hokus-po-
kus, the clearly erroneous standard of re-
view applies.” More is required: we must
undertake a functional analysis of the un-
derlying issues to determine whether those
issues are better resolved at the trial or the
appellate level.

For instance, the constitutional standard
of competency to stand trial is “whether
[the defendant] has sufficient present abili-
ty to consult with his lawyer with a reason-

10. Ostensibly empirical observations may well
embody underlying value biases. Consider, for
example, the difference between categorizing a
violent conflict as a “riot” or a “revolution,” or
between categorizing a person as a “terrorist” or
a “guerilla.” See Taylor, “Neutrality in Political
Science,” in The Philosophy of Social Explana-
tion 139-70 (A. Ryan ed. 1973).

11. Federal law requires the trial court to solicit
psychiatric testimony as to a defendant's mental
condition whenever competency is raised either
by motion of the parties or sua sponte. 18

able degree of rational understanding—and
whether he has rational as well as factual
understanding of the proceedings against

him.” Dusky v. United States, 362 U.S.

402, 408, 80 S.Ct. 788, 789, 4 L.Ed.2d 824
(1960) (per curiam). As applied by this
circuit, the Dusky formulation requires
thatthe defendant have “the present men-.
tal ability meaningfully to participate in his
defense.” Johnson v. Estelle, 704 F.2d
232, 237 (5th Cir.1983), cert. denied sub
nom. Johnson v. McKaskle, — U.S. —,
104 S.Ct. 1006, 79 L.Ed.2d 287 (1984). This
standard reflects the minimum level of a
defendant’s potential participation required
to preserve his right to a fair trial. Al-
though subject to expert opinion similar to
that where competency of any sort is at
issue,!! the determination of competency to
stand trial is particularly well-addressed by
the trial court, whose first-hand familiarity
with the type of participation required of a
defendant would not be meaningfully sup-
plemented by intensive scrutiny on appeal.
Moreover, the trial court’s evaluation of
competency is often based in part on dis-
cussions with the defendant, see Woodall v.
Foti, 648 F.2d 268 (5th Cir.1981), and noth-
ing in the competency to stand trial deter-
mination necessitates an inquiry into the
presence, absence, or effect of a ‘mental
disease, disorder, or defect.”” See general-
ly Pizzi, Competency to Stand Trial in
the Federal Courts: Conceptual and Con-
stitutional Problems, 45 U.Chi.L.Rev. 21,
37-38, 538-55 (1977). The inquiry is akin to
those that, while presenting mixed ques-
tions of fact and law, are deemed predomi-
nantly factual for purposes of our standard.
of review. See, e.g., Connally v. Transcon

U.S.C.A. § 4244 (1969); United States v. McEac-
hern, 465 F.2d 833, 837 (5th Cir.), cert. denied,
409 U.S. 1043, 93 S.Ct. 539, 34 L.Ed.2d 494
(1972). Moreover, the Supreme Court has held
that, at least where state law mandates a compe-
tency investigation upon reasonable belief that
the defendant might be incompetent, the failure
to conduct such an inquiry violates the defend-
-ant’s due process right to a fair trial. Drope v.
Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43
L.Ed.2d 103 (1975); Pate v. Robinson, 383 US.
375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

~RUMBAUGH v. PROCUNIER ©

409

Cite as 753 F.2d 395 (1985)

he might, indeed, opt to continue with
appeals with the hope that he could re-
ceive a different type of care in the fu-
ture that might change his condition.

Q. So, in your opinion, it may sub-
stantially effect [sic] his competency to
make that decision; that’s what you said
in your narrative, isn’t it?

A. Yes.

Q. And that’s still your opinion?

A. Yes.

[Q.] What I’m trying to do is figure
out where on [some] scale Mr. Rum-
baugh falls with regard to the depression
effecting [sic] his mental state or his
decision|.]

A. I think you would have to say it’s
substantial, because if it were not
present to the degree it is, his course of
action would conceivably be different.

Record vol. 1, at 212, 218, 216-17, 224, 236,
248. If Logan’s testimony is to be deemed
largely dispositive on the issue of Rum-
baugh’s competency, I cannot countenance
a finding other than that his defect may
substantially affect his capacity in the
premises.

The nub of the district court’s and major-
ity’s resolution is that Rumbaugh appreci-
ates his circumstances and can reason logi-
eally. On this view, a person’s cognition,
his understanding, is deemed tantamount
to an ability to choose rationally. The ar-
gument is rooted in statements such as,
“His assessment of his options, his current
legal situation was very factual, it was
very logical,” id. at 226, and “his answers
to [the questions submitted to him] ...
were very cogent answers for the most

8. There was considerable discussion by each
witness as to whether Rumbaugh’s depression
generated the desire to die—in which case his
desire to die would be involuntary—or, alterna-
tively, whether Rumbaugh’s awareness of his
disease and its incurability produced the suicid-
al urge—in which case his desire to die would
be autonomous. The Kaufman testimony
is indicative:

Two things. One, with this mental disor-
der, that is, when one suffers a major depres-
sion ... a major depressive episode, very,

part,” id.; see also id. at 218. Further, we
are quoted with confidence the ultimate
colloquy between the trial court and Logan,
where the expert was heard to admit that
Rumbaugh’s decision is “rational based on
what he presently faces,” zd. at 245, but we
are not quoted what immediately ensued:

A. ... Once again, the man’s depres-
sion, the fact that he is miserable, let
me use the Judge’s own words, the
fact that he is miserable, that he finds
his current situation intolerable cer-
tainly influences his decision to decline
further appeal.

Q. And that’s a mental illness, isn’t that
correct?

A. Yes.

Q. And that substantially gees fsie|
his .

A. I think the dilemma people are
struggling with is that someone can be
mentally ill for very realistic reasons.

Q. Absolutely. And the issue before
this Court is not whether he’s going to
receive future treatment or anything;
the issue is at the time you examined
him and made your diagnosis, he was

_ suffering from a mental illness that
substantially effected [sic] his compe-
tency to act in the premises, is that

correct or not?

A. That’s what I said.

Id. at 246. The record reveals that every

statement suggesting Rumbaugh can ra-

tionally digest his own psychological and
legal status is emphatically qualified by a
subsequent discussion of how—to adopt
Dr. Dickerson’s phrasing—Rumbaugh’s _
logic almost certainly operates in service of |
his mental disorder.®

very often part of the illness itself is to be-
come suicidal and to be hopeless.

This is a part of the illness. '

In turn, that creates a situation where one is
both wanting to kill one’s self and feels hope-
less about the situation; and yet, one wants
treatment for this enormous pain that one is
in.

So he would like the help and yet his previ-
ous experience is that there is no help avail-
able. And so you get into a kind of circular
problem where the illness causes him to be
severely depressed, hopeless and suicidal.

— 410

As Rees would have us bridge the sy-
napses, Logan’s testimony supports rather
than refutes the theory that Rumbaugh is
incapable of rationally choosing whether to
assert his legal rights. Logan’s testimony
is consistently buttressed by that of Kauf-
man and Dickerson, and it is not per-
_ Suasively contended otherwise by Parker.
Moreover, the psychiatric and psychological
evaluations themselves speak in unison to
the substantial effects of Rumbaugh’s ill-

ness on his actions and his thoughts—ef- —

fects which have a him for an entire
life.

If we must adopt the metaphysics of
Rees, we must also accept that an individu-
al can espouse a rational view of his situa-
tion—in other words, that his decision to
die may reflect what to us seems a poten-
tially rational weighing of options—yet the
rationality of perception may only cloak a
more basic component of mental disease.
A blue coat lit yellow seems green, but the
garment retains its primary hue.

His experience with treatment, which I may
add, his hopeless and suicidal thoughts and
behavior is part of the illness, so it’s not
realistic in that sense.

It is just ... it’s part of.the illness.

Okay. However, that leads to a kind of
circular problem. That is, his experience
with treatment leads him to believe there’s no
hope which is realistic from his point of view;

—and therefore, in order to get out of his situa-
tion, he wishes to die, which is also perhaps
realistic.

Record vol. 1, at 81-82. Since Rees denotes
incompetency upon the mere possibility that the
individual’s mental illness substantially affects
his capacity in the premises, the majority's re-
sult necessarily presumes that Rumbaugh’s dis-
ease could not be the source of his suicidal urge.
The opinion concludes that “Rumbaugh’s dis-
ease influences his decision because it is the
source of mental pain which contributes to his
invitation of death.” At 402. Under Rees, the
majority could only be concluding that Rum-
baugh’s awareness of his disease and of its in-
curability—not the disease itself—is what “de-
presses” him. :

Three observations to the contrary, however,
can be gleaned from the doctors’ testimony and
the Springfield reports. First, the distinction
between the disease, on the one hand, and Rum-
baugh’s awareness of it, on the other, is for the
most part meaningless. While a decision moti-
vated by the awareness of a disease is arguably
more autonomous, and hence more “rational,”

§2(a).9

753 FEDERAL REPORTER, 2d SERIES

Ill

While adhering to the position that the
trial court clearly erred in its finding of
competency—either by applying the incor-
rect test or by applying the correct test
incorrectly—lI also believe that a ruling on
a condemned’s competency to waive federal
collateral relief should not be shielded by
the hands-off deference of Fed.R.Civ.P.
Competency determinations are
mixed issues of fact and law. Although
the majority pronounces by fiat that the
trial court’s application of Rees is “essen-
tially a factual question,” at 399, this char-
acterization is supported by neither reason —
nor precedent.

The line between questions of fact and:
questions of law is far from bright. 9 C.

Wright and A. Miller, Federal Practice

and Procedure § 2588, at 752 (1971).
Many issues, being neither purely factual
nor purely legal, contain elements of both
fact and law. This is particularly true of

than one that is the directly compelled by-prod-
uct of the illness, it ultimately makes little sense
to maintain that the awareness exists exclusive
of the disease itself. Rumbaugh’s awareness
presupposes the existence of its object, the dis-
ease. Where the awareness and the disease by
definition coexist, the disease cannot be
dropped from an assessment of motivating
forces merely because the afflicted individual i is
cognizant of its existence.

Second, it is far from clear that Rees even ©
contemplates the distinction. If the awareness —
of a disease affects Rumbaugh’s decision to
waive appeal, then although the disease may not
proximately cause the waiver, the interposition
of awareness does not mean that the disease has
any less substantial an ultimate effect on Rum-
baugh’s capacity in the premises.

Finally, the doctors themselves acknowledge
that this entire debate poses as much a philo-
sophical as it does a medical dilemma. Wheth-
er. sages or sutures be best, the absence of a
convincing explanation in the record as to the
source of Rumbaugh’s decision suggests another
approach. Where the competency question is
close, the risk of nonpersuasion should not cape
the shoulders of a potentially incompetent de-
fendant. See infra Part IV.

9. Rule 52(a) directs in pertinent part that
“[flindings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge of .
the credibility of the witnesses.”

RUSHING, Clayton, white, elec. TXSP (gasPER) March 28, 1948

UGLY, CRIMSON-SMEARED LETHAL WEAPON—
Bloodstained flatiron, one of the pair used by the
killer on Mr. and Mrs. Rushing and their young son.

q\

HANTON

et

+* .

iy M.A. GREGORY,

‘

"TEXAS RANGER—
Captain Holliday, who ma
about a half-eaten doughnu

i

WG ae ee


not happy

icter refer-
ishing was
body liked
ver himself
where he

for Rush-
about you,

hook their
‘ew in his

to an old
t when the
ie Rushing
brand new
earing the
Clayton’s,
down. low.
that ‘he’d
ey parted.”
estioningly.
te to your”

u get a full
to be the

iing his fin-
said, “You
ou've been

ruses and

ab office.
1’s memory
if you just
jump from.
em overalls
d never saw
s a big cuss
ewton bus.”
out in New-

e last I seen

rot, but the
| out plying

in Newton,
»’s due there
1 schedule.”

record be-
ut he wasn’t

the speed-
>a while for

n the driver
did let off a
y of the auc-
g him again
next driver

until “‘con-
» Pace made
ton Rushing
relief.
calling your
see you bad,

ypill it.”

ked pale and

m the parlor

id of mine,”
met in the

1. “Yeah?”
1. He used

to live in Houston, but after the war he
wanted to try his hand at farming. So
he got a G.I. loan and set up over near
Livingston. It didn’t work out good,
though, and for some months past he’s
been pretty hard up. Then, couple of
weeks ago, he come to me for help. I
couldn’t give him none but we'd been
buddies, see, and naturally I thought of
Pap. So I sent him over to ask Pap for
a loan.”

Pace studied the floor. “When did he
0?”

“Wednesday a week ago. He seen Pap
at the auction, and next day he told me
Pap was real nice to him—invited him
out to the place for a visit, in fact—but
he’d stalled him about the loan. I said
Pap always done that til he was sure of
a fellow, and I told him to go try again.”

Clayton paused, breathing heavily. “I
made a joke about Pap always carrying
a wad with him, sheriff.”

“So you think Charlie did try again,
eh?”

Clayton nodded. There was a silence;
then he said, “I went and looked for
Charlie yesterday, but his wife said he'd
went to Houston to look for a job. She
said he was sure to write back the min-
ute he got one. But when I went there
today he still hadn’t wrote. I thought
about what he'd did that Saturday night
and I wanted to go get him myself. But
—well, I thought again, what’s the use.
So then I called you.”

Pace stubbed his cigarette and stood
up. “What was Charlie wearing the last
time you saw him?” he asked.

“Wearing? Why, overalls. Yeah—brand
new overalls, come to think of it.”

Half an hour later, Pace was talking
to a frightened young woman in a run-
down farmhouse near ‘Livingston. He
stayed only long enough to learn that
Charlie Bacon had been an auto me-
chanic before the war, then drove back
to Jasper. Before nightfall Rangers.Eddie
Oliver and Mart Jones were headed for
Houston.

On Tuesday, following funeral services
for the victims, Pace and Nixon ques-
tioned relatives without gaining addi-
tional information. They re-questioned
every cab and bus driver in the area about
the young man in the brand new overalls,
but failed to fill in his trail completely.
On the day of the auction he had arrived
and departed from Jasper by bus. On
the night of the murder he had left Jas-
per by cab. But no one had seen him
come into town that fatal day.

“Friend probably gave him a lift,”
Nixon suggested.

The sheriff checked, but Charlie
Bacon’s friends were few. None would
admit having given him a ride into

Jase

“You'll find out when the Rangers
bring him in,” Nixon said. “Just: keep
your shirt on.”

Pace tried, but the Rangers seemed
to be having trouble in Houston. Day
after day they phoned in negative re-
ports. If the elusive mechanic had, in-
deed, gone there to find a job, he cer-
tainly wasn’t leaving traces in the city’s
garages and shops. His wife’s mail was
watched, but no letters came.

Pace grew increasingly thoughtful. A
fine set of fingerprints had been lifted
from the escape window, carefully iso-
lated from those of the three Rushings,
and placed in his file. He could rely on
two bus drivers and a cabbie as wit-
nesses. But he needed more, and in his

unhurried yet persistent fashion he went |

on trying to get it.

In his opinion, the killer must have
bided his time in either jasper or New-
ton on the afternoon of December 13,
because darkness afforded him the best
opportunity to reach the Rushing farm
undetected. Therefore, Pace talked to
cashiers in movie theaters and clerks in
drug stores.

Also, he visited stores where ovetalls
were sold; banks, farm loan offices, real
estate offices, furniture stores, feed stores,
livestock markets; all places, in fact,
where a hard-pressed farmer might have
sought credit before the night of the mur-
der, or made purchases after it was com-
mitted.

For a whole week, Pace worked and
waited.

Then, on December 30, an alert detec-
tive who memorized “Wanted” flyers
a up Charlie Bacon in a Houston

us station. With arrangements made in
advance, Oliver and Jones whisked him
back to Jasper County.

Much to Pace’s surprise, he bore a
striking resemblance to Clayton Rushing;
not only in size and build, but facially
and in his mannerisms. Looking him up
and down, Pace mentioned the resem-
blance, then told him he was suspected.

Bacon returned the sheriff's gaze coolly.

“I haven’t killed nobody since I helped
take Metz,” he said. “As for my looking
like Clay Rushing—yeah, I do. His old
man told me that the day I hit him for
some dough.”

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“Did he give it to you?”

“Uh-uh. He was real nice but he said
no.

“Did you come back to Jasper again?”

“No. I just went home and told Marge
things was washed up, and I aimed to
take off and get a job in Houston or
somewheres. Next day I told Clay the
same thing. And that’s just what I did.”

“But not until after Saturday, Decem-
ber 13.” ;

“That’s right. I had to sell some
chickens to get the fare. And I didn’t
hear about this here killing ’til the cop
picked me up in Houston. The dang
fool kept trying to make me admit I
was sneaking out of Houston, when all
I'd did was get off a bus so I could look
for a job there.”

Pace smiled and put his feet on the
desk. “Where had you been?” he asked.
“Newspapers get around, you know.”

“Sure they do. I’m just not much of
a hand at reading newspapers, however.
All I know is, when I took off from the
farm I figured on going back to Houston.
But when I reached town I remembered
how bad I’d did there before the war.
So. by God, I just kept right on going.
| hitch-hiked clear to Dallas, and that’s
where I stayed ‘til 1 seen I wasn’t going
to get no job and had to go back to
Houston.”

Pace took his feet off the desk and stood
up. His face was sober. He said, “Charlie,
I could keep on asking you questions but
Id rather do it the quickest way. I’m
going to let some fellows look at you
and then maybe we'll talk some more
later.”

He opened the door. Nixon stuck his
head in.

“All set,” Pace said, and Nixon ushered
two bus drivers and a cabbie into the
office. The bus men saw Bacon and ex-
changed glances. The taxi driver stood
there frowning.

“You two fellows remember this man,
don’t you,” Pace said matter-of-factly.
‘The bus drivers nodded.

“But you don't.”

‘The cabbie shook his head slowly. “I’m
sorry, sheriff. He looks a lot like the fel-
low [ carried, but he ain't him.”

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80

Pace clapped him on: the shoulder.
“Don’t worry about it,” he advised cheer-
fully. “You'll meet the right one later.”

Nixon led the three witnesses out, then,
popped in again.

“What now?” he demanded.

“Fingerprinting,” Pace said. “Then, I
think, we'll be going over to Burkeville
to pick up Clayton Rushing.”

Half an hour later the state identifica-
tion expert looked up from his compari-
son of Bacon’s prints with those found
on the killer’s exit window at the Rush-
ing farm.

“They don’t match,” he said.

In the car, Nixon stared fixedly at the
sheriff's profile. .It didn’t work. “What
tipped you off about Clayton Rushing?”
he asked at last.

“It didn’t sink in until we ran into
that blank week of waiting for Bacon
to be caught,” Pace said, eyes on the road.
“I kept running things over in my mind,
and then I remembered. that when Clay-
ton told me about Bacon, he'd mentioned
what his friend had done ‘that Saturday
night.’ That seemed just_a bit too accu-
rate, considering that | hadn’t mentioned
the murder date at all—so I just went
around as if Bacon didn’t exist and I
was starting on a fresh case with only two
clues.”

“Friend of the family and overalls.
What next?”

“Well, first I tried to get the psychology
of the thing. As I figured it, Clayton was
a struggling young farmer, probably as
hard up as Bacon or worse, because he
was living with in-laws. He had his good
side, of course—even the sorriest of them
do—so when Bacon asked about where
he could get hold of some money he hon-
estly tried to do his old Army buddy a
favor by sending him over to see his
father. But when Bacon came back with-
out the bacon and said he was clearing
out, that set Clayton to worrying. Elmer
Rushing was {yw easy to touch, I
reckon, but he’d been buying heavily and
didn’t have much cash on hand. That
being the case, he might even turn down
Clayton next time he tried to borrow.
He got anxious. Too anxious.

“He went to Jasper Saturday after-
noon, intending to go to his father’s
farm. But then he remembered the new
overalls. Bacon had worn Wednesday
night when he came back from seeing
Elmer Rushing ‘at the auction. It gave
him an idea. He knew he looked like
Bacon, and that Bacon's overalls stood
out like neon signs. So he bought new
overalls for himself right in Jasper and
put them on in some washroom or other.
He bought a flashlight, too, for the walk
out to the farm that night. Then he
went to a movie and waited. After it got
dark he walked out to see his folks. And
some time after they fell asleep he slugged
them with the flatiron and took the
mioney. It was late and nobody saw him
walking back to town.

“Naturally, he went back to Newton
ina cab. That way, he left another man
to remember new overalls, and avoided
any bus driver who might compare him
with Bacon. In Newton, of course, he
bundled up his overalls and hung around
until he found some friend to carry him
to Burkeville. Next day he picked up

where he'd left off. Probably even went
to church.”

“Pretty slick,” Nixon said. “I'll keep
it in mind if I ever want to cut a friend's
throat.”

“Oh, he didn’t want Bacon to get hurt.
He just pulled the overall stunt so Bacon
would be in reserve if things got too hot.
Then, when | bore down on that friend-
of-the-family business, he had to use him.
He was lucky there, too, for a while. His
father did like Bacon and he may even
have invited him out to the farm to take
away the sting of turning down the loan.”

The car cleared Newton and headed
for Burkeville.

“Trouble was, Clayton kept on being
too anxious all through the week follow-
ing the murder,” Pace continued. “He
should have kept his money and waited,
but he couldn’t. He rented a house and
bought furniture.and had it hauled out
there. He was smart enough to stay at
his in-laws’ place, but he just couldn't
resist setting up his own future in ad-
vance. When I really got down to concen-
trating on just Clayton, minus overalls,
I dug up deals all over the county. He
bought stuff everywhere.”

“What's left for the windup?”

“Checking his fingerprints, finding
what cash he has left, and dragging out
a confession,” Pace said.

Driving up to the farmhouse, Pace and
Nixon promptly arrested the young
farmer. ,

The task of completing the investiga-
tion was not difficult. Clayton Rushing’s
fingerprints matched the set from the
window. The cabhie who had driven him

‘from Jasper to Newton identified him,

and so did various merchants with whom
he had dealt since the murder. The re-
maining cash proceeds of his crime—$820
—was recovered from its hiding place on
his new farm.

Originally, as Rushing said in the
confession he signed on the night of De-
cember 30, he’d hidden the money in a
stump on his in-laws’ property. Later, he
transferred it to a tin can which he buried
under a log in his own pasture.

Although Clayton failed to explain the
fury with which he had beaten his par-
ents and half-brother, Sheriff Pace con-
cluded that a long-smoldering resent-
ment, rooted in childhood and nourished
by comparison of his father’s success with
his own failure, must have turned the
coldly scheming son into a madman at
the moment of striking his first blow.

Clayton was charged with first degree
murder in all three deaths, but tried only
for the murder of his half-brother. He
went to trial on January 20, 1948, in
Judge F. P. Adams’ district court. The
prosecution was shared by District At-
torney Robert A. Hillin and County At-
torney Gilbert T. Adams.

The case reached the jury on January
23, and the resulting verdict was: Guilty

As Charged.

Since the jurymen did not, quite under-
standably, recommend mercy, Clayton
Rushing, scheduled to die March 27, be-
came the first man in Jasper County to

be condemned to the electric chair since

the state of Texas adopted that form of
execution.

va

Snaring
Daylig!

[Continuc

Over and over
tions. “Were yo
Freund home o1
you ever notice a
vicinity?” “What
Freund family?”

The answers h
meaningless. His
became frayed a1
was tireless, wo
hours a day, w
might have been
ernoon.

He checked th
department sto?
netka, and Evan:
for all laundries
lishments.

Tireless, Ken:
laundry driver
when a new nam
coe man couldr
tion, recognized
and didn’t seen
help—and then

“Say, I know
talk with,” he s
Elstad and he d
dry. He has a c
there in the I
think.”

That evening
stad in his hore
view Ave., in C
he had driven
about 1 p.m. o1
Kennedy hande
tures and askec

Elstad didn’t
tures, but he }

“I was driv
afternoon abo
I was crossing
blocks from th
ing car almost

“The car—a
dark-blue or
along Michiga
tion of the F
slammed on hi

“There were
I yelled at the:
dirty looks.”

Keeping his
fort, Kennedy
either of tho:
again?”

“Either of
indignant. “M
in my busine:
a name, eithe
and I always

Kennedy |
stretched out
himself to a b
of pavement:
an question-
where.

“Let's hear

Elstad was
driver was a
with evebrov


ARMER Claude Eldridge took one
look at the pink-spotted sow that
was uprooting the petunias in his
front yard, and hollered for his son.
“Tom! Tom!” he called. “There’s a
stray pig out here. Go down to old
iow Rushing’s place and see if it’s
is.”

The boy, half sitting, half reclining
on the porch steps, squinted up into
the bright Texas sunlight. Then he
arose slowly and shoved off across a
field to the dense thicket of pines that
separated his father’s mace from that
of the next-door neighbor, Elbert J.
Rushing, on the outskirts of the town
of Jasper.

Still moving in leisurely fashion, he
stepped over a log at the edge of the
thicket and disappeared into the
woods,

In a few minutes, however, he came
running back, legs flying across the
field, only to stand pale, wide-eyed
and panting before his parent.

“There’s been an accident down

@

SLAYE

% there,” he finally gasped. “It’s all quiet
in the house. And—little Woodrow’s
lying on the floor in his room, covered
with blood. I—I looked in his window
when they didn’t answer the door.”

Eldridge’s jaw dropped. Woodrow—
that would be the Rushing’s 11l-year-
old son—covered with blood! And
everything quiet! Apprehensively, he
looked from the boy to the sow and
was struck by something he had no-
ticed before, though not so sharply:
‘the pig was thin, and pitifully hungry.
In one great lunge, the man wheeled
around and went inside to call Sheriff

C. Pace.

- “The Rushings aren’t folks to neglect

eir livestock,” he told that official,
fter relaying what Tom had said.
“And, come to think of it, I haven’t
seen them around for quite a few
days.”

Pace, with Chief Deputy Thomas M.
Nixon, hurried out from Jasper in a
county car, arriving almost as soon as
the neighbors.

They parked the vehicle near the
small, rustic farmhouse which was the
Rushing home and walked up the
rickety steps to the front door.

Pace lifted the latch and stepped
inside, then stopped dead still. Through
the open doors of the living room and
of the two bedrooms beyond he saw
the bodies of all three occupants of the
house, lying grotesquely in pools of
blood.

Hurrying into the first bedroom, the
officers bent over the corpse of the
child, Woodrow Wilson Rushing. Clad
in undershirt and shorts, the body was
stretched out on the floor, the head

crushed in, apparently by blows from
a blunt instrument.

Similar blows had felled the boy’s
parents, the sheriff discovered on mov-
/_—— the other room.

ushing, a 71-year-old stock buyer
who had moved to Jasper from New-
ton, Texas, a year before, lay nude
and lifeless ori a eg of bloody covers
on a white iron bed. Wedged against
the wall on the floor behind the bed
was the body.of his wife, Lessie, age
50, her white cotton nightdress
drenched with blood that had poured
from her bashed-in skull.

The sheriff didn’t have to look far
for the weapon. It lay on the floor
near the woman—a heavy, old-fash-
ioned iron flatiron, its bloody surface
revealing the use to which it had been

put. ta :

And he didn’t need a doctor to tell
him it hadn’t happened yesterday:
from the ugly purple blotches on the
victims’ flesh he knew they had been
dead for several days.

“Maybe even a week
or more,” he told Chief
Deputy Nixon. “And
we’re going to need
eee of help. Go next
oor and call the Rang-
ers.”
It was early Saturday
@ afternoon, December 20,
1947, when the crime
was discovered, and in
the half hour that it took
Captain R. D. Holliday
and Ranger Dick Middleton of the
Texas Rangers to drive down from.San
Augustine in response to the call, Pace
and Nixon had time to make a num-~
ber of observations.

The Rushing home, about 2% miles
from Jasper, center of an agricultural
and lumbering area in the pine wood
belt of East Texas, was situated a quar-
ter of a mile in from Spring Hill Road.

It was not particularly isolated, the
sheriff noted, since neighbors were
within hearing distance. But it was
completely hidden from view by a
dense thicket of pines and was ap-
proached Med a narrow lane, barely
wide enough to admit an. automobile.

Examining this lane, the officers ob-
served that no tire marks, other than
those of the county car, nor even a
footprint, had disturbed its muddy
surface. Nor were there any footprints
on the spongy grass around the house.

_ Inside the dwelling, too, everything
seemed untouched. There was no sign
of a forced:entry, nor of furniture or
other househol

the nearest neighbors disclosed that
none had heard an outcry.

The murder weapon, however,
matched a set of similar irons on a
shelf in the kitchen, and Pace thought
one other looked stained, as though
with blood.

OINTING these things out to Holli-
day and Ranger Middleton when
they arrived, Sheriff Pace said, ‘It

looks as though they were killed by
someone who knew his way around
this place, how to get to it without

furnishings having .
been disturbed. And questioning of

fe |i
tinea ied i
F en al ~ 4

> \SURVIVED TRAGEDY—
Clayton Rushing, who played
an’ odd role in’ the mystery.

e\ Ng

coming up the road, and exactly where
the flatirons were kept. Someone this
family knew and trusted. Otherwise
there would have been screams, or
some sort of struggle.”

Holliday, who now took charge,
nodded and adjusted his glasses.

“Any idea how long ago it hap-
pened?” he asked.

The sheriff shook his head. “On ac-
count of these woods separating the
houses, the neighbors don’t see each
other unless they walk over.to each
other’s yards,” he explained. “They’ve
all been so busy lately they haven’t
done much visiting. Nobody can say
just when they saw the Rushings last.”

“Maybe there’ll be some clue inside,”
Holliday suggested as they all moved
into the house. .

In the couple’s room, they found a
dollar bill and 30 cents in change on
the bureau, but no checks, letters or
any other dated item, either in the
bureau drawers or in the two sets of
clothing—the man’s and the woman’s
—which were draped neatly over two
chairs. ;

The only indication of a time ele-
ment in the boy’s room was a hard,
half-eaten doughnut on a chair be-
side the bed, valueless except as a
vague reminder that days had passed
since it had been placed there.

But, stuffed in a woodbox behind the
kitchen stove, Holliday found sections
of two copies of a newspaper, The
Beaumont Enterprise of December
12th and 13th.

“The 13th would be Saturday—a
week ago,” he remarked to the others.
“Looks as though the Rushings were

until his swinging flatirons had hashed in the heads of the father, the mother and their son

43


PLEASE HELP SAVE
CLIFTON RUSSELL'S
LIFE

Clifton Charles Russell, #658, arrived on Texas' death row at the age of 18 and has
spent over 14 years there. He came to death row as a product of a troubled background
marked by poverty and violence. Since arriving on death row, he has grown into a man of
strong spiritual faith and exemplary leadership among the inmate community. With all of his
appeals exhausted, his only hope for relief lies with the Texas Board of Pardons and Paroles.
Please send your urgent pleas for clemency on Clifton Russell's behalf. An execution date of
October 18 will end the life of this clearly rehabilitated individual unless your entreaties are
heard. Clifton Russell represents an unqualified example of humen triumph over adversity
through his self-rehabilitation in an environment averse to positive growth and maturity.
Clifton Russell wishes to live. Please help him continue to be an inspiration and source of
hope for the people who reside both within and outside the prison walls.

"Clifton Russell is an unequivocal example of a life changed by God." - Jean Russell, Licensed
Minister/director of Elim Church prison ministry, Houston, TX.

"Clifton has been a light of hope both to me and the other prisoners to whom I minister." -
Carol Byars, The Answer Prison Ministry

"Even though Texas has by far the most death row inmates who have reached the end of
their appeals and whose last chance for relief lies with the governor, there have been no
commutations granted at a defendant's request since the death penalty was reinstated."
Richard Dieter, Executive Director of the Death Penalty Information Center as quoted from
The Future of the Death Penalty in the United States: A Texas-Sized Crisis; (p.22)

"Former death row inmates like Randall Dale Adams, Clarence Brandley, Federico Macias,
and Muneer Deeb were extremely fortunate that others became interested in their cases and
helped them..." Dieter (p.17)

CLIFTON CHARLES RUSSELL'S CASE COULD FACILITATE A CHANGE
IN THE PRESENT CLEMENCY CRISIS IN TEXAS!

PLEASE SEND YOUR LETTERS OF SUPPORT FOR CLIFTON RUSSELL'S CLEMENCY TO:

The Texas Board of Pardons and Paroles
Jack Kyle, Chairman
8610 Shoal Creek Blvd.
PO Box 13401
Austin, TX 78711

Please include Mr. Russell's full name CLIFTON CHARLES RUSSELL and his TDC # 658
Thank you for your compassionate support

‘im not asking for freedom or even fairness.
| ask for clemency; for mercy. Clemency
would mean life. Where there is life...

...there is hope.”

Clifton C. Russell, #658
Scheduled Execution Date: January 31, 1995

We as a public believe that our judicial system is fair and effective. We have faith in the
institution which chooses life or death for over 400 men and women currently existing on Texas' death
row that it does not make these choices arbitrarily and that it tempers its decisions with mercy.

HERE ARE THE FACTS:

Even though Texas has by far the most death row inmates who have reached the end of
their appeals and whose last chance lies with the governor who can only grant clemency
upon recommendation of the Texas Board of Pardons and Paroles, there have been NO

commutations granted at a defendent's request for mercy since the death penalty was
reinstated.

*Despite the Supreme Court's assurances that clemency exists, it has NEVER been used
in Texas since 1972.

°The Texas Board of Pardons and Paroles may decide to deny clemency to Clifton C.
Russell without even meeting to hear his arguments or pleas on his behalf which
violates his right to due process and exhibits the Board's unwillingness to consider
the full range of options available to the inmate which include mercy.

We as a people need to apply pressure on the Board with every opportunity in order to
influence them to consider the possibility of clemency in death penalty cases. Clifton Russell is a man
who clearly exhibits the characteristics and meets the standards of rehabilitation. The Board must be
made to give Mr. Russell a chance to speak for himself so that they will not systematically kill him as
just another number. If the Board will not consider clemency, the purpose of it being a safeguard is a
lie. They never even see the face of the person they are rejecting. Until they are forced to face the
person attached to the number, there is no hope for mercy.

Please send your letters of appeal to the Texas Board of Pardons and Paroles and to Governor

Ann Richards urging them to allow Clifton C. Russell. the opportunity to plead for their mercy and
commute his death sentence to life.

The Texas Board of Pardons and Paroles Governor Ann Richards
Mr. Jack Kyle, Chairman PO Box 12428, Capital Station
PO Box 13401 - Austin, TX 78711
Austin, 1X:, 7871-1: ~ ; 512-463-2000
512-406-5852 (fax) 512-467-0945 : (fax) 512-463-1849

Please include Mr. Russell's full name CLIFTON CHARLES RUSSELL and his TDC # 658

s

Please send your letters via priority or express mail if possible-thank you

“Where there is life...
...there is hope.”

—Clifton Charles Russell, #658
Scheduled Execution Date: January 31, 1995

Clifton Charles Russell arrived on Texas’ death row at the age of 18 and has lived there over
14 years. He came to death row as a product of a troubled background marked by poverty
and violence. Since arriving on death row, he has grown into a man of strong spiritual faith
and exemplary leadership among the inmate community. With ALL of his appeals exhausted,
his only hope for mercy lies with the Governor of Texas and the Texas Board of Pardons and
Paroles.

"Cliff has been a light of hope both to me and the other prisoners to whom I minister.”
Carol Byars, The Answer Prison Ministry

Clifton Charles Russell is a man who clearly exhibits the characteristics and meets the
standards of rehabilitation. The Board of Pardons and Paroles may decide to deny him mercy
without even convening to hear his arguments or pleas on his behalf. Despite the Supreme
Court's assurances that clemency exists, it has NEVER been granted in Texas since the death
penalty was reinstated in the United States. Clifton Charles Russell challenges the Board of
Pardons and Paroles and the Governor to execute justice, not a person, in granting mercy for
a man who meets the criteria for and derserves mercy.

"I'm not asking for freedom or even fairness. I ask for clemency; for mercy."
Clifton Charles Russell

American citizens have sent a clear signal to those in authority that we are unsatisfied with
the inadequate functioning of our justice system. As a new administration moves into the
Governor's Office, we must challenge our leaders to show us that the justice system WILL be
enhanced. A direct and effective way to prove to the public that the governing bodies wish
to seriously address the problems in our justice system would be to confirm for us that the
clemency process works!

Please send your letters of appeal on behalf of Clifton
Charles Russell, #658, to the Texas Board of Pardons

and Paroles, Governor George W. Bush, and
Lt. Governor Bob Bullock.

Please call these offices and send your letters by priority, express mail, or fax transmission
urging the only officials who have the power to act in this circumstance to allow Clifton C.
Russell the opportunity to plead for their mercy and commute his death sentence to life.

Governor George W. Bush Lt. Governor Bob Bullock Texas Board of Pardons & Paroles
PO Box 12428 PO Box 12068 PO Box 13401
Austin, TX 78711 Austin, TX 78711 Austin, TX 78711
phone: (512)463-2000 phone: (512)463-0010 phone: (512)406-5852
fax: (512)463-1849 fax: (512)463-0039 fax: (512)467-0945

Please duplicate and distribute
Thank you

IRS trom de.
income of the
nat the transac.
ured to conceal

ern

- Because
1 Integral part
responsible for

James A. COLLINS, Director, Texas De-
partment of Criminal Justice, Institu-
tional Division, Respondent-Appellee.

No. 91-1354.

United States Court of Appeals,
Fifth Circuit.

RUSSELL v. COLLINS
Cite as 998 F.2d 1287 (5th Cir, 1993)

1287

t's decision t, —— - imposed at penalty stage should reflect rea-

u Diet Clifton Charles RUSSELL, Jn) soned moral response to defendant’s back-
. Meuxce of the Petitioner-Appellant, ground, character, and crime. U.S.C.A.
he intent of the Vy. Const.Amend. 8.

3. Criminal Law 1208.1(4.1)

Sentencer must make individualized as-
sessment of appropriateness of death penalty
and treat defendant as uniquely individual
human being. U.S.C.A. Const.Amend. 8.

4. Criminal Law <1208.1(5)

rs. Pinkerton In making individualized assessment,
66 S.Ct. 1180, Aug. 13, 1993. sentencer considering imposition of death
964 F.2d 437. penalty must consider evidence about defen-
— 71, ss After Texas conviction for capital mur- dant’s background and character because of
- 8. $63, 106 der and death sentence were affirmed, 665 belief, long held by society, that defendants
SO). S.W.2d 771, federal habeas corpus petition who commit criminal acts that are attribut-
t Reese was | was filed. The United States District Court able to disadvantaged background, or to emo-
)the number — for the Northern District of Texas, Samuel tional and mental problems, may be less

to Western.
vt did consid-

Ray Cummings, J., denied petition. Petition-
er appealed. The Court of Appeals, Wiener,

culpable than defendants who have no such
excuse. U.S.C.A. Const.Amend. 8.

JO figure set Circuit Judge, held that: (1) petitioner was 5. Criminal Law ¢=796
estern when not entitled to instruction under Penry v. Mitigating factor of defendant’s age is
e trial court Lynaugh that jury could consider petition- within effective reach of Texas second special
the United er’s background as mitigating circumstance: issue for purposes of death penalty determi-
ass of the @) District Court could apply presumption of nation and, thus, such evidence is not proble-
ti 'e of correctness to state court’s finding that pro- matic under Penry v. Lynaugh, which re-
spective juror who opposed death penalty quires instruction that jury may consider
was properly excluded from jury; and (3) defendant's background as mitigating cir-
disparity between death sentence imposed on cumstance in death penalty case. U.S.C.A.
defendant and 60-year sentence Imposed on Const.Amend. 8,
accomplice who pled guilty did not violate
due. process, equal protection, or Eighth 6. Courts <100(1)
: judgment Amendment. Argument of federal habeas corpus peti-
sata by Affirmed. tioner sentenced to death, that jury was un-

n of the
at the trial
he amount
CATE the

Habeas Corpus ¢=340

Claim of federal habeas corpus petition-
Sentenced to death for murder, that he

able to give proper mitigating weight to his
troubled childhood, in absence of instruction
under Penry v. Lynaugh that jury could
consider petitioner’s background as mitigat-
ing circumstance, was barred under nonre-

ment as to os :
pia entitled by virtue of Supreme Court  troactivity doctrine of Teague v. Lane, that
‘etermin _ lon in Penry v. Lynaugh to instruction constitutional rule established after convic-

jury could consider petitioner’s back-
d as mitigating circumstance, was not
durally barred on ground that petition-
ailed to seek special instruction.
WC.A. Const.Amend. 8.

iminal Law ¢1208.1(5)

Oonsideration of relevant mitigating evi-
in determining whether to impose
n penalty is required because sentence

tion is final and cannot be used to attack
conviction, in absence of evidence that peti-
tioner’s childhood rose to required level of
abusiveness. U.S.C.A. Const.Amend. 8.

7. Homicide €357(4)

Single episode of severe beating of mur-
der defendant in face with baseball bat while
he was teenager by stepfather who then at-
tempted unsuccessfully to shoot defendant


is waning, people in the area sometimes hear a chilling moan and see the
apparition of Chipita Rodriguez walking through the mesquite trees.

“You can tell it's her because she had a hangman's rope tied around her
neck and she's holding the other end of the rope," Guthrie said. Then he
laughed and said he's never seen the famous ghost.

In 1985, the Texas Legislature passed a resolution granting Rodriguez
“symbolic redress." By then, of course, she'd been dead almost 122 years.

(source: Houston Chronicle) A / / / (G7 a

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

RY NNAL
' eniias ay
Sidecar
e | o’clock A
\ | gallows e
Dutustvated By Michael Nunnally —
is |


~

4

By RUEL McDANIEL

MEN AND WOMEN cluttered in little
groups on the courthouse square

and watched in ashamed silence as
- preparations went forward for the hang-
‘ing of Chipita Rodriguez.
.. One man looked up at the gathering
’. clouds and watched the thick billowing
mass roll in from the Gulf of Mexico to
blot out the sun. He pulled his thin home-
« spun jacket collar around his neck and
shivered, although the temperature was
‘in the seventies. “If they can’t see the
sun, they won’t know when it’s down,”
+ he muttered hopefully. “And if they don’t
do it before sundown, then the sentence
will be voided. They should let her go.”
» Others looked at him in silence, some
_ jin agreement, a few with scorn.
Chipita Rodriguez was a slight woman
of middle age, weighing less than 100
- pounds. She was copper-skinned, her thin
shoulders slightly stooped. And she was
"going to be hanged for murder.
. The sun had risen that morning—Fri-
day, November 13, 1863—as a subdued
red globe on a hazy horizon. Those in
favor of the hanging said it was a fitting
, day. The many citizens who disapproved
* predicted that no good would come to a
- community that committed such an
atrocity.

Although Judge Benjamin Neal de-
- creed that the hanging should take place
‘ between 11 o’clock and sundown, it now
_,, was late afternoon, and even those whose
. boisterous voices had clamored for the
~ death sentence seemed reluctant to see
the verdict carried out.

“It’s time,” said John Gilpin,
' Patricio hangman. “On your
woman.”
Chipita Rodriguez lifted herself with
difficulty from the grass of the shaded
courthouse lawn. Heavy chains around
her ankles dug into the flesh every time
she moved. She stepped up beside Hang-
man Gilpin and attempted to keep up
- as he headed toward a two-wheeled cart
_in the street. The chains bound her legs
: go closely together that she had to take
, two steps to Gilpin’s one.
~ As he neared the cart, the hangman
_halted and looked around at the silent
- gathering crowd. The condemned woman
struggled on past him and climbed up
to the low bed of the cart, her face drawn
«with pain.
' The eyes of the citizens studied the
ground and the shame for what their

San
feet,

RODRIGUEZ, Chipita, female, hanged San Patricio,

°

Texas, on November 13, 1863,

THAT KILLED
~ SAN PATRICIO TOWN

It's mighty bad luck to hang a woman on Friday the 13th!

pan
%

to their senses. One woman toppled over
in a faint; there was a general clearing

of throats.

Finally the hangman spoke to the
drowsing oxen. As the animals pressed
against the yoke the cart squeaked and
the broad wheels slowly churned dust
from the narrow street, It swirled and
caked upon the worn-out shoes of the
man as he walked beside the cart. Gilpin
walked with a stoop, as one would walk
who dreaded what he was about to do.

Judge Benjamin Neal

) EER 0) QED) GREE (yaa ¢ &

Corpus Christi, Texas

La Keine Public 5 uibiatd ‘
|

Some of the people slipped into the .
gathering shadows and on to their homes,
there to hide from the guilt they saw _
in the eyes of their neighbors. Others ;
followed the rumbling cart at a acepee
ful distance. a ps

ig WAS the time of the Civil War, °
when the tide was turning against the
South. San Patricio, county seat of San. ©
Patricio County, Texas, had lost its best
men to the cause of poe dat The

Old West |
1968.

WINTER,


town was a bolateroua ploneer aettlement
of 1,000 population and growing rapidly
in apite of the war, Law enforcement, wan
lax, and the community was the gather-
“ing place of many men who scorned
'»* laws and the natural rights of others.
<: _ Too much crime, bad war news and
* dissatisfaction with the way the town
s and the county were being run, had made
* tempers short. Most permanent citizens
fu, were of Irish descent, and superstition

4, was strong among them, especially the

older ones. Now a dread uneasiness,
which had been building up since the
judge passed sentence upon Chipita
Rodriquez a week ago, had the people
on edge.
A horse-trader named John Savage had
gold some animals to the Confederate
rmy up near San Antonio, and on his
way back to Corpus Christi had stopped
‘for the night at the small roadside inn
perated by Chipita Rodriguez and her

, marriage.
U. About a week after the trader had
spent the night at the Rodriguez inn,
someone found his body, wrapped in
burlap bags, floating down the Nueces
iver, It was: presumed that the dead
“man had been carrying considerable
money from the sale of his horses.
,, Since the traveler had last been seen
-at the inn and the reputation of the
woman and her son was in some ques-
on—mainly because they kept to them-
~Selves and people knew very little about
*them—Chipita and Juan were arrested
-and charged with murder.
- At the time of her arrest Chipita
vowed vehemently that she knew noth-
ing of the crime, but during her trial
she said nothing at all. She neither af-
firmed nor denied the charge.

The trial, presided over by Judge Ben-

jamin Neal, was by today’s standards
highly irregular. Three members of the
trial jury had sat on the grand jury
which indicted Chipita and her son.
‘Owen Gaffney, jury foreman, was justice
of the peace and his court had bound
.over the accused for the grand jury.
Four members of the indicting grand
jury had charges ranging from rustling
‘to murder hanging over their own heads
at the time they sat in judgment of
Chipita Rodriguez and Juan Silvera.
*The trial jury pondered the case only
‘a few minutes, then returned a verdict
of guilty of premeditated murder, but
‘recommended mercy, The judge ignored
tthe recommendation. He sentenced Chi-
pita to hang on Friday, November 18,
ix days after the trial. The son drew
ive-year penitentiary sentence.
Even before the trial a couple of fish-
‘ermen found the saddlebags belonging
mto the murdered horse-trader, and they
‘contained $600. Presumably this was the
‘money for which the woman was accused
of murdering the man. The money had
lodged in an eddy of the lazy-flowing
‘yiver, only a short distance from where
‘the body of the murdered man had been
‘found. Most townspeople thought this
‘was sufficient evidence to indicate that
‘Chipita had not murdered the trader.
Certainly it disproved the motive, but
these and other facts were ignored by
dge. and jury.

son, Juan Silvera, born of an earlier

2p A (VR 1) RN 1 AIC) t+) ae RN Na 5 «9 a (ent) SF nih «5 Nema + ay 4 a 1 aR 1 as 44 aR) RAR 1) sage seadihioed neeedibetedi beady

aye Hd

The Brown House, near the site of the hanging, was a two-story hotel erected
in the town of San Patricio soon after the United States acquired the territory
between the Nueces and Rio Grande Rivers.

Courtesy Texas State Library Archives

(THE CUMBERSOME oxen lumbered

on to a spot about 500 yards from
the courthouse square, and when they
pulled the cart into a slight depression
beneath a large mesquite, Hangman Gil-
pin spoke and the animals stopped.

The crowd which had followed the cart
now stopped several yards back of the
shaded spot and waited in grim silence,
embarrassed but morbidly attracted.

The hangman had been forced to requi-
sition the cart, because nobody who
owned one would volunteer it; and now
some of the same men who would not
supply a cart made no move to aid the
hangman in his grisly task.

As he climbed into the cart, he told
the condemned woman to place her hands
behind her back. His hands trembled as
he fumbled with the small rope to bind
her wrists. Chipita Rodriguez obeyed
without a murmur and her cool manner
shamed those who watched.

After binding the wrists, Gilpin re-
moved a dirty bandana from his pocket
and started to tie it over the victim’s
face. She murmured a protest, but the
hangman ignored it. He knotted the cloth
at the back of her neck.

A new hemp rope was tossed over a
strong limb and its noose slipped over
the woman’s head.

Gilpin stepped to the ground and
looped the rope around the trunk of the
mesquite. He left just a little slack in
it. Finally he spoke to the oxen and
they rumbled forward out of the grass-
covered depression, The noose tightened
around Chipita’s thin neck and her
chained feet slipped off the rear of the
cart.

After a while Hangman Gilpin said
that the woman was dead. He asked
some of the men to help him dig a grave,
there under the mesquite where life had
been choked from her body. Everyone
treated his request with shocked silence.

e

Some of them turned and quietly walked
away. Gilpin dug the shallow grave him-
self.

Those who had not left the grisly site
before the execution remained until Gil-
pin had finished. He then climbed into the
cart and guided the oxen back toward
town. The citizens fell in behind in twos
and threes.

“Lord and ‘tis a black day for San’
Patricio,” muttered an elderly Irishman,

The Rodriguez hanging was some-
thing that nobody mentioned in public
after that day, but in the privacy of
their homes people talked. The cgnsensus
was that Chipita refused to affirm or
deny the crime because she thought her
son had killed the trader. And the son
had remained equally silent because he,
feared that his mother had done it. *

In public, citizens loudly scoffed at.
the old Irishman’s prediction of doom, .—
but in their secret thoughts they pon-
dered the old man’s words, for almost.
from the day of the hanging, the town “
began to decline. ;

In a few years the county seat wa
moved to the new community of Sinton.:
By 1920 San Patricio was not accorded ~
the dignity of a post office. Today one —
general store constitutes the business %
area where once 1,000 busy people had.
lived.

About a quarter-century after the.
hanging, an elderly man in another com-
munity, realizing that he was dying,’
confessed that he murdered the horsey
trader and threw his body into the river by
—not for money but because of the man’s”
having cheated him in a business deal.
But of course his confession was some-
what late to do Chipita Rodriguez any,
good.-

And this is the record of the firetot
and last—woman ever to be legally.
executed in Texas. :

oe


¢

Convict executed for killing officer Page 2

their appeals and new laws designed to speed the appeals process
take effect.

Rogers, a 10th-grade dropout who worked as a waiter in
Oklahoma City, was convicted of fatally shooting David Roberts,
23, a police officer in Paris, just south of the Oklahoma state line
and about 100 miles northeast of Dallas, on Sept. 21, 1985.

Rogers at the time had been on parole for about a year and a half
after serving six months of a five-year term in Oklahoma for
stealing a car. He was 21.

Rogers and an accomplice were pulled over by Roberts after
pulling a gun on two women at a Paris ice cream store and
robbing them of about $700.

According to court records, Rogers jumped out of his car before
Roberts even could get out of his patrol car and opened fire with a
.38-caliber pistol stolen earlier in the day from a pawn shop,
shooting through the windshield and striking the officer.

Then he stepped over to the driver's side of the police car and
fired another five times through the window before running back
to his car and fleeing at high speed.

Roberts, who grew up in Paris and had been an officer for about a
year, was dead at the scene. At the time, he and his wife were
expecting their first child.

According to testimony, Rogers and his accomplice, Willis
Cooper, stole a car in Oklahoma City, drove to Paris, where they
stole the pistol from the pawn shop, and then robbed the ice cream
store.

They were arrested later in the day near the Red River after
opening fire on sheriff's deputies who were hunting for them. In
the hours between the officer's shooting and their arrest, they had
stolen at least two other vehicles and assaulted several elderly
people -- including robbing a woman of her wedding ring and
abducting a man to commandeer his truck.

"The evidence was overwhelming," Tom Wells, the former Lamar
County district attorney who prosecuted Rogers, said. "He had an
ascending scale of crimes involving violence from the time he was
younger until the time this happened."

What is most frustrating is the long time between the crime and
the punishment, he said.

"The number of appeals, the delays," he said. "You're always

LigF

Convict executed for killing officer

Page |

Houston Chronicle Interactive

Section: Local & State

HCI's Local & State News forum

Recent related stories:

e Sunday: State carrying out
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routine

e Thursday: Harris County man
executed for slayings

@ May 23: Texas executes Ohio

man who preyed on elderly

women, killed Houstonian
e@ May 19: Texas executions

moving at record pace after

ruling

8:10 PM 6/2/1997

Convict executed for killing officer

Murder part of crime spree

By MICHAEL GRACZYK
Associated Press

HUNTSVILLE -- An Oklahoma prison parolee was executed
Monday evening for killing a North Texas police officer during a
daylong crime spree almost a dozen years ago.

Patrick Rogers, 33, was pronounced dead at 6:17 p.m., six
minutes after a lethal dose of drugs began flowing into his arms.

Rogers gave a defiant and rambling final statement in which he
asked forgiveness and denounced the death penalty system.

"Give praise to Allah. I bow down to Allah, most merciful. I ask
to seek his forgiveness," Rogers said. "If this is what they want to

see, this is what they get. I bow down to no man. I bow down to
Allah."

He also had a message for fellow death row inmates, calling a
recent spate of Texas executions "madness."

"Life goes on. You all stay strong," he said. "Don't let these
people break you. Keep true to nature. You do not have to act
like them. Rise above it."

Rogers prayed quietly as the drugs took effect and mumbled,
"Kinda bad, ain't it?" just before he wheezed and stopped moving.

Among the witnesses watching through a window a few feet away
were the brother and mother of the police officer Rogers killed.

Rogers was the first of four condemned murderers set for lethal
injection this week in Texas, where at least 11 death row inmates
have execution dates this month.

His execution also was the 17th so far this year in Texas, nearing
the record 19 injections the state carried out during 1995 and 20
electrocutions in 1935.

Since Texas resumed carrying out capital punishment in 1982, it
has been the nation's most active capital punishrtent state.
Executions this year have accelerated as longtimé-inmates exhaust

/04 >


NAME: ROGERS, PATRICK F. DATE OF EXEC.: 1997/06/02 NUMBER: 388

S: YofE: 97 DR #: TX-000816 METHOD: INJECTION TIME: 1817
SOc. CLASS: ECO. CLASS: EXECUTION SET : 97/06/02-EXE NO.:
RACE: B SEX: M TO-DR: 11.4 T-C: 11.7 AGE AT EXEC.: 33 DOB: 64/01/06
STATE: TX CO: LAMAR [T=COLLIN] CITY: PARIS
HOR: OK CITY BOOK/MOVIE:
H: L: 3 C: 3 E: 2 SPECIAL LIST:
DATE OF CRIME: 1985/09/21 AGE AT CRIME: 21 CATEGORY: LEO LEO: Y
DATE OF SENT.: 1986/01/20 WEAPON: SHOT- .38
CRIME: MURDER NO. KILLED: 1 TOTAL KILLED:

VICT. CODE: WM23
CMTS#1: DAVID W. ROBERTS (23), LEO, Mt+O*, shot six times thru windshield & side

-crime spree TX & OK: stole police car in OK, robbery of pawn shop, rob
of ice cream parlor ($685)

“ROGERS came out shooting {numerous witnesses}

~2 more robberies w/in hours (to steal cars) CAUGHT THAT DAY
KNOWN PREVIOUS CONVICTIONS: ROBBERY; AUTO THEFT {ON PAROLE }

ACCOMPLICE: COOPER, Willis [L] FIRST ENTER:

CMTS#2: USSC DENIED APPEAL 1989/11/27 TX CofCA REJECTED 91/06/19
we LOER Gr. i408,

--CLAIMED: insanity & drugs
--TRIAL: GUILTY <=lhr DEATH >=2hrs

*WIDOW OF OFFICER ROBERTS: gave birth to a son shortly after (David JR)
later -she married Joe Tuttle (ROBERTS best friend, LEO, now with the
Lamar §.0. as an investigator, he was a witness at the execution)

LAST WORDS: Lengthy statement: denounded the death penalty, and gave a
message to inmates. "Give praise to Allah, I bow down to Allah, most
merciful. I ask to seek his forgiveness. If this is what they want to see,

this is what they get. I bow down to no man." "Life goes on. You all stay
strong. Don’t let these people break you. Keep true to nature. You do not
have to act like them. Rise above it." "I’m finished*

shivered after I.V. then "Kinda bad, aint it.”

LAST MEAL: Coca Cola

HUMOR-STRANGE :

SOURCE: TX AG DOC’s; AP-UPI-REUTERS IQ LEVEL:

CMTS#3: WITNESSES: ROGERS -none (talked w/ 2 sisters earlier in day)
VICTIM’S FAMILY: 5 witnesses

' PATSY ROBERTS (mother) "I'll not have my son back, but I
am relieved,"

DANNY ROBERTS (brother) "To any attorney, judge, court

Convict executed for killing officer

Page 3

dealing with other police officers, the public. They all want to
know why it's taking so long."

Cooper, now 31, settled for a plea arrangement and is serving a
life sentence for aggravated robbery.

At his trial, Rogers admitted to shooting the officer but insisted he
did not know why. A jury rejected his insanity defense and
decided he should be put to death.


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& FP
50! NORTH OREGON
EL PASO, TEXAS 79901


—

Mr. Rougeau told thr God knows ”
lece who had 8athered in the death last month. “yy

or his life Mr. Wij Ins, a deput nN appeal to the §
constable, was Moonlighting as a Mr Rougeau contend
guard. yers had been incom

Mr. Rougeau’s younger brother, the Texas death
Joseph, was Killed in an exchange of Constitutional.
gunfire with Officers who had pulled His first Conviction

; b .

wounded and fleq but was arrested 12 ruled that potential j
hours later. The third Participant tes. improperly excused f
tified against him as Part of a Plea reservations about the
agreement. He was retried the next year.

—___Misses _
S-m-l-x]

Now through Sunday, May 8, if we ‘e™ this sil!

in the color OF size you need (fry.
—

Thursday * May Sth « 8:00-9:00 PM
_ = 2282 Broadway at Qn ¢..


Ot ee ay

ROUGEAU, Paul, bl., 46, leth, inj., TXSP (Dallas) Ex, May 3rd, 1994

DALLAS. MoRNING NEWS

TUES.

MAY

3, 1994

Man executed for 1978 murder

Associated Press

HUNTSVILLE, Texas — A Louisi-
ana man convicted in the shooting
death of a security guard in Houston
16 years ago was executed early Tues-
day.

Paul Rougeau, 46, who contended

that he was innocent and should not —
‘be put to death, was pronounced dead
at 12:20 a.m., nine minutes after the

lethal drugs began flowing into his

| veins.

Mr. Rougeau had three sisters and

‘a niece in the death chamber to

watch him die. He greeted them and

said he loved them, adding, “Peace be

with you all.”
Mr. Rougeau then told the warden
he would have no final statement.
Family members chanted and

prayed in the death chamber during

the execution.

Outside the prison, about eight —
family members stood in a driving
rainstorm to await the outcome.

“I don't know why people in Texas

* enjoy such killing,” said James Rou-

geau, the inmate’s oldest brother.
‘Mr. Rougeau, from St. Bernard
Parish, La., was executed for the Jan.
6, 1978, death of Albert Wilkins, a
Harris County deputy. constable who
was off duty and working as a securi-
ty guard at a Houston bar at the time
he was slain. Mr. Rougeau had been
tried and convicted twice in the
shooting death.

The US. Supreme Court denied an
application for a stay early Monday

' evening. Mr. Rougeau had contended

that his trial lawyers were incompe-
tent and that the Texas death penalty
statute was unconstitutional.


saiall gftechment that cua. :
stalled on any tadie recelving net.
or hallt Inte new. instrament,

j The little, in
otmply © separates atatic. fri
other ether. waves and: casts .(t

ctadavtry, in the eptnion of
ufecturere wha!
‘ Ona:

ted States: government
of an. alle

bd

*OZ6T"“6"T UO (os

EL PASO PUBLIC LIBRARY
60! NORTH OREGON
El. PSO, TEXAS 79701


os

aie

‘

eR is att ce GR eel

ore
' se

Executio

on ee eS

4 ii ‘a iy

'
Me
‘

8

t

THE

4

‘ 4 .
NEW YORK TIMES, TUESDAY, SEPT EMBER 10, 1985

_

4

Ra PA EOF

po iy Te thn ” pie “S
By ROBERT REINHOLD {—
Special to The New York Times

sane
3

€
Ca

HOUSTON, Sept. 9 — Texas plans to

execute a man Wednesday for a mur-
der he committed at 17 years of age,
focusing new attention on an poten-
tially emotional issue: Should juveniles
be subject to capital punishment?

+, The execution would be the first in
more than two decades for a crime

-committed by someone under 18.-

Thirty-two others — all convicted of
murders, three committed at the age of
15 — await execution on death rows in

the United States. The largest number, _

nine, are here in Texas.
.. The laws of 29 states permit such ex-
ecutions, and one state, Indiana, ex-

plicitly permits executions of children —

‘as young as 10 years old.
Last week, Amnesty International,
the London-based organization that
‘campaigns for the rights of prisoners,
said that Wednesday’s execution would
‘violate two international agreements
signed by the United States that forbid
capital punishment for crimes commit-

‘ted at ages younger than 18. However, .
js. the two agreements have never been:
~ sratified by the Senate. 4 :

6: “Crime Committed in 1975 ;

* The man scheduled to die Wednesday

- "js Charles Rumbaugh, now 27, con-

“demned for the murder of an Amarillo
' jeweler in a robbery in 1975. He told an
“Associated Press interviewer last week

-that he had asked his lawyers to end,

“their efforts. ‘‘I’ve told them to leave it
«alone,”’ he said. “I’ve been prepared

. “for a long time.”

Three of the other youths awaiting

" “execution were 15 years old at the time
- “of their crimes. They are Leon Brown,
- convicted of the rape and murder of an

~1-year-old girl in North Carolina in
“44983; Wayne Thompson, convicted in

‘ *iQklahoma last year of the kidnapping

2and death by beating of his former
brother-in-law; and Joseph Aulisio, for
“the 1981 murders of an 8-year-old girl
and a 4-year-old boy in Pennsylvania.
The execution of juvenile criminals
in this country is not new, though wide-
‘spread repugnance at the practice
“meant that it was applied very un-
vevenly over the years. According to re-
_ssearch by Prof. Victor L. Streib of the

| “Cleveland Marshall College of Law at
‘eCleveland State University, there have |.

been 266 executions for child-age

“«rimes since Colonial times; one of
them as young as 10. The professor

_Araced the earliest to Massachusetts in

)1642 when a 16-year-old boy was put to

‘wdeath for the crime of buggery.

Over the years, 42 black youths under

$i

be

eae
a A

s on Old Issue

vithe age of 18 were executed by South-

n for Juveniles: New Focu

California

. Connecticut
Ilinois
Nebraska
Ohio ae
Tennessee

Virginia ,

|

Georgia
New Hampshire

Texas
Utah

Montana

Nevada . Indiana

Louisiana -

North Carolina

...but age is a
factor in
sentencing
Arizona
‘Arkansas
Colorado
Florida
Maryland .
« Mississippi
New Mexico
Pennsylvania
South Carolina
_ Washington
Wyoming -
..and age is not
a factor in
sentencing:
Delaware
Oklahoma
South Dakota

4

‘The New York Times/Sept. 10, 1985

an a i
Wy

ern states for the rape or attempt
rape of white women. The last child ex-
ecution took place in Texas on May y 3
1964, when James Andrew Echols, was
executed for raping a white girl at age
17.
State Laws on Execution —

Today, 16 states explicitly permit ex-
ecutions for under-18 crimes, setting
the minimum variously at 17, 16, 15, 14
and 10. The minimum in New Jersey,
for example, is 14 years. Eleven other
states have no minimum at all, al-
though the law there requires judges
and juries to consider age a mitigating
factor when meting out capital punish-
ment. Three other states — Delaware,
Oklahoma and South Dakota — specify
neither minimum age nor age as a
mitigating factor and it is possible, in
theory, for a child of any age to be sen-
tenced to death there. New York essen-
tially has no death penalty, except in
very limited circumstances. The mini-
mum age in Connecticut is 18.

The impending executions raise diffi-
cult questions about the capacity of
children to understand the difference
between right and wrong and whether
the youthful criminal can still be suc-
cessfully rehabilitated. Lawyers for
them have argued that death is too se-
vere a penalty, and the Supreme Court,

sane wR

yd Ars,

| while condoning the death penalty gen-

sendy

erally in recent years, has yet to rule
specifically on challenges to its juve-
nile application. In 1983, the House of
Delegates of the American Bar Associ-
ation adopted a resolution opposing the

~ old paralyzed man in a wheel chair in
: nine-year-old girl in 1979 in Pennsylva-

© “The younger a person is the more

penalty for crimes committed under
age 18. d

Professor Streib, an opponent of the
death penalty, maintains that what-
ever its retributional value, the death
penalty is a dubious deterrent when it
comes to adolescents.

“It seems Clear that few adolescents
have any meaningful concept: of
death,” he wrote recently in Life Lines,
published
Against the Death Penalty. ‘‘In fact,
they seem to be attracted to death-
defying behavior, so the threat of a
death penalty may actually encourage
some juvenile crimes. The entire

gamut of justifications for the death|-

penalty in general seems to lose any
persuasiveness when applied to adoles-
cents.”

Shocking Nature of Crimes

On the other hand, some of their
crimes have been shocking. Johnny
Frank Garrett of Texas, for example,
raped and killed a 76-year-old nun in
1981 when he was 17. Lee Roy Barrow

by the National Coalition) y

Texas. Frederick Lashley of Missouri
robbed and killed his handicapped
mother in 1981 when he was 16, and
Kevin Hughes raped

nia at age 16. In New Jersey, Marko
Bey faces death, convicted of raping
and killing two teen-age girls in April
1983. ‘

be weighed against the seriousness of
the crime.”” When it comes to murder,
he went on, ‘‘What is right and wrong is
so obvious that a 17-year-old should not
have any difficulty making that deci- fs
sion.” He added that frequently the
murder followed numerous other seri-
ous crimes. -

Of the 33 juvenile criminals on death
row in 15 states, three were 15 years
old, seven were 16 and 23 were 17 years
at the time of the crimes, according to
Professor Streib’s compilation. Racial-
ly, 18 are white and 15 are black. As of
Aug. 1, according to a tally kept by the
NAACP Legal Defense and Educa-
tional Fund in New York, 1,540 inmates
were on death row in the 37 states
where the law permits captial punish-
ment, meaning that youthful offenders
constitute only 2 percent of the total. "1

Complexities of Issue...) | f-—

‘Mr. Rumbaugh’s life is a case in
point of. the complexities of the issue.
He bears numerous bodily scars, evi-
dence of a tough childhood, in which he
first got into trouble at age 6, when he
broke into a schoolhouse in San Angelo,
Tex. He committed his first armed rob-

@

6

some qualms, ‘‘It kind of bothered me!
a little,” he said.

was 17 when he beat to death a 70-year-


-->

Texan Who Killed at 17

Awaits Execution

HUNTSVILLE, Tex., Sept. 10 (UPI)
— Charles Rumbaugh, who committed
his first robbery when he was 12 years
old and was sentenced to death for
murder at 17, visited with relatives and
friends today while awaiting his execu-
tion.

“He just appeared calm — he wasn’t
talking to anybody,” Charles Brown, &
spokesman for the Corrections Depart-
ment, said after Mr. Rumbaugh was
transferred to a holding cell next to the
chamber to await his execution by le
thal injection before dawn Wednesday.

Mr. Rumbaugh, now 28, has spent
1014 years on death row for the killing
of an Amarillo jeweler in the course of
a 1975 robbery. The prisoner, who
refused to authorize lawyers to seek an-
other stay of execution, said he was
forced to kill Michael Fiorillo when the
jeweler grabbed a gun.

“ft would run in and stick a gun in
someone's face and say give me your
money and they'd give me their
money,”’ Mr. Rumbaugh said. ‘‘Finally
someone called my bluff."

- - - , -

SIMI?

Ly
2)

\

~~

uv

.

»

x

|

\they were er
Amnesty rernational said today.

Mr. Rumbaugh admitted killing an
Amarillo jeweler in @ holdup in 1975
when he was 17.

Amnesty International, which pro-
tests the incarceration and treatment
of political prisoners and opposes the
nn G-5-85 NI TIMES,

death penalty, maintains that the
United States should abide by two
agreements it signed in the 1960's.
The said the International
Covenant on Civil and Political Rights
was adopted by the United Nations
General Assembly in 1966. It states,
“Sentence of death shall not be im-
posed for crimes committed by persons
below 18 years of age and shall not be
carried out on pregnant women.”

The group said the United States also
si the American Convention on
Human Rights, adopted by the Organi-
zation of American States in 1969,
which says, ‘‘Capital punishment shall
not be imposed upon persons who at the
time the crime was committed were
under 18 years of age or over 70 years
of age, nor shall it be applied to preg-
nant women.”

President Carter later submitted
both agreements to the Senate for its:
consent but they were never approved,
the group said.

i Fe" NP TR a ih adil 7 ae =
Frm HUNTSVILLE, Texas Convicted killer Charles Rum- !

baugh, 28, was executed by

injection at 1:27 am. EDT ©

s¥oday. Rumbaugh was sentenced to death at the age of 17.


estes tae ey a tihPins
sonal ag Mili

ee a ee

- Around —

the
Nation

—

Texan Who Killed at 17

| Awaits Execution

HUNTSVILLE, Tex., Sept. 10 (UPI)
— Charles Rumbaugh, who committed
his first robbery when he was 12 years
old and was sentenced to death for

‘He just appeared calm — he wasn’t

‘| talking to anybody,’’ Charles Brown, a
:} spokesman for the Corrections Depart-
.|ment, said after Mr. Rumbaugh was
:} transferred to a holding cell next to the

chamber to await his execution by le-

Mr. Rumbaugh, now 28, has spent
1014 years on death row for the killing
of an Amarillo jeweler in the course of
a 1975 robbery. The prisoner,. who

_| refused to authorize lawyers to seek an-

‘l other stay of execution, said he was

_ || forced to kill Michael Fiorillo when the
jeweler grabbed a gun.

‘“‘I would run in and stick a gun in

- ~~1 gsomeone’s face and say give me your

-|money and they’d give me their

Saf ate money,’’ Mr. Rumbaugh said. ‘‘Finally

~<:| someone called my bluff.”

+4

murder at 17, visited with relatives and.
‘| friends today while awaiting his execu- "
ra | tion.

thal injection before dawn Wednesday. .

Sr ee eee. Ne i es

7

Ladi aed 2 et

=

‘ee

i

hada ed oe

|| Pervised, said a spokesman for the Cor-

.| and one was killed Monday. Four died

&

| Lockup Continues
At Texas Prisons

HUNTSVILLE, Tex., Sept 10 :
— Nearly 6,000 Texas ittnihide Wise ,
locked in their cells for a second day to-
day in an effort to quell a rash of in-
mate killings linked to warfare be-
tween two prison gangs.
The lockup at 13 of the state’s 26
prison units was ordered Monday, after
the eighth inmate killing in as many
days. The Slaying brought to 26 the
number of prisoners killed this year.
Inmates are not being allowed out of
their cells and are being fed sack
lunches. If they are taken from their
cells for showers, they are closely su-

rections Department, Phil Guthrie. |
Three inmates in the Texas. prison
system were stabbed to death Sunday

THE NEW YORK TIMES. WEDNESDAY

(| Over the Labor Day weekend.

f -

Ct SHARE IAS tty AONE eR vi pi Aliest SS SRSceshltae 32 seh maton tl soe is eons :

Pao

ry

SEPTEMBER 11 10,

a ee

ee

STARKE, Fla., Sept. 4 (UPI) — The
Supreme Court, in a rare reversal, has
indefinitely postponed the execution of
Willie Jasper Darden and granted a full
review of his conviction for killing a
.|/businessman in a holdup that netted

him $15.

The Court’s decision came at 11:59
P.M. Tuesday, seven hours before Mr.
Darden was to die in the electric chair
at Florida State Prison here. ti
|. The High Court, by a vote of 5 to 4,
first denied Mr. Darden’s motion for an

| ae ed

: lemergency stay of execution. Justices

' | William J. Brennan Jr., Thurgood Mar-
-|Sshall, Harry A. Blackmun and John

Paul Stevens dissented.
Mr. Darden’s lawyers then returned

: }to the Court and requested a full review

of the case, a move that requires the
approval of only four Justices.

‘An Unusual Situation’

| Officials said the vote on petitions for
j@ full review are rarely disclosed by the
jCourt, but Justice Lewis F. Poweil Jr.

Supreme Court, in Reversal, Bars F lorida Execution to Review Case

issued a brief written comment with
the Court’s order.

Calling the case ‘‘an unusual situa-
tion,”’ he said, ‘‘In view of the fact that

life at stake, I feel obligated in this
case, where the Justices are scattered

conference, to join in granting the
plication for stay.”

A prison spokesman, Vern
ford, said Mr. Darden had
die and was “‘going about
when the reprieve came
Mr. Darden was
murder of a Lakelayid, Fla., furniture
store owner, James Carl Turman,
Sept. 8, 1973. Mr: Darden has consis-
tently maintained his innocence.

Mr. Darden’s Supreme Court appeal
was based, in part, on what the defense
called ‘“‘outrageous” closing argu-
ments by a prosecutor, C. Raymond
McDaniel, that prejudiced the jury.-

Mr. McDaniel told a jury that Mr.

ey I pO NN iioeneate am aaa
i j ‘

Darden was an ‘‘animal’’ who shot Mr.

THE NEW YORK TIMES,

this is a capital case with petitioner’s}

geographically and unable to meet for |

Amarillo jeweler
when he was 17.

amintintaerain. oe

Turman and a 16-year-old boy, then
tried to force Mr. Turman’s wife to
commit a sex act ‘“‘while her bleeding
husband lay in a rainstorm at the
door.”’

» Darden, 52 years old, was con-
éd Jan. 23, 1974, and has. been on
th row since Jan. 29, 1974.

Amnesty International Plea

WASHINGTON, Sept. 4 (AP) — If
Texas executes Charles Rumbaugh on
Sept. 11, as scheduled, the United
States will find itself at odds with inter-
national agreements not to execute
convicts for crimes committed when
they were younger than 18 years old,
Amnesty International said today.

Mr. Rumbaugh admitted killing an
in a holdup in 1975

Amnesty International, which pro-

tests the incarceration and treatment
of political prisoners and opposes the

THURSDAY,

death penalty, maintains that the
United States should abide by two
agreements it signed in the 1960’s.

‘was adopted by the United Nations
General Assembly in 1966. It states,
“‘Sentence of death shall not be im-
posed for crimes committed by persons
below 18 years of age and shall not be
carried out on pregnant women.”

The group said the United States also
signed the American Convention on
Human Rights, adopted by the Organi-
zation of American States in 1969,
which says, ‘‘Capital punishment shall
not be imposed upon persons who at the
time the crime was committed were
under 18 years of age or over 70 years
of age, nor shall it be applied to preg-
nant women.”

President Carter later submitted
both agreements to the Senate for its

the group said.

Z

ee 2 EG

oseeann ing, Manet

The group said the International y
Covenant on Civil and Political Rights

consent but they were never approved,

PENT R tga ats ie Pare eee ee
Bier Sate he Set oF fA AS fag Soh 2


~~
~

~~ ee

Rone eae wey ae

ant

4M LIBRARY

< wry

754 Tex.

The evidence was properly admitted. The
contention is overruled.

In ground of error six, appellant main-
tains that the testimony of Frank Carter
was erroneously admitted as it was obtain-
ed as a result of an illegal arrest. The
contention is without merit.

At the punishment phase of the trial,
Lieutenant Frank Carter testified that on
March 28, 1975, he went to the Roosevelt
Hotel in connection with his investigation
of an armed robbery.4 The Lieutenant saw
Rumbaugh get out of a cab, carrying a
sack. Carter said “Hello, Chucky. What
do you have in the sack?” “When I asked
him that, he said, ‘Nothing,’ and he just
kind of fell back and the next thing I know
he had a revolver sticking in my stomach.”
Carter dived behind a car. He heard two
shots fired and saw that his partner, Detec-
tive Zuniga, had drawn his revolver. The
appellant was able to escape. The officer
observed the contents of the bag appellant
had been carrying which were strewn on
the sidewalk and found clothing which
matched the description of the clothes worn
by the robber that Carter had been seeking.

[11,12] It is the officer's testimony of
what transpired which appellant maintains
should be suppressed. The initial question
presented, though, is whether or not a “sei-
zure” of appellant occurred. The appellant
argues that there was insufficient probable
cause for the detention. As this Court stat-
ed in Galitz, supra, quoting from Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968):

“There is nothing in the Constitution

which prevents a policeman from address-

ing questions to anyone on the streets.

Absent [an objective and particularized

suspicion that a particular person is en-

gaged in specific criminal activity] the
person approached may not be detained
or frisked but may refuse to cooperate
and go on his way.” (footnote omitted).
Contrary to appellant’s assertion, there is
no evidence that appellant was arrested;

4. The witness testifying before Lieutenant Car-
ter identified the appellant, without objection,

629 SOUTH WESTERN REPORTER, 2d SERIES

rather, the officer asked appellant a ques-
tion to which the appellant responded by
pulling a gun on the officer. As this Court
has previously held, proof of unadjudicated
extraneous offenses at the punishment
phase of a capital murder case is admissible.
Williams v. State, 622 S.W.2d 116 (1981);
Garcia v. State, 581 S.W.2d 168 (Tex.Cr.
App.1979). The contention is overruled.

[13] In ground of error seven, appellant
contends it was error for the trial court to
refuse to admit a videotape of an interview
between appellant and a reporter which
was conducted on August 31, 1978, while
appellant was on death row after his first
conviction for this offense. After the trial
court refused admission of the videotape,
the defense, by way of bill of exception,
called the reporter to the stand. The re-
porter testified that the interview did occur
and that the videotape accurately portrayed
what occurred. There is nothing whatsoey-
er which indicates how this exhibit would
be relevant to any issues at the punishment
phase of the trial. The videotape does not
appear in the record. Nothing is presented
for review. See Chambers vy. State, 568
8.W.2d 313 (Tex.Cr.App.1978).

[14] Next, appellant urges that the evi-
dence is insufficient on special issue number
one, the “deliberateness question.” Art.
37.071(b)(1), Vernon’s Ann.C.C.P. Appel-
lant’s entire argument in support of this
assertion is,

“Article 37.071(3)(c), requires that the

State shall prove the issue of a Defend-

ant’s deliberateness concerning his act be-

yond a reasonable doubt. Article 37.-

071(8)(c), Vernon’s Ann.C.C.P. Appellant

would submit that the evidence presented

by the State in this cause falls far short
of being sufficient to sustain the jury’s
answer of ‘Yes’ to the issue of deliberate-
ness beyond a reasonable doubt.”

As recited in appellant’s confession,

“[The deceased] pulled [a pistol] out, and

when I saw this, I grabbed him and

pulled him to the floor.

as the perpetrator of this robbery.

RUMBAUGH y. STATE Tex. 755
Cite as, Tex.Cr.App., 629 S.W.2d 747

He dropped the pistol and he grabbed for
it again. I put the gun near his head and
shot. He fell down and I said, ‘You dumb
son-of-a-bitch.
The old man started to get up again, and
I shot him again. He fell again and I
figured he was dead.”
We find the evidence sufficient to sustain
the jury’s verdict. See Milton v. State, 599
S.W.2d 824 (Tex.Cr.App.1980). The conten-
tion is overruled.
[15] Appellant argues in ground of er-
ror nine that the trial court erred in allow-

‘ing the admission of a photograph of the

deceased, taken prior to autopsy. Appel-
lant argues initially that this Court should
abandon the rules set out in Martin v.
State, 475 S.W.2d 265 (Tex.Cr.App.1972).
This we decline to do. The photograph
which depicted the deceased, and the wound
he suffered was not gruesome and inflam-
matory so as to outweigh its probative val-
ue. Milton v. State, supra; Martin v. State,
supra. The contention is overruled.

[16] In ground of error ten, appellant
maintains the trial court erred in refusing
to grant a mistrial when the prosecutor,
during final argument, commented on ap-
pellant’s failure to testify. The com-
plained-of argument is as follows:

“Now, another thing advanced that I

heard was ‘Well, he didn’t kill Jerry Ja-

cobs.’ He didn’t give up his gun, either,
until he was shot in his arm. Is that
altogether a reasonable sort of thing to
do? And I don’t see how anybody can
call that plain vanilla, any more than
they can compare these proceedings to
something under Hitler. And I sure
don’t think that it’s wrong for this jury to
see and hear what the Defendant in the

case did.” é
We find that the argument was proper as a
response to defense argument. Defense
counsel, in response to the State’s argument
which detailed the sequence of offenses
committed by appellant, argued:

“If you have listened to the very strident

argument of Mr. Hughes, how much of

his argument was devoted solely to the
murder case of Mr. Fiorillo? Maybe

three minutes. A very small portion of
what you have heard in argument and
what you have heard in this courtroom
the last few days, since Monday, has been
concerned with what I would call a plain
murder case of Mr. Fiorillo.

* * * * * *

Now, Hitler had that same theory; he
decided that there were whole classes of
people that he could do away with, he
decided if someone was suffering from a
mental illness, we castrated them or put
them to death, or if they were unaccepta-
ble. The problem with that theory is that
you have to rely on some man like Tem-
ple Elliott to make that decision.

* * * * ~ *

If Tom Curtis can take a plain vanilla
robbery-murder that shouldn’t have hap-
pened, and I’m sorry, but I can’t bring
him back, if he can scare you all into
turning your mind off and forgetting
your oath and finding a crazy kid guilty
of capital murder, then you know—I
don’t know.”

We do not perceive the statement by the

prosecutor to be an improper comment on

the failure of appellant to testify.

[17] Finally, by way of a supplemental
ground of error, appellant argues that the
admission of testimony from a psychiatrist
and a psychologist at the guilt stage of the
trial constituted error as enunciated in Es-
telle v. Smith, 451 U.S. 454, 101 S.Ct. 1866,
68 L.Ed.2d 359 (1981). Appellant states
that although the statement of facts was
not before him, he “generally recall[ed] the
testimony of both as being a very positive
opinion on the part of each that based on
their examinations of appellant he would
probably commit future violent acts, and
the specific statement of Dr. Elliot that
appellant should be killed.” This assertion
is devoid of merit. Estelle v. Smith, supra,
is inapplicable here. The record reflects
that at the guilt stage, the defense, in an
effort to establish an insanity defense, in-
troduced testimony from a psychiatrist, a
psychologist and a couple of social workers.
These witnesses presented testimony that


pe
ae Se a ee ty
oe :

Amen

RUMBAUGH v. PROCUNIER

Cite as 753 F.2d 395 (1985)

At no time, even at the “commence-
ment” ? of any of these actions, has there
ever been complete diversity of citizenship

between the parties to it.2 Nondiverse par-

ties, sued on the basis of. federal question
jurisdiction, were always present in each.
At the outset of each, however, and before
severance of the civil rights claims, an inde-
pendent basis of jurisdiction supported the

actions against these parties, 28 U.S.C.

§ 1331.,

[2,3] Years ago, in Romero v. Interna-
tional Terminal Operating Co., 358 U.S.
354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the
Supreme Court recognized an exception to
the complete diversity rule of Strawbridge-
the :presence of a nondiverse defendant
does not destroy diversity jurisdiction over
others where an independent basis of fed-
eral question jurisdiction (there the Jones
Act) over the nondiverse defendant exists.
See Powell v. Offshore Navigation, Inc.,
644 F.2d 1063 (5th Cir.1981) (discussing and
applying Romero). That is the case on
these appeals. Nor does the severance of
the federal question claims—which are not
claimed to be frivolous ones—destroy juris-
diction, once acquired when the action com-
menced. It follows that the orders of dis-
missal for want of jurisdiction in these
cases were erroneous.!

VACATED and REMANDED.

O &© KEY NUMBER SYSTEM

ANNs

misgivings about its holding, it has been with
few exceptions adhered to. See Wright, Miller
& Cooper, Federal Practice and Procedure: Jur-
isdiction 2d § 3605.

2. Even though added by later amendments, for
present purposes the amended claims refer back
to the commencement of the actions in which
they were filed. Rule 15(c), Fed.R.Civ.P.

Harvey and Rebecca RUMBAUGH, Indi-
vidually and as Next Friends Acting on
Behalf of Charles Rumbaugh, Plain-
tiffs-Appellants,

Vv.

Raymond K. PROCUNIER, Director,
Texas Department of Corrections,
Defendant-Appellee.

No. 83-1161.

United States Court of Appeals,
Fifth Circuit.

Feb. 20, 1985.

Petitioners filed application for writ of
habeas corpus on behalf of Texas prisoner
who had been sentenced to death. The ©
United States District Court for the North-
ern District of Texas at Amarillo, Mary
Lou Robinson, J., 558 F.Supp. 651, held
that petitioners lacked. standing and federal
court lacked jurisdiction to entertain appli-
cation. Petitioners appealed. The Court of
Appeals, 730 F.2d 291, held that interim
filng by prisoner of application in state
court for habeas relief mandated deferral
of ruling on prisoner’s parents’ application
to present next friend petition for habeas
relief on behalf of their son; matter was to
be monitored on remand. The United
States District Court for the Northern Dis-
trict of Texas at Amarillo, Mary Lou Robin-
son, J., held that prisoner possessed requi-
site mental competence to decline to exer-
cise his rights to secure collateral review of
his conviction and sentence. Petitioners
appealed. The Court of Appeals, Politz,
Circuit Judge, held that despite death-sen-
tenced state prisoner's mental illness,
marked primarily by profound depression,

3. It is to that time that, as a general rule, discus-
sions of jurisdiction refer. Wright, Miller &
Cooper, Federal Practice and Procedure: Juris-
diction 2d § 3608.

4. The trial courts retain, of course, discretion
whether to exercise jurisdiction over the pen-
dent state claims. United Mine Workers v.
Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966).

396

he did not lack the requisite mental compe-
tence to waive his rights to further judicial
review of his conviction and sentence;
hence, his parents lacked standing to bring
action for habeas relief as next friends.

Affirmed.

Goldberg, Circuit Judge, dissented and
filed opinion.

1. Habeas Corpus €-113(12)

Question whether death-sentenced
state prisoner lacked mental competence to
waive his rights to further judicial review

of his conviction and sentence, so as to

permit his parents to bring action for habe-
as relief as next friends, was essentially a
factual determination, with the district
court’s findings to be accepted unless
shown to be clearly erroneous. Fed.Rules
Civ.Proc.Rule 52(a), 28 U.S.C.A.

2. Habeas Corpus €=51

Despite death-sentenced state prison-
er’s mental illness, marked primarily by
profound depression, he did not lack the
requisite mental competence to waive his
rights to further judicial review of his con-
viction and sentence; hence, his parents
lacked standing to bring action for habeas
relief as next friends.

Will Gray, Carolyn Garcia, Houston,
Tex., for Harvey and Rebecca Rumbaugh.

Jim Mattox, Atty. Gen., Leslie A. Beni-
tez, Asst. Atty. Gen., Duane E. Crowley,
Austin, Tex., for defendant-appellee.

Appeal from the United States District
Court for the Northern District of Texas.

x

Before CLARK, Chief Judge, GOLD-
BERG and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

This matter was returned to this panel
for disposition in accordance with the spe-
cial order we entered on remand, Rum-
baugh v. McKaskle, 730 F.2d 291 (5th Cir.
1984). We now consider the appeal of Har-
‘vey and Rebecca Rumbaugh from the deci-

753 FEDERAL REPORTER, 2d SERIES

sion of the district. court, Rumbaugh v.
Estelle, 558 F.Supp. 651 (N.D.Tex.1983), de-
nying their request to present a next friend
petition for writ of habeas corpus on behalf
of their son, Charles Rumbaugh, a death-
sentenced state prisoner. Charles Rum-
baugh continues to refuse to seek collateral
review of his conviction and sentence and
continues to resist the efforts of his par-

ents to secure that review. Harvey and

Rebecca Rumbaugh maintain that their son
lacks the mental capacity to waive or forgo
his rights to collaterally attack his death
sentence. After an exhaustive review of
this record, including a review of the tortu-
ous and bizarre course this litigation has
followed, we conclude that the district
court was correct in finding and concluding ©
that Charles Rumbaugh possesses the req-
uisite mental competence to decline to exer-
cise his rights to secure collateral review of
his conviction and sentence. Accordingly,

we affirm.

Facts and Procedural Background

Charles Rumbaugh was first convicted of
capital murder and sentenced to death by a
Texas state court on April 4, 1975. This
conviction was reversed,on appeal by the
Texas Court of Criminal Appeals on the
ground that inadmissible evidence had been
admitted. -Rumbaugh v. State, 589 S.W.2d

~ 414 (Tex.Cr.App.1979). At the retrial Rum-

baugh was again convicted of capital mur-
der and sentenced to death. The second
conviction was affirmed on direct appeal,
Rumbaugh v. State, 629 S.W.2d 747 (Tex.
Crim.App.1982). Following affirmance of
the second conviction Rumbaugh asked his
court-appointed counsel to take no further
steps to attack his conviction and sentence.
When counsel ignored this request and
moved for a rehearing, Rumbaugh wrote
the Clerk of Court for the Texas Court of
Criminal Appeals and requested that all
motions filed by his counsel be withdrawn ~
and that a mandate of affirmance issue
forthwith. The court obliged and the man-
date issued. Rumbaugh then wrote the
state trial judge requesting that his execu-
tion be set, without further delay. Rum-

ee

756 Tex.

appellant had been diagnosed as being men-
tally ill, prior to the occurrence of the in-
stant offense.

In rebuttal the State presented testimony
from two psychiatrists and a psychologist
that appellant had no organic brain dam-
age, but was suffering from an antisocial
personality. The last two witnesses, a psy-
chiatrist and a psychologist, had examined
appellant while he was in jail for the in-
stant offense. The examination was made
at the request of defense counsel and in
defense counsel’s presence. Neither wit-
ness testified that appellant would be a
continuing threat to society. Regarding
the statement alluded to in appellant’s
brief, the record reflects that on re-cross
examination of one State’s witness, defense
counsel asked:

“Q. What do you think we ought to do
with him, just kill him, Doctor?
That’s a hard question.

Yes, sir.
But I would say yes.”
The contention is overruled.

We have considered appellant’s pro se
contentions and have addressed them in
context with the above grounds of error.

> o>

The judgment is affirmed.

ROBERTS and TEAGUE, JJ., concur in
the result.

CLINTON, Judge, concurring.

That evidence of escape tendered by the
prosecution was relevant under the circum-
stances does not necessarily mean it was
admissible. The various and varied views
expressed by members of a divided Court in
Hodge v. State, 506 S.W.2d 870 (Tex.Cr.
App.1973-1974). indicated that the real
problem in such case is the matter of admis-
sibility. I am enough inclined to agree that
the trial court properly admitted the testi-

1. See generally Ray, Law of Evidence §§ 41-
47, 1 Texas Practice 47 ff.

2. All emphasis is mine unless otherwise indi-
cated.

3. “An issue could have been raised in the
Present case; for example, if appellant had

629 SOUTH WESTERN REPORTER, 2d SERIES

mony here, but I am troubled that the
Court seems in the past to have turned
burden of producing testimony into a bur-
den of persuasion,! and created a procedural
difficulty as to admissibility of evidence of
escape that is not addressed today.

In Hodge v. State, supra, the opinion on
rehearing states:

“... In order to have such evidence ex-
cluded, the burden then shifts to the de-
fendant to show affirmatively that the
escape and flight is directly connected to
some other transaction and further show
that it is not connected with the offense
on trial.” Id., at 873.2

I take it that some kind of hearing outside
the presence of the jury is contemplated to
resolve the question of admissibility, al-
though of that one is not certain from a
close reading of the Hodge opinion on
rehearing. Thus, it was further written:

ae If the defendant offers evidence
that the escape and flight may have
sprung from some other cause, but its
connection to the offense on trial remains
a logical one, the evidence would still be
admissible, the defensive evidence going
only to the weight of the evidence.” Id.,
at 873.

Since weight of the evidence is a matter for
the jury, the supposition in Hodge must be
that “defensive evidence” is to be adduced
in front of the jury. But see the contrary
suggestion a year later in Wockenfuss v.
State, 521 S.W.2d 630, 6323 (Tex.Cr. App.
1975).

The opinion of the Court in the instant
cause concludes on this point that, given the
State established appellant escaped from
custody while awaiting trial on the charge
in this cause, “[a]bsent showing by appel-
lant that escape was related to circumstanc-

taken the stand outside the presence of the jury
for the limited purpose of testifying that the
flight occurred because of circumstances sur-
rounding the prior rape conviction or else those
relating to another currently pending charge,
rather than the present offense. Absent such a
showing ... evidence of flight is admissible as
to all of the offenses.” /

pane,

EX PARTE RODRIGUEZ Tex. 757
Cite as, Tex.Cr.App., 629 S.W.2d 757

es unrelated to the charged offense, evi-
dence of escape is admissible,” citing Wock-
enfuss.4 As already indicated, Wockenfuss
suggested how an issue regarding admissi-
bility of evidence of escape could be raised,
and if this Court is reiterating that sugges-
tion we would edify the bench and the bar
by saying so, and also by clarifying the
uncertainty in this respect one may sense
from Hodge. Once that is done we could
then sort out the respective burdens im-
posed on the parties.

Still, I concur in overruling the fourth
ground of error and join in the judgment of
the Court.

W
° E Key NUMBER SYSTEM
T

Ex parte Guadalupe S. RODRIGUEZ.
No. 68939.

Court of Criminal Appeals of Texas,
En banc.

March 8, 1982.
Rehearing Denied April 7, 1982.

Realtor filed application for writ of
habeas corpus seeking relief from an order
of the 197th Judicial District Court, Camer-
on County, Darrell Hester, J., holding him
in contempt for refusing to answer ques-

4. In Wockenfuss the Court applied the reason-
ing in Damron v. State, 58 Tex.Cr.R. 255, 125
S.W. 396 (1910). Damron took the stand in his
own defense and while being crossexamined
was compelled to testify “as to other charges of
theft and flight,” ibid. However, apparently he
was not allowed to tell the jury that which was

tions before the grand jury. The Court of
Criminal Appeals, Onion, P. J., held that:
(1) if trial court did not determine what
specific question was asked by grand jurors
of relator, who had been granted “use”
immunity, or if trial court did not deter-
mine whether those questions were proper
ones, before holding relator in contempt,
contempt order based on relator’s refusal to
answer grand jury questions, was void, and
(2) fine imposed of $500 per day until rela-
tor purged himself of contempt was in ex-
cess of that authorized by applicable stat-
ute.

Relief granted.

1. Grand Jury <=36.5(1)

If trial court did not determine what
specific question was asked by grand jurors
of relator, who had been granted “use”
immunity, or if trial court did not deter-
mine whether those questions were proper
ones, before holding relator in contempt,
contempt order based on relator’s refusal to
answer grand jury questions, was void.
Vernon’s Ann.C.C.P. art. 20.15.

2. Grand Jury <=36.5(2)

Fine imposed of $500 per day until
relator purged himself of contempt was in
excess of that authorized by applicable stat-
ute. Vernon’s Ann.C.C.P. art. 20.15.

Philip S. Greene, Houston, for appellant.

Reynaldo Cantu, Jr., Dist. Atty. and John
Haywood, Asst. Dist. Atty., Brownsville,
Robert Huttash, State’s Atty., Austin, for
the State.

Before the court en banc.

incorporated in a bill of exception—that he
“had not sought to escape arrest for the crime
here involved...” Thus, the privilege against
self-incrimination was not implicated in Dam-
ron; though it looms large in some of the later
cases and in the one at bar, its implications are
not taken into account.

F cabhiematens heiiiiaaena anianebianemmaiamadiadndeeanmeninenenaaen anata

ee


406

language differently from what the Rees.
Court had contemplated. ©

Faced with these ambiguities, the district
court heard testimony from one psychia-
trist and two psychologists. Although one
of the doctors had himself previously exam-
ined Rumbaugh, the three doctors’ testimo-
ny was based chiefly on the Logan and
Reuterfors reports as well as on Rum-
baugh’s written responses to a question-
naire that had been administered by Logan.
The first of the three, Dr. Kaufman,° testi-
fied unequivocally that, as he read the
‘Springfield evaluations, Rumbaugh has a
disease that affects his ability to choose
rationally whether to appeal. Record vol.
1, at 66, 68-70, 84, 89, 94-95, 118. In
Kaufman’s view, Logan and Reuterfors at-
tributed Rumbaugh’s desire to commit sui-
cide to his depression. In response to the
seemingly persuasive argument that Rum-
baugh had written cogent and logical re-
sponses to a series of questions submitted
by Logan, Kaufman explained that such
- reasoned analysis is inherent in any diagno-
sis of a major depressive disorder. Jd. at
74-75. If Rumbaugh’s responses had evi-
denced looseness of association, Kaufman
explained, the diagnosis would most likely
have shifted from one of depression to
schizophrenia. In essence, Rumbaugh’s
decision to abandon appeal was an effort to
secure the state’s assistance in committing
suicide, id. at 80, and the decision to com-
mit suicide was the direct product of severe
depression, id. at 125, 128-29.

Significantly, Kaufman refuted even the
most favorable reading of Reuterfors’s en-
igmatie conclusion. The Attorney General
confronted Kaufman with the theory that
Reuterfors’s primary opinion was_ that
-Rumbaugh was rational, and that Reuter-
fors subsequently modified this diagnosis
because there was ‘“‘some reason to doubt
the certainty of the conclusion.” Jd. at
106. Kaufman responded that the qualifi-

cation was made because there was great.

5. The court also heard from a second psychia-
trist who did not speak to Rumbaugh’s compe-
tency but who testified instead about the nature
and length of the examination that would be
required. Record vol. 1, at 12-35.

753 FEDERAL REPORTER, 2d SERIES

reason to doubt Rumbaugh’s competency.
The examining doctors addressed whether
Rumbaugh’s capacity was substantially
affected. Jd. at 108. On Kaufman’s unre-

— lenting view, even the state’s attorney was

forced to concede that ‘‘the depression ...
is what underlies the fact that [Rumbaugh]
is affected or substantially [a]ffected.” Jd.

The next witness was Dr. Dickerson, a
psychologist who had in the past pro-
nounced at least one other inmate in Rum-
baugh’s precarious legal position compe-
tent to waive his right to appeal. Jd. at
150. Dickerson nonetheless testified that
Rumbaugh’s depression was of such a seri-
ous magnitude that it colored all of the
prisoner’s thought processes. Jd. at 133,
135. Noting that both Logan and Reuter-
fors had significant reservations about
Rumbaugh’s competency, id. at 134, Dick-
erson observed that the defendant’s history
of self-destructive behavior supported the
belief that the decision necessarily re-
flected his disease—even though Rum-
baugh was able to articulate logical and
coherent bases for his chosen inaction:

A. [Whatever it is that we want, we

usually find a way to logically explain it
or justify it ....

With Mr. Rumbaugh, I think that he
has a very long history of intended kinds
of self-destructive activity[,] and it’s
clear, to me at least, that that pattern is
still very much in operation. ;

Q. Would you describe those as suicidal

tendencies?

A. Some of them are suicidal attempts;

some of them are. attempts at self-mutila-

tion. I mean how upset do you have to
be in life to take sharp objects and tear
your arms up and to rip yourself from
shoulder to hip; how upset do you have
to be with yourself and with your life to
take and start hacking on your neck with

various things to try to make yourself

bleed to death ...[?]

6. Kaufman’s testimony took the form of a video-
taped deposition that was played before the trial
court.

RUMBAUGH v. PROCUNIER

407

Cite as 753 F.2d.395 (1985)

But even those kinds of things can be
quite logically described as being acts of
purification, as being acts of self-cleans-
ing and described as “feeling good.”

Id. at 134-35.7 Insofar as Rumbaugh’s
logical articulations might be construed as
undermining the other, more compulsive
manifestations of his depressive disorder,
Dickerson identified the relevant question
as being whether Rumbaugh’s logic oper-
_ ates in service of his irrationality. Jd. at

142-48. The witness concluded without
qualification that it does. Jd. at 136, 142,

148, 151, 155.

The second psychologist was called to
testify by the state. Relying almost solely
on Rumbaugh’s written answers to the
questionnaire, Dr. Parker stated that the
cogency of Rumbaugh’s responses _indi-
cated his rationality. Jd. at 177-78, 180,
185, 187. Two factors, however, throw
Parker’s testimony into a questionable
light. First, he equated logical thought
with rational choice. Inferring from Rum-

baugh’s ability to reason logically that

7. The referenced acts appear in the Springfield
psychiatric evaluation. On one occasion, Rum-
baugh had “cut himself from his collarbone to
his right hip; another time, he had inflicted

wounds on his abdomen, chest, and arms. In.

- addition, he indicated that he had made numer-
-ous suicide attempts and had slit his wrists
several times. ~
Rumbaugh’s written response to an item on
the Logan questionnaire limns the most vivid
portrait:
15. I have seriously attempted suicide on

only a few occasions. At other times I have -

lacerated or mutilated myself to experience
the pain and be cleansed by it. The pain is
beautiful in that it helps to atone for my
transgressions and leaves me _ feeling
cleansed in body and spirit. It is a form of
self-flagellation not unlike that which was
practiced by an ancient religious sect I re-
call reading about and being fascinated by.
They practiced self-flagellation and self-mu-
tilation in atonement for their misdeeds
and I am sure they rejoiced in the cleansing
pain as I do. I can look at.the scars that
crisscross my body and feel good in the
knowledge that I have suffered extreme
pain in atonement for my many transgres-
sions against what I know to be right and
proper conduct. I occasionally feel the
need to cleanse myself by subjecting myself
to pain through self-mutilation. Also, the
more pain I experience the higher my

Rumbaugh was capable of rational choice,
Parker failed to address the view that logi-
cal tightness of thought is compatible with,

_ if not inherent in, any diagnosis of depres-

sion. See supra at 397, 399. I think we
would all agree that Rumbaugh was not
capable of rational choice during his bouts
of auditory hallucinations, drug involve-
ment, paranoia, self-mutilation, and at-
tempted suicide. The Springfield reports
and the expert testimony reveal that none

.of these symptoms or conditions, any more

than the depression itself, diminished Rum-
baugh’s ability to express himself. Conse-
quently, Rumbaugh’s ability to respond log-
ically to questions does not demonstrate his
rationality.

Second, Parker’s testimony on direct ex-
amination relied in part on the results of a
Minnesota Multiphasic Personality Invento-
ry (“MMPI”) test that was administered to
Rumbaugh at Springfield. Record vol. 1,
at 162-72. Although the administering and
other testifying doctors all questioned the
validity of the results due to the extremity
of Rumbaugh’s score, and although under

‘threshold to pain becomes and I become
more and more able to easily withstand
great pain. My scars may seem obscene to
people who do not realize what they sym-
bolize, but to me they are beautiful. They
are like tatoos. I can look at them and
touch them and remember.

Shortly after my arrest in 1975, I was sitting
in my cell and I heard a voice speaking
clearly to me and commanding “If thy right
hand offends thee, cut it off’. It made me
feel very good because I believed a supreme
being was commanding me. My right hand
had indeed offended me because it was my
right hand that took a man’s life, perhaps a
good man who was able to cope with life
and had never hurt or harmed anyone in
any way although he made me kill him.
So, in response to the command, I took a
razorblade and began trying to cut my right
hand off at the wrist, but I became frustrat-
ed and angry because it would not cut
through the bone. I went into a frenzy and
began slashing the flesh of my arm from
the wrist to the elbow. There was dark red
blood everywhere and I gloried in the ex-
treme pain I was experiencing. When the
guards found me they took me to the hospi-
tal where doctors sewed me up and then I
was taken back to jail and thrown into the
dark solitary cell, but I felt very good about
it for several days thereafter.

RUMBAUGH v. PROCUNIER

405

Cite as 753 F.2d 395 (1985)

?

decision.” At402. Viewing the record as a
whole, I am firmly convinced that a serious

injustice has been committed. See United

States v. United States Gypsum Co., 333
US. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746
(1948). If we are willing to say “clearly
erroneous” in battles over dollars and cents,
see, e.g., Amstar Corp. v. Domino’s Pizza,
Inc., 615 F.2d 252, 258 (5th Cir.), cert. de-
nied, 449 U.S. 899, 101 8.Ct. 268, 66 L.Ed.2d
129 (1980), surely the rule is more than a

rubber stamp when rigor-mortis becomes —

the order of the court.‘ Indeed, this is not a
case where the whole is greater than the
sum of its parts: almost every item of ex-

pert testimony points to the inability of this

man to decide how to exercise his rights for
his own’ benefit. In plainer language,
Charles Rumbaugh does not know where
his best interests lie, and the district court’s

_ determination of competency is clearly erro-—

neous.

Rees compels a finding of incompetency.

upon the mere possibility that an individu-
al’s mental impairment substantially af-
fects his decisionmaking capacity. The
battery of examinations to which Rum-
baugh was subjected, as well as their sub-
sequent explication and interpretation be-

fore the trial court, cannot be read to sug- ‘

gest anything other than that he is incom-
petent to waive his remaining rights under
Rees. When the question of Rumbaugh’s
competency first arose, a preliminary psy-
chological test was conducted at the Ellis
Unit of the Texas Department of Correc-
tion. The report concluded that “Rum-
baugh is most probably or in all reasonable
medical probability unable at the present
time to exercise his legal and constitutional
rights as a result of the large compressive
component and schizophrenic illness which
he is currently suffering from,’ and the
examining physician recommended further
in-depth testing at the United States Medi-

4. As the Supreme Court has _ recognized,
“{T]here is great value in appellate courts show-
ing deference to the factfinding of local trial
judges. The clearly erroneous standard serves
that purpose well. But under that standard, the
role and duty of the Court of Appeals are clear:

cal Center for Federal Prison in Spring-
field, Missouri.

The trial court referred the issue of

. Rumbaugh’s competency under Fees to the

federal facility at Springfield, where the
doctors issued psychiatric and psychologi-
cal report of his mental fitness. In the
psychiatric report, Dr. Logan concluded:

This examiner feels that Mr. Rum-
baugh is currently profoundly depressed.
Mr. Rumbaugh, despite this depression,
does have the capacity to appreciate his
position[,| and his choice regarding con-
tinuing to decline further litigation is ra-
tional in light of his past experience and
presuming one can make a rational deci-
sion to die. It must be emphasized, how-

* ever, the extent of Mr. Rumbaugh’s de-
pression does substantially affect his ca-
pacity in the premises. Mr. Rumbaugh’s
perception of his current situation as
hopeless, although realistic in light of his

_ past experience, in [sic] a reflection of
this depression.

In a similar vein, Dr. Reuterfors reported

_in his psychological evaluation:
(1) ... Mr. Rumbaugh is currently capa-
ble of appreciating his position and, mak-
ing a substantially and sufficiently ra-
tional choice with respect to continuing
or abandoning further litigation.
(2) ... Mr. Charles Rumbaugh is pres-
ently suffering from a major mental ill-
ness which may substantially affect his
capacity in the premises.

The Logan and _ Reuterfors reports

spawned an apparent dilemma. fees dic-

tates that an individual can either be ra- ~

tional or can suffer from a mental impair-
ment that might substantially affect his
capacity in the premises. The Springfield
reports suggested either that both charac:
terizations applied to Rumbaugh—an ap-
parent impossibility under Rees—or that
the doctors had applied Rees’s operative

it must determine whether the trial court's find-
ings are clearly erroneous, sustain them if they
are not, but set them aside if they are.” Dayton
Bd. of Educ. v. Brinkman, 443 U.S. 526, 534 n. 8,
99 S.Ct. 2971, 2977 n. 8, 61 L.Ed.2d 720 (1979) |
(citation omitted).

408 753 FEDERAL REPORTER, 2d SERIES

cross examination he finally relented in his
emphasis on the test, Parker never ex-
plained how the discrediting of the MMPI
results affected his diagnosis. See id. at
193.

The final witness, Dr. Logan, was called
on the trial court’s initiative. Although
Logan’s testimony cannot be viewed in iso-
lation from the preceding experts’, as the
author of the Springfield psychiatric evalu-
ation, Logan was in the best position to

clarify the meaning of his apparently incon- .

sistent conclusion that Rumbaugh both is
rational and has a mental disease that sub-
stantially affects his capacity in the premis-
es. :

While the district court and the majority
properly recognize Logan’s significance,
each misinterprets either his statements or
the Rees standard itself. With regard to
the district court’s opinion, the inference
from Logan’s testimony is compressed al-
most entirely into the conclusory state-
ment, ‘‘After considering all of the evi-
' dence the Court finds that Charles Rum-

baugh has a realistic understanding of his —

present position and of the choices avail-
able to him, and that he is mentally compe-
tent to make a rational choice with respect
to continuing or abandoning further litiga-
tion.” 558 F.Supp. at 654. The opinion
merely recapitulates Logan’s testimony
that Rumbaugh’s depression is based on a
realistic assessment of his mental problem
and the circumstances facing him, that he
thinks coherently, and that “his decision
not to appeal is rational or at least logical
in light of the options which are presently
available to him.” Jd. at 653; see supra
note 3.

Read in context, these observations do
not convincingly support Rumbaugh’s com-
petency under Rees. Logan maintained
throughout his testimony that accuracy of
perception and apparent rationality in light
of present circumstances and future expec-

tations is not inconsistent with the exist-.

ence and substantial effects of Rum-
baugh’s mental illness. He stated, for ex-
ample:

[Rumbaugh] was suffering from a se-
vere depression and that ... did have
some influence on his decision.

... The fact that someone has a men-
tal ilmess ... does not preclude their
ability to have a rational understanding
of their current situation or logical
understanding of their current situation.

The way in which his depression could
influence him is that it may act as a
coercive force and impairing [sic] his abil-
ity to exercise free will to the extent a
normal individual might be able to use
free will to make a decision....

His judgment is effected [sic] in some
degree by his depression even though it’s

realistic.

[I]f he were not so depressed, if he did

-not suffer from frequent bouts of para-

noia or auditory hallucinations, he proba-
bly would decide to continue with ap-
peals.

... [Rumbaugh’s mental disease] has
to be a factor that has to be looked at
and addressed by the Court. I think it
does influence him to a certain degree,
maybe even a substantial degree.

A. Specifically, the effect that I be-
lieve his depressive illness has is the fact
that it may ... although it’s based on
realistic perception, may act as a coercive
force[,] and it’s not just the depression
that I’m talking about, but there are
things that go along with the depression,
the sleep, the appetite loss, living in a
constant of emotional turmoil, periodic
bouts of psychosis, acts as a coercive
force that may be indicating .... be caus-
ing him to decline any further appeals at
this time and ending ... thus, resulting
in ending his own life; whereas, if he
were not so depressed, if his mental state
were not as it is, if he were, perhaps, not
quite so severely depressed, if he didn’t
have these recurrent bouts of paranoia,

ly been

-aptain
ining a
latest,

Due’s
besides
sund of
nd three

». “Let’s
tuff was
in figure
much of

ebox in
» peered
The stew
partially
* portion
e captain
i used up

juickly
None had

(| the hog
y enough
ved.
things,”
say they
nday, de-
rday they

find out,”
go down-
the clerks

parted at
nough to
e its way
house. It
lliday to
inger Fu-
vhere Dr.
is to per-

11 of the
ithe mur-

te toxicolo-
fingerprint
captain in-
hey’ re com-
make sure
y get here.”
now visited
ome clue to

juestioning,
nted at rob-
red that the
of money 1n
»ssed to be
crime. But
had not been

they said, had
ple, members
vho had lived
id had been
to incur an
id man had
ing, had been
2y knew, had
.d believed in

evealed that
narried three
and six sons
ther sections
t one being
farmer who
ent Newton

.y and Mid-
Burkville, a

r-old Clayton
father-in-law,
a tall, gaunt

HEADED STATE’S GASE— .
District Attorney Hillin, who led the
prosecution against the triple killer.

individual who looked older than his
years. ;

Sombre-eyed and drawn with grief,
he listened tautly while Holliday gave
him’ details of the discovery of the
bodies.

He seemed to be stunned by the
enormity of the crime, but, like the
neighbors, he discounted any sugges-
tion of hate, jealousy or revenge as a
cause for it.

“It must have been for Dad’s
money,” he said, dazedly running a
hand across his forehead. “Did you
find his wallet?” ‘

“There was no wallet anywhere in
the house,” the captain replied.

‘Dad always kept it in his right-
hand pants pocket, day and night,” the
son explained. “You see, he didn’t bée-
lieve in banks. He carried every cent
he had right on him. Sometimes as
much as $1,000.”

Holliday whistled. His next question
was blunt:

“Who knew about this besides mem-
bers of the family?” :

LAYTON made a gesture of despair.
C “Lots of people,” he replied. “Dad
never made any bones about not
trusting banks. And he went to those
livestock auctions every Wednesday
with a roll of bills he always pulled
right out in the open.”

Holliday knew the field was narrow-
er than this: the killer had to be some-
one who not only knew about the
money, but who also was familiar with
the Rushing house—someone, even,
whose unexpected presence there
would not have caused an outcry from
the occupants.

Such persons, the captain figured,
could only be relatives, close friends,
and business acquaintances who vis-
ited the farmhouse often, so he asked
the son for a list of these individuals.

Holliday wrote the names in ‘his
notebook as Clayton reeled them off,
then snapping the book shut asked,
“When did you see your father last?”

“Three or four weeks ago,” the young
man said. ~

The captain nodded, and after ask-
ing the son to keep himself available
for further consultations, he jumped in
his car and, with Middleton, hurried

back to the sheriff’s office in Jasper.

Discovering that Pace and Nixon had
preceded them by a matter-of seconds,
the Rangers’ quickly apprised them of
the missing wallet and the robbery
angle.

“A thousand bucks!” Pace exclaimed.
“That’s a good enough motive for me.
And Nixon and I’ve fixed the time of

cember 13th.” :

The sheriff explained this deduc-
tion: he had learned in town that
Rushing had bought the meat, gro-
ceries and hog feed Saturday afternoon
and had ridden home with Due’s de-

ing the Rushings had failed to keep
an appointment with friends who were
to pick them up at the intersection of
the main highway and 5 eg Hill
Road to drive them to a Bible Class
meeting. Woodrow had not attended
school since the previous ° Friday.
Rushing had not attended the livestock
auction Wednesday, an event he never
missed; and he had not picked up his
daily newspapers since Saturday.

“If they bought that meat Saturday
afternoon, they must have eaten it that
night,” Pace pointed out. “Certainly
their last meal, since none of the other
groceries were touched. That double
checks with their not meeting their
friends Sunday morning.”

Holliday listened enthusiastically.
“Now we've got something to go on—
knowing the time of this crime and the '
reason fdr it,” he declared. Pulling his
notebook from his pocket, he extracted
the list of names Clayton Rushing had
given him. ore ;

“You and Nixon check on these
folks,” he said. “Find out where they
all were that night. Meantime, Mid-
dleton and I’ll go back and ask the
neighbors whether they noticed any- .-
body around the Rushing place last
Saturday.” ‘

The Rangers set out, driving—some-
times walking—from farm to farm and
field to field. It was dusk before they
picked up» a clue, and then only a
meagre one: a farmer recalled that on
Saturday night, December 13, as he
was driving to town to an early movie,
he had seen.a man walking up Spring.
Hill Road in the direction of the Rush-
ing place. ;

this killing, too—Saturday night, De-

livery at: | at 2 o’clock. Sunday morn- °

“It was dark, and I didn’t see him
none too. well,” the farmer said. “But
<4 was tall and thin and had on over-
alls.”

Hoping that others might have no-
ticed and possibly recognized the man,
the Rangers stepped up their pace,
moving in an ever-widening circle.

The results were disheartening. No
one else had even seen the tall, thin
man.

With misgiving, they looked at the
last name on their list—Lem Grant—
a farmer who lived a good mile from
the crime scene.

They found him sitting on his front
porch steps, eating a doughnut.

“Nope, I didn’t see nobody coming
up the road or any other place,” he
told them in response to their queries.

“But say,” he added, in sudden after-
thought, “maybe Dave Rogers can help
you. out. I just now recollect that I
saw him cutting ’cross lots from the
Rushing place a little before supper
time last Saturday night.”

“Dave Rogers?” Holliday repeated.
“Who's he?” ,

“A young cowhand who’s aiming to
be a stock buyer. He’s been coming
over here a lot to talk to old man

Rushing about judging cattle. Lives
up Newton way.”

Holliday pricked up his ears. ‘Does
he drive a car?” he wanted to know.
Grant nodded. “A Model A Ford.”

“Then why was he cutting across
lots?”

The farmer thrust the last bit of
doughnut in his mouth. He chewed
for a moment, then swallowed. “Dave
always parked on Spring Hill Road,”
he replied. “I guess he didn’t like
coming up that muddy lane to Rush-
ings’.”

Holliday requested the usual state-
ment from Grant regarding his own
movements at the time of the crime
and then motioned to Middleton that

_ they were leaving. The two walked

briskly to their car where the captain
halted for a moment, his hand on the
door handle.

‘Dave Rogers—”’ he.mused. “He
wasn’t on that list Clayton gave us,
but if he came over here often to talk
business with Rushing, he must have
known about that cash. Now—you
take one of (Continued on page 67)


ila
s

iaay ee

alive then. This paper’s obviously been
read.”

Continuing the search, the captain
came upon a spice jar containing a
number of grocery slips. The latest,
dated December 13, was from Due’s
Food Store in Jasper. It listed, besides
a quantity of groceries, a pound of
bacon, a pound of stew meat, and three
sacks of hog feed.

“Here,” said Holliday eagerly. “Let’s
check up on the larder. This stuff was
bought Saturday. Maybe we can figure
something by finding out how much of
it had been used.”

Stepping to the wooden icebox in
one corner of the kitchen, he peered
inside. The bacon was intact. The stew
meat had been cooked and partially
eaten, but from the remaining portion
stored in a glass container, the captain
estimated that the family had used up
enough for only one meal.

Nixon and Middleton quickly
checked over the groceries. None had
been touched.

And Pace, who examined the hog
feed sacks, estimated that only enough
for one feeding had been removed.

“Judging from all these things,”
Holliday summed up, “I’d say they
were killed Saturday or Sunday, de-
ete on what time Saturday they

ought this stuff.” :

“That ought to be easy to find out,”
Pace offered. “Nixon and I'll go down-
town right now and question the clerks
in Due’s Store.”

The county officials departed at
once, waiting only long enough to
allow an ambulance to make its way
up the narrow lane to the house. It
had been summoned by Holliday to
remove the bodies to the Stringer Fu-
neral Home in Jasper, where Dr.
Arthur J. Richardson, Jr., was to per-
form the autopsies.

Soon afterwards, several of the
sheriff’s men arrived to guard the mur-
der scene.

“We're expecting the state toxicolo-
gist, J. H. Arnett, and a fingerprint
expert, Joel Tisdale,” the captain in-
formed the newcomers. “They’re com-
ing up from Austin. Just make sure
nothing’s touched until they get here.”

Holliday and Middleton now visited
all the neighbors, seeking some clue to
a motive for the crime.

In the course of the questioning,
some of these persons hinted at rob-
bery, saying it was rumored that the
Rushings kept large sums of money in
the house. Others professed to be
completely baffled by the crime. But
all seemed certain that it had not been
motivated by a grudge. .

Mr. and Mrs. Rushing, they said, had
been devout church people, members
of Jehovah’s Witnesses, who had lived
quiet, secluded lives, and had been
gentle. folk, unlikely to incur an
enemy. Besides, the old man had
earned a comfortable living, had been
thrifty, and, so far as they knew, had
had no debts, since he had believed in
paying cash for everything.

The neighbors also revealed that
Rushing, who had been married three
times, had two daughters and six sons
scattered in Texas and other sections
of the country, the nearest one being
Clayton H. Rushing, a farmer who
lived in Burkville in adjacent Newton
County.

On hearing this, Holliday and Mid-
dleton drove at once to Burkville, a
distance of some 20 miles.

They found the 26-year-old Clayton
at the farm house of his father-in-law,

where he worked. He was a tall, gaunt

LE

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rtled
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and

ple’s boot. The weight of evidence
was overwhelming.

Confronted with this evidence,
Whipple wasted no time with futile
denials. In a few minutes he was dic-
tating his confession. ,

He had visited his brother-in-law’s
farm on Christmas Eve, armed with
the shotgun, to obtain revenge for an
alleged “skinning” he claimed that
he had reéeived from the former in
a property deal.

“He deserved to die for rooking me
the way he did,” Whipple said, almost
casually.

After killing Churchey and wound-
ing his own sister, Whipple went on,

he had hidden out in the woods all
night. After making tracks toward the
road, he had later doubled back into
the protection of the trees. There he
had waited, shivering in the cold, until
dawn, after which he had made his
way to his brother’s house. He had
attained the refuge of the warm, dry
barn only a few minutes before the
sheriff and his men arrived there, hot
on his heels.

Whipple’s confession, duly’ signed,
sealed, and delivered, Henry Marlett
was ordered released. Then Whipple
was conducted to a cell and lodged
there.

Justice moved quickly. Arraigned

the following morning, two weeks
later he was indicted and ordered to
stand trial on charges of first-degree
murder.

On March 18th, the confessed killer
threw himself on the mercy of the
court and was sentenced to an indefi-
nite term of from 35 years to life for
his heartless crime.

Epiror’s Notre: The names of Henry
Marlett, Peter Stowe, and Sarah
Brown are fictitious in order to conceal
the identities of innocent persons ques-
tioned by police during the official
investigation of the murder of John
Churchey. -

HEADQUARTERS

DETECTIVE

the sheriff’s men and get on up to
Newton—fast—to question that guy.
Drop me off at the Rushing place first.
Those state experts must be there by
now.”

APTAIN HOLLIDAY was right.
Arnett, the toxicologist, and Tis-
dale, the fingerprint expert, were

finishing up their investigations as he.

stepped into the farmhouse. They in-
formed him that they had turned up
no tangible evidence, not even a fin-
gerprint on the bloodstained flatiron.

But on the windowsill in the boy’s
room, Tisdale had found smudges from
two large hands, the position suggest-
ing that the sill had been grasped from
the outside.

“A man’s hands?” Holliday asked
quickly.

“Undoubtedly,” said Tisdale.

The captain looked down for a mo-
ment, then jerked his head up.

“Curious,” he said. “If the killer
knew this place well enough to know
where the flatirons were kept, he must
have known the Rushings kept their
door unlocked. So, if he came in that
window, it was to keep the door latch
from clicking, and he picked the boy’s
room figuring a kid wouldn’t wake
up.”
Still occupied with this probability,

Holliday moved into Woodrow’s room °

to examine the window more closely.
He threw it open-and played a flash-
light over the “ground outside. Ob-
serving nothing new, he shut the win-
dow and started back.

As he went past the bed, his eye was
attracted to the half-eaten doughnut
still on the chair.

Something about the frosty surface
of that doughnut arrested him. It was
heavily coated with fine white sugar,
which even now looked tempting. And
it occurred to him that a small boy
would be unlikely to leave such a
toothsome morsel uneaten.

With quickening interest, he ex-
amined the floor, and a grim smile
spread across his face. For even in
the dim light of the oil lamp that
flickered in a wall bracket, he could
see faint powdery white flecks leading
to the window through which he be-
lieved the killer had entered. °

Instantly a picture of Lem Grant
flashed in his mind. Grant, sitting on
the porch steps eating a doughtnut.

y ET LE RO ON ET
ee

FLATIRON SLAYER

CONTINUED FROM PAGE 45

Grant was tall and thin, too, he re-
called, like the man seen walking up
Spring Hill Road the night of the
crime. And Grant had big hands, like
the. man that had come in Woodrow’s
window. And he probably was fa-
miliar with the house and knew about
the money.

In three quick strides Holliday
reached the kitchen, where a sheriff’s
deputy was standing guard at the door.

“They won’t need you here for a-
while,” he told the latter. “So I wish
you’d come with me. We have an alibi
to check.”

Checking Grant’s alibi was not easy.
The man claimed to have been alone
in his farmhouse from 7 p.m., Decem-
ber 13th, until noon the next day. His
only interruption, he said, was _ to
answer the door to a strange young
man who wanted to know how to get
to-an inn in Jasper where he planned
to spend the night.

“That was about 8 o’clock,’ Grant
a said. ‘And I had already gone to

e Pid

With the deputy at the wheel of the “

county car, Holliday drove from inn to
inn and boarding-house to boarding-
house, trying to learn whether such a
young man had registered in Jasper on
that particular night.

Two hours later, when the canvass
was completed, the score was zero: no
host had recalled any such guest.

Holliday turned angrily to his com-
panion. “It looks as though Grant is
giving us the run-around,” he said.
“But there’s nothing we can do about
it tonight. Let’s get back to headquar-
ters and see what Pace has been up
to.”

It was late when they reached the
sheriff’s office, but the place was ablaze
with lights. And in the glare of the
overhead bulbs, the faces of Nixon and
Middleton and two deputies were
sharply etched as they leaned across
the desk in animated conversation
with Pace.

“What’s up?” Holliday greeted,
slamming the door behind himself and
his partner.

The others all turned around.

“Plenty,” responded the sheriff.
“Dave Rogers is missing, and we’re
having trouble with Clayton Rushing.”

Middleton, who had been chasing
down Rogers, explained that the young
cowhand had quit his job in Newton

and left for points unknown at about
5 p.m., December 13th.

“He had a run-in with his boss,” the
Ranger reported. ‘He collected $75 in
pay and left. The tough part is no-
body knows where he came from—
he’s an itinerant. And nobody knows
where he’d be going, except that he
has a girl in Baton Rouge, Louisiana,
named Rosie that he’s crazy to marry.”

Holliday’s eyes narrowed. “It
wouldn’t be the first time a guy stole,
or murdered, to get money to dazzle a
dame,” he remarked tersely. “So
maybe it isn’t a coincidence that he
was over at Rushing’s at supper time—
an hour after he quit his job. He could
have cased the place, then gone back
after supper, parked his car on a side
road so as not to cause suspicion, and
then walked up Spring Hill Road—by
the way, what’s he look like?”

“Tall, thin, blond hair, ruddy com-
plexion—” Middleton replied. “Weighs
about 170, usually wears overalls.

“Tall, thin, and wears overalls!”
Holliday repeated. “Get out that alarm
fast. And ask Baton Rouge to check
marriage records.”

While teletype machines all over
Texas and neighboring states were
ticking out a request for the arrest of
Dave Rogers, who supposedly was
driving a Model A Ford, the talk in
Pace’s office turned to Clayton Rush-
ing.

“He’s holding up the autopsies,” the
sheriff declared.

OLLIDAY knew what that meant.

Under Texas law an undertaker

cannot release a body for an au-
topsy without a court order or permis-
sion in writing from all members of
the family. In the present case, a
court order could not be obtained be-
fore Monday, so Clayton must have
refused his permission to go ahead.

“Of all the relatives, he’s the only
one who objects,” Pace said. “If you
ask me, it’s mighty peculiar.”

The captain pulled up a chair, sat
down and pushed his hat back on his
head.

“Peculiar, yes,” he admitted. “But
not necessarily suspicious. How’s his
alibi hold up?”

“Pretty well,” Nixon replied. Clay-
ton said he hitchhiked to Newton early
last Saturday night, had a few drinks,
loitered ahout a bit, then met four men
from Burkville, went to the late show
with them at the picture house, and
drove home afterwards with one of
them.”

Nixon explained that the statement
checked perfectly from about 10
o’clock on, but the intervening hours
had not been officially accounted for.

“But we found four persons who
talked with Clayton that night, start-
ing a little before 10,” the chief deputy
added. ‘They all said he acted natural

67


and was dressed in a green shirt and
—- slacks which looked immacu-
ate.”

Pace shifted his position in his
swivel chair. “Well,” he offered, “the
killer must have been splattered with
blood. So if you say Clayton was in
Newton at 10, dressed immaculately, it
hardly makes sense that he could have
gotten over here and back, and wiped
out his folks, and cleaned himself up
before that time. Not unless they went
to bed awful darned early.”

There were other facts in Clayton’s
favor, Nixon pointed out. The son,
who was married and the father of a
year-old boy, was a steady worker

who had received good wages over a.

considerable period of time, had no
debts, was not addicted to gambling,
and therefore presumably had no mo-
tive for the crime.

“Looks like he’s in the clear,” Holli-
day conceded, and told them about
Lem Grant.

At mention of the name, Pace
started. “Grant,” he said softly.
“Funny thing. I heard a couple of
weeks ago that a Beaumont bank was
going to foreclose the mortgage on his
place. Unless he paid up the arrears
by January 1.”

Holliday’s eyes narrowed. “Then
Rushing’s dough would come in
mighty handy,” he said significantly.
“There’s one man we're going to tail
day and.-night.”

The investigators kept plugging. By
Tuesday, everybody who had come

under police scrutiny had been ab- ©

solved except Grant, who as yet had
made no false move, and Rogers, who
still was at large.

The autopsies, erformed under
court order, revealed nothing new, ex-
cept that Mrs. Rushing had lived pos-
sibly a day and Woodrow a few hours
after the bludgeoning. It was deter-
mined, too, that the victims had not
been doped before they died, which
the officers felt strengthened their
view that they had been killed by
someone who had excited in them no
suspicion.

Tuesday afternoon, just when the

investigation seemed to be bogging.

down, Dave Rogers flared suddenly
into the picture. It was Middleton
who picked up the clue, in a Newton
garage.

“Dave left his car here for repairs
that Saturday a little after 5 p.m.,” the
proprietor declared. “He came back
for it at 11 and seemed in an awful
hurry.”

In reply to the Ranger’s questions,
the garage man also said that Dave’s
overalls had been stained, though not
necessarily with blood, and he had
paid for the repair job with a crisp $20
bill.

Struck by the newness of the money,
Middleton made a quick trip to the
farm where Rogers had worked. A
half hour later he reported back to
Holliday.

“The farmer paid Dave in fives and
tens, not twenties,” he told the captain
after relating how the car had been
laid up from 5 to 11 p.m. |

Holliday, seated at a desk in the
sheriff’s office, jerked forward:

“Then he didn’t have his automobile
for six hours!” he exclaimed. “That
means he would have walked to Rush-
ing’s. Check the buses and taxis. We
know he was here at supper time.
Find out when he came to Jasper and
when he left. Right now I’m going up
to see Clayton Rushing. Maybe we
can connect up on that $20 bill. —

‘Pace accompanied the captain to
Clayton’s house; a small bungalow
near the farm where he worked.
Clayton, who had just gotten home,
ushered them into the parlor.

Holliday seated himself on an over-
stuffed sofa, and Pace dropped into a
chintz-covered chair opposite. Clay-
ton stood before them, filling a pipe
with tobacco from an oilskin pouch.

The captain explained that they had
a suspect in mind who had passed a
$20 bill, and they wanted to know

whether the elder Rushing had car- .

ried money of that denomination in
the wallet, and whether he was fond
of crisp new bills.

A strange light came into the son’s
eyes. “Yeah—” he said. ‘Yeah, Dad
usually had a lot of twenties. And he
liked new bills.” #

There was talk of other things, and

, then Holliday adroitly brought the

conversation around to Dave Rogers.

Once more Clayton’s eyes glowed
strangely.‘ “I didn’t know Dave was
such a crony of my father,” he said.
“Tf I had, I sure would have put him
on that list. I never liked that guy.
Never trusted him.”

After awhile, the officers left.

Outside, Holliday turned abruptly to
the sheriff with, “Clayton sure gets

heated up, doesn’t he, when we men-

tion a suspect?”

Pace rubbed his chin. “I can’t say
he exactly discourages us from going
after—”

“Other people,” Holliday supplied.

‘The sheriff grinned, then his fea-
tures suddenly hardened.

“Say,” he said, “did you notice that
furniture in there?’ It looked brand
new.”

Holliday stood stock still. ‘“You’ve
got something there, sheriff,” he said
after a moment. “Come on. Let’s get
going.” j

ALF AN HOUR later, in a Newton
furniture store, the officers stared
at a sales slip produced by an exec-

utive. It recorded the purchase of more
than $200 worth of furniture by Clay-
ton Rushing on December 15th—two
days after the crime.

“And you say he paid by check?”
Holliday asked. i

The store official nodded. “I okayed
it myself. It was drawn on a local
bank.”

There was a swift exchange of
glances between the two officials, but
they: made no show of their inner ex-
citement. Instead, they thanked the
man and departed quickly, heading for
the bank in question.

A few minutes later they emerged,
considerably deflated. Clayton, they
were told, had drawn the check for the
furniture from funds long standing to
his credit. He had made no deposits
to his account since the crime.

Returning to the sheriff’s office, they
sat down at Pace’s desk, commenting
glumly on this “bum steer.” .

They were brought to attention by
the shrill jangling of the telephone.

Pace answered. After the first few
words, he stiffened and said, “He sold
it? And bought an Olds. Yep. Okay.
We'll spread the alarm. Thanks.”

The receiver went down with a
bang.”

“That was Baton Rouge,” the sheriff
said. “Rogers checked in a hotel there
at 3 a.m. Sunday, December 14, and
they’ve found his Model A Ford in a
second-hand lot. The proprietor says
a tall, lean young fellow swapped it in
the next morning for a 1938 Oldsmo-

bile and paid the difference in cash.
He had a pretty girl with him he called
Rosie.”

Holliday’s jaw set. “That was Dave,
all right,” he asserted. “And it’d be a
deal calling for several hundred dol-
lars. Baton Rouge is 150 miles from
Newton. If he got there at 3 a.m., he
couldn’t have gone back to Jasper after
picking up his car. So, if he killed the
Rushings, he did it before 11. If we
could only identify that Rosie—any
record of his marrying that girl?”

Pace shook his head. “They said
they’d checked on all ‘Rosies’ who got
hitched in the last six months. Dave
isn’t among the bridegrooms.”

This fact was noted in the new alarm
Holliday sent out for the arrest of the
suspect. Police were informed not
only of the switch in automobiles, but
of a possible young woman companion,
and were asked to keep an eye on
couples applying for licenses to wed.

Late that night, after following up a
number of false leads, Pace and Holli-

day walked wearily down the hall to

the former’s office. As they stepped
inside, Middleton swung around to
greet them.

“T’ve got a piece of news,” he an-
nounced. “Rogers rode over here from
Newton on a bus late Saturday after-
noon, December 13th. That checks
with his being seen at Rushing’s
around suppertime. But none of the
bus drivers had him on a return trip.
They all know him well.

“But.this is what’s important,” the
Ranger continued, ‘The taxi company
log book shows a trip from Jasper to
Newton at 9:15 that night. The fare
was three bucks.”

“Rogers?” Pace’s words rang out
like gunfire. ‘Was he the fare?”

“That’s what we don’t know yet,”
Middleton came back. “The cabbie’s
off on a vacation. Won't be back until
Monday. But this much is certain. A
taxi trip from Jasper to Newton is
practically unheard of around here.”

“In other words, it’d have to be an
urgent trip?” Holliday put in.

“Damned urgent,” the Ranger re-
sponded.

Holliday quickly took stock. The
taxi would have reached Newton a
little before 10 o’clock. Rogers was
known to have called for his automo-
bile at 11. It could easily have been
Dave. But Clayton Rushing also was
first observed in Newton a little before
10, and his movements before that
time were still vague and unproved.
Perhaps it was Clayton.

Informed by Middleton that the taxi
driver was on a motor trip, the cap-
tain took immediate steps to locate
him, flashing an alarrfi to have him de-
tained for questioning.

“We've got to find him,” Holliday
declared. “Everything may depend on
what he has to say about that pas-
senger.”

Not waiting on this development,
however, the investigators started out
early Wednesday morning, calling at
every tavern, store, and restaurant in
Jasper, inquiring about both Dave
Rogers and Clayton Rushing.

Rogers was generally known to the
tradespeople, but the only person who
remembered seeing him on the night
in question was a bartender who
served him a beer at 7 o’clock.

Nobody seemed to know what Clay-
ton Rushing looked like, however,
since he was not a resident and had
not traded in the local shops. But they
didn’t recall a tall thin man wearing a
green shirt and brown slacks.

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NATION

@ TWO EXECUTED: HI NTSVILLE, Texas —
“ighty-cight minutes and a clean sheet separated the
leaths of two killers given Icthal
njections in Texas’ first mul tiple
execution in 44 years.

Clifton Russell, condemned for
‘the 1979 robbery-slaying of an air
traffic controller in Abilene, was exe-
cuted first early Tuesday. He had Ff
been on death row for 15 years.

Corrections officials removed
Russell’s body from the death cham-
ber, replaced needles and tubes used  .
for his injection, changed the sheet Willi
on a gurney bolted to the floor and I le
waited for Willie Williams to be driv- Williams
en 15 miles to the death chamber.

Williams, convicted in the 1980 murder-robbery of a
Houston convenience store clerk, had spent 14 years on
death row.

Texas resumed capital punishment in 1982 and has
executed 89 men — more, by far, than any other state.

Texas sees first double

execution in 44 years

HUNTSVILLE, Texas — Two
convicted killers were put to
death by lethal injection 88
minutes apart Tuesday, marking
the first multiple execution in
Texas in 44 years.

The U.S. Supreme Court
denied last-minute appeals
Monday for both men.

the death penalty to resume in

Since the high court allowed Je ce R-EN DO! a

1976, only Arkansas has carried
out more than one execution on
the same day, putting to death
two killers on May 11 and three
on Aug. 3.

The first man to be executed,
33-year-old Clifton Russell, was
pronounced dead at 12:29 a.m.

The second killer, Willie
Williams, 38, was executed at
1:57 a.m.

Texas has carried out 89 of the
263 executions in the United
States since capital punishment
resumed in 1976 —- far more
than any other state.

| 4
[Rus SOK
Execution of Clifton Charles RUSSELL | Page 1

a

Case of Clifton Charles RUSSELL

Name: RUSSELL, Clifton Charles
Race: White

State:Texas

Executed: Jan 31st, 1995
Method:Lethal Injection

Crime: murder

Victim: Hubert Otha Tobey

Clifton Charles Russell was sentenced to death in April 1980 for the murder of Hubert Otha Tobey in December 1979.
According to reports, he comes from a troubled background marked by poverty and violence.

Clifton Russell was executed the same time in the same state as Willie Williams.

Go To New Peak In Executions In The USA

This page is maintained by Sandokan. Last updated Mar 3 Ist, 1996.


Russe

VISO00*Z2°E**WoR**°ACY* WR “ACY [CH TEXAS Plans Two
Executions*CCISAP 30 Jan 95 4:50 EST V0476@b
@b
Copyright 1995. The Associated Press. All Rights Reserved. @b
@b

HUNTSVILLE, Texas (AP) -- For the first time in almost 45 years,
Texas officials were preparing to execute two convicted killers in
a single day. @b

Clifton Russell, 33, and Willie Williams, 38, were scheduled to
die by lethal injection early Tuesday morning. @b

"It’s just a coincidence," said Ward Tisdale, a spokesman for
the Texas Attorney General's office. Execution dates are set by
judges. @b

Russell was convicted of killing a 41-year-old air traffic
controller in December 1979. Williams was convicted of killing a
convenience store worker during a robbery in October 1980. @b

Appeals were pending before the U.S. Supreme Court. @b

Since 1976, when the court ruled that states could use the death
penalty again, only Arkansas has carried out multiple executions,
including that of two murderers on May 11, 1994, and three
murderers on Aug. 3, 1994. @b

The last time Texas executed more than one person in a day was
on April 5, 1950, when two convicted murderers were sent to the
electric chair. @b

Before that time, there were at least 28 instances of multiple
executions in the state. Five killers were executed on Feb. 8,
1924, the day Texas inaugurated the electric chair in Huntsville.
@b

Russell was convicted of killing Hubert Tobey, 41, who worked as
an air traffic controller in Abilene. Tobey, abducted from a
self-serve gas station in December 1979, was found dead outside an
abandoned house, his throat cut, his skull crushed by a large
concrete block and his car missing. @b

Russell and an accomplice, William Battee, were arrested the
following day in New Mexico, driving Tobey’s blood-spattered car.
Battee testified against Russell and received a 60-year prison
term. Russell got the death penalty. @b

Williams, a laborer from Houston, was convicted of shooting
convenience store worker Claude Schaffer Jr. in the back during the
1980 robbery. He was arrested three days later and pleaded guilty
to capital murder. ¢b


Jane Elkins went to her death on
May 27, 1853. Perhaps because she
was a slave, she has been forgotten.

The second Texas woman
launched into legend by the hang-
man’s noose has been given consid-
erable attention in books, maga-
zines, and newspapers. She was
Chipeta Rodriguez, and the event
occurred a decade later in San
Patricio County.

San Patricio County consists of
689 square miles of level terrain ris-
ing to hilly country in the west and
fronting Copano and Corpus Christi
bays on the tidewater Coastal Plain
of South Texas. The Aransas River
makes part of its boundary on the
north; the Nueces River forms its
southwestern boundary, along which
huisache, live oak, and mesquite are
abundant. Mexican sheepherders
used the area before the Anglo-
Americans came. A Mexican colo-
nization contract of 1828 entitled
John McMullen and James McGloin
to eighty leagues of land on which
they were to settle 191 families. In
1830, forty families were landed at
Copano Bay and conveyed to the
vicinity of Round Lake, where a site
was laid out on the north side of the
Nueces River and named San
Patricio de Hibernia, patron saint
for whom McMullen and McGloin
named their Irish colony.

San Patricio town, composed of
log and picket cabins, was the seat.
Cattle raising became the chief live-
stock production, which included
hogs and sheep. The sandy loam,
clay and black loam soils were adapt-
able to cotton, grains, corn, flax,
fruit, and vegetables. By 1836, the
colonists numbered about 500, and
eighty-four grants of land had been
made.

ON JANUARY 22, 1836, a Texas
force of about 100 men under Fran-
cis W. Johnson and James Grant pro-
ceeded from Goliad to San Patricio
on the projected Matamoros
Expedition. On February 27, while
Grant and a scouting party were
absent, a Mexican army under José
Urrea surprised and overwhelmed
the remaining force of thirty some
men, killing ten of them and taking

eighteen to Matamoros as prisoners.
The rest, including Johnson,
escaped. The town was burned.

The colonists took refuge in
Victoria until the withdrawal of the
Mexican army after the Battle of San
Jacinto. By the summer of 1836,
most of the families had returned to
San Patricio to build anew. With the
creation of San Patricio County in
1836, San Patricio was designated as
county seat, and remained so with
county organization in 1837. A
courthouse and jail were built on
Constitution Square, A new county,
organization was made in 1847, But
the growth of the Irish settlement
remained retarded by events of the
Mexican War, and again suffered
from considerable lawlessness dur-
ing the Civil War as cotton and
other commodities were smuggled
to Mexico.

Chipeta Rodriguez lived in a hut
at a way station for travelers on the
vast John J. and Eliza Welder ranch
lands on the Aransas River, on a
trail that led from adjoining Refugio
County to San Patricio and the Rio
Grande Valley. Copper-skinned, past
middle age, with thin shoulders
slightly stooped, and weighing less
than 100 pounds, Chipeta was not a
pretty woman. Only her black eyes
that darted venomously when an-
noyed by passersby seemed alive.
Assisting in her meager inn opera-
tion was Juan Silvera, nicknamed
Juan “Chiquito” (Little John)
because of his diminutive size, and
believed to be an illegitimate son.

In August of 1863, a horse-trader
named John Savage sold some ani-
mals to the Confederate Army near
San Antonio, and on his way home
to Corpus Christi with over $600 in
gold in his saddlebags, he stopped
at Chipeta’s inn for food and a
night’s lodging. When he failed to
arrive home at the scheduled time,
two of his friends made inquiries
along the route he was supposed to —
travel.

No one had seen Savage pass
through San Patricio, so the friends
enlisted Sheriff William B. Means of
San Patricio County to assist in their
search farther up the trail. They
paused to question Chipeta. She

stood in her door, looked up impas-
sively at the men on horseback, and
denied that Savage had been at her
place. Juan Silvera also denied hav-
ing seen the trader, and with no rea-
son to suspect the woman or her
son, the men rode on.

The trader’s horse was finally dis-
covered grazing on the Welder
Ranch, still saddled, but the saddle-
bags missing. A few days later, two of
Welder’s slaves were washing clothes
in the Aransas River not far from
Chipeta’s home when they saw a
long object wrapped in corn bags
floating near the edge of the water.
With a tree branch, the women
pulled the object to shore. Its fetid
odor made them realize it might be
a body. Leaving their laundry in the
river, they fled screaming toward
the ranch house.

Two Welder ranch hands and a
Confederate captain named Turner
unwrapped the body of the missing
Savage. He had been killed by a sin-
gle blow to the head with an ax or
other heavy-bladed instrument.

Again, Chipeta and Juan Silvera
were questioned. Chipeta swore
vehemently that she knew nothing
of the crime, and no ax or similar
weapon was located. Silvera made a
like denial, claiming that he had
been looking for work in Copano
Bay at the time of the horse-trader’s
alleged visit. But while Chipeta was
being questioned, her dark eyes
kept darting toward a certain spot
on the river. Here, hidden in an
eddy of the lazy-flowing stream, a
short distance from where the body
had been discovered, the investiga-
tors found the murdered man’s sad-
dlebags, containing the $600.
Mother and son were arrested and
jailed at San Patricio.

THE JAIL was a crude affair
attached to the back of the court-

“house, with no bars on the narrow

windows. Prisoners were kept
chained in their cells. The chain fas-
tened to Chipeta’s ankle was long
enough to allow her to reach the
pile of blankets in the corner where
she slept. During the day she
crouched on a dry-goods box and
stared from the window at the curi-

TRUE WEST

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TRUE WEST

ous townsfolk who came to offer her
tobacco and cookies—and sympa-
thy. She nodded her thanks, saying
nothing.

Nor did she or Silvera say a word,
except to plead innocent, at their
arraignment before Justice of the
Peace Owen Gaffney, who bound
them over for the grand jury. They
kept silent even after the grand jury
indicted them on October 7 for
murder in the first degree and mur-
der in the second degree, respec-
tively. It was because, many thought,
Chipeta believed her son guilty, and
that Juan refused to affirm or deny
the crime to protect his mother.

Though not mentioned in public,
the consensus of the townsfolk in
the privacy of their homes was that
Chipeta was getting a “raw deal.”
This is apparent from the partial
minutes of the district court trial
salvaged from the fire that
destroyed the courthouse and
early county records near the
end of the Civil War, and from
interviews with descendants of
those who witnessed the pro-
ceedings that appeared
from time to time in the
Corpus Christi Caller, after
this weekly newspaper was
established in 1883.

THE TRIAL, presided
over by Judge Benjamin
F. Neal of the Four-
teenth Judicial District,
was by today’s standards
highly irregular, to say
the least. Sheriff Means,
who arrested Chipeta and
Silvera, was foreman of
the indicting grand jury;
Justice of the Peace
Gaffney was foreman of
the trial jury; and four of
the jurors who sat in
judgment of Chipeta
and Silvera had been
charged with felonies
ranging from stock
thievery to murder.
However, the charges
against them had been
dismissed by District
Attorney J.S. Givens due to the
“unsettled days of the Civil War’—

SEPTEMBER 1998

oe

cent os

the tide was turning against the
South, and men were “needed” for
the war effort.

Chipeta and Silvera were tried
jointly October 8 and 9. Spectators
jammed the courtroom, windows,
and doorway. One of the slave
women, Lucy, described the discov-
ery of the body in “spectral tones.”
The ranch hands and Captain
Turner told of their “gruesome
ordeal”—examining the corpse—
and how cleanly an ax or similar
weapon had cut into the victim’s
skull. District Attorney Givens dra-
matically dumped the gold coins
from the saddlebags onto the wit-
ness table, berated the defendants
as “unsavory characters about whom

—-

a5

_

ue 3

a i
ee Oe

the people knew very little,” and
propounded the “reputation” of the
inn they operated. The defense
counsel argued that finding the sad-
dlebags with the money intact was
sufficient evidence to show that
Chipeta had not murdered the
trader—at least disproved the
motive of robbery. This was ignored
by the jury, when Silvera, pale and
trembling, suddenly stated that his
only part in the crime was carrying
the body to the river. Chipeta’s only
defense was two words: “Not guilty.”
The jury found her “guilty as
charged,” Silvera as her accomplice.
He was sentenced to five years in
prison. It was recommended that
Chipeta be shown mercy due to her
age and the fact that the evidence
against her was largely circum-
stantial.
Judge Neal saw it differently.

pew Bad war news. Too much

crime. Smuggling to the

—— - Mexican border. There was
——— much dissatisfaction with the

county government, and
tempers were short. On
October 10, he announced:

..ordered, judged and
decreed by the court that
the said Chipeta Rodriguez
be taken to the jail of San
Patricio, or to some other
secure place and there
closely and securely confined
until Friday, the 13th day of
November, AD, eighteen
hundred and sixty three,
when she will be taken to
the place of execution and
then between the hour of
eleven o’clock and sunset of
said day she shall be executed
according to the law, by hang-
ing by the neck until she be
dead....

THE DEATH SENTENCE
intensified the feeling that
Chipeta had gotten a bum rap.
The women in town unanimously
bewailed her pending fate. A
few of them were allowed to
bring changes of clothing,
bathe her, and occasionally wash
her hair. But Chipeta remained

wu

silent about the crime for which she
had been convicted. As the days
passed, a pall of dread uneasiness
and superstition settled over the
Irish community.

Some of the men, mostly older
citizens, tried to persuade Sheriff
Means not to carry out the fatal act.
Means vigorously explained that he
was bound by the edict of the court.
But on the eve of the event, he was
conveniently called from San
Patricio on “some official business,”
leaving the matter in the hands of
his deputy, John Gilpin.

THE PLACE CHOSEN for the
execution was a big mesquite tree
on the bank of the Neuces River,
some 300 yards from the court-
house. Gilpin’s problem was how to
transport a shackled prisoner and
her coffin to the gallows tree. Three
times he tried to borrow a wagon,
and was refused. In the last instance,
a woman brandished a big stick and
told him that if the sheriff wanted
her wagon he would have to obtain
a court order and come get it him-
self. Of course, Means’ whereabouts
was unknown.

At 11 o'clock Friday morning,
November 13, San Patricio citizens
began gathering in little groups
about the courthouse square. The
sun had risen brightly that morning,
and those in favor of the hanging
said it was a “fitting day.” Those who
disapproved predicted that “nothing
good” would come of carrying out
the court’s edict.

As the day passed, the crowd
milled about and watched the sun
turn into a subdued red globe in a
hazy sky. By mid-afternoon, it was
blotted out by a billowing mass of
clouds rolling in from the Gulf. It
was late afternoon before Gilpin
managed to obtain a rickety,
wooden-wheeled cart and team of
oxen from a man who lived about a
mile east of town. Glancing up at
the thickening sky, someone
remarked: “If he can’t see the sun,
he won’t know when it’s sundown,
and maybe he’ll let Chipeta go.”

Such hope was quickly dashed,
however. Gilpin brought out a crude
coffin, constructed of cypress planks

26

the day previous, and placed it on
the bed of the cart. Then he led the
shackled prisoner from the gloom
of the jail. As Chipeta faced the
spectators momentarily, many
dropped their eyes and turned away.

Chipeta climbed on the cart, dis-
dainfully refusing the hangman’s
helping hand, and took her place
atop the coffin, where she sat
upright, smoking a corn husk ciga-
rette and staring vacantly ahead.
Gilpin started the oxen. The vehicle
creaked eerily and jolted off on the
long mile toward the Nueces.
Almost the entire population of San
Patricio followed, except the chil- *
dren, who were ordered to stay at
home.

Gilpin stopped the cart in a slight
depression under the mesquite tree.
The crowd of followers stopped a
short distance to the rear, and
waited.

No one offered to assist the hang-
man in his grisly task. He ordered
the condemned woman to place her
hands at her back, which she did
without hesitation. After binding
her wrists with a small rope, he
tossed a new hemp rope over a
strong limb of the tree and adjusted
the noose about the woman’s thin
neck. He removed a bandanna from
his pocket to tie over Chipeta’s face,
but she turned her head away in
protest. The cool manner in which
she faced her ordeal shamed those
who watched.

Gilpin stepped to the ground,
looped the rope dangling from the
limb around the trunk of the
mesquite, and took up the slack.
Finally, he spoke to the oxen. The
cart rumbled forward, Chipeta’s
shackled feet slipped off the rear,
and her body dangled in space.

A woman in the crowd cried,
“No, no!” Another fainted, and a
third bolted toward town, sobbing.
Others closed their eyes to the
ghastliness of strangulation.

Within a few moments, Gilpin
announced that the woman was
dead. He took the body down and
placed it in the cypress box. He
asked some of the men to help dig a
grave under the tree, but everyone
drifted away toward their homes.

Gilpin dug the grave himself. The

burial finished, he climbed aboard
the cart and guided the oxen back
to town.

The execution of a woman whom
many believed innocent, death with-
out a wake, and an unmarked grave
outside a cemetery were considered
the most unholy things that had
happened to the Irish settlement. As
one elderly Irishman muttered,
“Lord, and ‘tis a black day for San
Patricio.”

Perhaps his prediction was right.
During the storm that swept in from
the Gulf afterwards, lightning struck
the mesquite tree on which Chipeta
Rodriguez was hanged. A week later,
it was chopped down and used for
firewood.

DOWN THE YEARS, many peo-
ple claimed that Chipeta returned
to haunt them, to have seen her
ghost wandering along the Nueces
where the old tree stood; that after
Juan Silvera returned from prison,
he suffered such guilt from his false
testimony against his mother that he
went insane; that about twenty-five
years after the hanging, an old man
on his deathbed confessed that he
had murdered John Savage and
threw his body in the Aransas, not
for his gold, but because the horse-
trader had cheated him in a busi-
ness deal.

So much for legends.

As a fact, the prosperity of San
Patricio began to decline. Its popu-
lation of 400 in 1890, was reduced
severely with the removal of the
county seat to Sinton in 1893. The
post office was discontinued in
1920, and the place became little
more than a ghost town. The James
McGloin home built in 1855 and
still standing one mile southeast of
San Patricio, and a monument
erected during the Texas Centen-
nial of Statehood, celebrated in
1945-46, commemorates the early
history of the site.

And that is the story of how
Texas executed three women—
before, during, and since the Civil

War.
See,

TRUE WEST

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addicted prostitute who found religion in prison, died by lethal injection in the
Texas penitentiary at Huntsville. Her crime was the 1983 bludgeoning to death of
a Houston man with a pickax, and then turning the ax on his female companion who was
cowering under a blanket in a corner, to eliminate the witness. On a tape recording
played at her trial, she bragged to friends that she got a sexual thrill out of the attack.
Seventy some requests for commutation before the Board of Pardons and Paroles dur-
ing her more than a decade on the female death row at Gatesville prison, as well as a last
ditch challenge to the state’s clemency process before the United States Supreme Court
arid a bid to the Texas governor for a stay of execution, had failed before she was flown
to Huntsville 175 miles away, where executions are carried out. Neither her gender nor
her religious conversion played a role in the decisions.
Preparations for the Huntsville execution even invoked worldwide pleas of mercy
’ focused on her metamorphosis from a drug-crazed teen to a soft-spoken woman of thirty-
eight, who would be content with life imprisonment and helping others behind bars.
-And there was a dirge of usual pros and cons (Biblical and otherwise) on capital punish-
ment.
ey Of especial interest was the claim that she was the first woman executed in Texas
s «since the Civil War and the second to meet such fate in that state. This is only partially

“correct. Actually, Karla Faye Tucker was the third of her gender to be legally exe-
U4, Ve cuted in Texas since its beginnings as a Republic.

[icc evening, February 3, 1998, Karla Faye Tucker, a former teen-aged, drug-

wn” In 1853, a black woman named Jane Elkins was tried before Texas’ famed jurist,
- ~ District Judge John Henninger Reagan, for knocking a man named Wisdom in the
ie head with an ax at Farmers Branch, in Dallas County. Wisdom had hired Jane, and she
1 murdered him while he slept.

The case of State of Texas vs. Jane, a Slave, preserved in a volume of district court records

seit MY MMA uy at the Texas/Dallas History and Archives Division, J. Erik Jonsson Library, shows that, on May
16, a jury “found defendant guilty of murder in the first degree”; that she was “a slave of the value

oO aes of seven hundred dollars”; and her owner had made no effort to “evade or defeat the execution of the law upon

said defendant.” On May 17, the defendant having nothing to say why judgment should not then and there be
passed, it was “ordered, adjudged and decreed by the court that the sheriff of Dallas County keep the said Jane in
close confinement in the common jail of Dallas County until Friday the 27th...and that between the hours of 11
o'clock AM and 3 o’clock PM, the sheriff take said Jane from the common jail of said county and convey her to a
gallows erected for that purpose and there hang the said Jane by the neck until she is dead....”

lly By Glenn Shirley

TRUE WEST SEPTEMBER 1998 23


or criminal rights group that sought delays, we can
only express disgust." "We leave here only with
assurances that ROGERS will never have the chance to

hurt anyone again. We still live with the fact that
David is gone."

Texas executes 17th of year Monday June 2_

HUNTSVILLE, Texas, June 2 (UPI) _ Texas prison officials have executed a former waiter for the murder of a
police officer during a 1985 crime spree in northeast Texas.

ss

Patrick Rogers is the 17th killer executed by injection in Texas this year.

The lethal chemicals were administered after a lengthy statement in which Rogers' prayed for forgiveness, bid his
family farewell, and told the family of his victim, **What you want to see, you're going to get." :
The 33-year-old Rogers was condemned for the Sept. 21, 1985 death of Paris, Texas, police officer David Roberts.
The 23-year-old officer was shot six times through the windshield and driver's side window of his patrol car after he
stopped a stolen car carrying Rogers and Willis Cooper. ~
Roberts’ brother, Danny Roberts, witnessed the execution and later said, ‘We leave here with only the assurance
that Rogers will never have the chance to hurt anyone again."

Trial testimony indicated Rogers and Cooper were on an interstate crime spree and were high on PCP at the time of
the murder. The spree began when they stole a car in Oklahoma City before driving to Paris, where they stole a
pistol from a pawn shop and held up an ice cream shop, stealing $685.

Cooper was convicted of aggravated robbery with a deadly weapon and sentenced to life in prison.

Rogers is the 124th prisoner put to death in Texas since the state resumed executions in 1982. The state attorney
general's office says another execution is scheduled Tuesday and two are set for Wednesday.

,
>
f

HUNTSVILLE, Texas (Reuter) - Patrick Rogers, who killed a police officer during a 1985 crime spree, was executed by lethal injection
Monday in the first of a record 11 executions set for June in Texas, prison officials said.

Rogers, 33, shot and killed police officer David Roberts, who had stopped Rogers and an accomplice after the men robbed a pawn shop
and an ice cream parlor in Paris, Texas.

“Twill ask Allah for forgiveness because he created me and he will forgive me," Rogers said before he was injected with a dose of lethal
chemicals and died in the Huntsville State Prison shortly after 7 p.m. EDT.

Rogers and accomplice Willis Cooper stole a police car in Oklahoma in September 1985 and drove to north Texas, where they stole
handguns from a pawn shop and held up an ice cream parlor in Paris.

Minutes later, Roberts pulled the men over, but Rogers shot him through the windshield before he could get out of his patrol car. Rogers
then walked around to the driver's side of the car and emptied his revolver into the 23-year-old police officer.

Rogers was sentenced to die for the shooting, and Cooper was sentenced to life in prison for aggravated robbery with a deadly weapon.

Rogers spent his final day on death row visiting with other inmates and prison guards and talking with his two sisters by telephone. He
ordered a Coca Cola for his last meal, a prison spokesman said.

The execution was witnessed by the slain police officer's former wife, his mother, a cousin and two close friends, along with prison
officials, five reporters and Rogers' attorney.

The execution was the 17th in Texas this year and the 124th since capital punishment resumed in the state in December 1982.
Texas is expected to break its previous record of 19 executions in a year Wednesday, when a pair of executions are scheduled.
The state will break its record for executions in a single month if all 11 scheduled executions are carried out in June.

20:06 06-02-97

Monday June 2, 1997 America Online; Galba33 Page: 1

JAN

Jesus Romero executed for San Benito raurder.

By MICHAEL GRACZYK
Associated Press Writer

HUNTSVILLE — A Rio Grande
Valley man who giggled during his
murder trial was put to death early
today for raping and killing a teen-
age girl nearly eight years ago.

Jesus Romero, 27, was given le-
thal injection for killing Olga Per-
ales in. an attack that involved
several other young men. One of his
companions also is under a death
sentence.

Romero had no final statement.
His attorney, Elizabeth Cohen, en-
tered the death chamber and said
she loved him. Romero, visibly ner-
vous and appearing near tears,
stared intently at her.

He was pronounced dead at 1:40
a.m. CDT, seven minutes after the
lethal injection was administered.
He had little reaction to the injec-
tion, gasping a few times and utter-

- ing a single grunt.

The execution was the seventh

_ this year in Texas and the 49th since

Jesus Romero
the state resumed capital punish-
ment in 1982. Both totals by far are

the highest in the nation. _
Romero’s death came after the
Texas Court of Criminal Appeals,
the state’s highest criminal court,
refused to block the execution. Late
Tuesday, a federal judge in Browns-

ville issued a stay, but the state -
appealed to the 5th U:S: Circuit
Court of Appeals. in New Orleans,
which lifted the lower court order.

The U.S. Supreme Court, in a 6-3
ruling early today, also refused to
halt the execution.

Testimony showed Perales, 15,

who lived near San Benito and knew |

her alleged killers, was stabbed in
the chest and stomach, beaten about

the head with a pipe and raped.

repeatedly before her death.

Romero was seen giggling at the

defense table as witnesses re-
counted the slaying at his 1985 trial.
A jury took just seven minutes to
decide on the death sentence.
Testimony showed Romero and

his companions were drinking beer

and taking drugs the night Perales

was killed. She was riding with.
them in a car after attending a-

party. She was raped and killed
after her attackers worried that she

would tell others about the assault.

Her body was dumped in a remote

area near San Benito and was found

the next day, Christmas Eve 1984.
Romero initially told police the

| girl willingly went with them. After

his conviction and. sentence, he
blamed others for hatching a plan to
rape the girl.

_ “Things just got out of hand, ” he

‘said.

Two of Romero’ S co-defendants
also were convicted of capital mur-
der. Davis Lozado is awaiting

death, “while Jose Cardenas received

a a life. term.
Another man received 20 years

- for sexual assault Perales’ death.

‘In their appeals, Romero’s attor-

neys contended Romero had psycho- .

logical problems and.that the attor-
ney who defended him during the
trial was incompetent.

At the time of his arrest, Romero
was free on. bond for three weeks
after serving only a few months ofa
10-year sentence for aggravated
sexual assault on the daughter of a

San Benito police officer.

PPS TE CTT

joo _ a i=

=

rald -—.

Born on the Fourth of July, 1892 Wednesday, May 20, 1992 |

110

in the doorway carrying Arvilla in‘ his
arms. She was bleeding pretty badly
and he dumped her into the wicker
chair.

“He called the hospital and then
asked us to leave. That’s all we know
about it.”

Major Tooher's story, corroborated
by Hollinger, settled all doubts in
Quinn’s line of reasoning. Prince David
Kawananakoa—and no other—had in-
flicted those ghastly wounds on Ar-
villa Kinslea’s beautiful, dusky neck.

It was obvious, judging by a stack of
empty whisky bottles in the kitchen,
that both David and the girl had been
befuddled by Jiquor when their quar-
rel reached a violent point that Sunday
morning. The “party,” in fact, had
started earlier in the day on Waikiki
Beach, and friends told the detective
that “Koke,”’ as he was nicknamed;
was upbraiding Arvilla even then.

Quinn uncovered the motive for the
quarrel, and probably the crime, after
painstaking hours of work untangling
the furtive threads of Prince David’s
love life in recent weeks. He had first
met the exotic Arvilla at her native
Kailua, on the windward side of the
islands.

The romance took an erratic course
for many weeks, with David brazenly
bringing the half-caste girl to his
mother’s palatial home and ordering
servants to serve meals for her in his
room. When Princess Kawananakoa
objected, Arvilla returned to Kailua.

pINALSS: some four weeks before

the murder, the girl was brought to
Honolulu by her stepfather and left
standing on a street corner with a

FRONT PAGE DETECTIVE

bundle of clothing. Prince David met
her and installed her in the Oahu Ave-
nue apartment, joining her there a few
days later. Such was their romance—
furtive, tarnished, built on wild pas-

Slayer's Aunt

Campbell, aunt of

Kamokila
“Prince David,” Hawalian royal playboy.

Alice

sion and kindled to ominous flame by
the aphrodisiac of tropic life.

It began to disintegrate with its own
fierceness not many weeks later, Prince

David, bored by inactivity, took a job
on a dredge in the ‘harbor, working at
night. And Arvilla Kinslea, lonely in
her Icve prison, began accepting the
attentions of other men, who came to
admire and court while David was
away. These little treacheries, Quinn
decided, were sufficient to stir bitter-
ness and gnawing jealousy in David
and probably provided the motive for
the ghastly finale to their love affair.

During the days of the investigation
Prince David Kawananakoa kept a
sullen silence, even in the face of a
murder indictment voted by the Terri-
torial Grand Jury, He admitted only
two things—that Arvilla Kinslea was
his common-law wife, and that he
quarreled with her in the kitchen on
that fateful night:

The law, meanwhile, cracked down
on the playboy prince. Prosecutor John
C. Kelley, determined to show that
justice is not partial to kings and
princes, filed a motion to revoke the
royal heir’s probation in the Felicity
Connors tragedy.

That motion was granted.

Prince David Kalakaua Kawanana-
koa, last of the Hawaiian monarchs,
paced nervously in his cell at grim
Oahu Penitentiary until the morning
of November 20th, 1937,

On that day he was ushered into
Judge E. H. Stafford’s court where he
pleaded guilty to the manslaughter of
Arvilla Kinslea.

Judge Stafford sentenced the play-
boy prince to ten years in prison thus
bringing to an end the tragic career of
the proud and fierce ancestry created
centuries ago by Kamehameha the
First.

MURDER UNDER TWO FLAGS

(Continued from page 35)

gang was involved. I saw through the
wall of silence.

At last I found a man with courage
enough to speak out. He was J. J. Mac-
Arthur, a clerk at the railroad shops
whose window in the second story
overlooked the street below where the
desperate fight had raged.

“The bandits drove a blue Dodge
touring car,” he declared.

“You’re sure of that?”

“Positive,” he affirmed. “It drove up
right below my window and parked in
the driveway to the shops. That was
just after the 11:30 whistle blew. It
didn't arouse my suspicions because
people are always parking there. In a
few minutes the bank car drove up
directly behind. The guards got out of
the car with the bags of money and
started across the street to the Van
Noys. Their backs were to the bandit
car. Suddenly five Mexicans jumped
from the blue car and started firing.”

A Mexican shop worker heard Mac-
Arthur telling me his story. He came
up to us and drew me aside. In a shaky
voice he said:

“IT know one of the men, Captain
Stowe!"

“You mean you recognized one of the
bandits?” I asked excitedly.

“Si, senor!” the man said. “But prom-
ise never to reveal my name if I tell,
He works here at the shops!”

I was exasperated when he made me
promise over and over again to con-
ceal his identity. But finally he whis-
pered a name into my ear, a name that
caused me to start with surprise.

“José Carrasco!” I exclaimed, real-
izing that this outrage could easily have
been the work of ‘Submarine Joe’ Car-
rasco, who was well known on. the
American side of the border as a ratty
little killer. His nickname originated
from his leadership in the border dives.
Smuggler, dope runner, racketeer,
killer—Submarine Joe was a big name
on the Rio Grande.

No sooner had the Mexican informer
vanished than another discovery ex-
ploded in my face. A police car braked
to a quick stop in front of the Van Noys,
and a patrolman jumped out.

“We've found the bandit car!” he
cried, “It smashed into a telephone
pole in an alley. Four blocks toward
the river, just off of St. Vrain Street!"

“How do you know it’s the ear?”

“It’s a cinch,” he said. “Blue Dodge
touring car. Mexican license plates.
And there's fresh blood all over the
front and rear seats!"

“You have the license number?”

He handed me a slip of paper. I
flashed details of the new discovery to
headquarters, detailing Sergeant Joe
Hausinger, head of the identification
department, to search the car for fin-
gerprints and other clues. I sent plain
clothes man across the border to trace
the ownership of the machine,

“Call in Captain Good and Captain
Womack,” 1 told the desk sergeant.
“just as quick as you can locate them.
Send them out here to the shops.”

Thad a premonition that another gun
battle was about to break, more deadly
than the one at noon. The bandit car
had cracked up. To me that meant that
the thugs had likely scurried to tem-
porary hiding places, that they were
still within the dragnet!

Undoubtedly the killers were. still
heavily armed, and barricaded! That
meant a fight. Captains Stanley Good
and Joe Womack were gun fighters
men with fast tropper fingers, iren
nerves, cool heads. More thin once we

three had eras
drawn guns on

I secured J,
from the G. H
three weeks hac
road. Just long
plan the job!

I was impati
Womack and (
come? Time
crack-down. It
rasco and his ,
residence. I dec
three patrolme:

Carrasco's ad:
road offices wa
on the south sick
of the murky |
tumbled-down
from the rear, h
and broke in, re;

The address \

Never had S
there. The puzzle
sions on the faces
and a girl told m,
them. I confirme;
theory from othe;
borhood.

ONE THING x

rine Joe Carr
where in El Pas
weeks when he w,
S. A. I had one }
hand to locate his
ies,”

IT sent out wo;
Pigeon in the Mex:
me at the shops. S;
Ing in, more than °

“Where's Subma:
the past three week

None of them k;
were the same: “y,
can find out."

I made the order:
marine Joe's hideo:
American,”

Then I checked \
singer who was
wrecked car.

“Nothing but sm
reported gloomily.
bunch, if my guess
about luck! Nobody
the car. Nobody he;
you beat that? We
entire neighborhood

“Do you suppose,”
the one wounded ban

spare tire all the way
“Apparently so."
as far as we know.”
A .44 Pistol, he co;
recovered from a b
back seat. The gun co:
shells. Was it the |;
killed Lopez and
might determine that
I caught up with C
and Good at the poh
a detective brought 1:
low from Juarez, El P
south of the border
Felipe Medina.
“The car belong to n
“Trenthim toa fellow
He rented Cats out
plained, from his used ,

job
wat
yan
the
1e to
was
uinn
itter-
david
e for
uf:
ation
‘ptoa
of a
‘erri-
only
cowas
at he
en on

down
¢ John

that
s and
xe the
elicity

anana-
narchs,
t grim
vorning

‘d into
vere he
hter of,

e play-
on thus
areer of
created
‘ha the

————

ie Dodge
oe plates.
over the:

yer?”
paper. I
covery to
veant Joe
‘tification
ir for fin-
‘nta plain
‘yr to trace
ic.
d Captain
sergeant,
cate them.
shops.”
nother gun
ore deadly
bandit car
meant that
ced to tem-
they were

were still
aded! That
anley Good
uth fighters.
nypers, iron
lan once We

three had crashed border dives with
drawn guns on the trail of killers.

I secured José Carrasco’s address
from the G. H. & S. A. offices. Only
three weeks had he worked for the rail-
road. Just long enough, I reflected, to
plan the job!

I was impatient for the arrival of
Womack and Good. Why didn’t they
come? Time was the essence of this
crack-down. It was possible that Car-
rasco and his gang would be at his
residence, I decided to find out, with
three patrolmen.

Carrasco’s address listed at the rail-
road offices was in “Mexican Town”
on the south side Within a stone’s throw
of the murky Rio Grande, It was a
tumbled-down shack. I approached
from the rear, hammered on the door
and broke in, ready to shoot.

The address was a phoney!

Never had Submarine Joe lived
there. The puzzled, frightened expres-
sions on the faces of a Mexican woman
and a girl told me that, as 1 questioned
them. I confirmed the phoney address
theory from other sources in the neigh-
borhood.

NE THING was certain--Subma-
rine Joe Carrasco had lived some-
where in El Paso during the three
weeks when he worked for the G. H. &
S. A. I had one powerful weapon at
hand to locate his hideout—the “stool-
ies.”

I sent out word for every stool
pigeon in the Mexican district to meet
me at the shops. Soon they came drift-
ing in, more than two dozen of them.

“Where's Submarine Joe been living
the past three weeks?” I demanded.

None of them knew. Their answers
were the same: “Yo no sé—but maybe
ean find out.”

I made the order explicit: “Find Sub-
marine Joe’s hideout! It’s worth $100,
American.”

Then I checked with Sergeant Hau-
singer who was investigating the
wrecked car.

“Nothing but smudged prints,” he
reported gloomily. “A pretty slick
bunch, if my guess is right. And talk
about luck! Nobody saw them abandon
the car. Nobody heard the crash! Can
you beat that? We've canvassed the
entire neighborhood.”

“Do you suppose,” | asked him, “that
the one wounded bandit dragged on the
spare tire all the way to the smash-up?”

“Apparently, so,” he said. “At least
as far as we know.” :

A .44 pistol, he continued, had been
recovered from a burlap sack in the
back seat. The gun contained six empty
shells. Was it the pistol which had
killed Lopez and Meers? Ballistics
might determine that point.

I caught up with Captains Womack
and Good at the police station just as
a detective brought in a Mexican fel-
low from Juarez, El Paso's “twin” city
south of the border. His name was
Felipe Medina.

“The car belong to me,” he declared.
“Trent him toa fellow three days apo.”

He rented cars out-by the day, he ex
plained, from his used car lot in Juarez.

FRONT PAGE DETECTIVE

“Why,” I asked, “didn’t you notify
Juarez officers when the car wasn’t
returned?”

“I no worry,” Medina said. “The car
him not much good and the fellow give
me twenty-five dollars to use it ten
day.” ;

Breathlessly I awaited the answer to
my next question: “Do you know the
man's name—the man to whom you
rented the car?”

“Si, senor,” came the quick reply.
“Villarreal. Manual Villarreal.”

I gasped. Manual Villarreal was an-
other border name! More than a name,
it was a legend! Villarreal was the most
notorious Mexican outlaw of his day—
treacherous as a snake, For more than
a decade ‘the police of Mexico had a
huge price on the head of the phantom
Villarreal, who was reputed to have
killed no less than two score people
with his guns! .

Now the riddle of the payroll horror
was beginning to make sense. The
vicious callousness of the gun battle
was explained. Villarreal and Car-
rasco! Those names were reason
enough for the bloody slaughter.

“We have a photograph and finger-
prints of Carrasco,” Sergeant Hau-
singer informed us. “Of Villarreal
there is nothing anywhere, not even in
Mexico.”

It was now three o'clock in the after-
noon and the time for action had come.
Our dragnet was kept tight, but no one
had been snared. That was significant.

“They are waiting for nightfall,” I
told my men, “Then they'll attempt a
dash across the border. But we must
strike first.”

It was nearing sundown when onc of
our trusted informers reported to me
the address of Submarine Joe Carras-
co's mother’s residence where, he said,
the bandit had been living while plan-
ning the payroll job. :

“A slim chance is better than noth-
ing.” I told Captains Womack and
Good. “Let's get going.”

We took with us six other officers,
some of the best marksmen on the po-
lice force. We were ready for the guns
of Carrasco and Villarreal.

We headed for 715% South St. Vrain
Street. It was an adobe shack setting
back about sixty feet from St. Vrain
and facing an alley. Every man had his
orders. Captain Good and two other
officers closed in from the rear. Four
patrolmen covered the sides.

At a signal which carried around
the armed circle, Captain Womack
and I advanced toward the front door.
It was an electric moment which I ex-
pected to explode in the same hellish
way that had surprised the bank
guards. I had the feeling that unseen
eyes were watching as we advanced.

Captain Womack was at my heels
when I rapped loudly on the door. No
response. Only an uncanny silence. I
hammered the door again, It opened
slowly, one inch at a time, Suddenly
it was flung wide, and one of the larg-
est women I have ever seen jin my
life confronted us!

“We're coming int’ EP said, attenspe
ing to pass the woman, But the 300-

11

pound Amazon temporarily kept me at
bay.

“Hush senors!” she gasped. “My
mother—she is very sick. You make a
disturbance and it will kill her.
Please!”

Three other women poked their
round faces in the doorway. All were
heavy women, nearly as broad as tall.
Womack and I shouldered our way
past them with difficulty.

The room was filthy and had few
furnishings. Objects were hazy in the
twilight. Another room was beyond. I
could see slits of light filtering through
a rough board door. I pushed that door
open.

A wrinkled old woman lay upon a
cot. Her brown skin was pallid in the
yellow light of a coal-oil lamp. She
groaned feebly without opening her
eyes. Her age must have been near a
hundred, and it was apparent to me
that she was near death.

“I’m sorry,” I mumbled. “I beg your
pardon i

The four beefy women were silent.

' Suddenly one of them began to sob and

fell upon her knees beside the cot.
But I had seen it first!:A pool of dark
liquid, a slimy blackish rivulet—com-

.ing from under the cot! The sobbing

fat woman hid it from view.

Before any of them knew what was
happening, Womack and I leaped,
heaved the cot into the air and sct it
down in the middle of the room, There,
lying on the floor where it had been,
crouched the body of a man!

His face was pasty white. He was un-
conscious, and the under side of his
body was soaked in blood. One leg was
almost completely blown off. A splinter
of white shin bone protruded from the
stump!

That man was José Carrasco—-Sub-
marine Joe!

He was the bandit who had been for-
saken by his accomplices when they
sped from the holdup scene, who had
grasped the spare tire and dragged for
nearly a half-mile. He was the living
target that Guard Bittick had blasted
while the vehicle gathered speed. For-
saken once, now apparently he was
forsaken again. Left to die.

That night Submarine Joc was
patched up at City and County Hospital
where two of his victims lay near death.
The surgeons did not have to amputate
Submarine Joe’s leg—a guard’s bullet
had done that. A tourniquet which had
been applied by’ the bandit’s 95-year-
old grandmother had saved his life.

A UTES Submarine Joe’s cap-

ture remained a secret, somchow

the word leaked out that night that

Manual Villarreal had led the gang of

killers in the attempted payroll rob-

bery. It was rumored that he had es-
caped across the border to Juarez.

And that night a tall young man with

a grim face crossed the International

Bridge. His face was grim because he

had vowed before God and man to kill .

a rat—a rat named Manual Villarreal.

He wore a long coat. Perhaps the
puardians of the bridge did not ob-
serve that there was a bulge on cach


112

hip. Perhaps they did not care. Any-
way, young Jeff Meers, son of a mur-
dered bank guard, crossed the bridge
that night to gun for the fastest trig-
ger-man in the entire Republic of
Mexico.

Long after midnight the lanky
figure returned to the American side,
disappointment ctched in his lean face.

Those nightly trips of Jeff Meers
across the border were to continue for
several years. They became a habit, a
habit as strong as life. A habit born of
the deepest hatred and revenge that a
man can know.

That first night Jeff Meers told inti-
mates: “It’s all right for the law to
handle the underlings, but I want to
handle Villarreal myself!”

While Jeff Meers was gunning for
Villarreal in Juarez that night, every
officer in El Paso was combing the city
for a trace of four killers who were
still at large. It was the greatest man-
hunt in El Paso’s history.

Sheriff Orndorff concentrated with
a squad of deputies on the Mexican dis-
trict. Reeder led a posse to the west
side where dilapidated mud huts gave
way to yucca and chico of the desert. I
led a third posse north through the
Manhattan Heights district and into
the hills. Colonel Horsley’s vigilant
Border Patrol maintained double
guard,

It was a night without a single break.
Villarreal, who for many years had
been tagged “The Phantom,” seem-
ingly had also made phantoms of his
bloodthirsty crew.

By morning we were worn to a fraz-
zle, but the manhunt had to go on. We
conferred at police headquarters at
five o'clock a.m.

“My guess is that they’re still holed
up in ‘Mexican Town,’” I suggested.
“Why? Because most of the gang car-
ried bullet wounds. They would want
to rest, get patched up, wait for the
heat to die down before making a run.”

Then I unfolded my plan: “If we
have to, we’ll search every house in the
Mexican district. Begin where the car
was wrecked and work out in a widen-
ing radius. Tedious, but it may be effec-
tive.”

I organized a party of one hundred
officers and volunteers and shifted the
entire group to South St. Vrain Street
wheré we began searching every house.
We were looking for wounded men,
Mexicans. A high-handed method, I
admitted, but the killers’ methods were
high-handed, too. The Spanish-Ameri-
cans of the district co-operated whole-
heartedly.

My car was parked in the 400 block
on South St. Vrain Street. The search
had progressed more than two hours
when I noticed a barefoot urchin
bouncing a rubber ball on the sidewalk.
He seemed interested in the uniformed
men that reported to me.

He finally asked timidly: “Are you
looking for somebody, mister?”

“Sure,” I replied. I do not know why
I added: “I’m looking for some men
that were shot--not killed but
wounded pretty had.”

His answer came like a bolt.

FRONT PAGE DETECTIVE

“I know where there's a wounded
man. Right up the block here a few
houses. And he won't let anyone get a
doctor!”

I was instantly alert. Which house?
The boy pointed. I jerked down his
arm. Yes, he was a bright lad. I am
sorry that I cannot give his name in
print. It would not be safe.

Unconcernedly he bounced his ball
along the sidewalk and returned to my
car.

“The number is 410," he whispered.
Then he sauntered down the street.

In five minutes I had located Cap-
tains Good and Womack. A circle of
officers slipped into strategic positions.
Womack and I made for the front door
of 410. ,

“This time it’s going to be fireworks,

Joe,” I warned Captain Womack. I gave
the signal and a circle of guns closed
in.
_ When I rapped on the door a woman
appeared. She gasped, banged the door
shut before I could move. I backed up
and lunged, shattering the door from
its hinges. Womack was behind me
with drawn pistol.

But the room was empty! The woman
had disappeared, evidently into the
next room behind a second locked door.

Again we crashed down the door.
Clutching my service gun, I scrambled
inside. A man was groaning, a woman
shrieking. °

The shattered door had pinned a
man to the floor!

Womack jerked the portal aside.

Lying upon a dirty mattress was
bandit Number Three. His face was
pale. His bed was drenched in blood.
And his left leg, like Submarine Joe's,
had been blasted away!

Before we hurried the wounded man,
by a devious route, to the hospital for
surgical patchwork we knew that his
name was Apapito Rueda, a_ fitting
partner for Villarreal and Submarine
Joe in their wanton crime. On the
Mexican side of the border Rueda was
known as El Vibora—‘‘The Snake.”

A GAIN ON South St. Vrain Street,
not long after Rueda’s capture,
two Mexican volunteer searchers were
walking diagonally across a lot on the
west side of the 600 block.

“Dios mio!’ one of the men cried.
“A man has been dragged along this
trail! See the blood!”

Cautiously they followed the bloody
trail to a pile of rubbish and old lum-
ber in the center of the block. They
heard a man groaning. He had not been
dragged to the hiding place down in
the lumber pile. He had crawled there
to die!

A squad car rushed him to the police
station where the unconscious man
was identified as Adaran Sanchez,
listed on our records as a bootlegger
and smuggler. Blood was oozing from
a hole in his chest.

He was bandit Number Four, and
what a strange bandit he was! Enroute
to the hospital he died of tubercular
hemorrhage. A ““T. B.” couldn’t be a
bandit? That was only half of it. Both
of his legs from the knees down were

made of wood—a tribute to the unerr-
ing marksmanship of the Border Patrol
in the days gone by.

And the hole through his lungs was
a tribute to the steely nerves and the
steady aim of a bank guard. Name,
Charlie Bittick.

Then the scene shifted to Juarez.
Our stoolies located a youth, one Alejo
Menjarez, who lived on South Calle de
Diablo (Street of the Devil). He would
talk of nothing to intimates except the
crime of 18 marzo, of Submarine Joe's
capture, of Rueda’s capture. He kept
inquiring: “What will the Americanos
do with them?”

He was a sickly youth, but his most
pressing ailments dated from 18 marzo
—the day of the payroll horror. Our
stoolies tried to induce him to cross the
border to United States soil. A dozen
pretexts were offered—a good job, pic-
ture shows, girls, marihuana. But he
could not be lured into our territorial
jurisdiction. :

T believed that he was bandit Num-
ber Five, but Submarine Joe said, “You
boys are loco. Alejo Menjarez? I never
heard the name before.” Rueda was
tight-lipped when the youth’s name
was mentioned. However, Alejo had a
fair-skinned cousin, and at one time
Submarine Joe and Agapito Rueda
had vied for her affections. In fairness
tc Alejo, a point in his favor was that
he had absolutely no police record
cither in the United States or Mexico.

But one day Alejo Menjarez died of
bullet wounds which he had kept con-
cealed! Infection had poisoned a body
which, in my opinion, had been punc-
tured by Guard Bittick’s blazing gun.
Privately, I crossed Number Five off
my list,

Only the elusive Villarreal was now
loose of the murdering quintet that
had pounced upon the payroll car that
crimson morning. Never would. the
case be closed until Villarreal was cap-
tured or dead. All the sleuthing agen-
cies of two nations were nipping at his
heels, yet he remained at large.

Often I thought of Jeff Meers, the
youth who made nightly trips from El
Paso to Juarez hoping that the goddess
of luck would favor his lone ven-
geance-quest, just once.

It was only partial satisfaction to
Jeff Meers when Submarine Joe Car-
rasco and Agapito Rueda were tried
for the murder of William Meers; when
they were convicted and sentenced to
die in the electric chair.

Incidentally, justice moved in a
strange way with Agapito and Subma-
rine Joe. In August and September,
1924, when their trials were held in
El Paso, just six months after their
shocking crime, Guard Bittick testified
at Rueda’s trial: “I saw that man firing
at William Meers!" But when Subma-
rine Joe’s trial was held, Bittick was
still in the hospital recovering from his
wounds,

Furthermore, there was not. one
scrap of scientific evidence to corrobo-
rate the two men’s verbal confessions.
Ballistics played no part in the case be-
cause nota single bullet was recovered
which could be used as a specimen,

Rueda walk.
in the electr:
Texas, on Jan
Joe Carrasco \
and finally w:
prisonment.

Irony was ct
irony was yet
the lives of th
mad March sla

Seven years

It was a bal:
murder indict
hands of El }
charging Man
degree murde
border countr)
the infamous
1924.

But Jeff Mee

1924 Meers w
down on his fa
young man—in
tures had grow
seven years. R
brain.

Shortly afte:
dered he marr:
heart. He work
Every night he
Juarez, and he :
which bulged at

In all those
Smother the d:
Villarreal. Yet
and the good
townsmen. Peo:
would live long
his reason for liy

On June 19 t}
came. Villarreal
He was, accor
the Tckolete Ba:
As a prank Vill,
tending bar, bos
viting the El Pas
to come and get
we did not hea:
Police station,
But Jeff Meers
light came to his
buckled on his be
was a maze of ha:
International Bri:
Calmily he rem,
the swinging door
Then he walked
were served in
pushed through a
ing doors. A horri
his eyes and look
barrels of two .45
Jeff Meers had
years to pull the ty
seven bullets into
fore he slumped bx
Then Jeff Mee:
from his guns, laid
Mexican army off
room followed by:
loungers. .
, “You're under ;
1e Official snappe>
Jeff Meers said: :
my life... .”
The officer was p
“But why,” he ;
name of the Saints ;
Visconte?"
The earth fell (,


ne uberr-
ier Patrol

lungs was
‘sy and the
rd. Name,

to Juarez.

one Alejo
th Calle de

He would
except the
arine Joe's
oe, He kept
Lmnericanos

ut his most
m 18 marzo
yorror, Our
to cross the
il, A dozen
sod job, pic-
ina. But he
ir territorial

yandit Num-
xe said, “You
irez? I never
Rueda was
outh’s name
Alejo had a
at one time
apito Rueda
s. In fairness
ivor was that
police record
evs or Mexico.
\jarez died of
had kept con-
isoned a body
id been punc-
5 blazing gun.
mber Five off

rreal was now
» quintet that
ayroll car that
er would the
irreal was Cap-
leuthing agen-
- nipping at his
at large.

Jeff Meers, the
y trips from El
hat the goddess
his lone ven-

satisfaction to
yarine Joe Car-
ieda were tried
am Meers; when
nd sentenced to
ir
moved in a
pito and Subma-
and September,
ds were held in
nths after their
i Bittick testified
vy that man firing
sut when Subma-
eld, Bittick was
-overing from his

‘-. was not one
dence to corrobo-
erbal confessions.
art in the case be-
let was recovered
as a specimen,

Rueda walked the last mile and died
in the electric chair at Huntsville,
Texas, on January 9, 1925. Submarine
Joe Carrasco was granted a new trial,
and finally was sentenced to life im-
prisonment,

Irony was cutting a wide swath, but
irony was yet to play a greater role in
the lives of those connected with the
mad March slaughter....

Seven years passed.

It was a balmy day of June, 1931. A
murder indictment was still in the
hands of El Paso’s district attorney
charging Manual Villarreal with first
degree murder, The citizens of the
border country had almost forgotten
the infamous incident of March 18,
1924.

But Jeff Meers had not forgotten. In
1924 Meers was a young man with
down on his face. In 1931 he was still a
young man —in years, But his lean fea-
tures had grown old and hard in those
seven years. Revenge had seared his
brain.

Shortly after his father was mur-
dered he married a childhood sweet-
heart. He worked hard during the days.
Every night he crossed the border to
Juarez, and he still wore the long coat
which bulged at the hips.

In all those years he could not
smother the deadly passion to kill
Villarreal. Yet he had the sympathy
and the good wishes of his fellow
townsmen, People wondered if he
would live long enough to accomplish
his reason for living.

On June 19 the big day of his life
came. Villarreal was in Juarez!

He was, according to a secret tip, at
the Tekolete Bar that very afternoon.
As a prank Villarreal, the killer, was
tending bar, boasting and openly in-
viting the El Paso police or Jeff Meers
to come and get him. Unfortunately,
we did not hear that rumor at the
police station.

But Jeff Meers heard it. A frenzied
light came to his cold blue eyes as he
buckled on his belts and guns. His face
was a maze of hard lines as he crossed
International Bridge.

Calmly he removed his long coat at
the swinging doors of the Tekolete Bar.
Then he walked inside. The drinks
were served in the rear room. He
pushed through another set of swing-
ing doors. A horrified bartender raised
his eyes and looked straight into the
barrels of two .45’s!

Jeff Meers had been waiting seven
years to pull the triggers. Now he fired
seven bullets into the man’s heart be-
fore he slumped behind the bar.

Then Jeff Meers blew the smoke
from his guns, Jaid them on the bar. A
Mexican army officer burst into the
room followed by a swarm of street
loungers.

“You're under arrest for murder!”
the official snapped.

Jeff Meers said: “It’s okay. I've lived
my life... .”

The officer was puzzled.

“But why,” he asked, “‘why in the

name of the Saints did you kill Antonio
Visconte?”

The earth fell from Jeff Meers’ fect.

FRONT PAGE DETECTIVE

Copyright 1938, Licorrr & Myers Towacco Co,

113


1’s criminal
He couldn't
ution.

e jewelry store
e prowl car
second radioed
police head-

was unable to
| to verify that
| beyond help.
ound the body
and it was the
iedic that the
-vered a major
o the heart.

onfirmed less
, later upon the
micide squad.

shere young
arcerated
viction.

Newsmen interview members
of candlelight vigil held to save
condemned man.

The doctor, a mild-mannered, be-
spectacled man, made a rapid exam-
ination of the corpse and stated that
the subject had been shot through the
chest with some kind of a firearm at
extreme close range. The muzzle of
the pistol, he said, had actually been
pressed to the victim’s clothing.
The examination completed, the
doctor went off to arrange for the
transport of the corpse to the police
morgue. The autopsy of the body
provided little more in the way of
useful information. Fiorello had been
killed by a single bullet from a .22-
caliber revolver, fired with the muz-
zle of the weapon resting against his
chest, and with the projectile pass-
ing close to the heart. There was a
high proportion of adrenalin in the
bloodstream, indicating that the un-
fortunate man had not died instant-
ly, but had bled out slowly, fully re-
alizing what was happening to him.
Before the sun had come into com-
plete view, the news bulletin filled
the airwaves. The hunt for Fiorello’s
killer was expanded. "*
At this time, the only thing that
Amarillo police knew with certainty
was the exact time of the murder,
there being a record of the first call
to the emergency ambulance service

. which had taken place not more than

three minutes after the shooting.

People who had known the victim
throughout the countryside described
Michael Fiorello as being a friendly
man, quiet. He also retained a cer-
tain, suspicious, nature. .'

“He was in business where you had
to be on guard constantly against
robbers and thieves,” said a relation.
“He kept that pearl-handled gun
close by at all times, and wasn’t
afraid to use it. I just can’t see any-
one getting the drop on Mike and
taking that gun away from him... I

can’t picture that.” |< ©

Searching for a getaway-car with- .

out a make, color, or license was
fruitless. MOET ida oe UAT

Perhaps, as some detectives. theo-
rized, the killer had gotten away.on

foot, and perhaps he, himself had:

been wounded in the struggle. That,

being a distinct possibility, moved

sleuths to notify all hospitals within
a 50 mile radius to report any wound
of a suspicious nature. Meantime,
deputies and volunteers combed
roads, vacant buildings, and fields in
the area, hoping to find a wounded
man hiding from police posses. They
turned up nothing.
' A check was made with the Na-
tional Crime Information Center in
Washington, D. C., with a request for
a computer search for anyone re-
cently released from prison into the
Amarillo area. Especially someone
with a similar crime backgrotind for
armed robbery. They received a neg-
ative reply. ad

“After a few days we had to as-
sume that our suspect had fled the
area,” said a spokesman for the de-
partment. “We put a lot of time and

overtime into the case but could’

On the first day of his murder trial, the
defendant was found to have.a blade strapped
to his leg. Asked what it was for, he replied he
intended to kill the prosecutor and the judge.

iS EN, i!

‘checked out.

come up with no witnesses or clues.’

We were stymied.”
_ Tips came into police headquarters.

‘A youth who lived in Amarillo’s
s.seedier section had been seen flash-

ing a lot of cash lately. He was out
of work and treating his friends to
beer and cigarettes. He had also been
seen wearing a flashy wristwatch.
Police launched a massive search for
the suspect.

Two days later, in an Amarillo mo-
tel, he was taken without resistance.
A career criminal with 22 misde-
meanor and felony convictions since
his early teens, Amarillo police de-
scribed him as a hoodlum whose of-
fenses covered “everything but sink-
ing the Titanic.” Taken to police
headquarters for questioning he
launched into a marathon confession.

The sniveling suspect finally ad-
mitted that he had participated in the
robbery of some scrap metal froma
cemetery vault to get beer and
cigarette money. Fresh out of jail,
and unable to get a job, it was the
only way he knew how to get by. He
stubbornly denied the jewelry store
holdup. His alibi for April 4th

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Fast Luck

said the time he had spent at the El-
lis Unit in Huntsville Prison, had
helped create the man he was now—

-articulate, but not dreading death or

a continued existence behind bars.
Prison guards reported that Rum-
baugh seemed almost indifferent
about a pending death by a needle
with a fatal injection of drugs.
While Rumbaugh sat on death row,
insisting that an execution date be
set for him, the American Civil Lib-
erties Union attorneys interceded in
his behalf to prevent such action.
Rumbaugh, languishing in his cell,
watching newscasts on TV, came
unglued when he saw the newscast.
“The ironic thing about it is that
the organization professes to be
champions of individual rights,”

| Rumbaugh said. “If I choose to die,

that should be my right, without the
ACLU'’s interference.”

Disgusted, Rumbaugh scribbled off
a letter to Judge George C. Dowlen,

who turned a copy of the letter over

to the Amarillo Globe News. In part:

“I believe...the poised sword of jus-
tice demands that a date be set or ap-
pointed for it to strike with the awe-
some weight of the State of Texas
and jurisprudence behind it.”

Further on: “I would respectfully
remind this honorable court that two
duly empaneled juries...convicted me
of ...capital murder and determined
that there exists a probability that I
would. commit future crimes of vio-
lence that would constitute a contin-
uing threat to society.

“In short, I perceive that these two
juries determined that I am a defec-
tive humanoid who must be elimi-
nated because I allegedly possess
some sort of defect which might
cause me to run amok and do all
manner of strange things should I ev-
er be released upon society.”

“Futhermore,” Rumbaugh wrote, a |
am of the belief the State of Texas
has been playing a game of *cat and
mouse’ for over seven years.”

Prosecutor Curtis told a gathering
of newshawks that “Chuckie might
mean it. He’s not too bright, but he’s
gutsy enough.”

whether the letter alone would move
a judge to schedule an execution.
“He would have to be brought back
before the court and have all kinds
of admonitions and a waiver that

Allow 4 to 6 weeks delivery
18

(<<
1one
ane

aa

would be unequivocal,” Curtis said.

Curtis also said that he doubted,

“The judge. would take a lot of pre-
cautions before letting someone
abandon strays.”:}

In contrast to this, ACLU support-
ers said they believed the organiza-
tion who opposed the death penalty
should intercede where executions
are concerned and that that should
supersede Rumbaugh’s right to die.

The secret world of Chuckie Rum-
baugh was examined thoroughly by
teams of psychiatrist while he sat on
death row for a period of seven
years, pleading with the state to take
his life, despite interference from the
ACLU.
| “] don’t doubt they intend to exe-
cute me at sometime,” he said.
“There isn’t any doubt in my
mind...for no other reason than eco-
nomics. It costs a lot of money to

house us under a specific type of

confinement. The TDC is running out
of room. We already have three death
row blocks full. I think I'll get exe-
cuted eventually. I’ve spent half my
life in their institutions. They’ve sort
of given up on me.”

Aside from that, Rumbaugh said he
doubted whether he could function
in society.

“Seriously, I doubt that I could live
in society. I don’t know if there is a
place for me anywhere. So, whatev-
er the state decides...it’s up to them.”

Meanwhile, the fight to save Rum-
baugh’s life went on without an at-
torney. A’ United States Supreme
Court ruling stated that in capital cas-
es, the states were not compelled to
provide free attorney service beyond
the level of the first appeal. Besides,
Gene Storrs, the attorney who repre-
sented Rumbaugh through his first
two trials, was seeking election to
district. judge and had already
dropped Rumbaugh as a client.

At this point, ministers claimed
Rumbaugh had made friends with
God while incarcerated on Death
Row during those tedious seven
years. They argued that he deserved
to be spared from execution.

On July 17, 1982 a newspaper ar-
ticle determined that Rumbaugh’s
death wish had been a scam all along
to delay the execution date. The ar-
ticle said what he really wanted was
another shot at the insanity plea in
higher federal courts—which was his

only real defense. According to the °

reporter the execution date had to be
set for that purpose.

nase

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kun bce, Chase

by BILL KELLY

ince the execution of Gary Gilmore in 1977, over

4100 convicts, out of the 2,000 sitting on death rows,

have been put to death. This Is the story of one of
those men. His story is unique, because he built his
own coffin out of matchsticks.

On April 4, 1975, a swarthy, little
man walked into a small jewelry
store in Amarillo, Texas and de-
manded money. The jewelry store
proprietor, Michael Fiorello, grabbed
a hidden gun and a struggle took
place. The younger, stronger man got
possession of the pistol and shot the
58-year-old man in the chest.
Michael Fiorello was dead and his
_ killer had utterly disappeared. He
took with him that same deadly pis-
tol.

The alarm sounded and the sound

of police sirens shattered the Amar-
illo morning air. Two patrol cars,
lights flashing, sirens warning early
commuters out of the way, sped to-
ward the jewelry store. A crowd of
curiosity seekers were already gath-
ered at the crime scene when the pa-
trol cars pulled to a halt in the alien-
ated parking lot.

Just as reported, the cash register
drawer was standing open and emp-
ty in the deserted store. Snippets of
jewelry were missing from a shat-
tered glass case. A single bullet hole

ao ‘ }
Chuckie Rumbaugh’s criminal
career began at six. He couldn't
wait for execution.

had taken the life of the jewelry store
operator. While one prowl car
searched the area, the second radioed
a report to Amarillo police head-
quarters.

The ambulance crew was unable to
do anything other than to verify that
the man was dead and beyond help.

The basin of blood around the body

had now become large and it was the
opinion of the paramedic that the
gunshot wound had severed a major
blood vessel leading to the heart.
This opinion was confirmed less
than forty-five minutes later upon the
arrival of the duty homicide squad.

Huntsville Prison, where young
killer was incarcerated
8 following conviction.

tt he

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Just when it looked like the trail
had. grown colder than blixens, po-
lice got a break. Crime technicians
matched fingerprints lifted from the
jewelry store with those on file for
a hoodlum whose name was already
familiar to police: Charles “Chuck-
ie” Rumbaugh. The 17-year-old
youth had an eleven-year record. His
first recorded arrest was at age 6, at
which time he and an older brother
skipped school in their hometown of
San Angelo and vandalized an aban-
doned structure.

Other arrests included petty bur-
glary’ and several. battery cases, un-
til eventually he was declared a ju-
venile delinquent and sent to the state
school for wayward boys. |.

When he was 12, Rumbaugh
knocked over a San Angelo service
station using a tire iron for a weapon.
Making off with the day’s receipts,
he outran several pursuers on a bi-
cycle, It was later determined that he
had stolen the two wheeler specifi-
cally for the robbery.

It was the same neighborhood —

where he had, a few days earlier,
snatched an old woman’s purse,
knocking her to the ground.
Convicted of his first armed-rob-
bery at age 12, and sentenced to the
TYC state reform school, he learned
how to be cunning and smart while
incarcerated, and his street exploits
earned him the nickname “Chuckie.”
Authorities at TYC labeled him in-
corrigible, even at this tender age.
When he got out he became a heavy
drinker, Later, true to form, he be-
came heavily involved with drugs.
One time during a Pennsylvania
snowstorm he was picked up wan-
dering the streets in a stupor and
carted back to prison. Another time
he was arrested panhandling in Hous-
ton, Texas, while intoxicated. Taken
to a hospital, it was discovered that
he was bleeding profusely from a
self-inflicted chest wound.

After drifting in and out of a co-
ma for three days he woke up
strapped to a hospital bed in a men-
tal ward. Doctors evaluating his men-
tal condition speculated that he was
a victim of alcohol and drug abuse.

Chuckie Rumbaugh eventually
went on a rampage, robbing motels
in and around the San Angelo area.
Police were frantically searching for
him when he hightailed it to Amar-
illo. He was only in town a few

16

hours when he robbed and killed
Michael Fiorello, the jewelry store
proprietor.

The ‘district attorney warned that

“he planned to ask for the death

penalty. “It was a heinous murder,”
he said, “I don’t believe the State of
Texas has ever executed anyone this
young, but our position is that the
death penalty is warranted.”

While awaiting trial, Rumbaugh at-
tempted to cheat the executioner by
slashing his wrists with a razor blade,
and again by taking a sizeable
amount of.drugs. In both cases,
emergency treatment by sagacious

The gurney on which
condemned killer took his
last breath of life.

physicians saved his life.

Chuckie Rumbaugh went on trial
in 1976 for the murder of Michael
Fiorello. Potter County District At-

torney Tom Curtis presented the case -

for the state. The dedendant was rep-
resented by Chief Defense Counsel

Gene Storrs. On the first day of the |

trial there was quite a commotion in
the courtroom when it was discov-
ered that Rumbaugh had smuggled a
sharp-bladed piece of steel into the
courtroom, strapped to his leg. Asked
what he had intended to do with the
piece of steel, he declared that he
wanted to kill the prosecuting attorney
and the judge.

All during the trial armed sheriffs
patrolled the crowded foyer to fore-
stall expected trouble, There were ru-
mors that Chughie. Rumbaugh was a
living target. \.!

By Rumbaugh's own admission, “It
was a situation of kill or be killed. I
can still hear him lying there saying,
“Help me, please help me. "T fe-
member saying something like, ~ You
should have thought of that before
you reached for the gun.’”

In a jailhouse’interview, Rumbaugh
said, “I allegedly shot him, well, I
didn’t allegegiy shoot him. I shot
him.

“I walked into that jewelry store
with the sole intention of committing
a robbery. I’d' néver hurt anyone be-
fore. When he pulled that pistol out,
that took matters out’ of my hands.
We were both fighting for our
lives...This is what precipitated the

_ sequence. Since I was at fault to be-

gin with, I’m responsible.”
The trial didn’t last long and nei-

. ther did the deliberations. A Potter

County jury found Rumbaugh guilty
and sentenced him to death.

“It kind of bothered me a little,”
said prosecutor, Tom Curtis, later.
“He was awfully young and he had
some tough breaks in life, but
Chuckie is a very violent, a really
hardened killer and society has to
protect itself.”

Shortly after his conviction, Rum-
baugh escaped from jail. The resi-
dents of Potter County were ill-pre-
pared for the coming terror. Taken
absolutely by surprise, they armed
themselves and cancelled trips to the
market until such time when the es-
capee would be caught.

Rumbaugh’s' freedom splurge was
shortlived. He was captured by high-
way patrol officers after he had
swiped clothes from a clothesline on
a dirt farm, abutting town. He was
involved in another attempt to escape
from Potter County Jail when he
was in Amarillo on a bench warrant.
This attempt was quelled by fast-
thinking guards.

The state appeals court reversed
Rumbaugh’s death sentence in 1980,
but he was convicted again at a sec-
ond trial. In 1982 his conviction was
upheld by the appeals court. At this
time Rumbaugh wrote State District

Judge George Dowlen and asked that’

his appeals be dropped and an exe-
cution date be set for July 23. He

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748 Tex.

7. Criminal Law ¢=531(3)

Trial court’s finding that defendant’s
confession was voluntarily given was well
supported by evidence.

8. Criminal Law <=351(3, 9)

Evidence of escape from custody or
flight to avoid arrest is generally held ad-
missible on issue of guilt.

9. Criminal Law ¢=351(9)
Absent showing by defendant that his

" escape from custody while awaiting trial on

charge of capital murder was related to
circumstances unrelated to charged offense,
evidence of escape was admissible.

10. Criminal Law ¢=412.1(3)

In capital murder prosecution, evidence
of defendant’s conduct and _ statements
when he was detained by police after escape
with several others was admissible, al-
though defendant contended it was result
of an illegal arrest, in light of fact that
defendant was not one allegedly being ar-
rested and was without standing to chal-
lenge arrest.

11. Homicide <= 354

Proof of unadjudicated extraneous of-
fenses at punishment phase of capital mur-
der case is admissible.

12. Criminal Law <=349

In capital murder prosecution, officer’s
testimony of what transpired when defend-
ant was detained by police with several
others was admissible in absence of evi-
dence that defendant was arrested.

13. Criminal Law ¢=1120(9)

In capital murder prosecution, defend-
ant failed to present for review issue that it
was error for trial court to refuse to admit
videotape of interview between defendant
and reporter, which occurred while defend-
ant was on death row after his first convic-
tion for the offense, in light of fact that
videotape did not appear in record.

14. Homicide @= 232

Evidence was sufficient in capital mur-
der prosecution on special issue concerning

629 SOUTH WESTERN REPORTER, 2d SERIES

deliberateness question. Vernon’s Ann.C.
C.P. art. 37.071(b)(1).

15. Criminal Law <=438(5)

In capital murder prosecution, photo-
graph of deceased, taken prior to autopsy
was admissible in light of fact that photo-
graph which depicted deceased and wound

he suffered was not gruesome and inflam- —

matory so as to outweigh its probative val-
ue.

16. Criminal Law ¢=721(3)

In capital murder prosecution, prosecu-
tor’s comment during final argument that
he didn’t think it was wrong for the jury to
see and hear what the defendant in the case
did was not an improper argument on de-
fendant’s alleged failure to testify but was
a proper response to a defense argument.

17. Criminal Law <=474

In capital murder prosecution, admis-
sion of testimony from psychiatrist and psy-
chologist at guilt stage of trial did not
constitute error, in light of fact that at
guilt stage, defense in effort to establish
insanity defense, introduced testimony from
psychiatrist, psychologist and a couple of
social workers ‘who presented testimony
that defendant had been diagnosed as being
mentally ill prior to occurrence of offense
and in rebuttal State presented testimony
from two psychiatrists and psychologists
that defendant had no organic brain dam-
age but was suffering from antisocial per-
sonality, those last two witnesses had exam-
ined defendant while he was in jail for
instant offense and examination was made
at request of defense counsel and in defense
counsel’s presence.

Gene Storrs, Amarillo, for appellant.

Danny E. Hill, Dist. Atty., Ken Johnson
and Phil Black, Asst. Dist. Attys., Amarillo,
Robert Huttash, State’s Atty., Austin, for
the State.

Before the court en banc.

RUMBAUGH vy. STATE Tex. 749

Cite as, Tex.Cr.App., 629 S.W.2d 747

OPINION
W. C. DAVIS, Judge.

This is an appeal from a conviction for
capital murder. Punishment was assessed
at death.!

The State’s first witness, Gerald Bishop,
testified that on the morning of April 4,
1975, when he went to the deceased’s jewel-
ry store, he found the door to the shop open
and the body of Michael Fiorillo on the
floor. Later that morning, Lieutenant Ger-
ald Jacobs and his partners, Detective Gain-
er and Lieutenant Garner, went to an
Amarillo address a block and a half from
the jewelry store with a warrant for appel-
lant’s arrest.2. As the officers approached
the residence, they saw the appellant and
his sister, Tara Rumbaugh, leaving the
building. The appellant identified himself

_ to the officers as Rex Rumbaugh. The

officers asked the appellant for identifica-
tion and appellant told them it was up-
stairs. Jacobs followed the appellant up
the stairs. About halfway up the stairs, the
appellant turned around with a gun pointed
at the Lieutenant and said “Freeze”. Ja-
cobs testified that he ducked down and

' drew his pistol. The appellant turned and

the officer shot appellant in the hand.

The appellant’s confession, which was in-
troduced in evidence, stated in part:

“I came to Amarillo in the first week
of April, 1975. On the morning of April
the 5th, 1975, which was a Friday, just as
it was getting light, I left my sister’s
apartment. There was no one else awake
in the apartment when I left.

I walked around for awhile. I walked
down Tenth Street and past a jewelry
store named Michael’s Jewelry. I looked
inside, I saw an old man that had glasses
on and a gray or blue suit. There was a
key in the inside lock to the door.

I walked around the block. I came
back. I walked into the door. Right in
front of the door is a display case and an
aisle leading to the back.

1. Appellant’s first conviction for this offense
was reversed by this Court in Rumbaugh v.
State, 589 S.W.2d 414 (Tex.Cr.App.1979).

I walked around the display case and
the old man came up from the back. He
said, ‘What can I do for you?’ I pulled
out a .25 caliber pistol from my coat
pocket and I said, ‘Just remember, your
insurance can give you your money back,
but they can’t give you your life back.’

I then said, ‘Bag up the money.’ The
old man said that the money was in the
safe up front. I told him to open it up.
He took a long time to open it. I put the
pistol to his head and said, ‘Hurry your
ass up.’

He opened it and pulled a little metal
box out. I told him to set it down. I
looked in the safe and saw some watches
and I told him to bring them out. He put
them on the floor. I said, ‘Okay, go back
there,’ indicating the shop area.

He walked through a doorway and
reached to his left on top of a safe and
there was a gun in a white money bag.
He pulled it out, and when I saw this, I
grabbed him and pulled him to the floor.

He dropped the pistol and he grabbed
for it again. I put the gun near his head
and shot. He fell down and I said, ‘You
dumb son-of-a-bitch.’

The old man started to get up again,
and I shot him again. He fell again and I
figured he was dead. I grabbed his pistol
and stuck it back in the bag and stuck the
bag under my arm. I walked up front
and got the money out of the tray. I
took only the bills and left the change.

I walked out the door and went back to
the apartment. When I got back to the
apartment, everyone was still asleep. I
stashed everything and went into the liv-
ing room and turned on the radio and I
smoked some weed.

The rest of the house started to wake
up. I sat there for awhile and didn’t hear
anything. I went and got the money bag
and the pistol. The money bag had a box
of shells and the pistol.

2. The warrant was for an offense unrelated to
the instant offense.


750 Tex.

I took a pocket knife and cut the mon-
ey bag up and put the pieces in a sack. I
took the cardboard box with the shells in
it and burned it. I took a piece of sand-
paper and sanded off the inscription on
the gun.

The inscription read ‘To Mike, Clarence
and Curly, December ‘58.’

I then changed clothes. I stuck the
pistol that I had gotten from the old man
in my pants. I put the gun up that I had
used. I put my clothes in a sack.”

Jacobs testified that he retrieved the gun
from appellant, a .88 Smith and Wesson
pistol. The inscription on the side plate
read “To Mike”, but the rest of the inscrip-
tion had been sanded off. It was estab-
lished by other witnesses that the deceased
owned a gun which was inscribed, “To
Mike” with the names of the persons that
had given it to him.

[1] Appellant contends in ground of er-
ror one that the trial court erred in denying
his “Motion to Sequester Veniremen”. The
written motion which appears in the record
requested that all prospective jurors be se-
questered until excused from service by the
court. The jury was selected after ten days
of voir dire examination. Defense attor-
neys again requested that the selected jury
be sequestered. The trial court stated that
he shared defense counsel’s concern about
pre-trial and in-trial publicity; however, he
stated that he would wait until the follow-
ing Monday to decide whether or not to
sequester the jurors.

On Monday, April 28, 1980 the jury was
sworn and instructions were repeated. No
mention was made concerning sequestration
of the jury; however, as the judge was
cautioning the jury before dismissing them
for lunch, he stated, “Now, insofar as se-
questering you at night is concerned, I have
decided that that would not be necessary.
I’m not concerned about the twelve of you
all doing something out of line.” There
were no objections to the trial court’s deci-
sion.

3. On cross-examination, Gainer said that the
girl who gave her consent was not the girl he
had met in front of the house with appellant,
but the one who had been in the apartment.

629 SOUTH WESTERN REPORTER, 2d SERIES

Art. 35.23, Vernon’s Ann.C.C.P. provides
that when jurors have been sworn in a
felony case, it is within the trial court’s
discretion to permit jurors to separate until
the court has given its charge to the jury.

The record reflects that the jurors were
frequently admonished by the court. The
record does not show any violation of these
admonishments. Brantley v. State, 522
S.W.2d 519 (Tex.Cr.App.1975). No abuse of
discretion has been shown. The contention
is overruled.

In ground of error two, appellant con-
tends that the trial court erred in failing to
grant his motion to suppress evidentiary
items seized as a result of an illegal search.
A pre-trial hearing was held on the motion
to suppress, wherein Captain Kenneth Kah-
nert testified that on-April 4, 1975, he was
dispatched to an Amarillo residence to in-
vestigate a shooting involving Lieutenant
Jacobs. Fahnert testified that he searched
the upper floor of the residence after he
received permission to do so from appel-
lant’s sister Cynthia Rumbaugh, who had
told him she rented the apartment. Fah-
nert stated that he requested permission to
search the apartment because after investi-
gating the shooting incident, he suspected
the appellant of being a suspect in the
instant offense. Fahnert stated that Cyn-
thia Rumbaugh twice gave him permission
to search the apartment, once in the pres-
ence of a reporter. However, Fahnert stat-
ed that he did not have a written consent
form with him at the time.

Detective William Gainer testified that
he heard “the girl”? tell Captain Fahnert,
“You can go ahead and search the apart-
ment, there’s nothing in it.” Gainer also
stated that the apartment manager told
him that the apartment was rented to Cyn-
thia Rumbaugh. The detective stated that
he observed in the apartment what ap-
peared to be marihuana floating in the toi-
let and sandpaper that had some “metal or
foreign matter in it.”

Other witnesses had testified that Tara Rum-
baugh was the sister with appellant when he
was confronted by police.

4

RUMBAUGH v. STATE Tex. 75]
Cite as, Tex.Cr.App., 629 S.W.2d 747

Detective Shelby Vitatoe testified that he
assisted in the search of Cynthia Rum-
baugh’s apartment. Vitatoe stated that he
overheard Fahnert obtain permission from
Cynthia Rumbaugh to search the apart-
ment. Vitatoe recalled that a jewelry bag,
two pistols, and a bank bag cut into small
pieces were recovered in the search.

The appellant testified that there were
two apartments upstairs in the building.
He said his sisters lived in the apartments
and that “Sometimes they would both stay
in one; sometimes one would stay in one
and one would stay in the other one.” Nei-
ther sister testified at the hearing or at the
trial.

[2-5] It is the right of every citizen to
be secure in his home from warrantless
searches; however, one of the specifically
established exceptions to the requirements
of both a warrant and probable cause is a
search that is conducted pursuant to con-
sent. Nastu v. State, 589 S.W.2d 434 (Tex.
Cr.App.1979). Before consent can be effec-
tive, the prosecution must prove by clear
and convincing evidence that the consent
was given freely and voluntarily. Whether
consent to search was voluntary is a ques-
tion of fact to be determined from the
totality of the circumstances. Brem v.
State, 571 S.W.2d 314 (Tex.Cr.App.1978);
Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.
1977). Under the circumstances, we con-
clude that consent by the occupant of the
apartment was given freely and voluntarily.
The contention is overruled.

Thirdly, appellant contends the trial court
erred in failing to grant his motion to sup-
press the confession. Appellant argues that
the State did not prove that appellant was
given his Miranda warnings prior to inter-
rogation or that the statement was given
voluntarily. Lt. Gerald Jacobs testified
that after the shooting, he took custody of
the appellant, searched him for weapons
and read him his rights. At that point, the
ambulance arrived and Jacobs rode with
appellant to the hospital. Jacobs stated
that the next time he saw the appellant was
April 6 at the police station. Jacobs said he
just wanted to talk to him because “It was

the first person I ever shot, and I wanted to
carry on a conversation with him...” Dur-
ing their conversation the appellant wanted
to talk to his brother, Rex, who was being
held in City Jail. After the appellant spoke
with his brother, he gave the Lieutenant a
statement. Jacobs stated that he did re-
peat the constitutional warnings to appel-
lant, but he could not remember if it was at
the beginning of the conversation or during
the conversation.

The top of the written statement contains
typed recitations of the Miranda warnings.
Jacobs stated that the appellant indicated
that he could read and write the English
language. Appellant appeared alert; he
did not appear intoxicated. Jacobs stated
that after the appellant read the statement,
he directed Jacobs to make some correc-
tions, which appellant initialed. Jacobs
stated that he did not coerce or threaten
appellant or promise him anything in ex-
change for his statement.

The appellant testified that he did not
remember being given any constitutional
warnings at the scene of the shooting or at
the hospital. Prior to his release from the
hospital, he stated he was given an injec-
tion. He said, regarding the time he gave
the statement, “I wasn’t my normal self

But, yes, I knew I was there.” Appel-
lant denied reading the constitutional rights
at the top of the statement. The appellant
also said he was promised that members of
his family would receive favorable treat-
ment if he gave a statement. He said he
would not have given the statement if not
for those promises.

The trial court, in its findings of fact and
conclusions of law, found that appellant
was given his constitutional warnings in
accordance with Miranda v. Arizona, 384
U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). The court further found that no
promises or inducements were made to ap-
pellant to coerce his statement and that
appellant was not under the influence of
narcotics to the extent that his ability to
knowingly and voluntarily waive his rights
was impaired. The court concluded that
the confession was given voluntarily in ac-


RIES

ly on V.A.CS. Article
ent part of which Says,
time for good conduct,
ence may be granted the
inty jail by the sheriff in
tute does not create a j
to award certain credits :
it only gives the sheriff ae
d such credits. In its ;
more discretionary than y
_in felony cases,3 which
ed only that the director
of Corrections consider
‘ime classifications, not
n amounts of good time _
State, 542 S.W.2d 127
Ex parte Enriquez, 490
-App.1973). Therefore
mus will not issue to
nary act of awarding
» credits. Of course, a

re r each inmate’s
di d consideration
tably. See Ex parte
711 (Tex.Cr.App.1979).

he applicant’s request
le be awarded certain
We presume that the
carry out his duty to
air consideration for

‘emaining to be con-
ive prayer for a writ
this state of the case,
n for the issuance of

udge will pronounce
that complies with
this: opinion, then we
ing the writ of man-
at will appear before
at his direction for
the condition of the
2rformed. Then the

, formerly V.A.C.S. art.
‘7 Tex.Gen.L. ch. 347,
eA a

‘ine misdemeanor

he county judge for a
V.A.C.C.P. art. 11.09.

————

RUMBAUGH v. STATE Tex. 747
Cite as, Tex.Cr.App., 629 S.W.2d 747

sentence may be executed, and applicable
time credits may be applied by the sheriff.

It is so ordered.

W
° E Key NUMBER SYSTEM
T

Charles RUMBAUGH, Appellant,

v.
The STATE of Texas, Appellee.

No. 67999.

Court of Criminal Appeals of Texas,
En Bane.

March 8, 1982.
Rehearing Denied April 7, 1982.

Defendant was convicted in the 18st
Judicial District Court, Potter County,
George E. Dowlen, J., of capital murder,
and was sentenced to death. Defendant
appealed. The Court of Criminal Appeals,
589 S.W.2d 414, reversed and remanded. On
remand, the 181st Judicial District Court,
Potter County, George E. Dowlen, J., again
convicted defendant of capital murder and
assessed punishment of death. Appeal! was
taken. The Court of Criminal Appeals, W.
C. Davis, J., held that: (1) trial court did
not err in denying defendant’s motion to
sequester veniremen; (2) consent to search
given by occupant of apartment was given
freely and voluntarily; (3) finding that con-
fession was voluntarily given was well sup-
ported by evidence; (4) evidence of escape
was admissible; (5) evidence of defendant’s
conduct and statements while he was being
detained after escape were admissible; (6)
evidence was sufficient on special issue con-
cerning deliberateness question; (7) photo-
graph of deceased was admissible; and (8)
admission of testimony from psychiatrist

and psychologist at guilt stage of trial did
not constitute error.

Affirmed.

Roberts and Teague, JJ., concurred in
result.

Clinton, J., filed concurring opinion.

1. Criminal Law ¢=854(2)

In capital murder prosecution, trial
court did not abuse its discretion in denying
defendant’s motion to sequester veniremen
in light of fact that record reflected that
jurors were frequently admonished by court
and record did not show any violation of
admonishments. Vernon’s Ann.C.C.P. art.
35.23.

2. Searches and Seizures $= 7(27)

It is the right of every citizen to be
secure in his home from warrantless
searches; however, one of specifically es-
tablished exceptions to requirements of
both a warrant and probable cause is a
search that is conducted pursuant to con-
sent.

3. Searches and Seizures S=7(28)

Before consent to a search can be effec-
tive, prosecution must prove by clear and
convincing evidence that consent was given
freely and voluntarily.

4, Searches and Seizures @=>7(28)

Whether consent to search was volun-
tary is a question of fact to be determined
from totality of circumstances.

5. Searches and Seizures @=7(28)

Consent to search given by occupant of
apartment was given freely and voluntarily
to police officer who informed individual
that he did not have a written consent form
with him at time.

6. Criminal Law ¢=532

Trial judge, at hearing on voluntariness
of confession, is sole judge of credibility of
witnesses.


v~

.

eY

vs
eee

‘

4 3 om
. -.

ae

i = | Se oe

A mma ge tt ee
ry

752 Tex.

cordance with Art. 38.22, Vernon’s Ann.C.
C.P.

[6,7] The trial judge, at the hearing on
the voluntariness of the confession, is the
sole judge of the credibility of the witness-
es. The trial court heard conflicting evi-
dence, and believed the testimony of Officer
Jacobs and disbelieved that of appellant.
See Moon v. State, 607 S.W.2d 569 (Tex.Cr.
App.1980). The court’s finding that the
confession was voluntarily given is well
supported by the evidence. Hawkins vy.
State, 618 S.W.2d 720 (Tex.Cr.App.1981);
Moon v. State, supra. The contention is
overruled.

In ground of error four appellant con-
tends it was error to allow evidence of
appellant’s escape from jail eight months
after Michael Fiorillo’s murder.

Over objection, Deputy Sheriff Jim Hines
testified that on December 7, 1975, he was
dispensing medicine to inmates in the city
jail when he discovered that the cell occu-
pied by appellant, Roger Barrett and Mi-
chael Sutton was empty. Hines discovered
that a hole, approximately one foot square
had been cut through % inch of steel plate
and a couple of metal bars. A rope made
from plaited blankets hung outside the sev-
enth story window.

Appellant argues that although evidence
of escape is admissible on the issue of an
accused’s guilt, the eight month period
which elapsed between the arrest and the
escape, as well as the fact that appellant
had other charges pending against him in
San Angelo, rendered the evidence inadmis-
sible.

[8] Evidence of escape from custody or
flight to avoid arrest is generally held ad-
missible on the issue of guilt. McWherter
v. State, 607 S.W.2d 531 (Tex.Cr.App.1980).
In Wockenfuss y. State, 521 S.W.2d 630
(Tex.Cr.App.1975) the defendant contended
it was error to admit evidence of his bail
jumping. Citing Hodge v. State, 506
S.W.2d 870 (Tex.Cr.App.1974), the Court
stated:

“[T]o support admission of evidence of

escape from custody and flight, it must

629 SOUTH WESTERN REPORTER, 2d SERIES

appear that the escape and flight has
some legal relevance to the offense under
prosecution... In order to have such
evidence excluded, the burden then shifts
to the defendant to show affirmatively
that the escape and flight is directly con-
nected to some other transaction and f ur-
ther show that it is not connected with
the offense on trial.”

The Court also cited Damron v. State, 58
Tex.Cr.R. 255, 125 S.W. 396 (1910), wherein
the defendant showed, by bill of exception,
he had not escaped for the crime charged,
but for another offense. “The Court noted
that if the escape was in relation to more
than one offense it was admissible to all
rather than none...” Wockenfuss vv.
State, supra.

[9] The State in the instant offense es-
tablished that the appellant escaped from
custody while awaiting his trial on a charge
of capital murder. Absent showing by ap-
pellant that escape was related to circum-
stances unrelated to the charged offense,
evidence of escape is admissible. Wocken-
fuss v. State, supra. The contention is
overruled. ;

Keith Randall Pherigo’s testimony forms
the basis of appellant’s complaint in ground
of error five. The Department of Public
Safety trooper testified that on December
8, 1975 he noticed a car that was driving
well under the speed limit. “The car's
license plate was loose. Pherigo turned and
followed the car; the car turned off the
highway into an antique clock shop’s park-
ing lot. Pherigo continued down the high-
way, then turned around. As he was driv-
ing back, he saw the suspect car “back out
of the parking lot and hit a long wooden
pole in the parking lot.” Then as the car
“took off back toward the highway, the
man inside the building come [sic] running
out like he was trying to stop them.” Pher-
igo then pulled the car over. Roger Barrett
was the driver of the car. A girl was in the
passenger seat; Michael Sutton and Charles
Rumbaugh were in the back. The officer
told Barrett he would have to take him
before a judge because he was driving with-
out a license. The officer testified “I ad-

ROP OR EA ENS Re csp pet os

acc

RUMBAUGH v. STATE Tex. 753
Cite as, Tex.Cr.App., 629 S.W.2d 747

vised [Barrett] that it would be necessary
for me to take him before a judge at that
time, and that the other people in the other
car could follow us to the courthouse.” At
the hearing, Pherigo testified:

“Q. And if Mr. Rumbaugh had tried to
leave, you would have restrained
him, wouldn’t you?

A. Probably.

Q. So then you told Mr. Rumbaugh and
the other people to follow you to the
courthouse, correct?

A. I told them they could if they want-
ed to.”

When the two cars arrived at the court-

house parking lot, approximately three
miles from the spot where they were
stopped, the report came back that the
plates on the car Pherigo had stopped did
not match the car. The female passenger
told the officer the car belonged to her.
The officer testified:
“At that point, I believed that the car
was possibly stolen, and I didn’t want to
just take Mr. Barrett in whom I had
arrested for driving without a driver’s
license and the woman who I had advised
then that she would be charged with dis-
playing a fictitious license plate.
I decided to go ahead and get the other
two males that was [sic] in the car, and
all five of us together to go into the
courthouse.”

Pherigo said he was walking behind the
group toward the courthouse door when the
group stopped. “... I motioned with my
hand for them to go ahead and go down-
stairs. At that point, the next thing I knew
I had a knife at my throat and one of the
males was telling me that if I moved or
screamed, he was going to cut my throat.”
All three men then jumped the officer;
someone took the officer’s gun. Pherigo
testified that he heard a voice, which he
later recognized as appellant’s, saying, “Kill
him, kill him. Shoot him.”

[10] Appellant maintains that evidence
of his conduct and statements is inadmissi-
ble because it was obtained as the result of
an illegal arrest. He argues that the stop
of the automobile was based solely on an

inarticulate hunch and that the detention of
appellant and the other individuals for a
period of fifteen to twenty minutes falls
short of compliance with Article 14.01, Ver-
non’s Ann.C.C.P. What the appellant ig-
nores is that he was not the person who was
detained and arrested. When Pherigo
stopped the car, he had Barrett, the driver
of the car, return with him to the patrol
car. During the hearing on the motion to
Suppress, Pherigo was asked, “... and if
Mr. Rumbaugh had tried to leave, you
would have restrained him wouldn’t you?”
The officer responded “Probably.” There
was no indication that the appellant ever
tried to leave or was detained by the offi-
cer. In fact, the officer testified he told the
others in the car that they could follow him
and Barrett to the courthouse if they want-
ed to.

In Galitz v. State, 617 S.W.2d 949 (Tex.
Cr.App.1981), the defendant complied with
police officers’ request to step outside a bar
and talk to them. In overruling defend-
ant’s contention, it was stated:

“It is only when a person chooses not to

be questioned, or remains in submission

to a show of force, that the officer’s
insistence on questioning that person be-
comes a ‘seizure’ subject to the con-
straints of the Fourth Amendment.”
In this case, as in Galitz, the evidence re-
flects no submission on the part of appel-
lant to a show of force or authority which
left him no choice. The appellant is with-
out standing to challenge the arrest of Bar-
rett. Cf. Rawlings v. Kentucky, 448 U.S.
98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980);
U.S. v. Payner, 447 U.S. 727, 100 S.Ct. 2439,
65 L.Ed.2d 468 (1980).

As stated in MceWherter v. State, supra:
“Evidence of escape from custody or
flight to avoid arrest is generally held
admissible on the issue of guilt. Hunter
v. State, 580 S.W.2d 573 (Tex.Cr.App.
1975), and cases there cited. It is also
relevant to show the efforts made to lo-
cate or apprehend the accused, his pursuit
and capture, including his resistance to
arrest when overtaken, even though this
may also prove the commission of another
crime.”


Rumbaugh has striven mightily to prove
his mental competence to make his legal
decisions. He convinced the district court
who presided over the dramatic hearings.
We cannot tag that finding as clearly erro-
neous. Nor can we conclude as a matter of

law that a person who finds his life situa-

tion intolerable and who welcomes an end

to the life experience is necessarily legally

incompetent to forgo further legal proceed-
ings which might extend that experience.
Gilmore v. Utah.

AFFIRMED.

GOLDBERG, Circuit Judge, dissenting:

A majority of this panel has concluded
that Charles Rumbaugh is competent to
waive whatever rights stand between him
and state-imposed death. Despite the ex-
istence of substantial questions regarding
the constitutionality of his sentence, we are
told that no one will be allowed to press
these issues on his behalf because the dis-
trict court’s pronouncement of competency
was not clearly erroneous. We are told not
only that we cannot scrutinize the validity
of an admittedly hair’s-breadth call by a
single judge but also that this man is not
necessarily competent—he has merely not
been proved incompetent. We are told that
four out of five doctors surveyed think he
suffers from a mental disorder affecting
his moods, his attitudes, his self-conception,
and his processes of logical thought, but
that these effects are insufficient to prove
him “irrational.” We are not told whose
definition of rationality applies to this
mind, but we are told nonetheless to invoke
some nebulous normative concept imbued
with an aura of systemic legal perfection.
As a result of these borderline reflections
of subjective impression, no one will be
permitted to argue that we punish him
unconstitutionally.

1. As noted by the majority, at 398 n. 1, the
Supreme Court has not spoken on the applica-
tion of Rees’s standard of competency to waive
federal collateral review. Had the Court relin-
quished its near 20-year assertion of jurisdiction
in Rees, we would at least have available a
standard that had been passed on in practice as
well as in theory. Cf. Dusky v. United States,

RUMBAUGH v. PROCUNIER
Cite as 753-F.2d 395 (1985)

403

With all due respect to my brethren, I
am incredulous that anyone could fairly
read the record as establishing this per-
son’s competency to waive next-friend col-.
lateral review of -his conviction and sen-
tence. In my view, the trial court misap-
plied the standard of competency enunciat-
ed in Rees v. Peyton, 384 U.S. 312, 86 S.Ct.
1505, 16 L.Ed.2d 583 (1966) (per curiam),
held without action on petition for cert.,
386 U.S. 989, 87 S.Ct. 1310, 18 L.Ed.2d 333
(1967); ! even under its cryptic interpreta-
tion of Rees, the court below clearly erred
on the factual question of whether this —
defendant is competent. Further, Ido not
view the determination of competency un-
der Rees to be a pure question of fact
warranting appellate abdication under the
clearly erroneous rule. Whether a defend-
ant is competent to waive federal habeas
review in a death case presents a mixed
question of fact and law whose resolution
turns primarily on the application of a legal
standard. The law in this circuit requires
that we review de novo a district court’s
resolution of such hybrid issues. Finally, I
cannot countenance as a constitutional mat-
ter a rule of law that is susceptible of the
application we witness today. In my view,
the cruel and unusual punishments clause
of the eighth amendment and the due pro-
cess clauses of the fifth and fourteenth
amendments require that the state bear the
burden of proving a defendant’s competen-
cy to waive federal collateral review in a
death case. The state’s interest in swift
and efficient punishment need not eviscer-
ate its interest in maximal certainty of ap-
plication.

I

In Rees v. Peyton, 384 U.S. 312, 86 S.Ct.
1505, 16 L.Ed.2d 583 (1966) (per curiam),

the Supreme Court stated what has become

362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)
(per curiam) (stating standard for competency
to stand trial and remanding to district court for
additional findings of fact). The lower federal
courts should be reticent to apply elusive stan-
dards of competency that have been enunciated
in cases whose ultimate resolution remains sim-
ilarly elusive.

RUMBAUGH v. PROCUNIER ! 401
Cite as 753 F.2d 395 (1985)

lucinations, he probably would decide to
continue with appeals. :
Q. Could you repeat that again for me,
please?

“A. Yes. It affects him to the extent
that were his depression not present,
were his periods of paranoia not present,
were his periods of auditory hallucina-
tions on occasion not present, were he
not so hopeless about his position, he
might be able to better mentally cope
with spending an additional eight years

on death row in Huntsville and continue

_ with the appeals.
But his mental condition is not that
would permit him to do so.

* * * * %* *

Q. Would you also believe his hopeless-

ness is based on the realistic appreciation |

of what those circumstances are?

Is that correct?
A. Unfortunately, I think to a large ex-
tent, it is realistic.

* * * x Seas = eo

Q. I believe that you testified.a little bit
ago that it was ... that it was questiona-
ble ... or that Mr. Rumbaugh was prob-
ably not acting out of free will in decid-
ing that he’s going to waive his further
appeals?

A. Diminished. Okay. Free will is on
a.continuum, I believe.

* * * * : * *

A. But the question ... the second part
of the question was very ... was worded
in such a way that it said, is he suffering
from a mental disease that may substan-
tially affect. It was very broad.

Q. Okay. By may, do you ... is it also
possible that it may not; is that what
you're saying?

A. No. I think in his case, it has to be
a factor that has to be looked at and
addressed by the Court. I think it does
influence him to a certain degree, maybe
even a substantial degree.

* * * * * *

Q. Do you think that ... do you think
that a terminal cancer patient experienc-

ing pretty severe depression can make a

rational choice to end his own life?

A. Yes, I believe he can. I don’t think
the fact that someone is depressed or
they’re facing overwhelming life circum-

stances means that they’re irrational

about any choice to either live or die
necessarily.
Some people may be. Lis if Mr.

Rumbaugh was in a psychotic state
where his perception of the world was.

grossly distorted and one would certainly —

argue then that perhaps his decision in
any regard, either to continue with ap-
peals or not to continue appeals was not
based on rational reason.

But at least the reasons he gave to me
during this course of evaluation seemed
to be pretty rational reasons for Pus
ing his course of action.

And I think there was a list of ques-

tions we submitted to him, I think it’s. ~

very important for all parties concerned
to review his answers to those because I
think they were very cogent answers for
the most part.

Q. So I believe in your report and in
your testimony, it’s your professional

opinion that any depression that Mr.

Rumbaugh may be experiencing at the
present time does not impair his ability to
make a rational choice about what to do,
to understand the situation that he’s in
and to realistically assess the options
available to him, is that correct?

A. His assessment of his options, his
current legal situation was very factual,
it was very logical.

* * * * * x

Q. He then basically in your opinion
does recognize the ... his mental condi-

tion as deteriorating where he’s at?

A. Yes, he does.

Q. And that that in effect is partially or
at least has some influence on his desire
to waive his appeals?

A. Yes. Not only his current conditions
influence him but. also he’s fairly pessi-
mistic, realistically so, unfortunately,

402
about his future prospects, even if the
appeals were successful.

* * * * * *

THE COURT: Doctor, let [me] tell you
what I’m hearing you say and you tell
me if I’m hearing you correctly.

THE WITNESS: Okay.

THE COURT: What I’m hearing you say
is that Mr. Rumbaugh has been misera-
ble for a very long time. ©

THE WITNESS: That’s true.

THE COURT: That he’s miserable now.
THE WITNESS: Yes.

THE COURT: And he expects to be mis-
erable in the future.

THE WITNESS: Yes.

THE COURT: That based on the person-
ality that he has and based on the cir-

cumstances in which he’s now placed,.

that that assessment that he will be mis-
erable in the future is realistic.
THE WITNESS: Yes, it is.

THE COURT: And that he has ...
able to think coherently. .

THE WITNESS: Yes.

THE COURT: He’s able to understand
what’s going on.

THE WITNESS: Yes.

THE COURT: And his decision is ration-
al based on what he presently faces.
THE WITNESS: Yes, it is. Based on his
past experience and what he presently
faces, I believe it’s rational, or logical, at
least.

THE COURT: All right. Do you want to
elaborate on what I’m ... is there some-
thing I’m not hearing that you’re trying
to say?

THE WITNESS: No, I think you’re hear-
ing it very well.

he is

As we appreciate Dr. Logan’s pork
and testimony, and considering Rum-
baugh’s written answers to the extensive
questions posed, it appears that Charles
Rumbaugh is able to feed relevant facts
into a rational decision-making process and
come to a reasoned decision; that one of
the facts fed into the process is that Rum-
baugh is mentally ill, he has severe depres-
sion, with no hope. of successful treatment

753 FEDERAL REPORTER, 2d SERIES

which would reduce his current mental dis- .
comfort to a tolerable level or enable him
to exist in the general prison population or
the outside world if his appeals were suc-
cessful; that Rumbaugh’s assessment of
his legal and medical situations, and the
options available to him, are reasonable;
but that if the medical situation vis-a-vis
treatment were different, Rumbaugh
might reach a different decision about con-
tinuing judicial proceedings. In other |
words, Rumbaugh’s disease influences his
decision because it is the source of mental
pain which contributes to his invitation of
death.

Rumbaugh’s written answers to the
questions and his statements to the doctors
and to the court clearly reflect his aware-
ness of his legal situation and of his right
to file state and federal habeas petitions.
His answers to the questions list several
arguably sound grounds for attack which
could not be summarily rejected. Rum-
baugh indicates adequate awareness of this
reality. He understands his situation and
his options. His ability to make the
life/death choice is apparent from his com-
ments to Dr. Logan that if he thought that.
meaningful treatment were available and if
it were offered, he would probably change
his decision not to appeal. We find that
decision to be the product of a reasonable
assessment of the legal and medical facts
and a reasoned thought process, albeit one
that we would disagree with.

Our conclusion that the evidence sup-
ports the district court’s finding of compe-
tency is reinforced by Rumbaugh’s actions
after the district court’s decision and while
the appeal was under advisement. He filed
an extremely coherent and well-reasoned
pro se state habeas corpus petition. That
petition states substantial grounds for at-
tacking his conviction and sentence. When
it became apparent that this appeal would
not be dismissed because of the state peti-
tion, he withdrew his pro-se petition, stat-
ing in his motion to dismiss that he believed
the grounds substantial and well-founded
but that he was making the choice not to
appeal.

404

the standard by which an individual is

deemed competent or incompetent to assert

his rights for purposes of conferring stand-
ing on next-friend petitioners. On the one
hand, if the individual “has capacity to
appreciate his position and make a rational
choice with respect to continuing or aban-

doning further litigation,” then he is com-

petent to. waive collateral federal review,

and next-friend petitioners do not have

standing to petition on his behalf. Jd. at
314, 86 S.Ct. at 1506. On the other hand, if
“he is suffering from a mental disease, dis-
order, or defect which may substantially af-
fect his capacity in the premises,”’ then he is
incompetent, and the federal courts have
jurisdiction to entertain next-friend peti-
tions. Id.; see infra note 15.

The structure of the Rees standard sug-
gests that “rational choice” comprises two
elements.” First, the notion requires that a
person choose means that relate logically
to his ends. If a person’s ability to reason
logically is seriously impaired, he is incapa-
ble of rational choice. Second, rational
choice requires that the ends of his actions
are his ends. That is, rational choice em-
braces “autonomous” choice. If a person
takes logical steps toward a goal that is
substantially the product of a mental ill-
ness, the decision in a fundamental sense is
not his: He is incompetent.

This two-pronged concept of rationality
follows from the structure of the Rees
standard. Under Rees, a person either is
capable of rational choice or has a mental
disease that “substantially affects his ca-
‘pacity in the premises,” but he cannot have
both conditions. If Rees were read to re-

2. Although Rees requires a determination of
whether the defendant can make a “rational
choice,” it contains no definition of rationality.
Since the nature of rationality is one of the most
vexing and debated questions of contemporary
philosophy, see, e.g., Rationality (B. Wilson ed.
1970), this black hole makes the Rees standard
of competency far from self-evident.

3.. The trial court’s misunderstanding is evident
in its principal finding of fact, which implicitly
linked Rumbaugh’s “realistic understanding of
his present position and of the choices available
to him” with the conclusion that Rumbaugh “is
mentally competent to make a rational choice

753 FEDERAL REPORTER, 2d SERIES

quire only an inquiry into the person’s abili-
ty to reason logically, without an inquiry
into the person’s autonomy, then both con-
ditions would be possible. Yet a person
can be both logical and have a mental dis-
ease that “substantially affects his capaci-
ty in the premises,” i.e., that affects what
the person in an ultimate sense desires.
Indeed, this is precisely the situation in the
present case, where the doctors testified
that although Rumbaugh is capable of logi-
cal thought, his depressive condition sub-
stantially affects his capacity in the premis-
es.

II

In determining that Rumbaugh is ‘“men-
tally competent to make a rational choice
with respect to continuing or abandoning
further litigation,” the district court did not
elaborate on the elements entailed in Rees’s
concept of “rational choice.’’ To the con-
trary, by equating “rational” with “logical,”
the court below disregarded substantial, un-
controverted testimony that Rumbaugh’s

_ state of depression diminishes his capacity

for free, autonomous choice.* Because this
equation reflects an incorrect understand-
ing of. the Rees standard, I would reverse on
this ground alone. In addition, even assum-
ing a proper understanding of Rees in the
court below, and assuming for the moment
that the trial court’s pronouncement of com-
petency constitutes a finding of fact re-
viewable under the clearly erroneous stan- —
dard, I cannot agree with the majority that
“it appears that Charles Rumbaugh is able
to feed relevant facts into a rational deci-
sionmaking process and come to a reasoned

with respect to continuing or abandoning fur-
ther litigation.” Rumbaugh ex rel. Rumbaugh v.
‘Estelle, 558 F.Supp. 651, 654 (N.D.Tex.1983).
Further, the district court stated a version of
testimony to the effect that Rumbaugh’s “deci-
sion to appeal is rational or at least logical in
light of the options which are presently avail-
able to him.” Jd. at 653 (emphasis added). The
court thus failed to recognize the difference
between a logical; cognitive capacity, which can
be reflected in a realistic appreciation of one’s
legal and psychological status, and a rational
decision, which by definition contemplates a
goal that is the product of one’s free will.

Masquerade
in Overalls

[Continued from page 39]

ised. “And whatever you do between now
and then, leave your gun at homel”
Driving toward Buna, the sheriff cursed
his fate. Sometimes he thought he main-
tained the law in the finest patch of
country this side of heaven. Other times
he wished he'd grown up to be a City
policeman. He felt that way now.
Trouble was, Jasper County lay on the

edge of the “Big Thicket” which strad- ©

dled the Louisiana line. Its piney woods
abounded with game and its people were
rifle-toting hunters. They wore straw in
their hats, cherished deep friendships and
hot hatreds, and talked little about either.
They were tough and independent. They
made good farmers and better soldiers.
But just let one of them get the idea that
a killing was his family’s own private
affair, and you never knew what he'd do.

What was worse, he always had a gun
to do it with....

Pace didn’t have to worry about break-
ing the news to the Jehovah’s Witnesses,
however. The minute services ended the
entire congregation poured out of the
Buna church and surrounded. him. Five
more minutes, and he had what he
needed... .

Speeding back to his office, he found
Nixon talking to Justice of the Peace
Burch, Dr. Arthur J. Richardson, Jr.,
and four Rangers. Nixon introduced the
state men as Captain Roscoe Holliday
and Dick Middleton of San Augustine,
and Eddie Oliver and Mart Jones of
Houston. Then he grinned at his boss.

“Well,” he said, “we've narrowed down
the murder time to last weekend. Dr.
Richardson said they’d been dead about
seven days, so Middleton and Holliday
and I started digging around Jasper.
Elmer Rushing was alive at 2 o'clock Sat-
urday afternoon, December 13, because
he bought some groceries and rode home
with the delivery boy. And Woodrow’s
teacher said he didn’t turn up at school
Monday. That narrows it down to be-
tween Saturday afternoon and Monday
morning.”

Pace had listened with relish. Now
he coughed dryly.

“Good work,” he complimented. “But
on Saturday afternoon, December 13,
Elmer Rushing also met a member of
his church in a Jasper store and asked
her to have her husband pick the Rush-
ing family up Sunday morning so they
could go to Bible class together. The pick-
up was supposed to be at the intersection
of the main highway and Spring Hill
Road, but the Rushings didn’t show up.
Furthermore, none of the Witnesses have
seen them since.” ’

Nixon sighed. “Okay, then. It was Sat-
urday night.”

Roscoe Holliday chuckled and said, “If
this isn’t a private feud, what are your
plans now, sheriff?”

“Most of my plans are for Monday,”
Pace answered. “Then we can find people

78

where they're supposed to be. About all
we can do the rest of the day is check
along the road and see if anybody spotted
a car or somebody walking in or out of
the Rushing lane. Also, we'd better hit
the buses and cabs.”

Four husky Rangers headed for the
door.

“When you do your questioning, cover
the whole weekend,” Pace called after
them. ‘We don’t know when he arrived,
or when he left. We just know he was
here.”

When the Jasper County officials were
alone again, Nixon perched on Pace’s
desk. “There’s a state identification man
out at the farm taking prints on the flat-
iron, the escape window and everything
else in sight,” he said. “But meanwhile,
would you mind telling me what you've
got up your sleeve that we're going to
check the prints against?”

Pace’s laugh was sour. “Maybe a fresh
corpse,” he said, and brought Nixon up
to date on his interview with Clayton
Rushing. To his surprise the chief deputy
took it calmly.

“Most of these ex-GI’s have had their
bellyful of shooting,” he said. “Why don’t
you give this Clayton his head for a day
or so and see what he turns up?”

After thinking it over for a while, Pace
was inclined to agree with Nixon. You
never got anywhere by tightening up and
worrying. He should know that by now.
You just went ahead doing what common
sense told you to do, and in the end every-
thing fell into place. At least, that’s how
it always had worked... .

But the Rangers came back late Sunday
evening disheartened. The cabbies had
carried several passengers along Spring
Hill Road, but none had stopped near
the Rushing lane. The bus drivers had
let a number of “regulars” off at the in-
tersection of Spring Hill and the main
road, but these checked out all too easily.
The farmers who lived along the road
had contributed nothing at all. They'd
seen “lots of folks from around here”
plying the road throughout the fatal
weekend, but the road was always well-
traveled ona Saturday and Sunday, and
there was no reason to be suspicious of
any of these folks.

“That was pretty hard to take,” Holli-
day told the sheriff. “But the real catch
is, nobody’s certain about anything. Seven
days is a pretty big jump for any man’s
memory.”

The fact was so obvious that Pace
didn’t try to counter it. He simply dis-
tributed lists of names and addresses
which he had prepared during the after-
noon.

“Tomorrow morning,” he said, “we're
going to start running down these fel-
lows. All of them are regulars at the
Wednesday stock auctions Rushing al-
ways attended. Most of them had busi-
ness dealings with Rushing. Each will
have to account for his whereabouts last
weekend. But before make anybody
do that, pump him about someone else.
In other words, bid for voluntary infor-
mation before you get tough. Under-
stand?” ~

Everybody understood, and early Mon-
day morning the roundup began. At noon
the canvassers assembled to exchange

notes. The first reports were not happy
ones.

“About all I got was character refer-
ences,” Oliver grumbled. “Rushing was
honest. He dealt fairly. Everybody liked
him. And everybody fell all over himself
telling me exactly how and where he
spent the weekend.”

“I could write an epitaph for Rush-
ing,” Nixon said. “But how about you,
R. G.?”

“No soap,” Pace said.

Holliday and Middleton shook their
heads. Then Mart Jones drew in his
breath audibly.

“Well,” he said, “I talked to an old
boy who followed Rushing out when the
auction broke up. He told me Rushing
was with a young fellow in brand new
overalls. He remembered hearing the
fellow say he was a friend of Clayton’s,
and then their voices went down low.
Later he heard Rushing say that ‘he'd
see,’ and a block farther on they parted.”
Jones looked at the sheriff questioningly.
“Does that sound like the bite to you?”

“Sure does. But didn’t you get a full
description?”

“No. The overalls seemed to be the
only item that stuck.”

Pace sat motionless, drumming his fin-
gers on the desk. Finally he said, “You
fellows go on with what you've been
doing. I’m going to hit those buses and
taxis again.”

Pace went straight to the cab office.
He soon proved that a man’s memory
could span seven days easily if you just
gave it a good springboard to jump from.

“Sure,” a driver said, “them overalls
was crackling with newness. I'd never saw
the fellow before, but he was a big cuss
and he said he’d missed the Newton bus.”

“Where did you let him out in New-
ton?” Pace asked.

“Near the movie. That’s the last I seen
of him.”

Next stop was the bus depot, but the
drivers Pace sought were still out plying
their routes.

“You might catch them in Newton,
though,” the agent said. ‘‘One’s due there
inside an hour if he stays on schedule.”

Pace's car may have set a record be-
tween Jasper and Newton, but he wasn’t
sureshe neglected to check the speed-
omceter. He had to wait quite a while for
the bus to arrive.

After a moment's reflection the driver
said, “Yeah, seems to me I did let off a
fellow like that in Jasper, day of the auc-
tion. But I don’t recall seeing him again
Saturday. You better ask the next driver
about that.”

The next bus wasn’t due until “con-
siderable later,” however, so Pace made
a fast run to Burkeville. Clayton Rushing
greeted him with a sigh of relief.

“I just got back from calling your
office,” he said. “I wanted to see you bad.
sheriff.”

“Go ahead,” Pace said. “Spill it.”

Young Rushing’s face looked pale and
drawn in the wintry light from the parlor
window. “It’s about a friend of mine,”
he said slowly. “A fellow I met in the
Army.”

Pace lit a cigarette and said. “Yeah?”

“His name is Charlie Bacon. He used

to live in Hous:
wanted to try

he got a G.I. k
Livingston. It

though, and fo
been pretty ha
weeks ago, he

couldn’t give |
buddies, see, a!
Pap. So I sent
a loan.”

Pace studied
go?”

“Wednesday
at the auction,
Pap was real
out to the pla
he’d stalled hi
Pap always do
a fellow, and |

Clayton pau
made a joke
a wad with hi

“So you thi
eh?”

Clayton noc
then he said.
Charlie yester
went to Hous
said he was si
ute he got on
today he stil!
about what hi
and I wanted
—well, I thou
So then I cal

Pace stubb:
up. “What w:
time you saw

“Wearing? "
new overalls,

Half an he
to a frightenc
down farmh«
stayed only |!
Charlie Bacc
chanic befor«
to Jasper. Be!
Oliver and \
Houston.

On Tuesd:
for the victi
tioned relat
tional infor:
every cab anc
the young m
but failed t
On the day «
and departc
the night of
per by cab.
come into t

a

Editor,
Fawcett

I like 7
on the

Name.
Address
City ....


38

This man was sure he had planned the
perfect crime—a murder that would
surely be charged against another. But
Texas police saw through his plan.

Eldridge led him down the hall. Just inside another bed-
room lay the body of an adolescent boy, clad in underwear
shirt and shorts. His angular, flat-muscled young limbs
were outflung in mute, pathetic proof of agony beneath
repeated blows. Pace checked a wave of anger. This poor
kid had died because he’d seen too much. The murder
weapon was in the other room, and so were the slayer’s
Main targets.

He spun on his heel and went out.

In the parents’ bedroom, Nixon was emptying the pockets
of Elmer Rushing’s trousers, which had been lying across
the back of a chair near the bed. Pace stood in the doorway
watching him spread out the few homely articles on top
of the bureau.

“One dollar and thirty cents,” Nixon said finally. “No
sign of a wallet. No papers, Nothing we can bite into.”

The sheriff nodded. “No sign of the place being rifled,
either,” he commented. “Looks like revenge, pure and
simple—if we want to jump at conclusions.”

Actually he hadn’t the slightest intention of cata-
loguing the murder motive until he’d exhausted all possi-
bilities. Strolling through the house in his usual, leisurely
fashion, he inspected drawers, cupboards, closets and vari-
ous nooks that might contain revealing items. He talked to
the neighboring fasmer as he worked, gleaning informa-
tion without once appearing to put pressure on. The ma-
terial thus extracted afforded him little reassurance, how-
ever.

Elmer Rushing, an elderly cattle buyer from Newton,
Tex., had moved into this house near Spring Hill about
a year before. He and his wife, Lessie, who appeared to
be approximately twenty years younger, had led a quiet,
secluded life. Woodrow Wilson Rushing, the slain boy,
had attended the Jasper elementary school. Elmer Rushing
had gone into Jasper daily on business, and both adults
were devout members of the religious sect, Jehovah's Wit-
nesses. But that summed up the family’s contacts with the
local community. :

“They didn’t like to mix in social affairs,” the farmer
explained, “They kept strictly to theirselves, and they ex-
pected other folks around here to do likewise.”

“How about business callers?” the sheriff suggested. “You
must have seen somebody drive up here once in a while.”

“Not that I recall.” The farmer hesitated. “Of course,
it’s hard to see everything from our place. Cars could have
drove up without my knowing it, I reckon.”

Smiling to himself, the sheriff continued his tour of the
house. Front and rear doors were secured by inside latches.
Neither had been disturbed, nor had the doors been dam.
aged. The window through which he had gained entrance
was the only one unlocked. The bloodstained flatiron re-
mained the only obvious weapon. Except for areas around
the beds, every room in the place bespoke Mrs. Rushing’s
tidy housekeeping.

dn a hunch he inspected the slain boy's room again.
There were two pillows on.the bed; both bore indentations.
He made a clucking noise with his tongue and joined
Nixon in the parents’ bedroom,

é ” . . . ‘.

‘Suppose, he said, leaning his lanky frame against the
wall, “suppose the killer was a friend of the family, or at
least a business associate of Rushings’. Now, the door

« wasn’t forced, so let’s assume he knocked and they took

him in willingly. Then suppose he worked an angle to
stay overnight. There are two dented pillows on the kid's
bed. That can mean that Woody was a restless sleeper,
but on the other hand it can also mean that the guest had
to sleep with him because there were only two beds in the
house. Next, suppose the guest got up after the family fell
asleep and, knowing the layout of the house, brought the
flatiron back from the kitchen and beat them to death. The
number of times he hit them ought to mean that he hated
them, by the way. And then, when he finished the job, he
left by a window. We only found one window unlocked
because he only had to unlock one to get out.”

Nixon eyed him narrowly. “You mean it was straight
revenge? No other motive?”

“No such thing. I just want to know if you'll settle for
the friend of the family business.”

“Sure, but that’s where I stop. Rushing was a cattle
buyer, a fellow who naturally carried cash around. Yet
all I can locate is this buck-thirty without a wallet to go
around it.”

Pace grinned wryly. “Don’t jump me so fast. I was also
going to tell you that I've poked all over the house without
finding a bankbook, a checkbook, or any canceled checks.”

To the sheriff's surprise, Nixon merely raised an eye-
brow and beckoned him over to the dead woman. “Take a
look at this,” he invited. “See anything funny?”

Pace knelt beside the body. Mrs. Rushing’s cotton sli
had been ripped from breast to neckline. But more signifi-
cant still, the material showed numerous small holes on
both sides of the rip. He began to search the floor hurriedly.

“Never mind,” Nixon said. “I’ve got it here.”

In his broad palm lay a bent safety pin.

“She'd apparently pinned something to her slip,” he
went on, “and the guy who killed her ripped it off. It's
just possible that it was a money bag. Right?”

“Could be,” the sheriff nodded perfunctorily.

Nixon cleared his throat. “Hadn’t I better drive back
and fetch the coroner? These folks have been dead for days
and we aren’t going to get anywhere with questions until
we fix the time of murder.”

“I’m well aware of that,” Pace said bleakly. “And while
you're at it, call the Rangers. We'll need them sure enough,
this time.”

After Nixon had left, the sheriff sat in the kitchen sipping
coffee and mulling over his sad collection of facts. He
couldn't accomplish much more tonight, and Sunday was
always a bad day during any investigation. Still, if he
started early he might find out something over in Newton.

He raised his head and listened. Then he swore softly.
Rain was pattering on the roof. There went his footprints!

Long before the Rangers arrived next day, Pace had
driven over to Newton. Fortunately, the residents of the
Rushings’ home town knew a lot more about the victims

than thei.
he felt a)
family see
in Newtor
one oldste
was that }
folks so e:
times and
and tell t)
As for °
tered all «
ing, still
village of
decided t
son prepa
When +
chair. “Gi
about it.”
Pace st:
“About
ing a big
Mamma '
hesitated,
“They
money ba
Claytor
eran. His
said, “wh
Pace dr

Sheriff R.
sought to
who was 0
right, Rol


RUSHING, Clayten, white, elec. TX (Jasper Ce.) March 28, 1948

Pts s
pee os

re ores

Goat
aettue’ Loree:

terre xniiin
Oa) te iat neat gt

y OOnis
ody. Deaton:
4 yy

> police,

putwait them

TRUE POLICE CASES, August,

riff suggested. “You
€ once in a while.”
itated. “Of course,
ce. Cars could have
on.

ued his tour of the
d by inside latches.
e doors been dam-
id gained entrance
stained flatiron re-
t for areas around
ke Mrs, Rushing’s

boy's room again.
bore indentations.
ongue and joined

/ frame against the
f the family, or at
. Now, the door
ed and they took
rked an angle to
illows on the kid’s
a restless sleeper,
that the guest had
ly two beds in the
fter the family fell
1ouse, brought the
m to death. The
n that he hated
ihed the job, he
window unlocked
t out.”
in it was straight

if you'll settle for

ling was a cattle
cash around. Yet
ut a wallet to go

so fast. I was also
the house without
canceled checks.”
ly raised an eye-
woman. “Take a
unny?”
hing’s cotton slip
But more signif
‘s small holes on
1e floor hurriedly.
here.” ;

to her slip,” he
‘ipped it off. It’s
ght?”

torily.

etter drive back
2en dead for days
1 questions until

ikly. “And while
1em sure enough,

e kitchen sipping
on of facts. He
and Sunday was
ion. Still, if he
over in Newton.
he swore softly.
at his footprints!

lay, Pace had
sidents of the
ut the victims

than their more recent neighbors did, and by mid-morning
he felt almost optimistic. Far from being recluses, the
family seemed to have earned a reputation for sociability
in Newton. Mrs. Rushing had been a jolly woman of 50. As
one oldster put it, however, “The only trouble with Elmer
was that he'd passed 70 and probably didn’t take to new
folks so easy no more. When a man’s been married three
times and raised a passel of kids, he’s entitled to set back
and tell the world to go hang.”

As for the children of the three marriages, they'd scat-
tered all over Texas. The one exception, Clayton H. Rush-
ing, still lived only twelve miles from Newton, near the
village of Burkeville. The sheriff checked his watch and
decided to make the trip. Luckily, he found the victim’s
son preparing for church in the home of an in-law.

When young Rushing heard the news he sagged into a
chair. “Good God,” he murmured shakily. “I used to joke
about it.”

Pace stared at him. “Joke about what?” he snapped.

“About Pap not trusting banks. About his always carry-
ing a big wad around in his wallet. Why, he even had
Mamma wearing a money bag under her dress.” Clayton
hesitated, moistening his lips. “Say, sheriff, did you—”

“They were gone,” Pace cut in crisply. “The wallet and
money bag both.”

Clayton Rushing was a strapping, 26-year-old war vet-
eran. His jaw hardened as he leaned forward. “Sheriff,” he
said, “what do you want me to do?”

Pace drew a chet of paper from his pocket. “I want you

Sheriff R. C. Pace, below center, and other officers at scene where murderer, in overalls,
sought to hide one of the tangible clues. Right, Ranger Captain Roscoe D. Holliday
who was one of the sparkplugs in bringing the vicious Texas murderer to justice. Below
right, Robert Hillin who shared the prosecution with County Attorney Gilbert Adams.

to write down on this sheet of paper the name of every-
body that your folks had business or social connections
with. Then we'll go over it together. Your folks were
beaten pretty hard. That makes me wonder if the killer
had more than robbery on his mind.”

Frowning thoughtfully and chewing hard on the nub of
the pencil, Clayton finally worked up a list of forty names.
After scanning the list, Pace asked, “Do you know anybody
on this list who'd fit the picture of a man likely to tie
revenge in with robbery?”

The young farmer leaned back in his chair, rubbing his
chin and frowning. Finally he said, “Sheriff, when were
they killed?”

“We don't know yet. Why?”

“Because I'd like to find out something before we go any
farther with this. Can you hold off for a day or so?”

“You'd better tell me what you know right now,” Pace
warned. “I don’t want any hotheads messing things up.”

“I won’t mess anything up,” Clayton assured him levelly.
“J just want to get a certain party straight in my own mind.”

Pace measured him. Then he rose and glanced at his
watch. “I'll give you a day,” he said. “Now, where did your
folks go to church?”

“Near Buna.”

“Thanks.” Pace
walked to the door and
turned around. “See you
tomorrow,” he prom-
[Continued on page 78]


Two death-row inmates

are executed

Associated Press

HUNTSVILLE, Texas — Two men
convicted in separate murder cases
were put to death by lethal injec-
tion Tuesday in Texas’ first multi-
ple execution in 44 years:

The U.S. Supreme Court denied
last-minute appeals Monday for
both men.

Since the high court allowed the
death penalty to resume in 1976,
only Arkansas has carried out more
than one execution on the same
day, putting to death two killers on
May 11 and three on Aug. 3.

In Texas, 33-year-old Clifton Rus-
sell was pronounced dead at 12:29
a.m. Willie Williams, 38, was execut-
ed about an hour and a half later.

The delay between executions
was to give officials time to replace
needles and tubes used to adminis-
ter the injection. The sheet on the
death chamber gurney, which is
bolted to the floor, also was
changed between executions.

Prosecutors said it was mere Cco-
incidence that the two were to die
on the same day. Execution dates

DALLAS MORNING
I- 31-95

Wwe 0.

back-to-back

are set by judges.
wa “I would like to thank my friends

and family for sticking with me.

through all of this,” Mr. Russell said
in.a brief final statement. “I would

like to encourage my brothers to

continue to run the race. I thank

my father in heaven for the -grace

that he’s granted me.”

Mr. Russell was convicted of kill:
ing Hubert Tobey, 41, an air traffic
controller, in Abilene in 1979. To-
bey was kidnapped from a gas sta-
tion and found dead outside an
abandoned house with his throat
cut, his skull crushed and his -car
missing.

Mr. Williams was convicted of
the 1980 shooting of Claude Schafs.
fer Jr., an employee at a conve-
nience store. Mr. Schaffer was shot
in the back while squatting behind.
the counter. Mr. Williams confessed
to the slaying.

Before Tuesday, Texas had: care
ried out 87 of the 261 executions in
the United States since capital pun-
ishment resumed in 1976 '— far’
more than any other state.

NEWS


TEXAS

State set to put to death

2 murderers

on Tuesday

‘Double execution would be first in about 45 years

Associated Press

’ HUNTSVILLE, Texas — For the
first time in almost 45 years, Texas
officials this week are preparing to
‘8xecute two convicted killers in a sin-
‘gle night.

Appeals are pending before the US.
Supreme Court for Clifton Russell, 33,
vondemned in the robbery-murder of
an Abilene man in 1979, and Willie
Williams, 38, sentenced to die for a
robbery-murder in 1980 at a Houston
genvenience store.

Each man is scheduled to die by
ifijection in the early hours of Tues-
day. State authorities say they believe
that the executions are likely to take
place.

Texas has executed 87 convicted
murderers since capital punishment
resumed in 1982 — the most in the
nation — but never has carried out
two lethal injections back to back on
the same day.

“It's just a coincidence,” Ward Tis-
dale, a spokesman for the Texas attor-
ney general’s office, said of the sched-
uling. “There is no predetermined
wimethod.”

‘Execution dates are set by local
frial court judges who may not be
“aware of similar actions taken by judg-
*eS-in another of the state’s 254 coun-
ties, Mr. Russell's execution was set by
wjudge in Taylor County; Mr. Wil-
‘ams’ by a court in Harris County 350
miles away.

. Since the US. Supreme Court al-
iswed the death penalty to resume in
'1976, only Arkansas has carried out
‘multiple executions, killing two mur-
derers May 11, 1994, and three Aug. 3,
1994

The Russell and Williams execu-
tions in Huntsville would be the first
in Texas since April 5, 1950, when two
‘men convicted of murder in Harris
County, James Blackmon and William
Smith Jr., were sent to the electric
chair.

The practice earlier this century
was not that unusual. Prison records
show at least 28 instances of multiple
electrocutions in Texas, including five
convicted killers executed Feb. 8, 1924,
when the state inaugurated the elec-
tric chair in Huntsville.

“I'm not going to be concerned if
“there’s one or 20 being executed,” Mr.
‘Russell said in an interview last week.

In October, the former laborer

from Abilene came within two hours
of execution when he received a re
prieve. :

“What I found is when you go over
there, the closer I got, the more my
focus was on God,” he said.

Stan Brown, the attorney handling
Mr. Russell’s case, contended that he
was ineffective in handling the appeal
and that his client should be given a
reprieve while a new lawyer is ap-
pointed.

The Texas Court of Criminal Ap
peals rejected the argument Friday,
and Mr. Brown took the case to the
Supreme Court.

Attorneys for Mr. Williams chal-
lenged the legality of his guilty plea to
the murder charge. The Texas Court
of Criminal Appeals refused that argu-
ment Friday as well.

The Supreme Court is considering
an appeal from Mr. Williams’ lawyer,
Marjorie Bell of Houston, who asked
the high court to review an earlier
decision from the Sth US. Circuit
Court of Appeals. In a ruling last year,
the appeals court denied a contention
that Mr. Williams’ trial attorneys im-
properly were not told of a deal in-
volving the prosecution and a witness.

If all appeals are exhausted by 12:01
a.m. Tuesday, Mr. Russell will be the
first strapped to the death chamber
gurney because his Texas death row
number — 658 — is lower than Mr.
Williams’ 677, Texas Department of
Criminal Justice spokesman David
Nunnelee said.

Mr. Russell arrived on death row
April 30, 1980; Mr. Williams, 10 months
later.

Their executions probably will oc-
cur about 30 minutes apart, Mr. Nun-
nelee said.

Mr. Russell contended that he de-
served mercy and had changed from
the wild teenager who was arrested
repeatedly and participated in numer-
ous robberies. His prison record, he
said, is, spotless,

Mr. Russell was convicted of kill-
ing Hubert Tobey, 41, who worked as
an air-traffic controller in Abilene.
Mr. Tobey, abducted from a self-serve
gas station Dec. 2, 1979, was found
dead outside an abandoned house, his
throat cut, his skull crushed by a large
concrete block and his car missing.

Mr. Russell and an accomplice, Wil-
liam Battee, were arrested the next

Willie Williams
day in Hobbs, N.M., driving Mr. To-
bey’s blood-spattered car. Mr. Battee
testified against Mr. Russell and re-
ceived a 60-year prison term. Mr. Rus-
sell got the death penalty.

Mr. Williams, a laborer from Hous-
ton, was convicted of the Oct. 13, 1980,
shooting death of Claude Schaffer Jr.

Mr. Williams and an accomplice,
Joseph Nichols, were buying a corn
dog and a quart of beer when they
pulled handguns on Mr. Schaffer.

Mr. Schaffer was shot in the back
while squatting behind the counter of
the convenience store. Mr. Williams
was arrested three days later, con-
fessed to the slaying and pleaded
guilty to capital murder.

A jury at a punishment hearing
sentenced him to death after testimo-
ny showed that he had committed two
armed robberies just before the Schaf-
fer slaying and two more in the days
following. Mr. Nichols also received a
death sentence.

Mr. Russell and Mr. Williams are
among two dozen condemned murder-
ers with execution dates set for this
year. State attorneys, however, expect
only a few of those with existing dates
to actually be put to death since ap-
peals have not been exhausted.


Russ eA

VIS000%2Z4°E mc wid | Sahoney . Tae 4 “T*R**°A*Y-“*F*\ Texas Plans Double
Execution*CCISAP 30 Jan 95 17:26 EST V0782@b
eb
copyright 1995. The Associated Press. All Rights Reserved. @¢b
b

HUNTSVILLE, Texas (AP) ~~ Two men convicted in separate murder
cases faced lethal injection before dawn Tuesday in Texas’ first
multiple execution in 44 years. @b

The U.S. Supreme Court denied last-minute appeals Monday for
both men. @b

Since the high court allowed the death penalty to resume in
1976, only Arkansas has carried out more than one execution on the
same day, putting to death two killers on May 11 and three on Aug.
3. @b

In Texas, 33-year-old Clifton Russell was to be executed first,
followed about an hour later by Willie Williams, 38. Both were
convicted of committing murder during robberies. ¢b

Prosecutors said it was mere coincidence that the two were to
die on the same day. Execution dates are set by judges. @b

The hour between executions was to give officials time to
replace needles and tubes used to administer the injection. The
sheet on the death chamber gurney, which is bolted to the floor,
was to be changed between executions. ¢b

Russell was convicted of killing Hubert Tobey, 41, an air
traffic controller, in Abilene in 1979. Tobey was kidnapped from a
gas station and found dead outside an abandoned house with his
throat cut, his skull crushed and his car missing. @b

Williams was convicted of the 1980 shooting of Claude Schaffer
Jr., an employee at a convenience store. Schaffer was shot in the
back while squatting behind the counter. Williams confessed to the
slaying. @b

Before Tuesday, Texas had carried out 87 of the 261 executions
in the United States since capital punishment resumed in 1976 --~
far more than any other state. @b

efine word

ue im Sen-
.

nN Was not
k of defini-
le to give
‘idence, in
t was out-

U.S.C.A.

iS corpus
n of cor-
1 murder
vas prop-
ingly op-
lieve in”
that he
U.S.C.A.

nding of
1 of cor-
cet

ed with
’ be ex-
ews on
ation is
Const.

‘t capi-
idant’s
nee to
ed by
Logeth-
insider
d evi-
‘lothes
t with

y ~anlf
MmSeéil.

*.

7
son to

iplice;

gould determine defendant's individual culpa-
pity. U.S.C.A. Const.Amend. 8.

19, Constitutional Law 250.31), 2700)
Criminal Law 983, 1213.8(8)

Disparity between death sentence im-
posed on murder defendant and 60-year sen-
tence imposed on accomplice who pled guilty
did not violate due process, equal protection,
of Eighth Amendment. U.S.C.A. Const.

Amends. 8, 14.

20. Criminal Law <273.1(2)

__ Prosecutor has discretion to enter into
plea bargains with some defendants and not
with. others.

91. Criminal Law ©273.1(2)

Absent showing of vindictiveness or use
of arbitrary standard, prosecutor’s decision
to enter into plea bargains with some defen-
@ants and not others is not subject to consti-
tutional scrutiny.

Stan Brown, Abilene, TX (Court-appoint-
ed), for petitioner-appellant.

Robert S. Walt, Asst. Atty. Gen., Dan Mo-
rales, Atty. Gen., Austin, TX, for respondent-
appellee.

- Appeal from the United States District
Court for the Northern District of Texas.

_ “Before KING, SMITH, and WIENER,

WIENER, Circuit Judge.

In this petition for writ of habeas corpus
pursuant to 28 U.S.C. §§ 2241, 2254, Peti-
tioner—Appellant Clifton Charles Russell ap-
Peals the district court’s denial of his habeas
petition. On appeal, Russell challenges the
constitutionality of his sentencing proceeding
Which culminated in imposition of the death
penalty. After careful consideration of the
issues raised by Russell, we discern no re-

4 Versible error and affirm.

RUSSELL v. COLLINS
Cite as 998 F.2d 1287 (Sth Cir. 1993)

1289
I
FACTS AND PROCEEDINGS

Russell was convicted of the capital mur-
der of Hubert Otha Tobey, killed in the
course of a robbery. After Russell and a
companion robbed Tobey of his money and
his automobile, Russell struck him over the
head with a large piece of concrete and in-
flicted numerous knife wounds as well, in-
cluding one to the jugular vein. Russell and
two other men, Michael Wicker and William
Battee, Jr. subsequently were arrested out-
side a mall for public intoxication. Police
traced the car and connected it to Tobey,
whose body had been discovered by then.
The police then seized Battee’s tennis shoes
and Russell’s pants, underwear, shirt, and
shoes, all of which had blood on them. The
ear’s interior also contained blood stains.

Russell was tried and convicted for capital
murder. During the sentencing phase of the
trial, the state introduced evidence regarding
Russell’s poor reputation in the community,
his tendency towards violence making him
dangerous to society, and opinion testimony
suggesting that he was not a likely candidate
for rehabilitation.

In response, Russell presented five wit-
nesses, four of whom were members of vari-
ous church organizations that opposed the
death penalty per se. In addition, Russell’s
mother, Jo Ann Lacy, testified to Russell’s
troubled childhood and incidents of violence
against him. Specifically, she recounted an
incident during which Russell’s stepfather
beat him severely with a baseball bat in
response to Russell’s allegations that the
shooting of his mother nine months earlier
by his stepfather had not been accidental.
Russell required surgery to mend his broken
facial bones. Mrs. Lacy also testified that
Russell did not meet his biological father
until he was seven and never had a real
father figure. Finally, she stated that Rus-
sell had suffered as a child because of his

mixed racial parentage.

Despite the testimony of Mrs. Lacy, the
jury affirmatively answered the first two spe-
cial issues submitted pursuant to Texas law:
whether the defendant acted deliberately,
and whether he posed a future danger to the


‘nday, November 13, 1994

Women don’t
often meet the
executioner

NACOGDO.
CHES — Some his-
tory books will tell
you that just one
~ FE woman has been

Hy legally executed in
, \ Texas, But I say

: three

KEN Historian W.T.
BIFFLE’S Block of Neder-
TEXANA land in Jefferson
count from two to three when I talked with
him the other day at the Freedonia Hotel
in Nacogdoches.

By all counts the cases were few. And
don't bet the rent that any of four women
now on death row will get the needle soon.

The state's 388 condemned men should
live so long.

Agreed, women aren’t society’s big prob-
lem. Men are. But it's odd that the execu-
tioner so rarely meets a woman.

Out for blood

I was driving on Interstate 30 the day
Susan Smith of Union, S.C., confessed she |
had slain her two toddlers. You should |

have heard the enraged Texans calling
radio talk shows.

the switch or put a needle in Mrs. Smith — |
and the blunter the better.

Even KLIF's genial emcee Kevin Me-
Carthy, author of zany Gorilla Warfare and
Other Childhood Misconceptions, argued
for resumption of public executions.

Until they strap me on the gurney, I'll
probably favor the death penalty. But pub-
lic executions are an idea whose time has
come and gone. Pay-for-view, anyone?

It was all talk anyway. Just talk. Texans
haven't formally killed a woman in more
than a century. :

I'm open to arguments that Bonnie
Parker, in a manner of Speaking, was exe-
cuted with Clyde Barrow by Texas Ranger
Frank Hamer’s ambush in 1934 But she
was never convicted of anything. Besides,
that was in Louisiana.

Taken from death row

‘Even convicted killer Emma Oliver, a
San Antonio prostitute who'd been arrest-
ed four times for murder and once for
attempted murder, was plucked from death
Tow in 1951 by Gov, Alan Shivers. She died
of cancer in prison 12 years later.

Someone should have commuted Chip-
ita Rodriguez's sentence. The Handbook of
Texas and other histories name her as the
only woman legally hanged in Texas.
> Convicted of murdering a horse trader
in San Patricio County, she was launched
nto legend from a South Texas tree limb
on Nov. 13, 1863.

If it wasn't a bum Tap, it was a bum trial.

The sheriff who arrested her also
served as foreman of the grand jury that
indicted her. And apparently three mem.
bers of that grand jury also served on her
trial jury

: Several grand jurors were county em-
Ployees. Others had lawsuits pending be-
fore the trial judge. Four grand jurors and
trial jurofs had faced felony indictments.
Two indictments against the prosecutor
were dropped before the trial.

If it wasn't exactly justice, it was at least
swift.

Two days after her indictment, she was
convicted. The next day she was sentenced
to die 34 days later — on Friday the 13th.
Her lawyer withdrew a motion for a new
trial. And when the jurors recommended
mercy, the judge ignoréd them.

' Adios, Chipita.

"Ip 1987, I learned of a woman legally

hanged by Texans in 1853, a decade before
the San Patricio case. A Slave named just
plain Jane or Jane Elkins was executed in
Dallas County.

: Forgotten outside Dallas County, Jane’s
a dim, distant figure. In an 1892 Memorial


50 A The Dallas Morning News

Sunday, November 13, 1994

Only three women executed
in Texas, none this century

Continued from Page 41A.
Texas, W.P. Overton, 71, who'd come
to Dallas in 1844, recalled:

“The first legal hanging was in
1853. ... (She) was executed for
knocking a man in the head with an
ax at Cedar Springs. He had hired
her and she murdered him while he
was asleep. I can’t recall their
names.”

The case is recorded in a volume
of district court records preserved in
the Texas-Dallas History and Ar-
chives Division of the J. Erik Jons-
son Central Library.

The State of Texas vs. Jane, a
Slave is dated May 16, 1853:

“We the jury find the defendant

“Tt was in 1853 that the ©
first legal execution took
place in the county. This
was the hanging of Jane
Elkins, a slave who had
murdered a man named
Wisdom at Farmers
Branch.”
— Dallas Guide
and History, 1940

guilty of murder in the first degree.
We further find that the defendant is
a slave of the value of $700 and that
the owner of the defendant has done
nothing to evade or defeat the execu-
tion of the law upon said defendant.”

On May 17:

“And it being demanded of said
Jane if she had anything to say why
judgment and sentence of death
should not there be passed upon her
and the said Jane saying nothing
thereto:

“It is therefore ordered adjudged
and decreed by the court that the

sheriff of Dallas County keep the
said Jane in close confinement in the
common jail of Dallas County until
Friday the 27th of the present month
of May, and that ... between the
hours of 11 o'clock a.m. and 3 o'clock
p.m. the sheriff ... take said Jane
from the common jail of said county
and convey her to a gallows erected
for that purpose and there ... hang
the said Jane by the neck until she is
dea ”

In a 1940 Dallas Guide and History
manuscript by the Texas Writers’
Project of the Works Projects Admin-
istration:

“It was in 1853 that the first legal
execution took place in the county.
This was the hanging of Jane Elkins,
a slave who had murdered a man
named Wisdom at Farmers Branch.
After a trial before Judge John H.
Reagan, most notable jurist of his
times, the woman was hanged May

27, 1853.”

(The WPA Guide quoted was later
published by the University of North
Texas Press. UNT recently issued A
Month of Sundays, a selection from a
decade of “Texana” pieces. One was
on Jane Elkins. Today’s column will
update the book.)

Five years after Jane Elkins was
hanged, another female slave was
legally executed on Galveston Island,
historian Block (East Texas Mill
Towns & Ghost Towns) told me. She
was known only as Lucy.

In 1857, he said, Lucy, age 39, was
living in Galveston’s ramshackle Co-
lumbia Hotel, run by her owner, Ma-
ria Dougherty.

“In December 1857, Lucy was pun-
ished for some minor infraction. In
retaliation, she set fire to the hotel.
The small blaze was quickly extin-
guished, but this time she was pun-
ished more severely. She swore ven-
geance.

“On Jan. 8, (1857) Lucy
was indicted for murder.
She went to trial four
days later... . Her plea
was ‘not guilty.’ But
evidence persuaded the
jurors to convict her.”

— W.T. Block, |

historian |

“On Jan. 3, 1858, Maria Dougherty |
disappeared. Her body was soon
found, floating in an underground
brick cistern. Her head had been
crushed by blows from a club. Shown
the corpse, Lucy cried out, ‘Yes, |
Killed her and I would do it again.’

“On Jan. 8, Lucy was indicted for
murder. She went to trial four days
later before Judge Peter Gray, who
appointed a lawyer, Major R.H. How-
ard, to defend her. Her plea was ‘not
guilty.’ But evidence persuaded the
jurors to convict her.”

Before taking the scaffold on
March 5, 1858, she told a priest she'd
found religion. She expressed her
willingness to die and her hope for
forgiveness in the afterworld.

Sheriff JH. Westerlage triggered
the trap, swinging into eternity the
only woman ever hanged in Galves-
ton County.


= WZ eas DN
HODHIGULZ, OChipite Lhe UWL,

Sympathy
offered in
1863 hanging

Associated Press

AUSTIN — The Senate on
Wednesday sent a message of sym-
pathy to the heirs and descendants
of Chipita Rodriguez, who was
hanged in 1863. A Senate resolution
said she was the only woman ever
officially hanged in Texas and “may
have been wrongfully convicted.”

Sen. Carlos Truan, sponsor of the
resolution, said Ms. Rodriguez was a
“lonely, elderly woman” who was

_ the “victim of a legal lynching.” ’
Truan, D-Corpus Christi, said a

former county attorney for San Pa-

_ tricio County, Richard Hatch, had
made the Rodriguez case a].

“crusade” and had approached

- Truan about the resolution.

“San Patricio County wants its

- good name back,” Truan told the
_ Senate, which sent the resolution to

the House on voice vote.

The resolution states that Ms. Ro-
driguez lived in a cabin that also
served as an inn for trail riders. On

' Aug. 25, 1863, ranchers found the
' body of John Savage, a horse trader
~ who was carrying $600 in gold from
a recent Sale of horses to Confeder-
_ ate troops.

Ms. Rodriguez was indicted with

_ another defendant on Oct. 25, and
- she pleaded innocent but two days
. later was tried and convicted. The
' other defendant got five years at

hard labor, but Ms. Rodriguez was

hanged on Nov. 13, 1863
“Arraignment, trial, and convic-

tion occurred within a single day, a
rush to judgment that, even for

sual,” the resolution said.

19th-century Texas, was highly unu- |


Like Karla Faye Tucker, the last woman executed in Texas was convicted of
an ax murder.

But unlike Tucker, Chipita Rodriguez went to the hanging tree more than
134 years ago insisting she was innocent.

"No soy culpable,” was all she would say about the ax murder of horse
trader John Savage in 1863. "lam not guilty.”

Today a lot of people think she was telling the truth, including

historian Keith Guthrie of Taft, who heads the historical society in San
Patricio County. Guthire has spent years investigating the few remaining
records and the many legends involving Rodriguez, as well as intermewing
descendants of those involved in her conviction and quick execution.

Rodriguez maintained a sort of inn for travelers on the South Texas
roadway between Refugio and San Patricio at a ford on the Aransas River
about 5 miles downstream from where U.S. 77 now crosses the river. In
August 1863, 1 of her customers was John Savage, who had sold some
mustangs and mules to the Confederate Army in San Antonio.

A little girl picking up firewood saw a man's body floating in the river
not far from Rodriguez's house. It was Savage; his head had been split
open with a broadax. Blood was found on Rodriguez's porch.

Sheriff William Means arrested Rodriguez. Juan Silvera, who lived across
the river, was charged with being an accessory.

Their trial lasted two days. The 2-page handwritten record in the
county courthouse, which has since been moved to Sinton, does not give
details of the evidence or testimony during the trial, Guthrie said.

Descendants of jury foreman G.W. McGowan told Guthrie that the jury
didn't really believe that Rodriguez had committed the murder, but that
she was covering up for whoever was guilty. They thought that by
convicting her she would be frightened into telling them who the killer
was.

But "No soy culpable,” was all she ever said.

The real killer, local legend has it, was her illegitimate son, who may
have killed Savage for his horse. The killer, whoever it was, missed a
big haul. In Savage's saddlebag was $600 in gold.

On Oct. 10, 1863, Judge Benjamin Neal sentenced Rodriguez to death and
gave Silvera 5 years in prison. On the afternoon of Friday, Nov. 13,
Rodriguez was taken in the back of a cart to a mesquite tree just outside
the little town and hanged. She was buried in an unmarked grave, which
has since been lost.

Silvera retumed to the area after serving his time and always maintained
that Rodriguez was innocent, Guthrie said.

Decades later, she has been the subject of 2 operas, a poem, books and
ghost stories. One legend has it that on foggy nights when the full moon

Tuesday February 6, 1996 America Online: Galba33

Page: 1

The iiouston Post/Saturday, June 29, 1991

7 on Texas’ death row lose appeals

Lawyers say pace
of executions likely
to accelerate soon

By DouGLAS FREELANDER
OF THE HOUSTON POST STAFF

The U.S. Supreme Court rejected
appeals from seven Texas death
row inmates Friday, including one
from a parolee who killed a Hous-
ton man in August 1985.

Prison records show that four of

the others were either on parole or
under mandatory supervision — a

type of parole — when they com-
mitted murder.

With retiring Justice Thurgood
Marshall dissenting, the Supreme
Court turned down Robert Ten-
nard, 28, of Harris County. Ten-
nard was on parole from a rape
conviction when he was arrested in
the hatchet-knife slaying of a north
Houston man.

Four of the condemned killers
are from the general Houston area.
They are James Russell, 42, from
Fort Bend County; Alvin U. Good-
win, 27, Montgomery County;
Johnny James, 37, Chambers
County; and David DeBlanc, 35,
Liberty County.

The court also rejected the ap-

peals of Karl Hammond, 26, of
Bexar County, and Eddie J. John--
son, 38, of Aransas County.

While there won't be a flurry of
executions in Texas, death row
lawyers in Austin predicted Friday
that the pace of executions in Tex-
as will pick up, exceeding the rate
of the past three years, which aver-

_ aged almost four a year.

“Whether the number will be
huge, | don’t think so,” said Bill
Zapalac, the state assistant attorney
general in charge of fighting death
row appeals on the federal court
level.

The predicted increase is be-

Please see EXECUTIONS, A-26

EXECUTIONS: 7 inmates on Texas death row lose appeals

From A-25

cause federal courts in recent years
have made superfluous claims
more difficult to pursue. Some of
these claims have enabled con-
demned convicts to sit on death
row in Huntsville for well over 10
years.

Russell, for example, was sent to
death row in November 1977. The
longest tenure is held by a prisoner
who came to “The Row” in 1974.

“If relief is not granted the first
time in the appeals process, it will
be significantly easier to get execu-
tions carried out,” Zapalac said.

Roe Wilson, assistant Harris
County district attorney for post-
conviction writs, said the appeals
process should ideally last one to
two years but cases get bogged
down in the courts for years. ‘‘The
whole problem is with the writ pro-
cedure,” she said.

There are 343 convicts on Tex-
as’ death row, including four wom-
en. State officials have given lethal
injections to three convicts so far
this year. Four were put to death in
1990, four in 1989 and three in
1988.

The state’s banner year for exe-
cutions was 1986. Ten men re-
ceived lethal injections that year
before the courts became clogged
with appeals related to mental
competency — a logjam that was
cleared in recent years.

Texas leads the nation by far in
executions, with 40 since the death
penalty was resumed in 1982.

The Supreme Court action Fri-
day, the last day of the current term
for handing down rulings, paves
the way for the condemned in-
mates to start their federal appeals.

The convicts and the crimes they
were condemned for follow:

O After only 30 minutes of delib-
eration, a jury sentenced Robert J.
Tennard to death in 1986 for his
role in the hatchet-knife slaying of
Larry Neblett, 45, who worked for
Dresser Industries.

Neblett and his roommate, Ches-
ter Smith, 36, were hacked to
death in August 1985 in their north
Houston home. Tennard was on
parole at the time.

Tennard was only tried in Neb-
lett’s slaying.

Prison records show that he be-
gan serving a 15-year term for rape

in Harris County in March 1980 i.

and was paroled on April 24, 1985.

O James Russell was a two-time
former convict who lived in Sugar
Land when he was convicted in
1977 of shooting Thomas Robert
Stearns, 24, of Houston to death in
1974 and dumping his body in a
wooded area.

Russell had been a defendant in
a robbery trial in which Stearns was
a complaining witness at the time
of the slaying. Russell was a free
man when he killed Stearns. He
entered prison in January 1968 to
serve 12 years for assault, burglary
and robbery. He was paroled in
December 1971.

O Alvin U. Goodwin was given
the death penalty for fatally shoot-
ing James Douglas Tillerson, a 20-
year-old Conroe tool company em-
ployee, in November 1986.

He confessed to kidnapping,
robbing and murdering Tillerson
and was quoted by authorities as
saying he shot Tillerson in the head
because he was tired of hearing
him beg for his life.

Goodwin, serving seven years:

for motor vehicle. violations, was
freed under mandatory supervision
a few months before the killing.
Mandatory supervision is a form of
parole where the state must release
a prisoner when he accumulates a
sufficient amount of good time in
prison.

O Johnny James’ murderous
crime spree in Chambers County
was described at the time as ‘‘a
horror movie.”

He is under sentence of death
for kidnapping High Island lounge
manager Barbara Harrington May-
field and shooting her twice in the
head in October 1985. He was also
accused of robbing a store in Win-
nie, abducting and raping a clerk
and shooting her.

The clerk, however, lived to tes-
tify against him. Records show
James got probation for crimes
during the 1970s. He has no prior
prison record.

O David DeBlanc, from Ames in
Liberty County, was on parole for
burglary and theft when he was ar-
rested for the fatal shooting of the

Rev. Henry Bouchie, a Catholic’

priest, during a burglary in Febru-

ary 1983. In October 1980 he be-

‘ y,

GOODWIN HAMMOND >

JAMES

gan serving
concurrent
terms of five
and eight years
for burglary
and theft. He
was paroled in
June 1982.

0 Karl Ham-
mond, convict-
ed of the rape
and murder of
a secretary, was on release under
mandatory supervision at the time
of the slaying. He received the
death sentence for the crime.

In September 1982, he began
serving six- and eight-year concur-
rent prison terms for rape and bur-
glary. He was released from prison
in August 1985.

He was convicted of raping and

RUSSELL

Y

TENNARD_ DEBLANC

Vetter in Bexar County in Septem-
ber 1986.

OEddie J. Johnson was sen-
tenced to die for killing Virginia
Cadena, her 10-year-old daughter
Elizabeth Galvan, and David
McGee in Aransas County in Sep-
tember 1987. Johnson’s prison re-
cord for prior convictions only
shows that he served time in Illi-

slaying FBI secretary Donna Lynn _ nois during 1975-76

ia q C g

eat. Roe passed into thenext room, putting : a dose of pur quinine on the shelf for use
in two hours. In a short time she commenced to complain of peculiar feelings and. to. W&¢xXKiK
beg him not to leave her and went into a hard convulsion, Doctors.and neighbors were
immediately summoned, but nothing could be done, as the spasms were too frequent

and sever, and in a very short time shewas dead, The jury of inquest had the stomach
removed and smt to the professor of chemistry at the University of Texas for
analysis,.who discovered therein and developed a considerable of strychnine.

"These facts caused a very high grade of excitement in the community and the investiga-
yion before the district judge resulted in a change of venue of the case to Madison
SRRKKE County where it was heard in November, 1886, XXHA¥XXKAMAXHKXAXMA resulting in a
mistrial, and his honor the judge, of his» own mitten; because of apprehension of lynch
proceedings had him transferred to Houston jail, and removed the case to Anderson,
Grimes County, The final trial occurred there last October, when Roe was convicted of
murder in the first degree and the death penalty assessed, A new trial was. refused and
an appeal to the higher court made and the sentence was affirmed (25 TEX. APP, 33 -

8. SOULHWESTERN 63), e.c* -

"After his conviction he was placed for sate ke@ ing in the penitentiary, and last March
was taken to Anderson to receive his sentence, and returned back to the penitentiary un-
til today when he was started by the Sheriff of Grimes County with a guard, and accome
panied by Sheriff Jones of this county and a few other citizens to pay the SW#axXpenalty
on the scaffold, He remained cool and collected and profested his innocence to all
persons who saw him, He has professed religion, and been baptized by the chaplain of the
prison, and says he is prepared to die, and has no fears for his future. He has written
a statement and given it to Mr, Jones under seal to be opened after his execution, and has
left his two little children to oneof their maternal uncles. He seems just to begin to
realize his awful situation, manifesting more feeling KMAXXK than was apparent under the
severe strain of the,trial and’ the eloquent ZXM#a#* invectives of the prosection, and has
published in the Huntsville ITEM his thanks to all officers who have had charge of him
foruniform kindness and bearing no ill-will toward any mxkxemmyxex citizen, asks for-
giveneness of any whom he may have offended, There is universal sympathy for his rela-
tives in theentire community." NEWS, Galveston, Texas, May 27, 1888 (1-,).

ROGERS-EL, Patrick, black, injection, TXSP (Lamar), June 2, 1997,

ROGERS-EL, Patrick, black, dob 1/6/1964; Collin Co. (Change of venue from Lamar
Co.) ; received TDC 1/20/1986, death row #816. Murder of law enforcement officer
David W. Roberts, white, 23, on September 21, 1985.

8 SOUTHWESTERN 1,63 (25 TEX. APP. 33)
ROE, William H., white, hanged at Anderson, Grimes County, Texas, May 26, 1888.

"506—~1888=-William H, Roe arrived at Anderson from the Huntsville penitentiary where he had
been for safekeeping, on Friday afternoon and was immediately put in jail. Soon after he
called for a friend and lawyer, to whom,he made a statement. He received but few visitors,
and to a NEWSreporter he had little to say. He appeared intelligent and resigned to his
fate, On Friday night he slept well from X@@K ten till seven o'clock this morning, and said
he had made. his peace with God and was baptized at Huntsville a few eeeks ago, At 225); he
was taken from the jail to the scaffold which was erected in a pasture about a half mile
southeast of town. About 2500 people, white and black, were on the ground to witness the
execution, The scaffold was constructed of, rough pine, with a drop of about 7 feet, under
which was a boxed cell into which the body dropped out of sight of the mltitude. A space
about, 60 feet square was roped off for the officers and press representatives. Arrived at the
scaffold, Roe mounted it with a firm step and half turning surveyed the assemblage and then
the gallows, Rev. Pharr of the Methodist’ church, his spiritual adviser, and the officers
were- allowed on the platform,
"Roe was a man of medium build, 6 feet tall, 3l-years-old, with light hair, dark eyes, a BKX#E
sharp chin and prominent nose, He was clean-shaved and a little pale and emaciated. He re=_
~ quested Rev. Pharr to read his dying statement, a document of about 3000 words, sayingZx in
substance that his wife was poisoned by drinking coffee for breakfast with strychnine in it,
That sheseldom drank coffee, but on the fatal morning was feeling bad from an attack of neu-
ralgia, and that the coffe had been poisoned by a negro man and his (Roe's) brother-in-law,
Kelly, for the purpose of poisoning him, he and Kelly having had some trouble about family
affairs, that he did not drink any of the coffee. himself, neither did his son, a small boy,
drink, any, but did not say why not, '
"After reading of the statement the minister told him that inasmuch as he was about to die,
if he was guilty and confessed all would be well with him, .He said he was innocent, Mr,
Pharr then offered prayer. The drop fell 4X3%X at 3:27 o'clock pm, His neck was bpoken and
he died without a struggle, only a slight movement of the thumbs, Life was pronounced ex-
tinct by the, attending physicians, and the pulse ceased beating in 15 minutes after the drop
fell, His remains were taken charge of by friends and at once buried in the Odd Fellows!
cemetery at Anderson,"

MHISTORY OF THE CRIME

"We He Roe was born of most estimable and respected parents in 1856 in Walker County, four
miles from Huntsville. His father removed his family to Grimes County in 1868, and there
died. William went to Falls County in 187) and was engaged as a guard on a farm for two |
years when he returned to Huntsville and was esteemed a promising young man, While acting as
a guard to convicts on a construction train for the railroad he killed a convict, for which

he was tried and acquitted as in discharge of his duty. He returned again and was made

deputy sheriff and jailer by Sheriff Adair, and in 1882 married Miss Kelly, a very amiable
young lady of the county. He was elected Marshal of the city and for a while made an accept-
ableofficer, but soon began to pander to the colored and rowdy element in politics and lost
position in general esteem, His course tended rapidly downward from this time, He engaged in
the saloon business connect&d with a billiard hall, attended S&&KXAX cocking mains, etc,
Failing in business, he again became a penitentiary guard, which position he soon lost by

some irregularity of conduct, and in April, 1886, was defeated for election as marshall, for
which he was a candidate, ‘KXHXdx* That day he borrowed money and paid the back assessments
of his wife in the order of Knights and Ladies of Honor, thereby reinstating his life insur-
ance for a policy of $2,000, At night he bought of a druggist some medicine for his wife and
two doses of quinine, which he had measured and marked with an X mark. The next dapy, April
7, about half past 1 o'clock the citizens were startled with the announcement of the HM&xPSkESi
KMAXKYAAK unexpected and sudden death of his wife under painfully suspicious circumstancese
"April 8 an inquest was summoned, and after protracted and careful incuiry, charged W. H,
Roe with her death from the administration of strychnine poison,

"The testimony before the investigators showed that on the mopning of April 7, Roe persuaded
his former colored porter and election manager to purchase a bottle of strychnine for him,
and about 10 o'clock employed a negro woman to go to his house to cook dinner, as his wife
was not well, The woman delayed because of headache and did not reach the house till Roe
had returned home, and Mrs. Roe had her dinner cooked and on the table, She Saw Roe hand
her a powder to take, and she put ih in a spoon, and not liking the looks of it, objected

to taking it, but he told her it was quinine, and she put coffee in it, and not readily
dissolving, she stirred it with her finger, SMXSUX RHE ee a “ _
different from any quinine she ever saw, and demanded of whom he obtained 1t. pon nis
naming the drug keke and by his persuasion, she swallowed it and sat down at the table to


Above: Antonio Vis-
conte, Mexican bar-
tender, met death at
the hands of a venge-
ful American youth
who mistook him for
Manual Villarreal,
leader of the holdup
slayers.

Below: The Van
Noys lunchroom on
St. Vrain Street, in
front of which ban-
dits and bank guards
fought. Diagram, at
left, Illustrates the
bloody action.

FRONT PAGE DETECTIVE 33

lunged behind the teller’s fallen body and began pumping
bullets. A sizzling slug riddled his abdomen. Bittick rose
to his knees, firing with reckless abandon.

“Damn you! Come and get it!” the guard screamed. He
was firing like a mad man.

“Come and get it!"" he screamed again. Regaining his
feet, he dropped two more of the bandits.

Suddenly a man rushed from the lunchroom frantically
waving his arms.

“Don't take the moneys, please!” he cried.

The man was Anasticio Lopez, a shop worker who was
off duty and who had arrived early to have his check
cashed. It was to be his first pay check with the railroad.
The poor man knew that his wife and children needed
the money from that check. But the fates played a mean
trick on Anasticio Lopez.

“Please don’t take the moneys!” he cried again.

Futilely, pathetically the peon pleaded with the bandits
not to steal the money that would cash his first pay check.
A hail of bullets sent Anasticio Lopez reeling to the curb,
dead. He was directly in the line of fire of the bandits’
guns.

Bittick cursed and kept blasting away. Already he and
Meers had sent three of the five assassins twitching to the
ground. But the return fire was terrific. A slug splattered
into his groin. That was a de-
ciding shot. Bittick felt that
he was done for—so he ad-
vanced! Suddenly he had
become a maniac with two
thundering pistols.

The two remaining bandits
shrieked and turned heel.
One of their fallen comrades
had lurched to his feet. They
shoved him into a large tour-
ing car parked directly in
front of the bank machine.
Another fallen bandit scram-
bled into the car. Then the
motor belched smoke with a
crescendo of roaring power.
The gears grated. Would the
fugitive bandits, routed by
the courage of the lone
guard, flee, leaving one of their wounded behind?

“Esperame!” shrilled the deserted bandit. “Wait for
me!”

He crawled toward the rear of the car. Blue smoke from
the exhaust bit into his eyes. Black, beady eyes filled with
terror. He rose, poised upon one leg—the other leg
dangled.

The forsaken bandit lunged forward just as the car
lurched into motion. His fingers were talons clawing at
the spare tire, grasping desperately for the moving life-
line. :

As the car screeched south on St. Vrain Street, Bittick,
the wounded guard, snatched a carbine from the ground
and blazed away at the exposed man. Twice lead pellets
thudded into flesh and bone before the fleeing machine
turned a corner two blocks away.

Through loss of blood Bittick swooned. A few seconds
later when men began streaming out of the wide gate to
the shops, all was quiet on St. Vrain Street. Deathly quiet.

YROLL BAGS and dead men were scattered upon

the gravel roadbed. The hands of a motionless teller

still clutched some of the bags on the spot where he had

been shot down. The body of Guard Meers was lying ina

pool of blood. A Mexican was dead at the curb. Every-
where the gravel showed criss-cross trails of red.

A general alarm screamed from the plant siren, Three

“A SLUG RIPPED INTO
HIS STOMACH, BUT THE

GUARD LUNGED FORWARD
FIRING RELENTLESSLY!”

long blasts. Before the frantic message came from the
railroad shops by telephone, we at headquarters knew
that serious trouble was in the air.

Chief Jay E. Reeder and I and four other officers jumped
into a patrol car and raced to the G. H. & S. A. shops.
Sheriff Seth B. Orndorff and a squad of his deputies ar-
rived just behind us.

The first thing I heard were the words: “William Meers
is dead!”

William Meers! The thought that harm had befallen
that grand old man of the bank guard made me weak in-
side. Roughly I made my way through the crowd.

Horrified eyes of a circle of foundry workers were
trained upon the bullet-riddled body of a man. Blood from
a head wound had saturated his gray hair. William Meers,
who for twenty-five years had been a trusted bank guard,
was dead.

Savage rumblings rose from the crowd. “In two weeks
he would have retired with a pension,’”’ one of the men
remarked. “This would have been his last trip to guard
the payroll.”

Twice had fate turned its hand to bitterest irony during
the chattering gunfire of two dramatic minutes. A worker
begging for the opportunity to cash his first pay check,
a veteran guard only a few days from retirement—both
met sudden death.

Before an ambulance
rushed the riddled bodies of
four men to City and County
Hospital, the victims were
identified by a representa-
tive from the bank. Of course
the two guards Bittick and
Meers were well known. The
slim young man, a teller,
who was felled as he ran with
the payroll bags, was George
Reed. Reed and Bittick, both
critically injured, had a slim
chance to survive.

“Take the bodies of Meers
and Lopez to the morgue,”
Chief Reeder directed quiet-
ly. A lump came to his throat

as he gave the order, William
Meers had been a close friend of his for years.

“Another man was with the payroll car,” the bank
representative informed us. ‘He was a teller, William
Laird. Where is Laird?”

No one knew. The teller was missing. Had he been
captured by the bandit raiders? And if so, why?

Hastily I ran through the crowd, trying to locate some-
one who had been’ an eye-witness to the bloody battle.
Apparently no outsider had actually seen that blazing
spectacle.

“(We heard shots,” some of the men from the shops said,
“lots of shots—maybe fifty or more. But by the time we
got out here everything was quiet.”

I suspected that the teller, perhaps badly wounded, had
crawled to safety somewhere near at hand. Maybe he was
dead. I dispatched men to search behind nearby buildings
and in alleys.

We soon found Laird. He was completely shattered, a
broken man. He was concealed in an alley less than a
hundred feet from the Van Noys lunchroom.

“Where are you shot?” I asked him.

In reply he chattered incoherently. To my surprise he
was not injured physically at all. His nerves, only, were
shot to pieces. His pistol was still in its holster.

“I—I would have run farther,” he said shakily, “but
this was as far as I could get. I just couldn’t go on—for
help.”

34 FRONT PAGE DETECTIVE

Unfortunately he could tell very little about the tragic
encounter with the murdering hoodlums. There were five
bandits, all Mexicans. They drove away in a touring car.
Some of the bandits were wounded. He didn’t recognize
any of them, but he gave us his word that each had “the
face of a killer.”

This information from the only eye-witness was dis-
appointing, but we immediately set about to smash the
phantom gang that had struck with a diamond-backed
rattler’s swiftness, leaving virtually no clues.

Five more squad cars of officers had followed Chief
Reeder and me from headquarters. All were armed with
pistols and shotguns. In less than ten minutes a man-tight
dragnet was thrown around the city of El Paso.

There was only one possible weak spot in our wall—the
Mexican border. Would they be able to escape across the
line before we could stop them?

From the railroad shops I telephoned Colonel H. C.
Horsley, head of Uncle Sam’s Border Patrol in the El Paso
sector.

“Hive Mexican bandits just held up the G. H. & S. A.
payroll,” I informed him. “Killed two men, critically in-
jured two others. Likely they'll try to get into Mexico.
They were driving a touring car. At least two of them
are wounded. Take no chances—the gang is heavily
armed!”’

“We will guard the border!” Colonel Horsley answered
tersely. :

As news of the payroll slaughter flashed from lookout
station to lookout station along the copper-colored Rio
Grande River, natural boundary between the United
States and Mexico, a double shift of keen-eyed sharp-
shooters grimly took their posts.

Meanwhile patrol cars were cruising the streets, con-
centrating on the southern half—the Mexican district—
of El Paso, Reeder was directing the manhunt from the
police station while I remained at the scene of slaughter

, TEXAS SLEUTHS EVENED

TRAILED OUTLAWS

Left: Former Sheriff Seth B. Orndorft of El Paso
County, Texas, whose dragnet around the city pre-
vented border brigands from making good their
escape. With his deputies, Sheriff Orndorff fol-
lowed successfully a veritable trail of blood.

LEGLESS BAD MAN

Below: Adaran Sanchez, notorious Rio Grande ban-
dit and smuggler, was a ringleader in the $18,000
El Paso payroll raid. When captured, he was dis-
covered to have two wooden legs—the result of
previous battles with marksmen of the law.

+ to discover whatever new information and clues I could.

Even before attempting to pick up the bandit car tracks
I anticipated that the task would be hopeless. And it was.
I went over the ground carefully. The only clue I found
was that some of the bandits had bled profusely, which
did not help much.

I realized that I must search again for eye witnesscs. It
seemed no less than fantastic tome that a fierce gun battle
could occur in mid-day, in the heart of the industral dis-
trict, without attracting attention. Someone must have
seen the bandits mow down the bank guards, I reasoned.

I questioned the attendants at the lunch room, but they
could give me no more definite information than had come
from the frightened bank teller. Then I hurried to City
and County Hospital.

“Bittick and Reed are pretty well done up,” a patrolman
on guard told me. ‘Captain ‘Good was here but they
couldn’t tell him a thing.”

I brushed past into a room where the injured men were
being prepared for emergency operations. The blood flow
from their wounds had been stopped but they were de-
ljrious and suffering from shock.

F
A CRI

“There is
sician confi
No chanc
had given !
wounded g
returned t!
“Damn yot
I bent ov
“What k
I repeat:
to be cons
mumbled °
“Couldn
Eagerly
—perhaps
“Yes! Y:
“Large
——" Bitt

HIT’

to t
Bittick’s !
car was f!
der Patr«
On rett
workers,

Above:
for his

justice
Agapit«

Right:

: ern de
brough

was lat

t


VENED

$

rff of El Paso
d the city pre-
ng good their
Orndorff fol-
ail of blood.

N

io Grande ban-
in the $18,000
-d, he was dis-
—the result of
of the law.

clues I could.
idit car tracks
ss. And it was.
y clue I found
fusely, which

e witnesses. It
-rce gun battle
industral dis-
ne must have
ds, I reasoned.
room, but they
than had come
urried to City

),” a patrolman
here but they

ured men were
The blood flow
they were de-

FRONT PAGE DETECTIVE

A CRIMSON SCORE WHEN DEATH CROSSED THE BORDER

“There isn’t much chance for the older man,” a phy-
sician confided to me.

No chance for Bittick! He, too, as well as William Meers,
had given his life in guarding the money in his trust. The
wounded guard who had set his jaw, who had met and
returned the hailing fire of five bandits, who had said,
“Damn you! Come and get it!"—he was going to die!

I bent over him.

“What kind of car did the bandits drive?”

I repeated the question many times. He did not seem
to be conscious of my presence. Finally I caught these
mumbled words:

“Couldn't get—license number.... Pulled away fast.”

Eagerly I leaned forward, anxious to catch every word
—perhaps the last words of the courageous guard.

“Yes! Yes!” 1 prodded him.

“Large touring car—blue-—Dodge. Mexican license
——" Bittick gasped.

Wain UNIFORMED attendants wheeled him away
to the operating room and I sped to headquarters.
Bittick’s meager yet invaluable description of the bandit
car was flashed to the officers of the dragnet and the Bor-
der Patrol.

On returning to the G. H. & S. A. shops I saw that the
workers, several hundred in number, had not yet dis-

HE PAID PENALTY

Above: This assassin died in the electric chair
for his part In the “March massacre.” Texas
pstice put an end to the long crime-career of
Agapito Rueda, called “El Vibora’—the Snake!

BORDER RENEGADE

Right: “Submarine Joe” Carrasco, Southwest-

ern desperado, led the payroll raid which

brought death to eight. Though captured, he

was later released in an International exchange
that was unique in border history.

35

persed. They were an angered mob of grim-faced men,
saying little but seething with emotion.

“William Meers is dead!”

“Anastacio Lopez is dead!”

Mutterings—rumblings—vows of vengeance against
the cold-blooded killers who had struck down two re-
spected citizens were exchanged that day.

I spied a young man, about twenty, whose boyish face
was set in hard lines. He was tall and strong, lithe as a
jungle animal. He had sharp and brooding eyes.

“Do you know of anyone who saw—what happened?”
I asked him.

For a moment he did not answer. He then turned to me
and said, ‘No.’ He drawled out the word, softly, and added
bitterly:

“It doesn’t matter if anyone saw. I will find out who did
it. That’s the only thing I have to do for the rest of my
life!”

His tone was burning, and I knew that the words came
from his soul. He walked away. His broad shoulders were
slightly drooped. But there was something about what
he had said, something about what I had seen in his lean
face, that made me wonder,

Then a man at my elbow explained.

“That boy is William Meers’ son,” he said. “They lived
together, alone.”

I shall never forget Jeff Meers, son of William Meers—a
vyouth who was to play an astonishing role in El. Paso’s
most sensational and bloody holdup murder case. Some-
times the fates move in strange patterns. ...

I was convinced that someone must have seen the gun
fight, and I was further convinced that whoever had seen
it was remaining silent because of fear. For it was a gen-
eral belief among El Pasoans at the time that the easiest
way to get killed was to give tell-tale information to the

police when a powerful border ( Continued on page 110)


=

Above: Captain J. E.
Stowe, veteran El
Paso police officer,
who tells this story,
led the roundup of
the border killers.
His work was hailed
by two governments.

Below: Against .this
telephone pole in an
El Paso alley the
bandits’ touring car
crashed during the
getaway, thus facili-
tating their capture.
Collision marks are
visible at the base.

ate

hm

i
ee) .
i es
Ae "ei
Eg icra:
? ls
‘ Mi sot
Pac ey
4 WE i
rd
mi ;
NIN
Lith
We i
Ps =
~~

Above: Antonio Vis
conte, Mexican bar-
tender, met death at
the hands of a venge-
ful American youth
who mistook him for
Manual Villarreal,
leader of the holdup
siayers.

Below: The Van
Noys lunchroom on
St. Vrain Street, In
front of which ban-
dits and bank guards
fought. Diagram, at
left, Illustrates the
bloody action.

lunged behi
bullets. As
to his knees

“Damn y«
was firing h

“Come a
feet, he dro;

Suddenly
waving his

“Don't ta

The man
off duty an
cashed. It «
The poor n
the money
trick on An

“Please d

Futilely.
not to steal
A hail of bi
dead. He w
guns.

Bittick cr
Meers had :
ground. Bu:
into his gro:
ciding shot
he was dor
vanced! Si
become a:
thundering

Thetwor
shrieked a
One of thei
had lurchec
shoved him
ing car pu
front of th
Another fal
bled into t
motor belc}
crescendo «
The'gears }
fugitive ba
the coura;
guard, flee

**Esperan
me!”

He crawl.
the exhaust
terror. He
dangled.

‘The fors:
lurched int
the spare ti
line.

As the ca
the wounde
and blazed
thudded in
turned aco

Through
later when
the shops, «

AYROL
the gra:
still clutch:
been shot
pool of blo
where the :
A gener:

SAS TNT

+r was dressed. Lollini
neat and presentable.

had not then heard of
»bery of Charles Hunt
son to be suspicious.

ry, Lollini said that a
iller left he returned,
:portant lot of French
eared to have come

y belonged to his wife
ed to sell them,” the
‘re were some fairly
nials in complete sets
icularly from Gabon
t. [knew could easily

ld him he should have

with him to establish

tarre S> he left the
ck with an at-
mi confirmed
re d I bought
r dollars.”

t all, the stamp dealer
1ed again, around five
time he had an even

of stamps
urprised at the value of
and asked him where
e told me they had
ather, who had given

cided I could pay two °

lollars for the lot, and I
»m, but by this time I
cious of young Muller.
e the stainps with me
proof that they had
her. Hesaidhe would,
»me money on account.
ther eighty dollars.

he last 1 have seen of
Since reading this mor-
ertain that the stamps I
n from M. Hunt.”
ption of Muller tallied
f the hippie youth with
by M. Pinaud, save that
had combed his hair,
-d clean clothes. Asked
“s wife, the dealer said
~in her late teens, rather
d, with brown eyes
e smile. He said he
tt be Italian, although
husband spoke perfect

ioner impounded the
uller and took them to
ho promntlv identified
han z on the
ling mps. She
sta d been in
Fro all this new in-
‘Ili was convinced that
nd his confederate had
ons quite near Charles
p.
lt and robbery they had
‘d themselves up, and
their loot of precious

RUMBAUGH,

in an.

. house, as they claimed—they might

“ple to a pension called Les Lotus, v

a well-educated, refined couple ff

‘she said she had been away from}

’ she could tell them nothing about the

_tial suspects, but she could identify 1
“as the Muller couple. 4

' Commr. Raffaelli then asked the M§

ote} 4 ; weyphinie cena fire ih
Ferees PSY PL iLALO si Shed 4 07 ahaa es tbe
Ad ae ;

Charles, 4

stamps to cash as quickly as possiblem
as now seemed possible, the thieves ¥
out-of-towners—and were from Mig
stopping at one of the small hotels
the business district. He there
ordered a fast canvass of all modeg
priced hotels and pensions ins
neighborhood. * 3

The probers tracked the Mull

the proprietress said they had been $1
ing, but they had left two days %
without giving notice of their departup
She said they had checked in on May4
and paid a week in advance. “They W

Mulhouse, and I had no hesitation inj
ting them a room.”

‘An inspector asked her if the M
had a friend—a younger man with ¢
hair—who ever visited them. “4
proprietress said she had not seen sughi
person, but he might well have call
when she was out. In reply to a questi@

+ oth CRS Gees de tat - A ae

house on the afternoon of May 19th

tivities of the Muller couple betw#
three and five o'clock that afternoong)
“But that. was the day they left,%
added. “They were gone, bag
baggage, when I returned at seven p;
The detectives examined the roomy
cupied by the Mullers, but it had bee
cleaned thoroughly and yielded no clf
The landlady was taken to headquar
and shown mug-shots of scores of po

A check with the police of Mulhaé
offered little encouragement to the \
investigators. Muller, they were told,
a very common name there, in the cit
close to Germany. It seemed qi
probable the suspects had used it as
alias. But stamp dealer Lollini insi
they were quite knowledgeable aby
Mulhouse, so it was quite probable #
the pair actually came from that cif

house police to cull. their files and s@
him mug pictures of any suspects who?
the descriptions he had of the Mull 4

While waiting for this to be done, BF
faelli had copies made of the detailed?
ventory of stolen stamps which Madal
Hunt had compiled for him. He ordél
these circulated at once to pd
throughout France and _neighbot
Northern Italian cities, with arequestB
police show the list to stamp dealers
their areas. Bd

In the meantime, the conditio#§
Charles Hunt had deteriorated stead?
and on June 2nd, he expired of ¥
wounds. The charge of assault again 4
unknown suspects was changed’
murder. |

The batch of mug shots put togel?!
by Mulhouse police was a disappo)

Ba’ ey
Z fy c . “
4 ;
ae ae wil ‘
. - LE * .
ove rie ; ‘
+ we cd he Be
ee a anes its. a f Peres
;

7

ler Mike Fiorillo was friend to all in his neighborhood—
an unfriendly type robbed his store—and gunned him down

ICHAEL Fiorillo was a jewel
in a world all too short on extra
nice people who go out of their
“ay to befriend and help others. A
fweler by occupation—and one of the
4 ‘t in his profession, at that—the small-
‘tured, 54-year-old Mike worked un-
lievable hours in the tiny jewelry shop
4 ®perated in Amarillo, Texas, just to get
re work done for people he thought
"served a break once in a while.
© poor have a right to wear a piece
elry, or a watch, too,” Mike once
a newspaper interview. The little

jeweler, who always dressed formally ina
suit and tie even at his workbench, said he
averaged two hours sleep a night and two
during the day to keep up with his large
number of orders.

Mike’s trust in the human race was a
thing to behold. He never sent out bills.
He figured people would pay him when
they could without reminder, and most
everyone who brought work to his shop
did pay for it. Mike’s shop in the 400
block of West 10th was so small that only
two or three people could get inside at
one time, and occasionally there were one

of jew
Said in

CRIME
~ RANIPAGE
OFTHE |
— TRIGGER-_
HAPPY —
TEXAS ©

KILLER

UW DETECTIVE, SAW. (9,

he heartless slaying of the popular Am
‘itclear to police they were dealing with a coldblooded dude
_ Who believed the only good witness is a dead witness

(Continued on page?

O56

by BILL G. COX

or two waiting on the walk outside for the
“crowd” to thin inside.

Mike had all kinds of customers, from
little old widows to long-haired hippie-
types to young couples seeking engage-
ment or wedding rings they could afford.
Mike always gave the brides and grooms
a break. He always remembered names
and always had a friendly greeting and
time to chat or give advice about
problems, if he was asked.

Many of his customers were on a first-
name basis with the busy jeweler who lik-
ed people, and they didn’t even know his

rillo jeweler made


ca

niet

es na ga

TRUE DETECTIVE

considered to be extremely dangerous, —
the sheriff's department warned in the all-
points bulletin that was issued throughout
the Southwest.

With Rumbaugh in the brazen escape
were two 24-year-old men who had out-
standing violent crime records
themselves. One of the men, arrested in
Amarillo on August 3, 1975, along with a
49-year-old woman companion, had es-
caped prior to his Amarillo arrest from
the Bernalillo County Jail at Albuquer-
que, New Mexico. He had been held in
the New Mexico jail on charges of armed
robbery, kidnaping, aggravated assault,
false imprisonment and auto theft. All of
the charges had resulted from a jewelry
store stickup in Albuquerque.

The suspect had busted out of the
Albuquerque jail with four other
prisoners, who forced jailers into a cell at
gunpoint. The same fugitive also faced

‘ charges in a $50,000 jewel robbery in

Arkadelphia, Arkansas. When nabbed in
Amarillo on August 3rd with the woman,
the man had refused to waive extradition
to New Mexico.

The third escapee from the Potter
County jail in Amarillo was another arm-
ed robbery suspect.

He was charged with aggravated
robbery with a deadly weapon in a
holdup at a pizza restaurant in Amarillo in
April, 1975. The escapee was also wanted
on another charge in a $100,000 diamond
robbery in Tulsa, Oklahoma.

At about 4:00 p.m. on Monday,
December 8th, Texas Highway Patrol
Trooper Keith Pherigo of Snyder, Texas,
pulled over a Chevrolet sedan about a
half mile northeast of Snyder on U.S.
Highway 84. The 21-year-old trooper
stopped the car to makea routine driver's
license check. Pherigo saw that three
men and a woman were in the vehicle,
with one of the young men driving.

80

When the trooper asked to see the
driver's license, the man was not able to
produce one. Trooper Pherigo decided
to take the driver into Snyder for further
checking and to bring him before a justice
of the peace for operating a motor vehicle
without a driver’s license. :

The trooper determined that the
woman in the Chevy did have a driver's
license. He instructed her and the other
two men to follow the patrolcear back into
town. Pherigo escorted the man who had
no license to the state police cruiser and
headed for Snyder.

Enroute, he radioed in the license
number of the Chevrolet for a check, a
routine procedure.

At this point the trooper, who had
been with the Texas Department of
Public Safety only 18 months, thought
that at most he had a stolen car case
working.

Before the trooper reached the Scurry
County courthouse with the four persons,
the report came back that the license tag
on the Chevrolet was registered to a
Cadillac.

Trooper Pherigo decided that he
might need a backup unit, fearing that if
he took the man in the patrolcar into the
courthouse the two men and woman in
the Chevrolet might try to take off. The
officer radioed fellow Trooper Pat Alex-
ander, ‘who also worked in the Snyder
area, and asked him to join Pherigo at the
courthouse.

Pulling up at the courthouse, Trooper
Pherigo got out and told the three men
and woman to walk ahead of him into the
courthouse. Pherigo hoped Trooper
Alexander would show up pretty quick.

Reaching the courthouse, Trooper
Pherigo reached in front of one of the

men to open a door leading downstairs.
The man grabbed the officer and pressed

a butcher knife against his neck.

The trooper grabbed for the knife
with his left hand, cutting his hand in th
process, and began to struggle with th
knife-wielder. At the same time, Troope
Pherigo and the men began to wrestle fa
?herigo’s gun, and the officer fell to th
ground in an effort to keep the weapa
from the men fighting to get it.

As the men struggled with Troopa
Pherigo, they said they were going to ki
him. ‘

The officer was overpowered by th
trio, who took his gun and covered him
They ordered him to walk back to th
patrolcar as if nothing was wrong. Astle
officer and his captors walked acrossi
parking area, Pherigo heard a car pull

Trooper Pherigo thought the car thé
had pulled into the area behind them wa
probably Trooper Alexander and k
wanted to warn him. Pherigo tumd
suddenly and jumped the man holdig
the gun, pushing him against te
courthouse wall. As they fought, Pherig
succeeded in getting his gun back.

Spotting Trooper Alexander, the ma
surrendered without further resistance.

They. were handcuffed and taken int
the Scurry County Sheriff's Office, wher
it quickly was determined that the thre
men were escapees from the Potte
County Jail in Amarillo, 200 mi
northwest of Snyder. Authorities #

Amarillo were notified of the arrest oft
three fugitives and the 49-year-t
woman who was with them.

The woman was later identified as
person who was waiting with clothit
and a car for the escapees after they #
down the blanket ropes from the jail hig
atop the Amarillo courthouse. :

The fugitives were questioned in’
sheriff's office at Snyder. A tape rect
ding was made of the questions #
answers. :

Trooper Pherigo had received mm*
cuts on his hand and neck during thes#
fle with the man armed with a bute
knife, but the wounds were not ser
enough to require medical attention. _

During the tape-recorded session
the sheriff's office, Rumbaugh boasted!
Pherigo, “If I had a gun I sure as
would have shot you.” ;

Rumbaugh also chastised one of
fellow escapees, the one who had ta#
the gun from the state trooper. Ré
baugh said on the tape-recording, w
later was admitted as evidence in histdd
“You should have handed me that pis
How come you didn’t hand it to me, m#

I would have blowed his head off.

The escapees and the woman
aided them were brought back '
Amarillo by Potter County Sheriff BH
and two deputies. The men were plat
in solitary cells, since the max
security cell from which they escape
had not been repaired. 4

Selection of a jury to hear he
baugh’s capital murder case begat”
181st District Court in Amarillo on :

é

29, 1976. A 9-man-3-woman jury was.

chosen, and testimony opened on April 5,
1976, with police witnesses relating the
discovery of Mike Fiorillo’s body and the
arrest several hours later on the same day
of Charles Rumbaugh on the San Angelo
robbery warrants that led to the break in
the Amarillo slaying.

Glen Johnson, ballistics expert for the
Department of Public Safety lab in Lub-
bock, testified that testing showed the
bullet removed from Fiorillo’s body
came from one of the handguns
recovered in the apartment where Rum-
baugh was staying when arrested. The
gun was a .25-caliber automatic pistol.

The state then sought to introduce the
statement of Rumbaugh in which he ad-
mitted the robbery and shooting death of
Mike Fiorillo. The defense objected,
and, with the jury out of the courtroom,
Rumbaugh was questioned on the stand
to determine admissibility of the state-
ment.

Dariix Attorney Tom Curtis quizzed
Rumbaugh about the statement.

“This is not the only time you confess-
ed freely and voluntarily?” Curtis asked.
“You have told others, haven't you?”

“I don’t think so,” Rumbaugh said.

“You made a statement in Snyder say-
ing you were an assassin, didn’t you?” the
district attorney asked.

Rumbaugh replied, “No, sir.”

__ “If we were to play a tape recording
of you making that statement, you would
deny it?” the D.A. persisted.

“Yes, sir, I never made that state-
ment,” Rumbaugh said.

The district attorney then sent for the
Snyder tape and he had it played in the
courtroom.

“Recognize your voice?” Curtis ask-
ed the defendan*

Rumbaugh answered, “Yes.”

Curtis: “You said, ‘I ain’t going
towhere but the electric chair’?”

Rumbaugh: “Yes.”

Curtis: “Is that you saying, ‘First I
Stuggled with him and put my gun up to

head and it somehow missed him

gh no fault of my own’?”

Rumbaugh appeared to agree.

Curtis then asked, “Isn’t what you've

admitted a free and voluntary confes-

of trying to shoot a guy in the head
i struggling with him—referring to
ael?”

‘I'm sure what I said,” Rumbaugh

lied.

Curtis continued to hammer away

%u admit shooting him in the chest,

to? You're boasting that you shot him in

‘Se chest. Isn’t that your voice?”

~~ és, sir,” the defendant said.

~__,40u confessed to your sisters?”

© ‘es, sir.”

: “pray Judge George E. Dowlen
+ Kumbaugh’s signed statement as

oy and it was read to the jury

trict Attorney Curtis, as follows:

“I walked down Tenth Street and past
a jewelry store named Michael’s Jewelry.
I looked inside. I saw an old man that
had glasses on and a gray or blue suit.
There was a key on the inside lock to the
door. I walked around the block. I came
back. I walked into the door.

“Right in front of the door is a display
case and an aisle leading to the back. I
walked around the display case and the
old man came up from the back. He said,
‘What can I do for you?’ I pulled out a .25-
caliber pistol from my coat pocket and I
said, ‘Just remember, your insurance can
give you your money back, but they can’t
give you your life back.’ I then said, ‘Bag
up the money’. The old man said that the
money was in the safe up front.

“I told him to open it. He walked
through a doorway and reached to his left
on top of a case where there was a gun
and a white money bag. He pulled it out
and when I saw this I grabbed him and
pulled him to the floor.”

“He dropped the pistol and he took a
long time to open it,” Rumbaugh’s state-
ment continued. “I put the pistol to his
head and said, ‘Hurry your——up.’ He
opened it and pulled a little metal box
out. I told him to set it down. I looked in
the safe and saw some watches and told
him to bring them out. He put them on
the floor. I said, ‘Okay, go back there’, in-
dicating the shop area.”

Rumbaugh said Fiorillo grabbed fora
gun again.

“I put the gun near his head and shot,”
Rumbaugh said in thestatement. “He fell
down, and I said, ‘You dumb, dumb——’.
The old man started to get up again and I
shot him again. He fell again and I
figured he was dead. I grabbed his pistol
and stuck it back in the bag and stuck the
bag under my arm. I walked up front and
got the money out of the tray. Itook only
the bills and left the change. I walked out
the door and went back to the apartment.

“When I got back to the apartment,
everyone was still asleep. I stashed
everything and went into the living room
and turned on the radio. The rest of the
house started to wake up. I sat there for a

while and didn’t hear anything. I went
and got the money bag and pistol. The
money bag had a box of shells and the
pistol. I took a pocket knife and cut the
money. bag up and put the pieces in a

_ sack. I took the cardboard box with the

shells in it and burned it. I took a piece of,
sandpaper and sanded off an inscription
on it (the revolver). The inscription read,
“To Mike, Clarence and Curly, Dec.’58.’ I
then changed clothes.”

The statement continued: “I stuck the

_ pistol that I had gotten from the old man

in my pants. I put the gun up that I had
used. I put my clothes in a sack.”

Rumbaugh said he gave the sack of
clothing to the girls and told them to get
rid of it. He said he heard later on the
radio “that the old man had died.”

On April 6, 1976—a year and two days
after the slaying of Mike Fiorillo—the dis-

trict court jury found Charles Rumbaugh
guilty of capital murder.

During the punishment phase of the
trial the next day, the same jury found
that Rumbaugh deliberately killed the
jeweler without provocation and was
likely to commit additional violent
criminal acts against society if he lived.
With those two findings, imposition of
the death penalty was mandatory and
Judge Dowlen pronounced the death
sentence.

On August 13, 1976, hearing on a
defense motion for a new trial for Rum-
baugh was held in 181st District Court.
During the hearing, sheriff's officers got a
tip that the convicted killer had a “shank”
taped to his thigh undemeath his jail
overalls. He was taken from the court-
room and searched in county jail and the
knife with a six-inch blade was found.

The motion for a new trial was later
denied by the court.

On March 3, 1977, Rumbaugh was
found guilty of aggravated kidnaping in
connection with Overpowering and
holding Trooper Pherigo at Snyder on
December 8, 1975, after the jail bustout in
Amarillo. The Snyder jury set his pun-
ishment at 10 years in prison.

_ Meanwhile, Rumbaugh’s death
sentence for capital murder is on
automatic appeal to the Texas Court of
Criminal Appeals. oo

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81

rom


;
é
i
‘

LE RL LAP DIOR LI LLL AIG NG

ug

Sheriff T. L. Baker is smiling here, but he didn’

; a5 i!
t think it funny when

this knife

with six-inch blade was found strapped to leg of defendant during trial hearing

Mere? Be gets

Detective Lieutenant Jacobs (above) and
other officers cornered suspect on stair-
way. When latter suddenly pulled a gun,
Jacobs fired, wounding the suspect, who
fled into apartment, later gave self up

38

last name. Thatis, not until Friday, April
4, 1975, when Mike’s name and picture
were spread all over the front page of the
Amarillo newspaper.

Ironically, it was a newspaper, or
rather the lack of one, that sent an elderly
barber who ran a barber shop next door
to the small jewelry store looking for his
friend Mike Fiorillo about 9:00 a.m. on
that bright spring day.

The barber entered his own small
shop by the back door, and let the first
customer of the day in the front door.
The barber didn’t see his morning paper
out front, where it was usually left by the

elivery boy.
Thinking that Mike Fiorillo might
have picked up the paper as he did
sometimes, the barber went next door to
the jeweler’s to inquire. He saw the keys
in the front door of the jewelry shop and
the lights on inside. Stepping inside, the
barber thought it odd that some mail and
other papers were scattered over the

floor.
othe barber called Mike’s name, then

2

a

walked toward the back into a shot

hallway. He wondered if Mike had gon *

back to his apartment upstairs over th
shop for a minute. es
But as the barber walked to the rears
the shop he suddenly spotted a pair ¢
legs and realized it was the little jewel
lying on the floor. Badly shaken, t
barber ran back to his own place and tok
the customer to call the police and anak
bulance. ay
Amarillo Police Patrolman C.T. Cod
was the first officer to arrive at the scene
The patrolman saw that the small ma
who appeared to be fully dressed, wash
ing on his back, and. closer examinati¢
showed that he apparently had been sk
at Jeast once in the left side. The weaps
had been a small-caliber gun, judg
from the size of the hole in the clothig
the officer noted. The man was dead.
Patrolman Cook quickly —_
headquarters, asking for detectives
crime-scene technicians. Lieuteng
Kenneth Fahnert of the homicide divisie
headed the detectives who came tof
jewelry shop. They were also joinedt
Justice of the Peace Roy Byrd, the se
coroner under Texas law. q
The justice of the peace, after exam
ing the body, estimated that Fiorillo &
been shot and killed between 8:15
8:40 a.m. The keys in the front door,
lights turned on in the shop, including
light over the jeweler’s work area, andl
tools laid out on the work bench
these suggested to the probers” &
Fiorillo had probably just opened up&
was preparing to go to work when he
gunned down by an unknown killer.®
Some money scattered on the floott
dicated that the shop’s cash drawer
been rifled. Also, the investigatl
observed, the jeweler still had on a
watch that was running, but they fot
no wallet on him. 4
All signs pointed to a homicide c&
mitted in the course of a robbery.
would not seem that Fiorillo, who sté
only about 5 feet 4 inches tall and wef
ed only 120 pounds, had resisted an a
ed bandit. But the officers knew, too;
guts aren't always measured in body
and some of the fiercest opposition
armed bandit can erupt fromevena
man of huge principles who feels heis
ing drastically wronged. ¢
But, other than the papers and a lf
money strewn on the shop floor,
was no evidence of astruggle in eith
shop or the upstairs apartment,
homicide sleuths observed.
scattered mail and money could bi
been left behind by a bandit franti
grabbing the cash and hurrying out ol

been heard.

and other jewelry items
everywhere, many waiting to be worked

on, and the investigators knew it would’

be difficult to determine if merchandise
had been taken by the killer. -

As far as. police could learn, the
jeweler had no family or relatives in
Amarillo.

“He lived all by himself in the apart-
ment upstairs,” the barber told the of-
ficers. “He's been here for years. The
only relatives I know of are back east.”
The investigators learned Fiorillo had
been in Amarillo 25 years, and had run the
small shop for at least 12 years.

Patrolman Cook made a diagram of
the shop, inarking where the body of the
slain jeweler was lying. Crime-scene of-
ficers took photographs and dusted the
interior for possible fingerprints. After
the photos were taken, Justice of the
Peace Byrd allowed the body to be mov-
ed to a funeral home. He also ordered an
autopsy.

‘Five detectives fanned out over the
area of small businesses, seeking anyone
who might have seen or heard something
at.Fiorillo’s shop about the time the
shooting was thought to have occurred.

The Amarillo Globe-News building is
located just around the corner from the
jewelry! shop, and one of the potential
witnesses the investigators talked to was a
newspaper circulation-department
employe.

The witness recalled that he had notic-
eda young white man, standing in front

the jewelry shop and acting nervous,
about 8:00 a.m.
~ After loitering in front of the small
shop a few minutes, the man had walked
away. The newspaper employe said the
nervous” pedestrian was about 21 years
old and was wearing a green jacket.

I said good morning, but he didn’t.
say anything,” the witness told the in-
vestigators.

The jacket appeared to be an Army-
style fatigue jacket, and the youth also

ad on maroon-colored pants. The
witness said the nervous-acting young
man had long, stringy blond hair.

The officers found no one in the

ess block who had seen anyone
entering or leaving Fiorillo’s shop, and
’pparently no one had heard the shot.
None of the occupants of the nearby

inesses had seen any vehicle park-
ed in front of the jewelry store, or close

Friends of Mike Fiorillo who talked to
€ctives filled them in concerning his
Professional abilities and ac-
complishments, but the little jeweler who
everyone seemingly led a quiet

shop, afraid that the gunshot “a Private life which was filled mostly with

It wasn't easy to move freely in
tiny, jam-packed shop anyways.
detectives realized.

File cabinets were stacked fro
counter to the back of the shop. Wa

dication to his work.
€ was known for quality watch

fepair and custom jewelry work that —

~ te his reputation by word-of-mouth.
Hd ei of Philadelphia, Mike had once
che: wanted to be- an automobile

were-

Sn le

Suspect Charles Rumba

ugh is shown at left after arrest with hand wound suffered

in duel with Lt. Jacobs, and at right as he appeared in court on murder charge

mechanic, but he had turned to watch
repairing during the depression years
of the 1930s.

Mike had been one of nine children,
and he had known what it was like to be
poor.

“When we were lucky, we had
something to eat,” Fiorillo had said.
“When it comes to starving, you learn
patience.”

His outlook on life and attitude
toward people in general brought the
jeweler plenty of business.

“I have to turn away more work than I
accept,” he said. “The people here are so
nice to send me the business that I hate to
turn them away.”

His success was undoubtedly an out-
growth of his personal philosophy, which
he had summed up once as, “Always
strive to do your best the first time and
you won't have to say you could have
done better. That’s true in any field.”

Throughout the morning, the detec-
tives continued to seek leads.  In-
vestigators went to pawnshops in the city
on the possibility that the killer might
have taken some jewelry from the shop of
the slain man and tried to get money onit
some place. But this quest turned up
nothing. It was hoped the autopsy on the
slaying victim might offer some informa-
tion that would help in the hunt.

Later in the day, Detective Gary
Richards was present when an Amarillo
pathologist conducted the autopsy. The
doctor found that a bullet had entered
Fiorillo’s left chest and penetrated the
lung. He removed the slug from where it
was embedded in the spinal column, and
turned the evidence over to Detective
Richards.

The homicide investigator saw that
the slug was of small caliber, probably .25
caliber. .

While detectives were busy searching
for the jeweler’s killer, a teletype message
was received at Amarillo police head-
quarters that required the immediate
attention of the detective division.

The urgent teletype was from the San
Angelo, Texas Police Department, asking
that Amarillo police take into custody a
suspect wanted on felony charges of
aggravated robbery with a deadly
weapon and aggravated assault upon a
police officer in connection with an arm-
ed robbery at a downtown San Angelo
motel.

The subject wanted on the charges
was identified as Charles F. Rumbaugh,
17 years old. Warrants had been issued
for his arrest on the two charges, accor-
ding to the teletype. The bulletin also
stated that Rumbaugh was believed to be

(Continued on page 78) -

39

EN A CNS MENS) I


time at the state reformatory in Mon-
roe and the penitentiary at Walla Walla.

Frazier recalled the few deadly
moments of March 2nd. He said he’d just
“flipped out” when Michael Johnson
“made some smart remark about selling
me some bad dope. I pulled the gun out
and started shooting. I don’t know how
many shots I fired or whom I shot. I emp-
tied the gun. I was squeezing the trigger
and nothirlg was coming out. I didn’t see
but one person standing at that point and
that was Henry. It was over ina matter of
seconds...”

He had no explanation for the fact that
three-years-old Joyneice had been killed
while hiding in the closet of her room—
killed by a contact wound, a gun held to
her head deliberately.

Frazier said that the heroin that
Walker had sold him had caused him
chills, fever, nausea, and a burning sensa-
tion up his arm and into his chest after
he’d injected it. The pain had stayed with
him three days, he stated, and he’d had a
large blister where it had been injected.

Fraziers defense was diminished
responsibility because of his “illness” and
because of other drugs and liquor he’d in-
gested just before the killings. Grisby’s
defense was that he was a mere
bystander. Neither sat very well with the
jury, who weighed the testimony
presented, considered that Prosecutors
Howson and Geiger had shown that the
death bullets had originated from op-
posite sides of the rooms in the Sunflower
apartment, and found little credence in
either defendant's story.

On August 8th, Grisby and Frazier
were adjudged guilty of the charges
against them—five counts of Murder One
and one of Assault One.

The trial went into a new phase. Each
man faced the death penalty andnow the
jurors would decide whether they would
live or die. The victims had perhaps five
seconds to plead for their lives; the jury
debated almost six days on the death
penalty question. It was a grindingly in-
tense situation for the 12 jurors. They
were only the second jury to debate the
question of life or death for a killer under
Washington’s new death penalty law.
They had four questions to answer. If the
answer was “No,” to any question, then
they would not go on to the next; the
death penalty would be ruled out. With
each “Yes,” they would proceed...

Does the jury agree unanimously that
the state has proven beyond a reasonable

doubt that the murder (s) was aggra-
vated? (If so, a straight life sen-
tence with any possibility of parole
is ruled out.)

2. Is the jury convinced beyond a
reasonable doubt that the state has
proven that there are not sufficient
mitigating cirumstances to merit lenien-
cy?

3. Is the jury convinced of the defen-
dants’ guilt with clear certainty?

4. Does the jury believe the defen-

78

dants will probably commit criminal acts
of violence in the future and be a con-
tinuing threat to societv?

f answers are all “yes,” the death
penalty is required. In the Grisby-Frazier
trial, the jurors answered “yes” un-
animously until they came to the fourth
question, and then they were split at 11 to
1. Frazier’s neck was saved by one vote.

Grisby fared better. Some of the
jurors did not believe he was responsible
for the death of the youngsters, but
answered “yes” to the ‘first three
questions, and, on the last; the majority of
the jury felt he would not be violent in the
future. . "

It was a verdict that did not sit well
with the public, the investigators, or the
grieving parents and grandparents of the
victims. Michael Walker's father com-
mented, “Clearly, it was premeditated

and the penalty should have been death!
don't think its fair.” His wife, Christin
said, “If you take a life, you should give:
life. How could you shoot children lig
that—like dogs?” ;

Grisby and Frazier, who had assurg
the jurors that they thought they coulda
just to life in prison without possibilitye
parole, will how have a chance to prov
it. ’ : on

4

EDITOR’S NOTE: 4

Cassie Wells, Naomi Biggs, Jot
Stokes, Delphine Loper and Marit
French are not the real names of the
persons so named in the foregoing
story. Fictitious names have been
used because there is no reason fot
public interest in the identities of thest
persons. :

Crime Rampage of
Trigger-Happy Killer

(Continued from page 39)

in Amarillo, staying at an address which
the San Angelo police provided.

The message warned that the youthful
suspect might be armed and should be
considered dangerous. Rumbaugh
reportedly had entered the motel office
with a gun in each hand and robbed the
clerk on March 28, 1975. About $350 cash
and several checks were taken in the
heist.

A short time later, two San Angelo
detectives had spotted the suspect and
gave chase. It was reported that the
“suspect drew a gun, and that the detec-
tives drew their pistols and fired, but they
‘missed the gunman, who escaped.

The charges had been filed against
Rumbaugh on March 29th, the day after
the motel holdup and police chase.

Detectives headed by Lieutenants
Derrel Garner and Gerald Jacobs drove
to the midtown address given by San
Angelo police. It was an older-type, two-
story house converted into apartments.

The detectives determined that the
apartment they wanted was upstairs.
Detective Lieutenant Jacobs started up
the stairs and encountered a young manat
the top of the stairway.

Jacobs identified himself as a police
officer and asked the man on the stairs for

identification. The youth replied that he *

had left his wallet in his apartment, andhe
turned and started back up the stairs.
Suddenly he whirled, brandishing a gun.

“He’s got a gun!” Jacobs shouted to
the other officers who were entering the
house. Jacobs ran partly down the stairs,
drawing his own gun. He turned and
crouched down and fired at the man who
had drawn the weapon on him.

The officers heard a groan from the
youth, who ran into an apartment.

Seconds later, the young man emerg-

ed from the apartment and tossed a gs
down the stairs. The gun landed ath
feet of the detectives, who closed in a
quickly handcuffed the woundé
suspect. Detective Lieutenant Jacob
one shot had struck the gun-wieldis
suspect in the right hand and arm.
The wounded youth gave his name?
Charles Rumbaugh. 4
In the apartment the detectives fout
four other young persons whom t#
took into custody for questioning. Ths
were two young men, 20 and 23 yearsé
age, and two girls, 18 and 19 years of ag
Rumbaugh was taken to an Amari
‘hospital, where he was treated for 8
gunshot wound and placed under polis
guard. Hospital attendants said he wast
satisfactory condition. ‘
Detectives obtained permission
search the apartment, which was listed

~ the name of one of the girls. The officé

found three handguns besides the gunt
suspect had tossed down the stairs,
remains of a bank bag and some cas
Looking at the .38-caliber Smith?
Wesson revolver that Rumbaugh be
drawn on Jacobs, detectives saw ant
scription on it. The inscription read,
Mike.” Suddenly the arrest of the yo#
wanted on the armed robbery charge}
San Angelo took on new aspects.
The apartment where the arrest
been made was located only two bl
from Mike Fiorillo’s jewelry store,
detectives noted, and the inscription!
the gun suddenly made the five y
persons leading suspects in the robb
and slaying of the Amarillo jeweler.
Detectives contacted a friend
Fiorillo’s who came to the detectiveé
fice and looked at the .38 recovered
Rumbaugh. The friend definitely idé
tified the gun as having belonged to
jeweler.

Detectives next began indivi

questioning of the five suspects, afterlé

warning them fully of all their legal rigs
One of the young men was ar

of Rumbaugh’s, and the other man at!

apartment was a friend who had spent the
night there. The two girls also were iden-
tified as relatives of Charles Rumbaugh.
The girls told investigators that they had
hitchhiked to Amarillo to live and work
because they had relatives in the area.

One of the girls led two detectives toa
trash container in an alley near the
jewelry shop and not far from the apart-
ment where the five had been arrested.
From the container the detectives
recovered some clothing which the girl
said Rumbaugh had told her to get rid of.

Also, among the guns found in the
apartment was a .25-caliber automatic
pistol which the investigators believed
might have fired the shot that killed
Fiorillo. The gun and the slug recovered
from the body were prepared for submis-
sion to the Texas Department of Public
Safety laboratory for testing. Detective
Ed Foree later took the evidence to the
DPS lab at Lubbock, 120 miles south of
Amarillo, for analysis by the experts.

The 23-year-old man who had spent
the night at the apartment with Rum-
baugh and the others told detectives who
questioned him that Rumbaugh left the
apartment about 7:30 a.m. that day. The
witness said that Rumbaugh was wearing
the coat detectives later found in the trash
receptacle pointed out by one of the girls.
Officers noted it generally matched the
description given by the newspaper
employe who had noticed a nervous long-
baired young man standing in front of the
jewelry shop. Rumbaugh also fitted the
description.

But the clincher came when the 23-
year-old man told the homicide men that
Rumbaugh had returned to the apart-
ment about 45 minutes or an hour later
and told him he’d “just shot this guy.”

The witness continued that Rum-
baugh said he feared he might be wanted
for murder and had a .38-caliber revolver
with him that Rumbaugh said “He’d
gotten from the old man.”

The man said he later saw Rumbaugh
sanding the .38 with an emery cloth, ap-
parently trying to remove the inscription
o it, the officers surmised.

According to the witness, the group in

apartment was worried “about the
my Charles had shot.” They later learned
nite PB seep news report that the man
ir After talking to the four companions
ne suspect, detectives went to
or pital on April 6th and took custody
* Rumbaugh who, the attending physi-
Gan said, could be released from the

4 tal. He was taken to the detective
orgy and warned of his legal rights.

where ee with the evidence

gators had compiled from the
oman and from the interviews with
Mpanions, Rumbaugh agreed to
€ a statement.

fterwards, detectives told newsmen
Rumbaugh had made a voluntary
confession admitting the slaying

during an armed robbery.

The next day, April 7th—three days
after the killing of the little jeweler—
Charles Rumbaugh was named in a for-
mal complaint charging capital murder.
He became the first person from Potter
County to face a possible death penalty
under the state’s new capital murder
laws. Capital murder under the new
penal code was a murder committed dur-
ing the commission of another major
felony, in this case armed robbery. Con-
viction of capital murder carried only
two punishments—life imprisonment or-
death.

Potter County Justice of the Peace
Clifford Roberts denied bond in the case
and appointed an attorney for Rum-
baugh, who said he could not afford a
lawyer.

A Potter County grand jury indicted
Rumbaugh for capital murder on April
10, 1975, for the April 4, 1975 slaying of
Mike Fiorillo. On April 6, 1976, county
jailers made a discovery that hinted of
ominous undercurrents. In a jail cell in
which Rumbaugh and three other
prisoners were lodged officers found
three lengths of heavy pipe and a rope
made from a blanket. The other three jail
inmates were being held on charges of
murder, robbery and armed robbery.

Despite extra precautions, Rumbaugh
and two of his cellmates mad a daring
break from their steel-coated, maximum-
security cell on the seventh floor of the
downtown Potter County courthouse
during the predawn hours of Monday,
December 8, 1975.

Jailers discovered that the prisoners
had cut through the steel wall and barred
window and dropped 100 feet to the
ground below on two hand-made ropes.
Working with unbelievable patience, the
men had used a simple razor blade to ever
so slowly cut through the cell wall, Sheriff
T.L. Baker disclosed.

A hacksaw had been used to cut the
bars in the window located on the other
side of the cell wall. The sheriff es-
timated it would have taken at least four
days to cut through the metal wall and
bars. ‘lhe desperate inmates then had
greased the small opening that measured
only about a foot square with a
hemorrhoid ointment and had managed
to squeeze through, wearing only their
underwear.

The prisoners left their jail overalls
behind in the cell.

The breakout was discovered about
‘7:00 a.m., when jailers were making
their morning rounds.

Officers believed that the escapees
had had outside help, and that an ac-
complice had been waiting with clothing
and a car for the trio after the prisoners
made their dizzying descent from the top
of the courthouse building.

The makeshift ropes had been braid-
ed from torn strips of blankets.

All of the escaped jail prisoners were

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398

ings. This finding resulted in a preemption
of his parents’ next friend petition and it
was dismissed.

Rumbaugh’s parents appealed the find- |

ing of competence. After oral argument
and while the matter was under submission
to this court, Rumbaugh filed a pro se
application for a writ of habeas corpus in
state court, simultaneously requesting that

this court be notified of his act. He argued

that the state filing mooted the issues on
appeal requiring a dismissal of the appeal.
We responded with the special order earlier
noted, 730 F.2d 291, remanding the applica-
tion of Harvey and Rebecca Rumbaugh to
the district court with instructions to moni-
tor the progress of the state habeas peti-
tion. We instructed the district court to
return the record to this court for disposi-
- tion of the appeal in the event that any act
or omission of Charles Rumbaugh prevent-
ed a decision on the merits of his state
habeas application. Several months later,
the state court dismissed the habeas peti-
tion in response to a motion by Charles
Rumbaugh in which he stated that he had
filed the state action to force dismissal of
his parents’ federal petition and, failing in
that endeavor because of the provisions of
the special order, he desired to withdraw
his state petition. In accordance with our
special order, the matter was returned in
due course to this panel for disposition of
the appeal by Harvey and Rebecca Rum-
baugh.

Discussion

If Charles Rumbaugh lacks the mental
competence to waive his rights to further
judicial review of his conviction and sen-
tence, his parents have standing to bring
an action for habeas. relief as next friends.
If he has that competence, his parents have
no‘standing to bring the present action.

1. Immediately prior to stating the test, the Su-
preme Court noted that it would “retain jurisdic-
tion over the cause in this Court and direct the
District Court to determine Rees’ mental compe-
tence in the present posture of things....” 384
US. at 314, 86 S.Ct. at 1506.

‘Insofar as the published reports reflect, noth-
ing further was done until April 10, 1967 when
_ the Court ordered: “This case is held without

753 FEDERAL REPORTER, 2d SERIES 7 ee

Gilmore v. Utah, 429 US. 1012, 97 S.Ct.
436, 50 L.Ed.2d 632 (1976).

The Standard for Competency to Waive —
the Right to Attack a Conviction —
and Sentence

[1] The Supreme Court announced the
standard to be used in deciding whether a
person is mentally competent to choose to
forgo further appeals and collateral attack
upon his conviction and sentence in Rees v.
Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16
L.Ed.2d 583 (1966).! The test is

whether he has capacity to appreciate his

- position and make a rational choice with
respect to continuing or abandoning fur-
ther litigation or on the other hand

’ whether he is suffering from a mental
disease, disorder, or defect which may
substantially affect his capacity in the
premises.

384 U.S. at 314, 86 S.Ct. at 1506. This test
requires the answer to three questions:

(1) Is the person suffering from a mental
disease or defect?

(2) If the person is suffering from a
mental disease or defect, does that dis-
ease or defect prevent him from under-
standing his legal position and the op-
tions available to him?

(3) If the person is suffering from a
mental disease or defect which does not
prevent him from understanding his le-
gal position and the options available to
him, does that disease or defect, never-
theless, prevent him from making a ra-
tional choice among his options? .

If the answer to the first question is no,
the court need go no further, the person is
competent. If both the first and second
questions are answered in the affirmative,
the person is incompetent and the third

action of the petition [the pending application
for certiorari to the United States Court of Ap-
peals for the Fourth Circuit] until further orders
of the Court.” No. 9, Misc. Rees v. Peyton, 386
U.S. 989, 87 S.Ct. 1310, 18 L.Ed.2d 333 (1967).
The case continues to date in a pending status
before the Court, carried on the Supreme
Court’s Special Docket as item S-2. No further
action has been reported.

»

400 - 753 FEDERAL REPORTER, 2d SERIES:

ther litigation. Based on these same re-

ports, another medical expert called by the
state opined that Rumbaugh was ‘capable —

of making a rational decision to forgo fur-
_ther judicial proceedings.

The trial court cut the gordian knot by
continuing the hearing and directing that
Dr. Logan personally appear and explain
his report. At the continued hearing, Dr.
Logan testified at length, including this
colloquy:

Q. And what was your determination?

A. My determination was that he had a

very rational understanding of his cur-

rent legal position. He had an excellent
knowledge of past events that had hap-
pened in his case; he had a very good
understanding of his current situation,
both legally and in terms of his own
mental health. =
However, the second part of the ques-
tion asked whether he had any mental
illness that could ... that may affect him
in the premises. And I answered yes to
that. I said I believe he was suffering
from a severe depression and that, in-
deed, did have some influence on his deci-
sion. :

Q. Now, of course; under the standard

of competency to stand trial test, you

would have found that he was competent
to stand trial and to confer with his law-
yers and so on?

A. Yes.

Q. Explain, if you can, Doctor, the con-
flict ... or apparent conflict in your de-
termination?

It may not be a conflict. It appears so
to me.

A. Okay. The fact that someone has a
mental illness in all cases does not pre-
clude their ability to have a rational
understanding of their current situation
or logical understanding of their current
situation.

The majority of the time, I believe, Mr.
Rumbaugh is functioning at a_ level
where he does have a rational under-
standing of what’s going on in his case
and his current situation.

- The way in which his depression could

influence him is that it may act as a

coercive force and impairing his ability to -
exercise free will to make a decision,
perhaps a way to explain it would be to
use an analogy that comes from a differ-
ent realm.
Many patients that are dying with ter-

‘minal cancer are very depressed. Their

cognitive abilities are not necessarily im-
paired. They have a very rational under-
standing of their situation. They realize
that they are due to die within, perhaps,
a short period of time, that the treatment
with chemotherapy or radiation therapy
may be painful and uncomfortable and it
may impair what little life they have left

and in some cases they may decline any

further treatment and essentially choose
to die.

Their depression in that case, however,
although realistic, does influence their
decision.

* * * * * *

Q. And that that mental illness affects
his competency in the premise? _

A. Inthe way I have so stated. In fact, —
I don’t think it impairs: him for the major-
ity of the time. There are periods when
he has brief paranoid psychoses where.
he has auditory hallucinations but that’s
not all the time. Those are circum-
scribed episodes.

I feel like underlining that. The ma-
jority of the time, he is depressed and the
way that affects him is that it may act
... his own psychological pain may act
as a coercive force that influences him
not to want to say, live in his current
condition for an additional, say, six years

- to exhaust his further appeals that are

open to him.
* *x * * * *
Q. ... I think what we’re all trying to

understand is to what extent; for exam-
ple, the depression constituted a coercive
force. )

A. To the extent, if he were not so
depressed, if he did not suffer from fre-
quent bouts of paranoia or auditory hal-

4

RUMBAUGH v. PROCUNIER

397

Cite as 753 F.2d 395 (1985)

baugh’s execution was set for July 23,
1982. Rumbaugh refused to authorize any-
one to file a petition for writ of certiorari
or to seek a stay of execution.

On July 16, 1982, Harvey and Rebecca
Rumbaugh filed a next friend application
for state habeas relief. Their petition was
denied without hearing or written reasons
on July 19, 1982. Later that same day, the
Texas Court of Criminal Appeals denied the
senior Rumbaughs’ motion for stay of exe-
cution and application for habeas relief.
No reasons were assigned. On July 20,
1982, the district court for the Southern
District of Texas granted Harvey and Re-
becca Rumbaugh’s motion for stay of exe-
eution and transferred the case to the
Northern District of Texas, Amarillo Divi-
sion.

The district court in Amarillo appointed
counsel to represent Charles Rumbaugh
and held a preliminary hearing to deter-
mine the procedures to be followed in this
relatively unusual situation. Upon conclu-
sion of that hearing the district court or-
dered Charles Rumbaugh transferred to

the United States Medical Center, Spring- -

field, Missouri, to be examined for the spe-
cific purpose of determining his mental
competence to waive further review of his
conviction and sentence.

_ Charles Rumbaugh was taken to Spring-
field and there examined by a team of
psychiatrists and psychologists. The writ-
ten reports of Drs. Logan and Reuterfors

were presented to the court and the par-

ties. At a hearing on February 4, 1983, a
psychiatrist and two psychologists, called
by the petitioners, none of whom had exam-
ined Charles Rumbaugh, testified as to
their interpretations of the Springfield
medical reports and gave their opinions on
the mental state of Charles Rumbaugh. A
doctor called by the state gave counter-tes-
timony. .At the conclusion of that conflict-
ing testimony, the district court continued
the hearing so that Dr. Logan could per-
sonally appear and explain his diagnosis
and prognosis.

The hearing resumed on February 24,
1983, with Dr. Logan present. After Dr.

Logan finished his testimony, Charles
Rumbaugh voluntarily took the stand and
advised the court of his position in the
matter:
Well, I don’t feel I’m depressed: right
now. I haven’t been taking any medi-
cation for approximately thirty days. I
was taking medication, an antipsychotic
drug, and I. haven’t experienced any
problem since I quit taking it.
And I think I understand my situation
very well and I believe my decision is a
logical and rational one.
And it doesn’t really matter to me what
this Court decides today because I’ve al-
ready made the decision to take matters
into my own hands.
So it doesn’t make any difference.

* * * * * *

All I really wanted to say is that it |
doesn’t matter to me; that I’ve already
picked my own executioner and I'll just
make them kill me. If they don’t want to
do it ... if they don’t want to take me
down there and execute me, I’ll make
‘them shoot me.

* MS * eS oe

I think I’ll make them shoot me right
now.

Charles Rumbaugh then pulled a home-
made knife-like weapon from his pocket

-and advanced on the deputy U.S. Marshal,

shouting “Shoot!” The Marshal was
forced to shoot Rumbaugh. After life-sav-
ing measures were taken, over Charles |
Rumbaugh’s demands that no attempts be
made to save his life, and he was removed
by ambulance to the hospital, the hearing
continued. Dr. Logan, who had witnessed
the entire episode, was recalled to the
stand. He testified that the bizarre occur-
rence did not shake his opinion but actually
reinforced his conclusions that Rumbaugh
was acting knowingly and _ intentionally

with full knowledge and appreciation of the

situation in which he found himself.

The district court sifted and weighed the
evidence and concluded that Charles Rum-
baugh was mentally competent to make the
decision to forgo further judicial proceed-

RUMBAUGH v. PROCUNIER >

399

Cite as 753 F.2d 395 (1985)

question need not be addressed. If the

first question is answered yes and the sec-

ond is answered no, the third question is
determinative; if yes, the person is incom-

petent, if no, the person is competent. We

find no reported case applying the Rees
standard to a defendant’s decision to forgo
further appeals and collateral proceedings
which decides how a court should treat a
mental disease which does not impair the
cognitive function but impacts only on the
volitional, the person’s ability to make a
rational choice among available options.”
We must now address that issue. We find
it to be essentially a factual question. The
district court’s finding is thus protected by
the shield and buckler of Fed.R.Civ.P.
52(a), and must be accepted unless shown
to be clearly erroneous. Floyd v. United
States, 427 F.2d 63 (5th Cir.1970).

The Evidence

[2] During the court-ordered stay at
Springfield, Charles Rumbaugh was tested
and observed by a team of psychiatrists
and psychologists who were charged by the
court to determine his competence consist-
ent with the teachings of Rees. The trial
judge’s order to the Springfield staff is a
verbatim statement of the Rees standard.’
The evaluation resulted in a 12-page psychi-
atric evaluation by Dr. Logan and a 9-page
psychological evaluation by Dr. Reuterfors.
The team also composed 22 questions
which Rumbaugh answered in detail over a
period of several days. The questions and
answers were presented to the district
court. Dr. Logan’s final opinion advised:

This examiner feels that Mr. Rumbaugh

is currently profoundly depressed. Mr.

Rumbaugh, despite this depression, does

2. Lenhard v. Wolff, 444 U.S. 1301, 100 S.Ct..241,
62 L.Ed.2d 11 (1979) (failure to prove mental
illness), vacating stay of execution, 444 U.S. 921,

-100 S.Ct. 241, 62 L.Ed.2d 177 (1979); Evans v.
Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d
756 (1979) (failure to prove mental illness), va-
cating stay of execution, 440 U.S. 987, 99 S.Ct.
1986, 60 L.Ed.2d 370 (1979); Gilmore v. Utah,
429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632
(1976) (failure to prove mental illness); Hays v.

Murphy, 663 F.2d 1004 (10th Cir.1981) (remand-

ed to take evidence on issue of mental illness
and: competency).

have the capacity to appreciate his posi-
‘tion and his choice regarding continuing
to decline further litigation is rational in
light of his past experience and presum-
ing one can rationally make a decision to
die. It must be emphasized, however,
the extent of Mr. Rumbaugh’s depres-
sion does substantially affect his capaci- -
_ty in the premises. Mr. Rumbaugh’s
perception of his current situation as
hopeless, although realistic in light of his
past experience is a reflection of this
depression. :

Dr..Reuterfors’ report reflected a similar

apparent anomaly:
(1) it is the opinion of the undersigned
examiner that Mr. Rumbaugh is current-
ly capable of appreciating his position
and making a substantially and suffi-
ciently rational choice with respect to

- continuing or abandoning further litiga-
tion.
(2) it is the opinion of the undersigned
examiner that Mr. Charles Rumbaugh is
presently suffering from a major mental
ilmess which may substantially affect his
capacity in the premises.

The district court was understandably
puzzled by these seemingly self-contradic-
tory responses to the Rees-directed ques-
tion it had posed. And, as earlier noted, at
the hearing after the Springfield evalua-
tion, one psychiatrist and two psychologists
who had not examined Rumbaugh, offered -
their interpretation of the Springfield re-
ports. After reviewing the reports and
Rumbaugh’s answers to the battery of
questions, these medical experts expressed
the opinion that Rumbaugh was not capa-_
ble of making a rational choice about fur-

3. The district court’s order called for an exami-
nation to determine

whether Charles Rumbaugh has the capacity
to appreciate his position and make a rational
choice with respect to continuing or abandon-
ing further litigation or on the other hand,
whether he is suffering from a mental disease,
disorder, or defect which may substantially

affect his capacity in the premises.

558 F.Supp. at 652.

416

knowledge on the one we choose to kill.
The failure to rise to this self-appointed
level of responsibility is resplendent with

neither truth nor justice. It seems, unfor- —

- tunately, to be the American way.

© & KEY NUMBER SYSTEM

4qnms

George PIERCE and Jeff Pierce, Indi-
vidually and d/b/a Pierce Sales, a
Partnership, Plaintiffs-Appellees,

V.

RAMSEY WINCH COMPANY, A For-
eign Corp., Defendant-Appellant.

No. 83-1804.

United States Court of Appeals,
Fifth Circuit.

Feb. 20, 1985.

Terminated distributor brought section
one Sherman Act suit against manufactur-
er alleging a vertical price-fixing conspir-
acy between manufacturer and other dis-
tributors. The United States District
Court for the Northern District of Texas,
Mary Lou Robinson, J., entered judgment
in favor of terminated distributor, and
manufacturer appealed. The Court of Ap-
peals, Randall, Circuit Judge, held that: (1)
district court’s charge adequately defined
combination and conspiracy; (2) court’s
charge adequately encompassed manufac-
turer’s defensive theory of business justifi-
cation for the termination; (3) evidence was
sufficient for jury on fact of damage, not-
withstanding that terminated distributor
made more money following termination
than it did before termination; and (4) evi-
dence was sufficient for jury on amount of
lost profits damages due terminated dis-
tributor.

Affirmed.

753 FEDERAL REPORTER, 2d SERIES

1. Federal Courts ¢=637 |

Defendant adequately preserved for
appellate review propriety of district
court’s instructions, notwithstanding that,

in objecting to court’s failure to give re-’

quested instructions, defendant did not, at
time appointed for objecting to charge,

state grounds for its objection, where -

record contained, in addition to defendant’s
requested instructions, a memorandum
which set forth defendant’s position with
respect to its requested instructions, so
that defendant made its position known to
the court prior to stating its formal objec-
tions. Fed.Rules Civ.Proc.Rule 51, 28 U:S.
C.A.

‘2. Federal Civil DP cecdure €2173

Duty of trial judge to instruct jury is
not limited to instructions on the law that
underlies plaintiff’s theory of recovery; a
defendant is also entitled to have jury in-

structed on law that supports defensive.

theories that are raised by the evidence.

3. Federal Civil Procedure =2174, 2176,
2176.4 a
In order to have jury instructed on a
theory of the case, instruction must be
legally correct, theory must be supported
by the evidence, and desired instruction
must be brought to court’s attention in a
timely manner.

4. Federal Civil Procedure 2173.1

Parties are not entitled to have jury
instructed in precise language or form that
they suggest.

5. Federal Courts <=822

Court of Appeals affords trial judges
wide latitude in fashioning jury instruc-
tions.

6. Federal Civil Procedure <=2182

In reviewing claim that jury has been
erroneously instructed, Court of Appeals
views charge as a whole, in context of
entire case, and ignores technical imperfec-
tions. :

can National Bank of Austin v. United
States, 421 F.2d 442, 451 (5th Cir.), cert.
denied, 400 U.S. 819, 91 S.Ct. 36, 27
L.Ed.2d 46 (1970); Morris v. Beto, 376 F.2d
845, 846 (5th Cir.1967) (per curiam).

While Supreme Court precedent furnish-
es little direct guidance, the cases that
have addressed similar attempts to waive
federal habeas review strongly suggest an
appellate function more meaningful than
the majority’s. In Gilmore v. Utah, 429
U.S. 1012, 97 S.Ct. 486, 50 L.Ed.2d 632
(1976), the Court carefully examined the
materials relevant to the defendant’s com-

petency and convinced itself that the waiv--

er was knowingly and intelligently made.¥
Id. at 1018, 97 S.Ct. at 4387; see id. at
1014-16 & nn. 3-5, 97 S.Ct. at 437-39 & nn.
3-5 (Burger, C.J., concurring); id. at 1017,
97 S.Ct. at 489 (Stevens, J., concurring);
see also Lenhard v. Wolff, 444 U.S. 807,
811 n. 2, 100 S.Ct. 29, 30 n. 2, 62 L.Ed.2d 20
(1979) (Marshall, J., dissenting from denial
of stay). Far from relying on the factfind-
ing and conclusions of the trial judge, the
Court scrutinized anew the entire record.
Similarly, the Court in Rees stated,
“Whether or not Rees shall be allowed .

to withdraw his certiorari petition is a ae
tion which it is ultimately the responsibility
of this Court to determine, in the resolution
of which Rees’ mental competence is of
prime importance.” 384 U.S. at 313, 86
S.Ct. at 1506. Thus, the Court retained
jurisdiction upon remand to the district
court for findings of fact—a procedural
oddity which reserved to the Court itself
_the task of applying its standard to the
facts as found below.’ Our function as an
intermediate court of appeal should be no
less than what the Supreme Court has seen

13. I must assume, as must the majority, that
- Gilmore's use of the “knowing and intelligent”
formulation, see Johnson v. Zerbst, 304 U.S. 458,
464, 465, 58 S.Ct. 1019, 1023, 1023, 82 L.Ed.
1461 (1938), did not jettison the Rees standard.
Because any knowing and intelligent waiver
presupposes competency, the competency deter-
mination must in any event be made under the
appropriate standard. Gilmore does not speak
__to the substance of this inquiry.

RUMBAUGH v. PROCUNIER
Cite as 753 F.2d 395 (1985) :

413

fit to impose on itself when considering a
condemned’s attempt to solicit his sentence.

The legal characterization of an individu- .
al’s mental state under Rees is parasitic on
the factual conclusions rendered by those
testifying on the issue. The effect of Rum-
baugh’s mental disorder on his free will—
the disease’s hold over an apparently ra-
tional discourse—can be perceived by the
district judge as trier of fact only through
the pince-nez of the experts. Issues of
credibility are at a minimum in this kind of
determination, and where demeanor does
surface as relevant, the trial judge should
state so expressly. Fed.R.Civ.P. 52(a).
But absent such findings—which them-
selves would be revocable on review only if
clearly erroneous—an appellate panel is. as
well-suited as the trial court to applying de
novo the legal standard of competency to
ultimate facts. Baker v. Metcalfe, 633.
F.2d 1198, 1201 (5th Cir.), cert. denied, 451
U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354
(1981). We are faced not with conflicting
testimony whose resolution can benefit
from the factfinding expertise of a district
court, but rather with evidence whose con- —
tradictions, if any, surface only at the level
of legal conclusion. “{I]t is well settled
that the clearly erroneous limitation does
not apply to the review of a district court’s
legal conclusions and inferences drawn
from the facts, and that the appellate court
is free to make an independent determina-
tion from the same facts of the determina-
tive legal conclusions and _ inferences.”
United States v. Grayson County State
Bank, 656 F.2d 1070, 1075 (5th Cir.1981)
(citing United States v. Mississippi Valley
Generating Co., 364 U.S. 520, 526, 81 S.Ct.
294, 297, 5 L.Ed.2d 268 (1961); Spray-Bilt,
Ine. v. Ingersoll-Rand World Trade, Ltd.,

14. See also Anderson v. Kentucky, 376 U.S. 940, .
84 S.Ct. 795, 11 L.Ed.2d 766 (1964) (continuing
case indefinitely upon joint stipulation of the
parties). That the issue of Rees’s competency
arose on a motion to withdraw his petition for
certiorari does not distinguish that case from
ours. The Court's disposition is significant for
its allocation of responsibility between the trial
and appellate tribunals, not for its place on the
Court’s discretionary docket. .Cf. Dusky v. Unit-
ed States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed. 2d

, 824 (1960) (per curiam).

414

350 F.2d 99, 108 (5th Cir.1965); 9-C. Wright
& A. Miller, Federal Practice and Proce-

cert. denied sub nom. First Pentecostal
Church v. United States, 455 U.S. 920, 102
— §.Ct. 1276, 71 L.Ed.2d 460 (1982). These
are the decisions we have been hired to
make.

IV

Few cases can be decided with absolute
certainty. For that reason, the presump-
tions we apply to resolve uncertainty often
go far toward determining the outcome of

a case. By placing the burden of proof on ~

one party or the other, we establish a
threshold, below which uncertainty is re-
solved against the party on whom the bur-
den is imposed.

While I believe the record in this case
indisputably shows that Rumbaugh is in-
competent under Rees to choose what he
has chosen, this mixed question of fact,
law, and philosophy inevitably contains ele-
_ ments over which reasonable, arguably ra-
tional judicial minds could differ. The ef-
fect of the majority’s decision, however, is
anything but unclear: it condemns Rum-
baugh to certain death. If Rumbaugh’s
interest in preventing the imposition of the
death penalty—an interest that he seeks to
waive—were the only interest at stake, it
might be appropriate to resolve uncertain-
ties in favor of respecting his choice. In
capital cases, however, the defendant’s is
not the only interest at stake—the state as
well has an interest in ensuring that the
death penalty is not imposed unconstitu-
tionally. When this irrevocable measure is

15. Generally, a person lacks standing to obtain
federal habeas corpus review on behalf of an-
other unless he can show (1) a reasonable ex-
cuse as to why the detainee did not sign and
verify the habeas petition, and (2) a sufficient
relationship and interest linking the would-be
“next friend” to the detainee. Rumbaugh ex rel.
Rumbaugh v. McKaskle, 730 F.2d 291, 293 (5th
Cir.1984);' Weber ex rel. Zimmerman v. Garza,
570 F.2d 511, 513-14 (5th Cir.1978); see 28 U.S.
C.A. § 2242 (West 1971) (providing in part that
an “[ajpplication for a writ of habeas corpus
shall be in writing signed and verified’ by the

753 FEDERAL REPORTER, 2d SERIES —

improperly invoked, not only the individual —

- but society as a whole suffers.
dure § 2588, at 570, § 2589, at 753 (1971)), ©

Although we do not strive for procedural
perfection in cases involving the death pen-
alty, Pulley v. Harris, — U.S. ——, 104

S.Ct. 871, 881, 79 L.Ed.2d 29 (1984); Lock-

ett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954,
2965, 57 L.Ed.2d 973 (1978) (plurality opin- —
ion), our jurisprudence does recognize a
constitutional basis for procedurally mini-
mizing the arbitrariness and caprice that
can pollute the decision whether to execute.
Zant v. Stephens, 462 U.S. 862, 103 S.Ct.
2738, 2747, 77 L.Ed.2d 235 (1983); Eddings
v. Oklahoma, 455 U.S. 104, 110-12, 102

S.Ct. 869, 874-876, 71 L.Ed.2d 1 (1982); id.

at 118-19, 102 S.Ct. at 878-79 (O’Connor,
J., concurring); Beck v. Alabama, 447 U.S.

_ 625, 687-38 & n. 18, 100 S.Ct. 2382, 2389-90

& n. 18, 65 L.Ed.2d 392 (1980); Green v.
Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150,
2151, 60 L.Ed.2d 738 (1979); Lockett, 438
US. at 604, 98 S.Ct. at 2964; Gardner v.
Florida, 430 U.S. 349, 358-59, 97 S.Ct.
1197, 1204-05, 51 L.Ed.2d 393 (1977) (plu-
rality opinion); id. at 363-64, 97 S.Ct. at
1207-08 (White, J., concurring); Woodson
v. North Carolina, 428 U.S. 280, 304-05,
96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944
(1976) (plurality opinion). I believe that,
given. the state interest in imposing the
death penalty only in accordance with the
Constitution, the uncertainty inhering in
any competency determination should be
resolved in favor of allowing federal collat-
eral review of the defendant’s conviction
and sentence. An otherwise qualified next-
friend petitioner should not bear the bur-
den of proving the defendant’s incompeten-
cy under Rees.© I look to the Shakespea-

person for whose relief it is intended or by
someone acting in his behalf.”).

Burdening the next-friend petitioner with the
task of showing incompetency under Rees over-
looks not only the practical difficulties of per-
forming the task but also the role of the federal
judiciary in exercising its habeas corpus juris-
diction. The federal courts almost certainly
lack jurisdiction to issue writs of habeas corpus
absent congressional authorization, see Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264
(1868); Ex parte Bollman, 8 U.S. (4 Cranch) 75,
94-95, 2 L.Ed. 554 (1807); see also bios Sta
v. MacCollom, 426 U. S. S17, 22-23

ceseneOS

; en ae
ee


RUMBAUGH vy. PROCUNIER

415

Cite as 753 F.2d 395 (1985)

rean theme of “to be or not to be” and
receive no guidance therefrom, but we may
often have more guidance in the Bard’s
analysis of Hamlet’s problem than we have
in deciding whether a defendant is compe-
tent to make decisions such as Rum-
baugh’s. Before casting these individuals
voluntarily down the corridor of death, we
should require no less than convincing
proof that they have the capacity to invite
the journey.

To assume competency is to let the enig-
mas of psychology breathe our miasmic
decree. While it is clear that expert opin-
ion is a relevant and allowable evidentiary
component of mental capacity determina-
tions even in capital cases, Barefoot v. Es-
telle, 463 U.S. 880, 103 S.Ct. 3383, 77
L.Ed.2d 1090 (1983), the standards of proof
under which such evidence should be
weighed presents a distinct issue. There
are I am sure psychiatric conclusions re-
plete with the hallmarks of demonstrative
truisms, but too often cases reveal expert
medical opinion devoid of convincing force,
vigor, and strength. If a next-friend pro-
poses to convince us why a defendant was
unconstitutionally condemned, the defend-
ant should be rebuttably presumed incom-
petent for purposes of conferring standing
on the next-friend petitioner. The decision
tu hasten one’s state-imposed death is suffi-
cient to raise such a presumption. Cf
Massie v. Sumner, 624 F.2d 72 (9th Cir.
1980), cert. denied, 449 U.S. 1108, 101 S.Ct.
899, 66 L.Ed.2d 828 (1981); People v. Stan-
worth, 71 Cal.2d 820, 80 Cal.Rptr. 49, 457
P.2d 889 (1969); Commonwealth v.
' McKenna, 476 Pa. 428, 383 A.2d 174 (1978).
Where fundamental fairness counsels oth-
erwise, we should not be bound, as was the
court below, by the formalistic notion that

2086, 2090-91, 48 L.Ed. 666 (1976) (plurality
opinion), and the Supreme Court has never
squarely faced whether Congress or the states

are constitutionally obligated under art. 1, § 9,

cl. 2, to provide a post-conviction judicial forum
for the adjudication of federal claims, see gener-
ally Developments in the Law—Federal Habeas
Corpus, 83 Harv.L.Rev. 1038, 1266-74 (1970).
But where Congress has afforded the basis on
which to grant the Great Writ to next-friend
petitioners, the federal courts have only limited
discretion to deny habeas corpus review—at

a next-friend petitioner need show his
standing. See generally 10 J. Moore,
Moore’s Federal Practice § 301.02 (2d ed.
1982). Ss

The issue before us is not unlike where
the validity of a defendant’s waiver is scru-
tinized as a matter of federal constitutional
law. Just as it is “incumbent upon the
State to prove ‘an intentional relinquish-
ment or abandonment of a known right or
privilege,’ Brewer v. Williams, 430 U.S.
387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d
424 (1977) (quoting Johnson v. Zerbst, 304
U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.
1461 (1988)), so too should the state carry
the burden of proof on a defendant’s com-
petency to waive federal collateral review.
It is of no consequence that a condemned’s
“waiver” is cast in the more stringent
terms of competency under Rees when
presented by next-friend petition. The
Constitution governs by substance, not
form.

The troubled life of Charles Rumbaugh
presents an abundance of moral questions
that people of thought have debated with-
out satisfactory resolve since antiquity. If
it invites hubris to dictate death, on this we
cannot pass. But we must at least ac-
knowledge in ourselves the inability to un-
derstand in full the workings of the human
mind. Where we must pretend to such
capacity, however, we should grant our-
selves and those who suffer most from our
mistakes the benefit of an admittedly
grave doubt. To look askance when a
next-friend could tell us how a condemned’s
conviction or sentence falls outside the pre-
cious safeguards of the Constitution is to
place the burdens of our own flawed

least where “such review is available for claims
of ‘disregard of the constitutional rights of the
accused, and where the writ is the only effective
means of preserving his rights.’” Wainwright v.
Sykes, 433 U.S. 72, 79, 97 S.Ct. 2497, 2502, 53
L.Ed.2d 594 (1977) (quoting Waley v. Johnston,
316 U.S. 101, 104-05, 62 S.Ct. 964, 965-66, 86
L.Ed. 1302 (1942)). See Fay v. Noia, 372 U.S. —
391, 438-39, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837
(1963); Brown v. Allen, 344 U.S. 443, 460-61, 73
S.Ct. 397, 408-09, 97 L.Ed. 469 (1953).

in cash.
» called

s Dave,

td bea
ed dol-
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a.m., he
er after
illed the
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vy alarm
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ve been
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he taxi
e Cap-
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m de-

iolliday
pend on
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illing at
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to the
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t Clay-
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inga

Pe Te SNM Ce ENR WM

Holliday tried to ae the tradespeo-
ple down to a “tall, thin young man
wearing overalls,” but this description
fitted so many persons in Jasper that
it proved almost valueless.

Valueless, that is, until he talked
with a pretty young clerk in a bakery
shop.
She screwed up her face in an in-
tense effort at recollection, then said
slowly, “It seems to me that evening I
sold two dozen doughnuts to a tall,
thin young fella who was a stranger.
Uh-huh. He had on overalls, too. But
honest, I can’t be too sure of the day.
That was an awful long time ago.”

Holliday’s heart took a double
jump. His eyes were fixed on the
doughnut trays; but all he saw was
the sugar-coated half-eaten one on
the chair beside little Woodrow’s
bloody bed. ee

The captain did some fast thinking.
It didn’t sound ‘like Clayton—he was
wearing a green shirt and brown
slacks. It wasn’t Rogers because the
girl knew Dave. So he inquired cas-
ually, “Do you know Lem Grant?”

The girl shook her head.

URRYING back to the sheriff’s of-
fice to discuss this with Pace, the
captain ran into Chief Deputy

Nixon. Nixon was outside the county
building, about to get into his sedan.
There was a ring of excitement in his
voice. “Can’t stop,” he said. “I’m
trailing that bus. Lem Grant’s on it,
all dressed up. He bought a ticket to
Beaumont. I got a tip he’s going down
to pay off his mortgage.” ‘

Holliday stood for a full minute fol-
lowing Nixon’s car with his eyes, his
brows knit in deep perplexity. Then
he walked slowly up the steps of the
building and into Pace’s office.

There he snapped to attention. The
sheriff, who was talking over the tele-
phone, motioned to him to hurry to
the desk. “It’s the cab driver, calling
from Los Angeles,” he explained,
handing over the receiver.

The voice on the other end of the
wire was firm and resonant. Holliday,
tense, alert, asked brief, pertinent
questions.

“Yes. I remember that fare,” the
cabbie replied. It was a tall man.
Wiry build. Young. Well-dressed.
Had on dark clothes. No, not overalls,
and no baggage or bundles. I let him
off in the center of Newton. Sure.
I'd recognize him if I saw him. We
had an argument over the fare. He
wanted me to make the trip for $2.50.”

The cab driver agreed to curtail his
vacation and come to Jasper at once
to aid the investigation by viewing
suspects,

Assured of this, Holliday hung up
and briefed Pace on the conversation,
adding, “We don’t know whether or
not that-fare was the killer. But we
know it wasn’t ‘Rogers. He wasn’t
well dressed. He wore overalls over
here, had overalls on in the bar where
he had that beer, and was wearing
overalls when he picked up his car in
Newton at 11.”

There was a moment of charged
silence, then the captain looked up,
eyes glittering.

“But it could be Clayton,” he said.

Pace knocked the ashes out of his
pipe into a big glass tray..

“You're forgetting something, cap-
tain,” he reminded. “Clayton was
seen in Newton a little before 10, just
about the time that taxi would have
pulled in there, all dressed up, clean
as a whistle in his good clothes. Now,

i

I may be wrong, but to my thinking
whoever bashed in those skulls got
blood on himself.”

Holliday frowned. “You're right,”
he admitted. “But wait a minute!’ If
Clayton was in Jasper at any time that
night, it makes him as good as guilty,
doesn’t. it—because he said he hadn’t
been over here for three or four
weeks?”

“That’s right,” Pace agreed.

“So if he was the one who rode in
that cab—it doesn’t make much dif-
ference whether or not he had blood-
stains on him, does it?”

“If you put it that way—I guess not,”
the sheriff returned. “But you’d have
a time proving murder—on account of
a cab ride.” ‘ ee

The captain smiled. “Check,” he
said. “I’m not even going to wait for

_that driver to get here and run the

risk of memories going stale in this
town. Let’s go up and invite Clayton
down here to look at the house with
us. I want to take him into a bakery.”

Pace fell in with this:idea as soon as
Holliday’ explained about the sale of
doughnuts to the “tall, thin stranger,”
and within the hour they had picked
up Clayton and were back in Jasper.

Holliday’ made an excuse for the
three of them to walk up the street
and, when they: got to the bakery, he
stopped and looked in the window.

“Hold on,” he said. “I’m going in
here and get some doughnuts.” Turn-
ing to the others he asked, “You two
want any®’ ae

Clayton grinned. “No thanks,” he
oe “T’ve already eaten a dozen to-

ay.”

The two officers stared. “Yeah,”
said Clayton, “I’m a sucker for dough-
nuts. Eat ’em all the time.” :

Inside the bakery, Holliday placed -
his order and, in a low voice, said to
the clerk, “Take a look a@ that yourig
man out there. Is he the stranger you
sold two dozen doughnuts to the night
of the murder?”

The girl deliberately passed by the
window twice. When she returned,

‘she looked grave.

“It looks like him. But honest, mis-.
ter, it’s been so long ago I’d hate to
say for sure.”

Holliday made for the door. Later,
at the murder scene, the officers talked
to Clayton a long time, ostensibly
about ways the killer might have ap-
proeci ed. the house. They watched

im closely, and they thought for the

‘first time he appeared nervous and
_ jittery.

That night Nixon returned from
Beaumont with word that Lem Grant’s
‘trip had been to the bank, but not to
pay off his mortgage. Instead, the
farmer had gone there to make one
last plea for an extension of time.

The next morning, the vacationing
cab driver arrived home and went di-
rectly to the sheriff’s office. Holliday,
by pre-arrangement, had brought
Clayton Rushing down from Burkville
and, while the cabbie watched from
Pace’s window, engaged him in con-
versation outside..

The taxi driver took one look at the
tall, thin-nosed farmer, then turned to
the sheriff. .

“That’s him,” he said. “I’d know
him anywhere.”

Holliday was elated on hearing the
news. His first impulse was to arrest
Clayton at once. But on second
thought he decided to bide his time.

“I’m convinced: he did it,” he told
Pace. “But he’s a cool customer. He’s
smart enough to know that buying

doughnuts and riding in a cab is proof
of a lie but not proof of murder. We’re
sunk unless we trap him into a con-
fession. I don’t believe we can do
that until we get more evidence. What

puzzies me is: how could he have kept ~

his clothes so clean?”

The sheriff took several long drags
on his pipe.

“Maybe he put overalls on over his
clothes—for the butchering—and took
them off afterwards,” he suggested.

Holliday jumped up. “That’s a swell
idea,” he exulted. “Maybe he even
bought the overalls here!”

HILE Clayton waited in an outer

room, the captain made a hurried

canvass of dry goods stores and
haberdasheries in town. Fifteen min-
utes later, in McMaster’s store, a clerk
who had been absent when the officers
had visited the place two days before
spoke up quickly.

“I sold a pair of overalls to a
stranger that night,” he said. “He
came in early and looked at them and
came back an hour later and bought
them, Yes, he was tall and thin and
had on a brown pin-striped suit.”

Holliday waited to hear no more.
He set his trap. Arnett and Tisdale,
the state technical experts, who had
been staying in Jasper awaiting fur-
ther developments, were summoned.
He stationed them in the Rushing
house and then accompanied by Mid-
dleton and Pace took Clayton to the
murder scene. As they stepped inside
the door, the captain turned to the son.

“We've solved this murder, Clay-
ton,” he said. “The killer came ‘to
Jasper Saturday evening dressed in
street clothes. He went to McMaster’s
store, bought a pair of overalls, put
them on and went to the bakery and
bought two dozen doughnuts.”

Clayton’s head snapped up suddenly
at these words.

“Then he came out here,” Holliday
continued. “He didn’t want to wake
up your folks, so he climbed in the
kid’s window. He was eating a dough-

nut at the time, and he got so stirred

up at the thought of murder that he
put half of it uneaten on the chair be-
side Woodrow’s bed.”

Clayton’s lips tightened at this.

“After he killed them, he took their
money, went downtown and took a
taxi to Newton—it cost him three
bucks, and he squawked about it,” the
captain went on. “He thought he’d
committed the perfect crime. What
he didn’t figure on was—”

“Tisdale!” Holliday called at this
point. .

The fingerprint man appeared in the
doorway. ;

“Tisdale,” the captain ordered. “The
killer came in the window in the boy’s
room and left some fingerprints on the
sill. Use that new method you have
developed to bring them out.”

The blood drained from Clayton’s
face. His eyes stared at Tisdale’s re-
treating form as though it were a
ghost. He looked wildly at Holliday
and Pace, whose eyes were fixed upon
him in cold accusation.

Suddenly a sob escaped him.

“You've got me! I did it!” he
shrieked, “I killed them!”

Taken to the office of District At-
torney Robert A. Hillin, Clayton Rush-
ing signed a complete confession.

“Mama woke up when I climbed in
the window,” he said. “I told her I
wanted to spend the night and hadn’t
wanted to disturb them. She told me
to sleep with Woodrow. I got in bed,


and after a while I got up, took two _ his house and pointed to a spot beneath The next day, in a packed and silent “eal
flatirons, and went into Dad and a pine bough. i courtroom, he heard himself con- r
Mama’s room. I don’t know which of “The money’s buried in a tin can, demned to death by the jury, which t
them I hit first, because I swung first right there,” he said. was out less than 12 minutes. The ver-
with my right and then with my left Holliday and Pace dug it out with dict of guilty without recommendation Vv
hand. their hands. In it were four $100 bills, for mercy had made the death penalty had cor
“Then I took one of the flatirons and two $50 bills, 11 twenties, 9 tens, and mandatory. Hard
went into Woodrow’s room. He was two five-dollar bills—$820 in all. Less than an hour after he had been short
still asleep, so I hit him. Then I got He had burned up the wallet, the returned to jail, Clayton ordered four about t
my father’s billfold out of his pants money sack, and his overalls in the sacks of doughnuts brought to his cell. isn't né
and pulled a money sack off of mama’s stove, Clayton said. He will not have long to indulge this tell y
nightdress.” The son’s confession completely craving. His will ,be another, more stuff
He then related how he’d gone to cleared Lem: Grant and Dave Rogers gruesome distinction: the first Jasper do the
Newton by taxi, mingled with his of all suspicion, and the hunt for the County prisoner to die in the electric cross.
friends, attended the show, and then latter was immediately abandoned. chair since that method of execution once—ai
driven home. He had come to Jasper Justice moved swiftly for Clayton replaced hanging in the state of Texas. I didr
by bus from Newton, he said, and this Rushing. Brought to trial January 22, smiled,
was later confirmed by the driver who — 1948, in the District Court in Jasper Eprror’s Nore: the names of Lem upstairs
very easily picked him out of a police before Judge F. P. Adams and a jury, Grant and Dave Rogers are fictitious
line-up. the prisoner pleaded guilty as charged in order to conceal the identities of HE N!
The morning after signing his con- to the murder of his half-brother, innocent persons questioned or sought tic. I
fession, Clayton led the officers to a Woodrow Rushing, and_his parents, by the police during the conduct of the didn’t
pasture about a quarter of a mile from Mr. and Mrs. Elbert J. Rushing. investigation. wasn't 5
\ ; anyway
done th
‘ lot of cash to run a twenty room eeshiian
y ouse.” SU
HEAD QUARTERS By Mat paused to study the effect the bles
FLASH GUN GIRL words were having on me. But I with -a
shar ae ie for him to continue. eects
DETECTIVE CONTINUED FROM PAGE 27 this world Themselves” and thei watts
f amilies—and -they like to have their _
pictures taken. That’s of course if they and to:
don’t have to pay too much to get noticed
them done.” didn't k:
: : cial set
that goes with that sort of thing—and Mat said. “You went to a photography aly phir uld senborg ere fro too mu
a not-too-bad table. school. I knew from the day you and take pictures of the family set-u happy |
After a cocktail and a couple of walked into the club that you knew _ and’ ‘case’ the joints with _— for too :
dances, Mat got down to business. He your stuff. That’s why I wanted to camera,” I said y ITsaw?
knew I was in a receptive mood. He know you better. That’s why I didn’t Mat smiled. “I always knew you pleased
knew his women. He also knew much approach you on the small time black- Were a smart gal,” he bere y Then
more about my financial condition mail racket I had a finger in there. I There was a slight airy ‘gle within had set
than I suspected. had bigger things in mind for you. I me My early trainin vs heen the ave
“You-know I do all right in this knew that sooner or later you’d get pretty aren: ted Work he Span look-ou
town,” he began. thrown out of the club. In the mean- your nose pm Don’t get in ticle. rose to
I had to admit that for a country time I figured you'd be getting a little these were the ‘thin 4 1 had been tuce pat
boy from the Kentucky hills he was wiser to the ways of this town.” taught. But how didatent Thad found whole |
holding his own. “You also knew that a few weeks ite” The cocktails were assertin raver
“Youre a smart gal,” he continued. out of work would make me hungry themselves too & co
“I like the way you work. And I hap- for a little folding money,” I added “You'll be taking no chahces,” Mat ni
pen to know that your income at pres- when he paused. assured me. “I’ll furnish the cash to as
ent isn’t a drain on Fort Knox.” “You're so right,” he chuckled. open Up a Fifth Avenue offic You'll It ma
I had to smile. “You're so right,” I I waited for him to continue. fib in the no a pier sr tire day
said. “Are you ready for the pitch now?” You’ll take their pictures for chgnily the hor
Mat was drinking doubles, and his he questioned. Pp Batty would ¢
sian A : . less than they can have them taken
tongue was beginning to loosen up. I’m sick of photographers trying to }y anybody else. They'll get thei photog:
“You remember that little misun- paw me when . go out on a legitimate pe ce Agence age oll S a borin graph t!
derstanding that got you and the modeling job,” I said. “And I’m sick of pret Netagranhie e4 nat 7 th erness.
other girls thrown out of work at the being a good girl in a bad town—and ca Bg k ore * y eh Rsett room, or
club?” he asked. I’m sick and tired of being broke all op uturn. ‘the negatives I didn't :
I said I remembered too well. the time.” at Tae Penta pers ae to the aes a hut
“P’}] tell you something about that,” “All right,” Mat assured me in his Vou handed fg Macy Some a. rs ae . ea
he said. “Maybe I shouldn't. But I smooth manner. “You're the gal for | Soba a tat be wey.” si sae aad thst room, e.
have a feeling I can trust you. I think e.” Thad to admit it y: iat tinh atoot when]
you’ve smartened up a lot.” The cocktails had given me false “y Se a 1 eine e ae th . know al
He paused and took a long swig courage, too. I liked the way Mat t +3 mand even know who does the occupant
from the glass before him. dressed. I liked the sleek gowns on #° apron ap Mat continued. ‘“"The one. day
““T was in on that,” he continued. “I the chic females who frequented the rst you know about it will be when one day
was in on that, and I’m in on a lot of ‘ Club Soirée. Yes, I was ready for the ck oe be a copy of your favorite delivere
other things in this town. That’s the pitch. ioe eed ott one ie Snob family first to |
way it is here. You either play it Mat ran his tongue along his lips. ba re ec a lh 4 rst page. Everyb.
smart—or you don’t wear two hun- “There are a lot of people with real ” T Babe andle the payoff to agg
dred dollar suits or two hundred dol- dough in the suburbs of this town,” = ~anpiag : nished t!
lar dresses.’ he «began. “They live in big houses That’s it,” Mat said. Then he doing f
I wasn’t surprised—and I told him with wide, green lawns all around reached into his pocket and withdrew But the:
so. them. They drive around in long, black his wallet. It wasn’t a bulging wallet. photogr:
“Somebody wrote a book once,” he cars with a snobbish chauffeur at the Mat didn’t carry that kind of money. ting a b:
said, “He called it, Only Saps Work. _ wheel. They have kids that go to pri- He took out five one thousand dollar costs of ¢
That guy was smart. Oh, it’s all right vate schools so they can grow up and ills. He slid them across to me. | Svervii
to work. Just be sure it’s the right be as contemptuous of the ‘poor This’ll get you started,” he said. ly as the
kind of work.” people’ as their parents and grand- I squeezed the currency tightly in the pap:
The liquor was beginning to tell on parents have been.” my hands. Then I stuffed it into my them on:
Mat. But he could hold it like the I wondered what in hell he was get- evening bag. : I had st
Southern gentleman he wasn’t. ting at. : It was all over that quickly. Mat there in :
I nodded my head in agreement. “They have big parties where the knew what he wanted. He knew how
“Youre a smart girl,” he repeated. try to outdo each other in showing o to get it. I had said yes without open- WEA
“And what’s more you're a_ better their jewels. And when they’re not ing my mouth. MA
photographer than you know.” wearing those jewels they lock ’em up The next thing I knew we were out
“T read a book,” I said. in wall safes. Sometimes they keep in front of the club. The doorman was I read
“You did more than read a book,” bonds and cash in those safes. It takes hailing a cab. ‘ how cleve

~

TORT TT eT

a i a " it Rane: cea es


So ee ce

eee

RUSHING, Clayton, white, elec. TH (Jasper) March 28, 1948.

STARTLING DET

VE TY
doy J.

VE, October, 1948

T WAS an ordinary Texas
I pig that led to the discovery
of the murders. And, in a
way, to their solution, too. He was a
mean-eyed porker, lean and hungry-
looking. And he got into trouble
when he turned up in a pigpen that
didn’t belong to him.

The first time Claude Eldridge
found him there, greedily chewing up
his own pigs’ feed, he just shooed him
out. Eldridge recognized the pig as
belonging to'El Rushing who occu-
pied the adjoining farm.

But when the pig came back next
evening, leaner and hungrier and
meaner than ever, Eldridge lost his
patience. ‘Swear I can’t figure out
what’s got into El Rushing,” he told
his young son: “El’s always been a
good farmer and neighbor up to now.
But if a man can’t take care of his
own pigs, he’s got no right to have
em.”

AND THE

CACHE

BY TOM GERSON

“Woodrow Rushing ain’t been in
school lately,” the boy said. “Maybe
he’s sick.”

“You go find out,” Eldridge said.
“And tell El Rushing we'll give him
help if his boy’s ailing, but I’d thank
him to keep his pigs out of my pig-
pen.”

“Sure will,” young Eldridge said,
and ran off along the narrow path
that cut through a wood to-the Rush-
ing farmhouse,

When he came screaming back
along the lane, half an hour later, it
was completely dark. Claude Eldridge
was on the back porch washing up
for dinner and when he heard the
screams he ran out into the yard to
meet his son.

For a minute the boy couldn’t speak.
Finally he managed to get out, “Wood-

A ROAMING TEXAS PIG HELD A VITAL CLUE TO THE FAMILY MASSACRE

TRIPLE SLAYER

tere

row’s dead! I knocked . . . nobody an-
swered ... looked through the win-
dow into Woodrow’s room and saw
him lying on the floor with his head
bashed in!”

“Where was El and Mrs. Rush-
ing?” the father asked.

“Nobody... there...”

Eldridge told his son to go in and
get his supper and then, picking up
a lantern, set off down the lane at a
fast pace.

It was even worse at Rushing’s than
Eldridge had feared. After flashing
his lantern through the windows and
seeing what was inside, he hurried
to the nearest telephone to call the
sheriff at Jasper, the county seat.

Jasper County lies in the eastern-
most bulge of Texas just a few miles
from the Louisiana border. It’s fer-
tile pine-woods country, on the edge
of the wild Big Thicket area. They
havea saying in Jasper County, “Folks

An entire household was wiped out
when the roving terror struck one
night in this lonely farm : dwelling.


eo

that live here like it, and the ones that
don’t, move away.”

Sheriff R. C. Pace was tilted back
in a swivel chair at his office that Sat-
utday evening of December 20, 1947,
when the ringing of the phone inter-
rupted his thoughts of the approach-
ing holidays.

Eldridge’s voice crackled over the
wire. The whole Rushing family was
wiped out, he said; Rushing, his wife
and their young son—all three of
them lying in their lonely farmhouse,
murdered. “And Sheriff,’ he added,
“I couldn’t get in. Both doors are
locked from the inside!”

“Get back there and wait,” Pace
instructed. “I’ll be right out.” The
thin officer’s previous calm had dis-
solved into prompt, decisive action. It
took him no time at all to notify the
coroner and the nearest Texas Range
station. :

Eldridge met the car as it swung
into the rutted drive beside the un-
painted, clapboard dwelling. Two or
three neighboring farmers were al-
ready there. News travels fast over a
rural party-line phone.

Pace posted one deputy at the car
with orders to keep everyone except
officials away from the immediate vi-
cinity. Then he, Eldridge and the
other deputy approached the house.

Eldridge quickly told how the dep-
redations of Rushing’s pig had led to
discovery of the murders. ©

“Pig, eh,” Pace muttered. “That’s

curious.‘ You tried both doors and
found them bolted from the inside?”

The farmer nodded.

“Then the killer must have left
through a window,” the sheriff de-
cided. “We'll break down this back
door. It looks pretty flimsy.”

The door splintered quickly. In a few
moments the three men were stand-
ing in the kitchen. Pace noted that
there were remnants of food on the
table, which was set for three persons.
Except for the unwashed dishes, the
room seemed to be in perfect ordgr.

“El... El and his wife are in the
side bedroom,” Edridge whispered.
“The boy is in a little room off the
parlor.”

PAcE stepped to the bedroom door

and beamed his flashlight inside.
The light slid along a low, slanted ceil-
ing and over an iron bedstead which
held tumbled sheets and_ blankets.
Hanging face down over the edge was
the night-gown clad body of Mrs.
Rushing. On the floor nearby was her
husband.

Both had been viciously beaten
about the head and shoulders. The
man’s right arm was stretched toward
the woman, in what appeared to be a
final, futile gesture of protection.

Despite his years of experience with
crime, the tall sheriff shuddered. He
had known Elbert Rushing and his
attractive, 50-year-old wife as quiet,

The robber, at right, was trapped because he showed more regard for animals
than for humans. Second from left, below, he leads officers to the spot where
he hid part of his loot. Sheriff Pace, who put two and two together to solve
the apparently clueless case, is kneeling at the tree stump cache of murder gold.

respected members of the community.
They were the last people Pace could
imagine anyone wanting to kill.

Squaring his shoulders, the sheriff
entered the rodm and examined it
briefly. Clothing lay neatly folded
over two chairs. There were no indi-
cations of a struggle. Evidently the
killer had crept to the bedside of the
71-year-old farmer and his wife while
they were. sleeping and attacked with
such deadly speed that they had little
ot no chance to defend themselves.
Their wounds indicated a heavy, blunt
instrument had been used in the double
murder.

Swinging the beam of his flashlight
to a plain chest of drawers which was
the only other article of furniture in
the room, Pace found the murder
weapon. It was an_ old-fashioned
flatiron. Black stains were mute evi-
dence of the use to which it had been
put.

With a last glance at the grim
tableau, the sheriff left the room and
walked through the cluttered parlor
to the son’s bedroom.

There the slight body of 11-year-old
Woodrow Rushing lay near his nar-
row cot, face and head crushed almost
beyond recognition. As in his parents’
room, nothing appeared to have been
disturbed.

Pace’s lean face was set in grim
lines as he returned to the kitchen.
“It’s triple homicide,” he said. “And
it happened. several days ago. When

Inves
Sheri:
Capt.
the f

did y
Eldri

Th
two |
wasn

assist
enter
“B
let's
“Figt
photc

cattle

finis)
been
more
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away
Ss
Stri
ner
brus’
stret

D:

embers of the community.
che last people Pace couid
one wanting to kill,
his shoulders, the sheriff
room and examined it
thing lay neatly folded
airs. There were no indi-
struggle. Evidently the
ept to the bedside of the
armer and his wife while
eping and attacked with
speed that they had little
e to defend themselves.
s indicated a heavy, blunt
id been used in the double

he beam of his flashlight
st of drawers which was
r article of furniture in
ace found the murder
was an old-fashioned
2k stains were mute evi-
ise to which it had been

st glance at the grim
leriff left the room and
zh the cluttered parlor
-droom.,
ight body of 11-year-old
shing lay near his nar-
nd head crushed almost
. As in his parents’
eared to have been

face was set in grim
turned to the kitchen.
nicide,” he said. “And
veral days ago. When

Investigating officers, including Texas Ranger Dick Middleton, at extreme left, and

Sheriff Pace, at far right, ex

e the bloodstained bed in the house of death. Ranger

Capt. Roscoe D. Holliday took the facetious advice of a poker player and finally made
the free roaming pig tell who was the triple slayer of the pine woods country.

did you last see Rushing?” he asked
Eldridge.

The farmer said it had been at least
two weeks. ‘My son says El’s boy

‘wasn’t in school last week. Maybe

that’s when . . . when it happened.”

“Could be,” Pace replied. He dis-
missed Eldridge, thanking him for his
assistance, just as the county coroner
entered the kitchen.

“Brought along a man from Mal-
let’s studio,” the coroner announced.
“Figured you'd probably want some
photographs, Sheriff. How bad is it?”

“Three of them. Skulls crushed like
cattle in a stockyard.”

The medical man whistled. “Why ?”

“Don’t know yet. Looks like revenge
—or the work of a maniac. But it could
be robbery. I recall hearing rumors
that Rushing didn’t trust banks, kept
his money here.”

Pace directed the cameraman while
the coroner made a preliminary ex-
amination.

“Can’t tell much,” he repotted after
finishing the grim task. “All three have
been dead at least three days, probably
more.”

“You'll hold an autopsy right
away ?”

“Soon as we get them in to the
Stringer funeral home.” As the coro-
ner spoke, ambulance attendants
brushed past with a sheet-covered
stretcher.

Darkness made a thorough search

of the grounds impossible, so Pace
decided to postpone further investiga-
tion until dawn and the arrival of
technicians from the Texas Ranger
station.

But the sheriff’s sleep was short.
It was still dark when Capt. Roscoe
D. Holliday of the Rangers arrived,
accompanied by Dick Middleton, a
senior ranger, and a group of techni-
cians including Jack Mercer, finger-
print expert, and Joel Tinsdale, chief
photographer.

"TBE sheriff outlined the facts in a
few phrases as the officers sped
toward the scene of the crime. After
a few hours of intensive work, the
pattern of the brutal murders began
to emerge. Fingerprints: on the glass
and frame of the window in Rushing’s
bedroom indicated how the killer had
departed. Unfortunately, Mercer an-
nounced, they were smeared beyondthe
possibility of positive identification.

Prints on the eating utensils cor-
responded with those of the Rushing
family, eliminating the possibility
that the killer had been a dinner
guest. No footprints or tiremarks were
found outside the house.

As soon as the fingerprinting was
completed, the officers began a thor-
ough search for Rushing’s reputed
cache of gold. Holliday made the dis-
covery—a hollowed-out rectangle in

the parlor wall behind a picture. The
spot was empty, but a pattern in the
thick dust told the story. The hiding
place had held a small box which has
recently been removed!

“Guess this settles the question of
motive,” the captain remarked.

“Settles something else, too,” Pace
added. ‘The killer must have been
mighty familiar with Rushing, to know
where he kept his money. Otherwise,
he’d have ransacked the place, trying
to find it.”

“That fits in with the general setup
here,” Holliday pointed out. “We get
a picture of a family that’s had supper
and gone to bed. Maybe they’re asleep,
when somebody crawls in through a
window in their bedroom. Then he has
to find the flatiron and attack them.
Could he do all that without awaking
them ?”

The captain paused, then answered
his own question. “I don’t think so.
They knew him well enough to let him
in during the evening, but, according
to the evidence of the dishes, after they
had eaten supper. And sometime later
that night, after they’d gone back to
sleep, he murdered them.”

Pace rubbed his long chin. “Sounds
reasonable,” he agreed. “When we
check Rushing’s relatives and friends
we might get a lead. But I think we
ought to look over the barn before we
leave here.”

[Continued on page 54]

33

2 sites catia, > NC.

a

® nurder. Judge

tenced him to
-parate counts.
out a sentence
ner.

id in the dead
ificance, Shore
e to determine
Phillips picked
bedroom table
4 time.

ictittous to protect
‘ly involved in the

going into the
out,” Holliday

in line. “Yeah.
Thicket like a
1 who know it
‘r out of there
time!”

day evening, a
iggled men and
emerged from
: Forder in their

‘y, stooped man
aws and shifty
~ “ds lowered

into Pace’s

up at once,
aic you after,
this, Sheriff?”

told already,”

’s leathery face.
ething about El
-and good rid-
> tight with his
z to do with it.”
-ered. “Someone

2 word. ‘He just
ole for me. He

ek ago Saturday

a keen glance.
ned, huh? Well,

e posse stepped
wallet to Pace.
ve caught him,

et open. It con-
all bills.
order said unex-
all-night poker
id hit it lucky.
s."" He gave the
cal men.
Pace said. He
e and, while he
o get his number,
iestioning. “Why
it Clayton Rush-

order came back.
I worked for his

He had an old .

zy about. Caught
its tail. He was
vy who don’t care

e sure loves

telephone,
sheriff. We got
he was with you
night when the
‘d.... Yeah....
He put down the
» the suspect. “He

says you're clear, Forder, but I'm- holding
you a little while until I check further.”

At the door Forder paused. “Say,
Sheriff. Lhe boys told me Rushing’s pig
first sprung this case. That right?”

“Yeah,” Pace said heavily. “So what?”

“Well I got an idea how you can solve
it—ask the pig!” :

“Wise guy,” Pace muttered as the door
closed.

For a long moment Holliday didn’t say
anything. Then, “Maybe he’s not so
dumb at that. This pig business has been
bothering me all along. Maybe we should
ask the pig!”

Pace grabbed his hat. “Come on!”

When they reached the farm, Pace led
the way to the pigpen beside the barn.

“Remember the setup when we were
here before?” he asked.

“Sure,” the captain said. “There was a
bag of hog feed open in the barn. Just a
little bit gone. The pigpen was empty.
The pig was rooting around outside.”

“Right,” Pace said. “And the gate was
closed! I opened it to let the pig in. Now,
let's go back a little. On Saturday the
thirteenth, Rushing bought hog feed in
Jasper. Came back out here, fed the pig,
had supper, went to bed. That night the
murders occurred,

si HE next day it rained heavily; re-
member we found no footprints or
tiremarks around the house? But, now
that I remember, when I let the pig in
the pen, I noticed where the sagging gate
had gouged the dirt. That must have been
done after the rain!”

The sheriff rubbed his chin. He felt he
was right on the track of the killer. “That
pig didn’t turn up at Eldridge’s farm until
almost a week after the murders, He was
lean and hungry by then. Captain, some-
body came back to this farm several days
after the killings and let that pig out!”

He paused. “The question is who, and
why?” ;

Holliday’s face was grim. “I think I
know who,” he said slowly. “And why,
too. But there’s one thing I want to check
on, first. Let’s drive back to Jasper.”

When the two investigators returned
to headquarters, the captain made several
long distance phone calls. Then he went
into Pace’s office. “I was right,” he said.

Pace looked at him hard. “Clayton
Rushing,” he said.

“So that’s how you figured it, too,”
Holliday said.

“There wasn't any other answer,” the
sheriff said. His face was tired-looking.
“When Forder said that Clayton liked
animals better than people, that was the
tipoff. Clayton could kill three human
beings, then worry about a pig starving
to death.

“I didn’t want to believe it, though,”
he added; “a man murdering his own
family.”

Holliday nodded. “I didn’t want to
believe it, either. That's why I phoned
Sheriff T. S. Hughes, over in Newton
County. He checked up and found out
Clayton just bought a new house, and
paid cash! Clayton was borrowing money
a month ago.”

Sheriff Hughes placed Clayton Rush-
ing under arrest and brought him to
Jasper, where he quickly made a full con-
fession of the triple slaying.

He said that on that night he arrived at
the family farmhouse late and asked to
stay overnight. In the middle of the night
he got up to get a drink of water and
stumbled over the flatiron. Then, he
claimed, he first got the idea of murder.
After dispatching his half-brother, step-
mother and own father, he took the
money from the cache behind the picture
and left by way of the window. He figured
leaving the doors bolted on the inside
would divert suspicion from an outside
slayer like himself.

When the deaths were still undiscov-
ered several days later, he related, he
began to worry about the pig, which
he knew was locked in the pigpen. So he
went back to the farm one night and let
the animal out where it could forage for
food. “If I hadn’t done that,” he said, “I
might of gotten away with it.”

Following his confession Clayton Rush-
ing, who had more regard for animals
than for humans, led Sheriff Pace and
other officers to a stump where he had
hidden $820 of the loot from the cache of
gold behind the picture.

Clayton Rushing was indicted for the
three murders and on January 22, 1948,
he went on trial for the murder of his
half-brother, Woodrow. The next day the
jury returned a verdict of guilty without
recommendation of mercy, making the
death sentence mandatory.

Clint Forder, of course, was cleared of
any implication in the crime and released
with police apologies.

(The name Clint Forder is fictitious to protect

the identity of a person innocently involved in the
investigation.—The Editor.)

BLONDE

BEAUTY AN
THE ~

TATTOOED
BRUTE

(Continued from page 25]

from the field. “We'll start asking ques-
tions.” he said. “Someone may have
heard her screams or even seen her
assailant.” .

The newspapers featured a picture and
description of the unfortunate girl. The
local radio station cooperated with Chief
Christman’s request to broadcast a de-

scription of the unidentified victim every
hour on the hour.

By nightfall close to one hundred per-
sons had paraded through the makeshift
morgue, and still there was no hint to the
girl’s identity.

The investigation was practically sty-
mied, too, in other directions as Sheriff
McElroy reported that no one living in
the murder area heard any screams during
the night, nor had anyone noticed any-
thing unusual going on.

Christman was working on a decrip-
tive circular, when Patrolman Harold
Markham entered. He was accompanied
by: a tired looking, sad-eyed man. “The
girl,” Markham said softly, “is Thelma
Harger, his daughter.”

Christman looked up. “I’m sorry,” he
said sincerely.

“My daughter,” the man said bitterly.
“Thelma Harger Anderson.”

“Anderson?”

“She was married,” Mr. Harger ex-
plained. “It was about five months ago.

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55

room where Mrs. Phillips was in bed.
Tommy said he then shot him again.

His mother got out of bed, then, and
hurried toward the kitchen telephone. As
she went through the door between the
kitchen and bedroom, Tommy Lee shot
her. When this didn’t stop her, he shot
a second time, just as she was picking up
the telephone to call the police. He ar-
ranged the rifle in an attempt to make
it look like murder-suicide, then fled in
the Ford, picked up Ann Donney and
headed for York.

The confessed slayer stated, during

subsequent questioning, that for some
time he had been hiding his clothes in
some nearby woods, preparing to run
away and get married if his parents kept
refusing him their permission.

Ann Donney was cleared of any com-
plicity and was released. Tommy Lee
Phillips was promptly indicted. The trial
started March 8, 1948, in Judge C. H.
Clement’s court.

During the trial, two confessions made
by Tommy Lee Phillips were admitted
as evidence. Three days later, on March
11, the jury found the student-musician

guilty of second degree murder. Judge
Clement immediately sentenced him to
25 to 30 years on two separate counts.
Phillips will have to serve out a sentence
of 50 to 60 years all together.

If the doll’s dress found in the dead
man’s hand bore any significance, Shore
and his aides were unable to determine
it. It is now believed that Phillips picked
it up unconsciously from a bedroom table
as he was shot the second time.

(The name Ann Donney is fictitious to protect

the identity of a person inocently involved in the
investigation.—The Editor.)

TRIPLE
SLAYER AND
THE CACHE

OF GOLD

[Continued from page 33]

Like the house, the barn apparently had
not been disturbed. The investigators
noted a bag of hog feed, open, from which
a small amount of feed had been removed.

At one side of the barn there was a
small, fenced-in pigpen with a feeding
trough. The gate leading into the area
was closed. ‘Outside it, Rushing’s pig
rooted at a few sparse clumps of grass.

Pace swung open the sagging gate to
let the pig into the pen and noticed as he
did so that the bottom of the gate rubbed
against the ground. It had cut a fairly
deep, fresh-looking gouge. He was to re-
member this, later.

Returning to Jasper, the investigators
received a report from Dr. A. J. Richard-
son, Jr., who had conducted the autopsies
at the funeral home. He put the triple
slaying at about a week before.

A little later, Mercer turned in a disap-
pointing report on the flatiron. It was the
murder weapon, all right—but the killer
had been smart enough to wipe it clean of
fingerprints.

“We didn’t get much of value out
of those reports,” Holliday remarked
gloomily. ‘Now the work begins.”

Sheriff’s deputies had already checked

into Rushing’s family and compiled a long.

list of relatives.

The dead man had been married three
times and eight children, two daughters
and six sons by his first two marriages,
survived him.

Only one son, Clayton, of adjoining ;

Newton County, had seen his father in
the immediate past. When questioned by
the officers, he said he had been at the
farm two weeks before, on.Saturday, De-
cember 6. Clayton, a gaunt, hollow-
cheeked ex-soldier of 26, was visibly
shaken by the tragedy.

“Did anything unusual happen while
you were there?” Pace asked as gently as
possible. “Anything that might indicate
they feared trouble of some kind?”

Clayton ran a heavy, work-seamed hand
across his forehead. “Don’t seem like it,”
he said slowly. “Unless .. .”

Holliday rocked forward in his chair,
“Unless—what?”

“Well,” Clayton said reluctantly, “I
don't reckon it could of had anything to
do with the murder, but Lessie—that’s
Pa’s wife, my step-mother—was a pretty
handsome woman for her years and
every once in awhile some fellow younger

54

than Pa would set his cap for her, Lessie
didn’t strive for that to happen, mind—
but it did happen once or twice and it
made Pa awful sore. Well, from what I
could gather, something like that was
going on when I was visiting there last.
With some hired hand Pa had had some
time back.” .

“His name?” Holliday asked promptly.

“Clint Forder.”

The two detectives exchanged a quick
glance. Holliday, who seldom worked in
Jasper County, had heard of Forder and
to Pace the man’s name was synonymous
with nuisance. For 40 of his 50-odd years
Clint Forder had been a constant thorn in
the side of law enforcement agencies.

‘“Let’s not jump at conclusions,” Holli-
day warned. “Even if Forder was inter-
ested in Mrs. Rushing, that doesn’t mean
a motive for murder.”

Whatever its faults, the Forder lead was
the best that had developed that far. Pace
immediately dispatched two deputies with
orders to pick up the man at his little
house on the outskirts of Jasper.

Holliday and the sheriff continued to
question relatives of the victims, and
other townspeople.

One important fact which emerged was
that the sum of money involved in the
theft was very large, by local standards.
Estimates of Rushing’s relatives ran from
several hundred to several thousand dol-
lars, representing the victim’s life savings,
which he had never trusted to a bank.

8 ee last person known to have seen

Rushing alive was a local feed

merchant, who said that on Saturday,
December 13, the farmer had come into
his store and purchased a bag of hog feed.

Young Woodrow Rushing’s teacher
said that the lad had been in school on
Friday, December 12, but not since.

“From the look of it,’ Pace summed
up the findings, “the Rushing trio might
have lain'in that house another month be-
fore anybody began to worry—if it hadn’t
been for that pig.”

“Yes,” Holliday said thoughtfully, “that
pig. If that pig could only talk.”

Pace smiled, but later on he remem-
bered the remark, And then it didn’t seem
at all amusing.

The important thing at the moment
was to figure out exactly when the Rush-
ing family had been murdered, and the
detectives were able to do that to their
complete satisfaction. “It has to be some-
time after the Saturday night meal De-
cember 13,” Pace said.

“Tt ties in with the feed bag on the barn
floor, too,” Holliday added. “Rushing took
out just enough to feed his pig Saturday
evening, and probably figured he’d feed
him again Sunday before church and then
put the bag away.”

Speculation ended temporarily when
Pace’s deputies returned from Clint Ford-
er’s empty handed. The suspect had left
town several days before after telling ac-

- pectedly.

cv

quaintances that he was going into the
Big Thicket after game.

“A good place to hide out,” Holliday
commented briefly.

Pace’s mouth was a thin line. “Yeah.
And Forder knows the Thicket like a
book. But we’ve got men who know it
better. We'll have Forder out of there
within forty-eight hours’ time!”

About 8 o’clock Tuesday evening, a
small troop of tired, bedraggled men and
triumphant bloodhounds emerged from
the Big Thicket with Clint Forder in their
midst.

Forder was a short, wiry, stooped man
with bushy black eyebrows and shifty
black eyes. He kept their lids lowered
when his captors brought him into Pace’s
office in Jasper. But he spoke up at once,
and truculently. “What are you after,
bringing me in here like this, Sheriff?”
he demanded.

“I reckon you’ve been told already,”
Pace replied shortly.

A sneer creased Forder’s leathery face.
“Well, they did say something about El
Rushing being done in—and good rid-
dance, I say, to a man so tight with his
money. But I had nothing to do with it.”

“No?” the sheriff countered. “Someone
says different.”

“Who”

“Clayton Rushing.”

“Him!” Forder spat the word. “He just

said that to make trouble for me. He
hates me.”

“Where were you a week ago Saturday
night?” Holliday cut in.

The suspect shot him a keen glance.
“So that’s when it happened, huh? Well,
I got an air-tight alibi.”

One of the men in the posse stepped
forward and held out a wallet to Pace.
“He had this when we caught him,
Sheriff.”

Pace flipped the wallet open. It con-
tained nearly $300 in small bills.

“That's my alibi,’ Forder said unex-
“T was in an all-night poker
game that Saturday and hit it lucky.
Cleaned out all the boys.” He gave the
names of half a dozen local men.

“We'll check that,” Pace said. He
picked up the telephone and, while he
waited for the operator to get his number,
shifted the tack of his questioning. “Why
did you say just now that Clayton Rush-
ing hates you?”

“Because he does,” Forder caine back.
“He hates me ever since I worked for his

old man before the war. He had an old .

mutt of a dog he was crazy about. Caught
me once tying a can to its tail. He was
fit to be tied. For a guy who don’t care
much for human beings, he sure loves
dumb animals.”

Pace spoke into the telephone,
“George? This is the sheriff. We got
Forder here. Yeah. Says he was with you
a week ago Saturday night when the
Rushings were murdered.... Yeah....
Okay, George, thanks.” He put down the
receiver, turning back to the suspect. “He

says you're clee

you a litt
At the
Sheriff. ‘I

first sprung on

“Yeah,” Pace

“Well I got:
it—ask the pig

“Wise guy,”
closed.

For a long rm
anything. The
dumb at that. ;
bothering me a
ask the pig!”

Pace grabbe:

When they *
the way to the

“Remember
here before?”

“Sure,” the «
bag of hog fee
little bit gone
The pig was r

“Right,” Pac
closed! I opene
let's go back
thirteenth, Ru
Jasper. Came
had supper, w
murders occur

“= HE nex:
member
tiremarks aro
that I remem
the pen, I noti
had gouged th:
done after the
The sheriff :
was right on tl]
pig didn’t turn
almost a week
lean and hung
body came bac
after the killin
He paused.
why?”
Hollic
know w
too. But
on, first. Lets
When the
to headquarte:
long distance
into Pace’s of
Pace looke
Rushing,” he
“So that’s
Holliday said.

(Cont

from the fielc
tions.” he s
heard her s
assailant.”
The newspz
description o:”
local radio st:
Christman’s :

.


1 oe 7 “a Q “i.Q
March 20, L19OLO.

|
|
| THE FLATIRON SLAYINGS
i
: MYSTIFY THE DETECTIVES

UNTIL A KILLER’S GREED

| BREAKS A PERFECT ALIBI

! Texas Ranger Captain Roscoe Holliday uncovered the one
| mistake the murderer made—haggling over a $3 taxi fare


There was $820 in the old farmhouse when man (r.) went
in. Before he left he took the money—and with it three lives

Hill Road but found no recent auto tire tracks or even
footprints in the pathway.

By the time Captain R. D. Holliday and Ranger Dick
Middleton of the Texas Rangers arrived from San Augus-
tine the sheriff and his deputy had called on the other
near neighbors, only to learn that no one had heard any
outcries or other unusual sounds from the Rushing home
at any time.

Early that night, Joel Tisdale, an identification expert,
and J. H. Arnett, a state toxicologist, were at the Rushing
farm to lend their services in the effort to solve the
multiple killings.

Tisdale soon reported that although the door to the
farmhouse had been unlocked someone—undoubtedly
the slayer—had recently entered the domicile through
young Woody’s bedroom window.

“I can’t lift legible prints,” Tisdale said, “but I can tell
that a man with big hands hoisted himself over that sill.”

In a mortuary in Jasper, Dr. Arthur J. Richardson Jr.
prepared to perform autopsies that Saturday night, while
the sheriff, Nixon and the Rangers worked on other an-
gles of the investigation.

At the store in town, Pace learned that Elbert Rushing
had been there on December 13th, had bought the food
itemized on the sales slip and had been driven home at
around 2 p.m. by the store’s delivery boy.

Captain Holliday and Ranger Middleton, in talks with
friends of the Rushings, discovered that they had failed
to keep an appointment to attend religious services with
another couple on Sunday morning, December 14th, and
that Rushing, for the first time in (Continued on page 74)

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51


74

eral nignt spots and tnen, nis money run-
ning low, cruised around looking for a like-
ly place to stick up. Seeing the lone light in
the Garden of Allah, set back amid its
shrubbery, he pulled into the side drive-
way, hidden from the street, leaving his
motor idling.

“I went in and asked the clerk for a pack
of cigarettes, asked him if he had change
for five bucks. He gave me the cigarettes,
then he opened the cash drawer—that’s
what I was waiting for—and laid three dol-
lar bills on the desk. While he was getting
the silver, I pretended to be fumbling for
the five-spot, and pulled out my gun. I
picked up the three bills and told him to
hand over the rest.

“He wasn’t fast enough. He looked over
my shoulder as though someone was
coming. I thought I heard a noise, and I
looked around. There was no one there.
When I looked back, this guy had his hand
under the desk and I thought he was reach-
ing for a gun. So I let him have it, four or
five times.

“I ran out and found my motor had died.
I held the wires together and started it
up, but it died again. I couldn’t wait to
ee it; I ran down the street and got
a cab.

That was the story, and it explained the
lapse of a cool-headed professional gunman
into a nervous amateur. Hill also filled in
details of his other crimes since he had left
Folsom, and taken together with the re-
ports from FBI and police files, his story
painted a lurid life history of crime that
started when he stole another boy’s piggy-
bank at the age of 10.

He was always in trouble as a boy in
Texas. When his family moved to San Ber-
nardino, California, he joined the Navy at
15, lying about his age. After a term in the
brig for stealing a lieutenant commander’s
car, and a year in Naval Prison for escap-
ing from the brig, he was given a dishon-
orable discharge.

Sentenced to six months for throwing a
rock through a garage window at night, he
escaped from the county jail, was recap-
tured and resentenced in 1934 to five years
in San Quentin for second-degree burglary.
In the penitentiary he got what amounted
to a college education in crime. On his re-

lease he went to Los Angeles, got a gun and
teamed up with a couple of kindred spirits
on a holdup spree. Driving the stolen
getaway car, Hill crashed into a truck, fired
a shot at two radio car officers and was
knocked unconscious and captured by a
citizen. In July of 1938 he was sent to San
Quentin for another five-year term, for
armed robbery.

Transferred to Folsom as a second of-
fender, Hill shrewdly behaved himself and
in October, 1940, was paroled to work in
Somerville, Texas. But the quiet ranch life
wasn’t for him. Shortly he hit the road,
bought a gun, stole a car and pulled a
string of holdups all the way from Texas to
California. This time he operated alone. He
pretended to settle down for a while on an-
other ranch at Paso Robles, but it was only
a blind. Every few weeks he made his hold-
up forays into Los Angeles. He had no girl
friend; most of the loot went into solitary
drinking sprees—and sport clothes.

In addition to the heist jobs detailed
above and many others, he admitted the
kidnap-robbery of a cab driver in San
Bernardino shortly before the Aldingez
murder.

That was the history of young Farrington

Graham Hill, wanton killer of the mild-

mannered German night clerk and the
jovial Las Vegas gambling cashier. Since
he had been captured in Nevada, he was
held there for the Buckwald murder, while
the California charge was held in abeyance,
since he could only be put to death once.

That should have been the end of it. But
the intense, restless young Texan was no
ordinary criminal, and additional chapters
in his career still remained to be written.
Held in the basement jail of the Clark
County courthouse awaiting his murder
trial, on the night of October 21st, 1942,
Hill took advantage of a 10-minute absence
of his guards to scramble up a ventilator
shaft, emerging in a deserted jury room on
the third floor. From there he lowered him-
self from a window by means of an insu-
lated electric wire, and he was gone before
they missed him. ©

He headed straight for Texas and
launched another holdup series in his own
unmistakable style. But within a few weeks
he was caught in El Paso and brought back

to Nevada in manacles and leg-irons. :

Still he wasn’t finished. On New Year’s
Eve, Hill and another prisoner snatched a
gun from a deputy, bound and gagged him
and left him in their cell. Gun in hand, Hill
led the way upstairs. The other prisoner
changed his mind and went back, but Hill
kept on going, right out the door.

This time he blazed an easy trail to fol- ©
low, but the law remained a jump behind
him. He stole a car and reached San Ber. -
nardino. There he held up a Chinese res-
turant, stole a trainman’s cap and over- |
alls and rode into Los Angeles on a freight. °
A string of further holdups followed, all

perpetrated alone, and with the same 38 ° ~:

taken from the jail guard.

It was March 4th, 1943, before they
finally caught up with him. Arrested on
suspicion of attempted auto theft by Con-
stable Lee Tribble of the small town of
Wasco in Kern County, north of Los An-
geles, his real identity unsuspected, Hill
pulled a hidden gun and tried to kidnap
the constable from the steps of the sheriff's
office in Bakersfield. But two deputies
spotted the act and overpowered him, and
this time it was all over.

As soon as his fingerprints identified him,
word was flashed to Los Angeles, and
Stromwall, Rombeau, Hubka and McGarry
sped north and brought him back in irons,
flanked by guards with shotguns.

Kept under 24-hour guard in a special ;
cell, he was held to answer for the murder
of Carl Aldinger.

The Garden of Allah was the scene of
film sequences when Hill reenacted the
murder for the benefit of an official sound-.
movie camera, with a detective playing the
part of the night clerk.

In a bid for leniency, Hill pleaded guilty
and threw himself on the mercy of the
court, weeping as he told his life story, be-
moaning the trouble and heartaches he had
caused his parents. But looking at the rec-
ord, Superior Judge Harold B. Landreth
was unmoved. On May 12th, 1943, he sen-
tenced Hill to death.

The State Supreme Court turned down
his appeal, and on January 28th, 1944, the
double killer went to his death in the gas
chamber at San Quentin. THE END

TEXAS MASSACRE

(Continued from page 51)

months, had not shown up at a weekly
auction held on Wednesday.

These two pieces of information, coupled
with the fact that Woody Rushing had
been out of school all week, and that
Rushing had not picked up his copy of the
Beaumont newspaper after December 12th,
satisfied the officers that the murders had
been committed on Saturday night or in
the early hours of Sunday morning.

The autopsy reports agreed with this
conclusion. They also revealed that young
Woodrow and his mother had not been
killed outright. The boy, Dr. Richardson
said, had remained alive for several hours
after the beating; his mother, Elbert Rush-
ing’s third wife, had lived for perhaps as
long as a day.

Rushing, known in his home community
as a quiet, thrifty man who lived very
plainly despite a comfortable income from
his stock buying ventures, had eight other
children besides Woodrow, two daughters
and six sons. Only one, 26-year-old Clay-
ton, lived in that part of East Texas, work-
ing on his father-in-law’s farm about 20
miles away, in Newton County.

A tall, raw-boned man, Clayton Rushing

took the news brought by the Rangers
very hard.

“I always told Pa he was foolish, carry-
ing big rolls of money on him,” the son
said.

“Rolls how big?” Captain Holliday in-
quired.

“Up to a thousand dollars sometimes,”
was the reply. “He didn’t trust banks, not
since back in ’32 when he got. hooked in
one that shut. Anyhow, he always said,
he had to have enough cash on hand to
deal at the stock auction sales. That’s
what’s behind this, the money he kept in
his wallet.”

There had been no wallet in the Rushing
farmhouse, and only a single $1 bill and a
small amount of change had been found.
Clayton said his dad habitually kept an
old wallet in his right hip pocket. The son
was sure there could be no other motive
for the three murders; he insisted his
parent had no enemies, had had trouble
with no one.

His father’s habit of lugging large sums
of cash on his person, the son revealed,
was rather widely known. Elbert Rushing,
at almost every auction sale he attended,
had been careless in exposing his thick
sheaf of bills in his wallet.

From Clayton, and later from other
stockmen in the district, the Rangers ob-
tained the names of Elbert Rushing’s busi-
ness associates, his closest friends and

others who were likely to be aware of his
dislike of banks. With Sheriff Pace and
Deputy Nixon, they set out to question
these people in search of a lead in the
mystery.

It was in these interviews that Pace and
Nixon heard from a farmer living on the
outskirts of Jasper that he had seen a man
walking up Spring Hill Road toward the
Rushing place on Saturday evening, De-
cember 13th. He could describe the fellow
only as tall and thin and wearing overalls.

“But he wasn’t from around this neigh-
borhood,” the witness said. “I’d have rec-
ognized him if he had been.”

Then, from another neighbor, the officers
heard that Jim Rafael, a young farmhand
from over near Newton, had visited Elbert °
Rushing a number of times in recent
weeks, and had been seen crossing a field ~
toward Rushing’s home at around dusk on .”
the Saturday night that the massacre of .'
the Rushing family was believed to have =.
occurred. 8

“Jim’s a kind of flighty young fellow,” . .~
Middleton and Holliday were told. “Had ~
an idea a while back, so Rushing said’
anyhow, he’d like to get into the stock :
buying game. I suppose that was why he .
was calling on Rushing so often. But it
takes a mite of capital to buy stock, and I. *
don’t guess an: ordinary farmhand could
scrape up the cash to get a start.”

Rafael was tall and rangy in appearance:


Officers examine bed where unsuspecting victims slept as flatiron bludgeoner moved in for the kill

OUNG KIM SAMPLE stood outside the dwelling on
the farm next to his dad’s, puzzled that he could
raise no one within.

“Woody!” he shouted again. “Come on out and get
over to our place and run your pink sow back home
where she belongs.”

There still was no reply from the unpainted, ramshackle
house. Kim edged around the building to the window
he knew opened from the bedroom of his chum, 1l-year-
old Woodrow Wilson Rushing. He raised himself on
tiptoe to peer through the pane.

Kim couldn’t figure it out. Woody hadn’t been in
school all week, and it surely wasn’t like Elbert Rushing,
Woody’s father, to let his livestock roam the countryside,
like the pig Kim had found foraging around the Sample
barnyard an hour earlier.

Certainly, the boy figured, if the Rushings had gone
away for a visit, they’d have made some arrangements
for their stock to be cared for while they were gone.
Moreover, Woody had said nothing about a week’s jour-
ney away from home, and such a venture would have

been so rare a thing that he’d have been bound to have
been talking about it a long time before his departure.

At first, Kim could see nothing in the gloomy interior
of the house. Then, shading the glass with his hand, he
made out Woody’s bed, with a chair beside it. At last he
saw the figure on the floor.

A moment later, the lad was legging it through the
belt of pines that screened the Rushing home from Spring
Hill Road, which led into the little city of Jasper, Texas,
a couple of miles away. Kim did not stop running until
he bolted into his own farmyard where Mike Sample, his
dad, was busy with Saturday’s chores.

“Over to the Rushings!” the boy blurted, panting for
breath. “Something’s happened, Dad! I looked through
the window and saw Woody on the floor, in an awful

‘mess of blood!”

“Blood?” his father echoed. “What in thunder you
talking about, boy?”

“Just what I saw,” Kim repeated. “Woody, on the floor
in his room, his head all bloody, and a big patch of it on
the bed.”

49


50

Sheriff Pace kneels dt spot where manacled suspect (wearing overalls) told search party he hid’ loot

”

“Come on along,” the farmer said, hurrying toward
the barnyard gate. ‘“We’ll see what this adds up to.”

One look through the window told Mike Sample his
son’s imagination had not run away with the boy. An-
other glance through the second bedroom window, showed
the nude body of Woody’s 71-year-old father twisted
atop the gore-stained covers on a white iron bed. Sample
called the police.

Half an hour later, Sheriff R. C. Pace and Deputy Tom
Nixon disembarked from their car at the foot of a narrow,
rutted lane which led in from the highway to the Rushing
home.

They found the door to the farmhouse unlocked. In
the first bedroom, they came upon the body of the little
boy, the head cruelly battered. In the second bedchamber,
they found two bludgeoned corpses.

Elbert Rushing was on the bed, and the body of
his wife was on the floor,, between the bed and the
wall. ;

The weapon used in the triple murders sat on the
bedroom floor. It was an old-fashioned flatiron, appar-
ently one of several which stood on a kitchen shelf.

The victims had been dead for several days.

“Killed sometime during the night,” the sheriff said.
“That much is plain from their clothing, or lack of it.
But what night?”

“And why?” Deputy Nixon wondered. “From the looks
of the place, you can’t figure a burglar’d be tempted to
break in here.”

“It must have been someone pretty familiar with the
interior layout of the house,” Sheriff Pace said. “He

knew right where to lay hands on that flatiron, most
likely in the dark.”

On the chair beside young Woody’s .bed, the officers
found the object that puzzled them most of all, a half-
eaten doughnut, now stale and hard.

“That doesn’t make sense,” the sheriff decided. “A kid
who takes a doughnut to bed doesn’t just eat half of it,
and we can be sure this boy was asleep when the killer
struck. Let’s hunt around the kitchen. I’m curious
whether there are any more doughnuts there.”

They found none. They did discover, in a box, how-
ever, two copies of the Beaumont Enterprise, one dated
December 12th, 1947, the other December 13th.

“One week ago,” Nixon observed. “That could have
been their last day alive.”

In the kitchen the two searchers also came upon a
sales slip from Clane’s General Store, also dated Satur-
day, December 13th. It listed several items of staple
groceries and some meat. The meat had been cooked
and about half of it eaten, and the remainder stored in
glass jars for future meals.

The livestock on the Rushing farm was in poor condi-
tion. Mike Sample said he’d guess the animals had been
foraging for themselves as best they could for at least a
week.

“And Rushing was a stock buyer who always took real
good care of his critters,” the neighbor said. “That’s why
I sent my boy down to see what was wrong when that
sow turned up at my place thin as a rail.”

Pace and Nixon searched along the lane which ran
through the pines almost a quarter-mile to the Spring


nearing the Rushing place on the evening
of the murders. Captain Holliday and
Ranger Middleton drove to Newton and to
the farm where Jim Rafael worked.

He was not there. He had quit his job
on December 13th, after an argument with
his employer, who gave him $75 pay com-
i: g to the young man and watched him
five off toward Newton in his model A
“ord.

“He’s got him a gal, over in Baton
“4 Rouge,” his ex-boss said. “Talked about
iz heading over there to get married.”

Rafael had left behind no papers, old
letters or other means of identifying this
girl. The farmer for whom he had worked
said Jim had spoken of her only as “Rosie.”

In Newton, inquiries about Rafael
brought out the information that the tall
farmhand had left his car in a local garage
at around 5 p.m. on Saturday, December
13th, for a minor repair job, and had re-
turned to pick it up at about 11 p.m.

“He was in an all-fired hurry then,” the
garageman said.

If Jim Rafael had traveled the 15 miles
to Jasper to see Elbert Rushing, how had
he made the trip if his car was in the gar-
age that night? A bus driver on the regu-
lar Jasper run remembered a man of his
description as a passenger on an early run
to the neighboring county seat, but none
of the drivers recalled having brought the
tall, thin man in overalls back to Newton.

Captain Holliday telephoned police in
Baton Rouge, 150 miles away, asking them
to try to locate Rafael there.

.“A tramp farmhand, skipping out of the
state,” Holliday said, “might pull anything
for a nice fat bankroll. He could easily
just have gone to Rushing’s to say good-
bye, then got the idea of robbing the old
man, and have returned after the family
went to bed. He’d been a fairly frequent
visitor. He probably had seen those irons

3 @. kitchen, and got one and went to

rk on the Rushings before he made off
rith Rushing’s wallet.”

There was, by the time the murder probe

was two days old, a second possible sus-
pect in the case.
: He was Howard Fox, another farmer in
* the community, a man who was known to
gamble a great deal, with the result that
he was so far behind in the mortgage pay-
ments on his farm that a bank in Beau-
: mont was on the point of foreclosing. ©

Fox had no really sound alibi for the
night of the slayings. He named several
- places where he had been in Jasper that
j night, but the witnesses whom he identi-
fied could not account for more than about
three hours of his time between 8 o’clock
°. and midnight that night.

: When, on Monday, the investigators
heard that Fox was going to Beaumont
‘the following day, they became extremely
curious about the purpose of this journey.

Was he traveling to the city to make a
mortgage payment? If he was, where had
the money come from?

Meanwhile, detectives in Baton Rouge
had traced Jim Rafael to a motel where
he had registered early on the Sunday
morning of December 14th. He had
checked out the following day and that
same afternoon had traded in his old Ford,
at a used-car lot, on a second-hand Olds,
ee he’d had to fork over $150 in
cash.

The Louisiana sleuths had been unable
* to link him with a girl friend in Baton
% Rouge, but said they would keep trying
’ to locate “Rosie” and through her, perhaps,
Ke rangy farmhand.

So far as the officers knew, Rafael had
nad only the $75 of his own when he left
Texas. Of that sum, he had spent $6 for
the repairs to his car, paying for the work
out of a new $20 bill.

Holliday and Middleton returned to

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Newton County, where Rafael’s employer
told them he had paid off his hand in small
bills, with no new $20s among them.

Since Clayton Rushing lived nearby,
the Rangers revisited him, inquiring about
the denominations of the currency his
father usually had carried. They found
the son at his home, a cottage near his
wife’s parents’ farm, having a late snack
in the kitchen.

“Sure, Pa always had a wad of $20s in
his roll,’ Clayton said. “I hear you're
lookin’ for Jim Rafael. He could be the
one you're after, all right. Always full of
get-rich-quick schemes, and I mind one
day he said to me my Pa was pretty fool-
ish, an old man like him lugging all that
money around.”

Leaving the cottage, Captain Holliday
was quiet, lost in thought, until he and
Middleton neared Newton.

“The living room set, back in young
Rushing’s house,” he said finally. “You
notice it, Dick?”

“looked like new,” Middleton said. “You
think it’s queer, the boy coming up with
new furniture right about the time his dad
gets robbed and killed?”

“Anything unusual is queer enough to
look into in a murder case,” Holliday said.
“And you surely noticed what Clayton
was wolfing down, out in the kitchen, when
we first walked in.”

“Doughnuts,” Middleton said. “A lot of
folks like doughnuts. I’m kind of fond of
them myself. But that half doughnut on

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the chair in the kid’s bedroom has bothered
me right from the start. Like the sheriff
said, a kid wouldn’t be likely to leave half
a doughnut like that. My guess is the
killer put it there. So anybody close to
the family, even Clayton Rushing, who
shows a liking for doughnuts, ought to be
checked out thoroughly, in my book.”

Clayton had given an alibi for the Satur-
day night of December 13th when the
officers first talked with him. He said then
that he had hitched a ride to Newton early
in the evening, had had a couple of drinks
in a local tavern, then had met four
friends, had gone to the late movie with
them and had ridden home with one of
the quartet after the show.

In a furniture store in Newton, Holliday
and Middleton learned that Clayton Rush-
ing had, indeed, spent $200 on new living
room furniture only the week before, a
couple of days after the murders.

“He gave a check for the full amount,”
the store manager said.

At the bank, the Rangers found out that
Clayton Rushing had made no deposit
since the date of the triple slayings. His
check for the furniture had been drawn
on funds he already had in the bank.

From his bank records, the officers saw
that he had made regular deposits over a
long period of time. They knew he had
a reputation as a steady worker, a man
who lived frugally and saved his money.
His bank balance was not out of keeping
with his income.

Clayton’s time the night of the killings
was accounted for by his four pals from
between 9:30 and 10 o’clock until 2 in the
morning. He had shown up in town, they
said, not in overalls but in a freshly laun- y
dered green sports shirt, a brawn jacket 5
and trousers. |,

“That alone,” Captain Holliday re-
marked, “should pretty well clear him.

75


uay night’ And, it he wasv¢
v had he left the scene be

ords had been checked in Jas
n to Newton had been reveale,
ht of December 13th. It was h
ff Pace remembered a man ‘wh

S an Jodependent cabbie on Sa

“@ ees was brisk, tha
e 3 nis part of the i ei

iscovered. —-
fer was now on the West Coa,
te was located by phone through,
sig sa as he had, indeed:
re trom Jasper to Newt :
ight of the murders. ee ies .
that not only was such a trip
> had had an argument with the’:
over the charge. The bill was’: 3

BEE Se

he added, wa
ell dressed. “I
nim again, th

oe to Jasper, the cab.
1own a photograph of Jim
si his head. J a
ze one. You parade eve .
t you’ve got in front of me?

| at Howard Fox, at two other »
whose records were blemished:
crimes, but none was the pas="
ad driven to Newton that Sat-

aw Clayton Rushing.
n, jhe said. “I’m not mistaken.
lan. =
could Elbert Rushing’s son be.
If he had Bladigaoned his faa .
'-brother to death, how had he” ©
9 appear with his friends in”
0 k the night of Decem-
h 3 od oe his clothing? -
ave been,” Captain Holl ay
he donned coveralls of sone vs
1 ree penn, and removed.’
stroye em after he killed.
and the boy.” a“
ashing was also identified by’
T as a passenger from Newton
e night of the triple crimes.:
> driver recalled, the suspect:
the bus clad in his brown suit
irt, and the driver could re-.
having carried no parcel. .
‘e and Deputy Nixon went.
nd began a canvass of stores ©
they found a clerk who had

f overalls on the night of the .. ©
ling the transaction, he said, ' |
tranger who bought the gar-

st made sure they would fite

~

t ciothing. se
dentified Clayton Rushing as®

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told young Rushing when he was arrested
and charged with the three murders.
“We’ve known from the beginning the
killer had to be someone very familiar
with the house where the slayings occurred.
We’ve believed right along he must have
been someone close to the family, some-
body the Rushings might even have known
was in the house. Most likely a guest.

“You got hungry for your father’s bank-
roll, Clayton. You sat there in your little
brother’s room, munching on a doughnut,
and suddenly you decided to kill for the
bankroll in your father’s pocket.

“You got the flatiron and went to work.
Then you fled the scene, taxied back to
Newton and tried to set up an alibi. You
were smart enough not to show the money
you took. No doubt you figured you could
a it sometime later, after the heat was
off.

“You worked it out pretty well. I’ve got
to hand it to you for that. But you made a
mistake when you bought two dozen
doughnuts and started eating them as fast
as you could before you even got out of
the bakery. You made another when you
left half of that doughnut on the chair in
Woody’s room. But your biggest mistake
was in riding a taxi back to Newton, and
particularly in haggling over the fare.”

“Yeah, I know that now,” the son said.
“I did it, all right. I killed them, just like
you say.”

In the presence of Sheriff Pace, Deputy
Nixon, the two Rangers and District At-
torney Robert A. Hillen, Clayton Rushing
made his formal confession.

He said he had climbed into Woodrow’s
bedroom window that Saturday night,
hoping to get into the house without awak-
ening its occupants. -

“But Mother woke up,” he said. “I told
her I wanted to stay the night, and she
said to get in bed with Woody.

“After a while I got up, went out and
got two flatirons, and went back to Woody’s
room. I hit him first, then went in the other
room and swung the flatirons on Mother
and Pa.”

Rushing said he took his father’s wallet
and a money bag his mother pinned to her
nightdress. He extracted the money, re-
turned one flatiron to its shelf, then
stripped off the overalls he had worn to
prevent his street clothing from becoming
bloodstained. He said he burned the over-
alls, the wallet and money bag in the stove,
let himself out of the house, hurried in to
Jasper and got the cab to Newton.

A couple of days later, he added, he
buried the money he had stolen. He led
the officers to this hiding place, at the foot
of a pine tree about a quarter-mile from
his home.

The investigators unearthed a tin can
containing $820.

Clayton Rushing was brought to trial on
January 22nd, only 33 days after the three
bodies were found in his parents’ home.

He entered a plea of guilty to first-de-
gree murder before District Judge F. P.
Adams and a jury. The jurors were out
only 12 minutes to decide his fate.

It was death in the electric chair.

He took the verdict stoically. Back in
his cell, he had but one request of his
jailer.

“Some doughnuts,” he said. “A lot of
doughnuts. I ain’t gonna have too much
time now to eat ’em.”

In this he was correet. His appeals were
denied and he walked the last mile in the
big Texas penitentiary at Huntsville.

Eprror’s Norte:
The names, Kim and Mike Sample,

Jim Rafael and Howard Fox, are ficti-
tious.

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it's a cinch the murderer’s clothing was

well spotted with blood, and Clayton

turned up in Newton wearing the same
clothing his wife swears he had on when
he left home Saturday evening.”

Howard Fox was trailed to Beaumont,
where he was seen to enter a bank, where
he spent more than half an hour. As soon
as he departed, Sheriff Pace sought out
the bank official with whom the Jasper
County farmer had talked.

Fox had brought in no money to pay on
his mortgage, Pace was told. Instead, he
had come down to Beaumont to make a
last plea for an extension of time on his
loan, payment of which the bank was in-
sisting upon by January Ist.

Arnett, the state toxicologist, made a
careful analysis of the half of the dough-
nut found in Woodrow Rushing’s room.
He reported that from the texture of the
dough he was able to determine that it
probably had come from a bakery where
the baking was done on the premises, and
not from a package put up by the big
grocery chains.

Acting on this information, Deputy Nixon
visited the two bakeries in Jasper, making
inquiries about customers who bought
doughnuts very frequently, questioning
clerks particularly about any unusual pur-
chases on December 13th.

A girl in one shop remembered a young
man who had come in one evening around
the middle of December—she believed it
was on the Saturday night of December
13th—and bought two dozen doughnuts.

“The reason I remember,” she said, “is
he began eating them right out of the bag
even before he got out of the shop.”

The man was a stranger, the girl said,
and she was uncertain whether she would
recognize him if she saw him again. “I
didn’t pay him any attention,” she said,
“till he started gobbling those doughnuts
as soon as I handed over the sack.”

A phone call the following day from
Baton Rouge advised Captain Holliday
that Jim Rafael had been picked up with
his bride of a week in a small hotel in the
Louisiana capital city.

Holliday and Middleton went at once to
Baton Rouge, where Rafael claimed he had
not even heard of the three murders back
in Jasper County until detectives inter-
rupted his honeymoon and carted him off
to jail.

“And I don’t care who says they saw me
around, I wasn’t at Rushing’s place at all
that night,” Rafael declared.

He said that upon leaving his Ford in
the garage in Newton, he went to a beer
joint and had a couple of beers, then ate
dinner in a local restaurant and returned
to the beer parlor and sat around there
until his car was fixed.

As soon as he got the machine, he said,
he set out for Louisiana, arriving in Baton
Rouge about 3 Sunday morning.

He said the money with which he bought
the second-hand Oldsmobile in Baton
Rouge was money he had saved out of his
salary and the profits of one stock deal
which he had made on Elbert Rushing’s
advice.

“I thought a lot of the old man,” Rafael
said. “I’d be the last person in the world
to want to harm him.”

Rafael was held in jail in Baton Rouge
while the Rangers returned to Newton to
check his alibi. They found that he had
been in that town, 17 miles from the mur-
der scene, for at least all but very little
of the night of December 13th, and the time
which could not be accounted for was
hardly sufficient for him to have ridden the
bus to Jasper, to have gone out to the
Rushing farm and murdered three per-
sons and then have made his way back to
Newton.

But who was the tall, rangy man who

had taken the bus from Newton to Jasper

that Saturday night? And, if he wag 4
killer, how he
crimes?

ae

Taxi records had been checked in Jasper

but no run to Newton had been revealed.

for the night of December 13th. It was not.
until Sheriff Pace remembered

ad he left the scene of*}

a man who >

operated as an independent cabbie on Sate“

urday nights, when business was brisk, that
the loophole in this part of the investiga.
tion was discovered. ee

This driver was now on the West Coast:
on a visit. He was located by phone through,
relatives there, and said he had, indeed,
taken a fare from Jasper to Newton the
Saturday night of the murders. :

He said that not only was such a trig

rare, but he had had an argument with the’
but the rider had
more than $2.50.

The fare, he added, was not overal]=:
clad, but well dressed. “I’d know the guy
if I saw him again, though he was a.
stranger to me,” the taxicab driver said.
“Tll be home within
help you all I can.”

assenger over the charge. The bill wag
$3, wanted to pay no.

When he returned to Jasper, the cab- &

man was shown a photograph of Jim Ra.
fael. He shook his head. 5
“He’s not the one. You parade every pos-~*
sible suspect you’ve got in front of me. rll
pick out the man who used my cab that.
night.” " as

He looked at Howard Fox, at two other

young men whose records were blemished’
with minor crimes, but none was the pas-
senger he had driven to Newton that Sat-"
urday night.

Then he saw Clayton Rushing.

“That’s him,” he said. “I’m not mistaken.
That’s the man.”

But how could Elbert Rushing’s son be
the slayer? If he had bludgeoned his par-
ents and half-brother to death, how had he
been able to appear with his friends in
Newton by 10 o’clock the night of Decem-
ber 13th, with no blood on his clothing?

“It could have been,” Captain Holly sug-
gested, “that he donned coveralls of some
kind over his street clothing, and removed
them and destroyed them after he killed
the old folks and the boy.”

Clayton Rushing was also identified by
the bus driver as a passenger from Newton
to Jasper the night of the triple crimes.
However, the driver recalled, the suspect
had boarded the bus clad in his brown suit
and green shirt, and the driver could re-
member his having carried no parcel.

Sheriff Pace and Deputy Nixon went
into Jasper and began a canvass of stores
there. In one they found a clerk who had
sold a pair of overalls on the night of the
slayings, recalling the transaction, he said,
because the stranger who bought the gar-
ment had first made sure they would fit
over his street clothing.

The clerk identified Clayton Rushing as
his customer.

February issue of

Now on sale
at all newsstands

three days and ll’.

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OR eet,

MILWAUKEE JOURNAL SENTINEL MONDAY, MAY 1, 1995

1964 before switching to the le-

: | | [| DI A] | | Pi \ \| | \ thal injections it had used to kill
e Biita ai : ie 4 another 87 condemned men
f 4 Pa Set since 1977.
‘ : P ae Russell avoided three previ-
? ‘ ae AT i. ous execution dates with court-
st eas BA Segue eaee ordered reprieves, including
ip he one in November, just three
at goa ' vA hours before the killing time.
uw But now, he knew the full
, CRIN weight of the criminal justice
: ..2.9.3 system was aligning itself to
¥ - ie 2 make him lethal injection recipi-
otis ; : 2 ent No. 88.
} ¢ The plan was this: Russell
first, then the execution by le-
thal injection of Willie Ray Wil-
liams, 38, a Houston man con-
victed with an accomplice — al-
so on death row — in the 1980
robbery and shooting death of
Claude Schaffer, a Houston
store clerk.
Williams had put in nearly 14

years on death row.
* * *

ot

“
4a
Ne

As the execution date ap-
proached, the Texas prison sys-
tem began carrying out an elab-
“oe ; ; : =. ees ES : { orate death-watch ritual.

Se ae ES ? ae et ick % - Ina timetable known only to
Nise Sa eee : i the two wardens involved, a
Qe death row inmate facing an exe-
StS: cution date is moved from the
Ellis I unit to a holding cell just
a few feet from the execution
chamber inside The Walls unit.
: : At 6:30 p.m. on the night be-
Condemned prisoner Clifton Russell Jr. sits in the visiting room holding cell in the Texas death row prison near Huntsville. After an fore the phoma the Faosts’s
interview that took place less than 6 days before his execution, Russell looked away and remarked, “] have a lot to do yet.” traditional last meal — from
steak to shrimp to strawberry
shakes — is served.

y. fe * ° a ‘ a.
The going thing is the dou-
lime runs out for 2 killers in Texas 2282's:
the guards who works in the ex-

ecution chamber.

ERWIN GEBHARD/STAFF PHOTOGRAPHER

S66L/L¢/L (40T4e],) SXL EL tum **up be5 UOIFTTO *TINSSny

It was 9 a.m. on a cool, gray winter day at Ellis I unit, heavily guarded prison built
site of the Texas death row. And prison officials were | on windswept, scrubby
busy preparing for a rarity: a twin execution they called | ranchland about 80 miles

clock ticked down.
“They’re aware of what's a-
fixin’ to transpire,” said Allen in

Soe asking for mercy. I want to | BT . : 4
By JAMES RowEN live,” he said quidtty. “I don't A SPECIAL REPORT. _ Allen, escorting a Journal
of the Journal Sentinel staff want to die.” , Sentinel reporter and other me-
P € a ; E dia representatives on a tour of
Huntsville, Texas — Clifton Charles Russell Jr., who Biecd ; ; FAKING the execution building, said
savagely beat a man to death in 1979, sat in a locked metal foc hae ae aft stetraction : some inmates ate their meals,
per eee silent isolation, waiting to talk toa newspa- For nearly ee inst 15 years i d E S Otho, Se lick ar tee:
: home for Russell was this " picked meal untouched as the

THE DEATH PENAL

Second of a six-part Journal Sen-

“ ”
the “back-to-back. ape of Houston. tinel series exploring capital pun. “ ino —— “They un-
Safe . ; arring a reprieve, the only ishment and its wrenching impact erstand what they ve done an
Texas had the legal author- within three inches of a wire | way Rieet aie iesve ae on people on both sides Abe ox they’re coming to grips with it.”
ity to kill Russell for his crime | mesh opening in the inter- ine = rt The brick execution buildin
in less than six days, on Jan. | view cage to make his hoarse ae a ee 12-mile ‘ws h : a
a 12:0 , plans sahed ; * | ride to downtown Huntsville. | it’s listed as a must-see spot is narrow and one-story, behind
at 12:01 a.m. whispery voice audible. There sits the infamous and | ©N tourist brochures. several locked doors and chain-
Wearing a pristine white “I'm not asking to get out,” | fortress-like Walls unit, site of It is where Texas, the lead- link fences, a virtual prison-
prison uniform, Russell | he told a reporter, sounding | all state executions and a| ing execution state, electro- within-a-prison.
sige his Fipwen enya resigned. place so forbidding and cuted 361 men from 1924 to Inside is a 08 veil of Rt
en face an ee rame t “That w "t be fair. V’ ‘ i coc hi ; . one-person 5-by-9 cells wi
fy O That wouldn’t be fair. ’m steeped in Texas history that | Please see TAKING LIVES page 8 thicke Bier metal bars. Near the

end of the cell row is a stall with
no door, in which every con-

~

Heber Chiwele Avg 21°04

ABILENE (AP) — Clifton Charlés

nearly nine-month reprieve from an

 -entl Bia in Austin’s paper shuf-
| fle. But ats Over now:  ~——i
‘An official said Friday. that Rus-
- sell will now be handed a new date
‘ for death by lethal injection.

~ - Russell, convicted in the 1979 mur-
“‘der-robbery of Hubert Otha Tobey,
- was denied his latest appeal in Sep-
tember 1993, a spokesman for .the

Texas attorney general’s office:said.
A new execution date could have ..

been set 90 days later, in January
1994, but Taylor County was never
notified of the court action. ’
When capital murder appeals are
in the federal system, legal work on
- their cases is handled by the state
attorney general’s enforcement divi-
sion. But the staff member who was
-handling the Russell case resigned
last October and the case, inadver-
tently, was never reassigned until
late last week. ae
The trial court can set an execu-
tion date and will be notified as soon
as possible, along with the Taylor.

Russell had won’ ap unexpected, .

Man’s date with death |
on again after mix-up

‘ Abilene’s condemned men. He would
‘be the first Taylor County criminal
executed since 1943.

. execution date after his case appar-

Russell was sentenced to die on

April 18, 1980, and has had at least

two execution dates since then. But
he has received stays of execution
while his case skirted its way

through the state and federal ap-

peals processes.

_< Abilene attorney Stan Brown has

‘handled Russell's appeals
He said Friday he could not com-
. ment on the case.

in the past.

Tobey, an Abilene air traffic con-
troller, was abducted from a self-
service gas station at South 7th and
Treadaway on Dec. 2, 1979. His body
was discovered early the next morn-
ing outside a vacant house .on
Thomas Street.

He was stabbed repeatedly, his
throat was cut and his skull was
crushed by a large concrete block,

- evidence at Russell’s trial showed.

County district attorney, a staff

member told the Abilene Reporter-
News. .

- Russell is the longest-serving of

Russell and an accomplice, William
Battee Jr., were arrested in Hobbs,
N.M., on the afternoon of Dec. 3 when
they were found driving Tobey’s
blood-spattered car.

Battee was sentenced to 60 years
in prison after pleading guilty to his
role in Tobey’s death.

£

demned man must shower be-
fore his execution.

Next to the shower is a thick
metal door leading into a pow-
der-blue room that looked like a
small treatment room in a walk-
in clinic.

It is the death chamber.

* * *

Russell’s stay was among the
longest of the 400 condemned
male prisoners and four female
prisoners on Texas’ death row,
the Jargest in the nation. That’s
in part because the Texas assis-
tant attorney general fighting
Russell’s appeals misplaced the
case files and retired, according
to Stan Brown, Russell’s attor-
ney in Abilene.

An Abilene reporter’s inquiry
to Texas legal authorities about
Russell’s status got the case
back on track, as he passed the
average 8 ¥2 years it takes for a
death sentence in Texas to be
carried out, Brown said.

In Taylor County, where Rus-
sell was prosecuted, District At-
torney James Eidson said Rus-
sell’s long stay on death row
was justice delayed.

“It was a brutal crime, and he
was a brutal individual,” he
said. “An execution isn’t a cause
for celebration. It’s just some-
thing that has to be done.”

The victim was Hubert Otha
Tobey, 41, an off-duty air traffic
controller who was abducted
from a convenience store. Rus-
sell and his 18-year-old accom-
plice, William Battee Jr., stole
Tobey’s Lincoln Continental,
and after dumping Tobey’s
beaten and stabbed body near
an abandoned house, drove
west to Hobbs, N.M., where
they were arrested.

Russell agrees he was “a ter-
rible person” and says he does
not want to use the childhood
abuse he suffered as an excuse
for the crime. He did say in a
Jan. 25 interview, though, that it
was unfair that his accomplice
had pleaded guilty and already
had been paroled.

Court records, and interviews
with Russell and friends, re-
vealed his abusive upbringing.

“I got my moral structure
from being on the streets. The

people who taught me my mor-
als,” he explained, “were drug
addicts, robbers, bootleggers.”

He said he was raised with-
out a father by a mother who al-
ternately abandoned him to rel-
atives or orphanages or kept
him at her side at illegal Texas
establishments called “brown-
bag clubs.” Brown said prostitu-
tion, drugs and alcohol were
available there.

Russell survived several
slashings and other harrowing
encounters with brown-bag
club patrons, his minister re-
ported, and court records show
he was shot at and had his jaw
broken in a severe beating with
a baseball bat by one of his
mother’s boyfriends just a few
weeks prior to the murderous
beating that Russell and Battee
inflicted on Tobey.

The family of Russell’s victim
did not respond to a request for
an interview, so their view of
Russell’s date with death is not
known.

But Russell said that last fall
he gave an interview in the Abi-

: ERWAN GEBHARDSTAFE PHOTOGRAPHER
Condemned prisoner Clifton Russell Jr., says his goodbyes to fellow death row inmates Les Bower (center), James Beathard (left) and Carl Napier.

lene Reporter-News in which he
apologized for “the pain and the.
suffering that I caused to the
family a the victim, and the vic-
tim. The victim’s son sent word
through my attorney that he for-
gave me.”

“I appreciated his extension
of his forgiveness,” Russell said.

In prison, Russell tells his vis-
itor, he has improved his life
and found peace in Christianity.
He has avoided violence on
death row, officials confirm, but
Russell recognizes that his con-
duct won’t save him now.

“The prison system here isn’t
about rehabilitation,” he said in
a flat whisper. “It’s about retri-
bution.”

The interview time ran short.
Russell said he did not expect
another eleventh-hour reprieve.

“Hear me,” said Russell, let-
ting loose a deep sigh and
reaching his hands forward,
palms up. “Don’t execute me.”

* * *
As the evening of Jan. 30

ticked away, Russell took the
regular prison meal: chili dogs,

baked beans, corn and peanut
butter cookies.

He showered and dressed in
a clean white shirt, dark blue
pants and white high-top sneak-
ers, wrote letters to friends, and
sat silently in the execution
chamber cell, prison officials
said.

He prayed. And met with a
minister, Betty Matthews, who
had helped him become’ a
Christian — a conversion sever-
al years ago that prison officials
privately conceded was proba-
bly sincere.

Meanwhile, the media wit-

nesses gathered at 10:30 p.m. in
a prison press office across the
street from The Walls unit and
perhaps 100 yards from aa
sell’s cell.
Prison authorities told the re-
porters they would be frisked
before entering the death cham-
ber viewing room; that they
could take notes, but were pot
allowed to bring cameras‘or
tape recorders.

“It will seem like it takeS a
long time but it’s really oger
quickly,” counseled Charfes
Brown, a short, affable prigon
press officer, as reportérs
drained a coffee pot in his office.

Brown guessed he had wiit-
nessed nearly every execution
since 1977, “at least 80,” he said.

“I never think about it,“-he
said with an instant smile in#e-
sponse to a question. “I don’t
think I’ve suffered any ast
fects.” * * *

At 11 p.m, Seisiacicieaensrtee
and against the death pendlty
gathered at an intersectior’at
one corner of The Walls unit.

Two students from Hunts-
ville’s Sam Houston State Uni-
versity said they were there-to
praise the state for carrying put
death sentences.

“The victims get ignored,”
said Caron Wilcox, a 32-year-tild
journalism major, blowing %6n
her hands to stave off an unugu-
ally cold Texas evening. “The
criminals seem to get all the
breaks. I’m here waiting to see
that justice is served.”

Those.who came to protest
against the death penalty hyd-
dled to keep lit the candles they
carried in small glass jars.

One death penalty opponent
was Sandra Crisler, 52, whovin
December had witnessed the
execution of her brother Ray-
mond Kinnamon, a convicted
murderer.

Please see next page

e

o-—

RUssE LL

os *

9

Clifton

Clifton Russell ... comes
within three hours of execu-
tion before being granted a
stay.

High court OKs
stay of execution
for Texas killer

Associated Press

HUNTSVILLE, Texas — A con-

demned killer won a stay Monday
night just three hours before he
was to be executed for killing an
Abilene man nearly 15 years ago.

The U.S. Supreme Court granted
the stay for Clifton Russell, who
had said he was looking for mercy
and had changed from the wild
teen-ager who grew up with virtual-
ly no supervision and wound up on
death row.

The 33-year-old Taylor County
man was convicted of the Dec. 2,
1979, robbery, abduction and slay-
ing of Hubert Tobey, 41, in Abilene.
His attorney, Stan Brown, had
sought the stay, saying that jurors
should have been allowed to consid-
er the fact that Mr. Russell’s youth
was dreadful.

“You can’t change what's hap-
pened,” Mr. Russell said in an inter-
view last week. “Everyone has to
meet God himself. If the Lord wills
this is the way I leave the world, so
be it.

“I’m not asking to get out. I’m
asking for mercy. I had a raunchy
childhood.”

Mr. Russell and an accomplice,
William Battee, were arrested the
day after the slaying in Hobbs, N.M.,
driving the victim’s blood-spattered

car. 10-18 ~94 TUES,
ORLLAS MORN. NEWS

The Ballag Fiornin

ee ee ea

a

» August 18, 1993

5 Aelug

——.

Charles, white,leth, inj., ixSP (Harris), January 31,1995

ng

sentenci

@ NEW ORLEANS —
peal.
gainst T.

a ee

A shudder, a groan and then no more

From preceding page

: During the execution, Crisler
had hollered in protest when
prison officials cut off her broth-
€r’s unexpectedly long 35-min-
ute last statement to carry out
the execution.

«: “She was somewhat hysteri-
xal,” said David Nunnelee, a
‘prison spokesman, who had
m in the witness room. Nun-
melee, a transplanted Minneso-
tan and former newspaper re-
porter, said such outbursts were
‘infrequent but memorable.
x “We've been called murder-
mrs,” he said.
= Crisler was still angry that
Mer brother was killed.
=: “Capital punishment is mur-
Mer, and it’s not right whether
if’s the state that. does it or the
man in the street,” Crisler said.
>That’s te they put ‘homicide’
‘on his death certificate.” (That is
the practice in all Texas execu-
dions, Walker County court offi-
cials confirmed.)

Standing with Crisler was
Matthews, the minister from
Trinity, Texas, whom Russell
id had been his spiritual ad-
ser for years.
EA blond, 60-year-old or-
ained minister, Matthews
falked about Russell’s religious
beliefs and delivery of “Christ’s
love to other men” on death
row.

“T loved him like a son,” she

whispered as her voice broke. “I.

have three grown sons, but I
would have been glad to call
him one of my own.”

Tears flowed down her

cheeks as the wind whipped her

candle.
. Crisler put her arm around
.Matthews.
«~ “There is still value in the
people in there,” Matthews said.
ar An electronic warble rang out
from a cellular phone that Mat-
thews was carrying.
« She flipped on the phone and
said to Crisler, “It’s him. They
gave him one last call.”
.. Matthews turned away from
the reporters, seeking privacy
.and shelter from the wind.

“We love you,” she could be

heard to say to Russell. “We all

love you. We'll pray for you.

-Goodbye, goodbye.”

. The reporters trudged away

from the growing numbers of
demonstrators and returned to
the press office.

- 273 executed. _
~~ since 1976.

There were 16 death row inmates ~

The minutes ticked away.

At 11:50 p.m., the witnesses
were escorted into The Walls
unit, were searched, and then
waited in silence in a lounge
area about 50 yards from the
death chamber.

Russell was taken from a
death chamber holding cell pre-
cisely at 12:01 a.m. on Tuesday,
Jan. 31.

Under his own power, he
walked to a stark, flat, steel gur-
ney bolted to the gray linoleum
tile floor.

In the ritual, the prisoners
decide to play their roles with
dignity. “No one has ever
fought us,” Nunnelee said.

At 12:03 a.m., Russell was tied
down, face up, with thick leath-
er straps across his arms, palms,
chest, upper thighs, lower
thighs, and shins. .

At 12:18 a.m., an IV needle
was inserted under each of his
forearms.

Saltwater flowed into his
veins to keep the entry points
clear, as clotting under the skin
could prevent the lethal chemi-
cals — $71.50 worth — from par-
alyzing the nervous system and
stopping the heart.

Also at 12:18 a.m., the media
witnesses were walked briskly
out of the lounge, past a prison-
er visiting room, through sever-
al doors and fences and into the
witness viewing room, behind
thick plexiglass but just a few
feet from Russell’s strapped-
down right hand.

A curtain had been pulled
back, and there lay Russell, flat

on his back on the gurney, mo-
tionless.

His eyes were closed.

He breathed normally.

Prison warden Morris Jones
and prison chaplain Carroll
Pickett stood in the death cham-
ber, their arms folded.

No one spoke.

Outside The Walls, the most
boisterous death penalty advo-
cates, including many young
male partygoers from nearby
Sam Houston State University,
were repeatedly singing, “Hap-
py Trails to You,” and “Na-na-
Na-na, na-na-na-na, hey-hey-
hey, goodbye.”

Inside, at 12:21 a.m., a door in
the death chamber, next to a
two-way mirror, popped open,
and a Texas prison system offi-
cial quietly spoke three key
words — “you may proceed” —
to the warden and the chaplain,
as called for in the death proto-
col.

The warden asked Russell if
he had a last statement to make.

Russell kept his eyes closed.

His voice, without a tremor,
was amplified to the viewing
room by a microphone that
hung from the ceiling above his
head.

“I would like to thank my
friends and family for sticking
with me through all of this,” he
said. “I would like to encourage
my brothers to continue to run
the race. I thank my Father, God
in Heaven, for the grace he has
granted me.”

Russell paused, and nodded
ever so slightly backward, to-
ward Jones, who stood behind
him.

“Iam ready,” he said.

Russell never opened his
eyes. From a small opening cut
into a wall, the lethal dose be-
gan flowing, monitored behind
a two-way mirror that keeps the
executioner’s identity a secret.

At 12:22 a.m., Russell took an
audible, deep breath.

At 12:23 a.m., he shuddered
and groaned. “Ooooo000000.”
He did not make another sound
or movement.

Time passed slowly, second
by second.

One reporter’s knees seemed
to buckle, and a prison guard
stepped behind her in case she
fell in the viewing room, but she
did not.

At 12:27 p.m., a bearded doc-
tor entered the death chamber,
shone a small flashlight in Rus-
sell’s eyes, listened through a

stethoscope he placed on Rus-
sell’s neck and chest, stepped
back, and said, matter-of-factly:
“Time of death is 12:29 a.m.”

The Rev. Matthews called
Russell’s guilt-ridden, terminal-
ly ill mother, Joanne Lacey, in
Post, Texas, and relayed the
news about the death of the son
whom Lacey called Junior.

Lacey, Matthews recalled,
said, “I already knew Junior was
gone because at 12:30 he stood
by my bed.”

* * *

As the media witnesses were
escorted outside The Walls, illu-
minated by TV floodlights,
some in the crowd of perhaps 60
demonstrators cheered and ap-
plauded.

The reporters walked back
into the prison press office.
Some stood in silence or made
small talk about the man they
had just seen killed.

Others began to compose
Stories, including Michael Grac-
zyk, an Associated Press report-
er from Houston, who said Rus-
sell’s execution was the 69th he
had witnessed.

He picked up a telephone on
Nunnelee’s desk and called his
office.

“One down and one to go,”

A death row inmate uses a mirror to see what's ha
the site of the Texas death row, the largest in the nation.

Graczyk said.

Russell’s unclaimed body
was whisked away from The
Walls unit in a hearse provided
by the Huntsville Funeral
Home. It embalmed the body
and drove it to the prison-
owned 22-acre Captain Joe Byrd
Cemetery behind a trailer park
and a car wash at the edge of
town.

The late Joe Byrd was a for-
mer Walls unit night warden
who supervised executions in
“OY Sparky,” the Texas electric
chair, and who beautified what
had been the old Peckerwood
Hill Cemetery. It was at Pecker-
wood Hill where the imprisoned
dead and the executed, “the un-
loved — the unwanted,” as a lo-
cal tourist brochure phrased it,
have been buried by the state
under tall, thin pine trees since
1870.

By 8:30 a.m., a detail of prison
trusties, under guard, had al-
ready buried Russell’s body —
the 1,387th inmate buried there,
a trusty said.

His white prison-made cross
will bear his prisoner number,
658: his place in line on the Tex-
as death row.

* *

At 1:41 a.m., after Russell’s

ning along the tier of cells at Ellis ,

ERWIN GEBHARD/STAFF PHOTOGRAPHIE:

freee?

corpse was removed and the
gurney sheets, IV needles and
tubes were changed, Willie Wil-
liams was strapped down in the
death chamber.

The week before, talking to a
Journal Sentinel reporter, Wil-
liams did not accept his respon-
sibility as directly as Russell had
done. He portrayed the murder
as “an accident” and fumed that
his attorney had told him to
plead guilty to capital murder,
which he did.

“I’m just keeping my head
up. I’m optimistic I'll get a stay,”
the father of two sons said. “No
mother wants to see her son die
before she does.”

But like Russell, he got no re-
prieve.

The IVs were inserted.

Like Russell, he did not
struggle or complain. °

Eight minutes later he made
a simple last statemeni.
“There’s love and peace in Is-
lam.”

At 1:49 a.m., the chemicals
flowed. Nunnelee said later that
Williams groaned three times
and died at 1:57 a.m.

The back-to-back was over.

By 2:15 a.m. it was big news
on CNN. ;

&y

‘New execution date set for man in 79 murder-robbery

-@ ABILENE — Clifton Charles Russell, who in October came within three
‘hours of execution, has been sentenced to die by injection at midnight
wan. 31. It’s the fourth execution date for the Abilene native, who has
tbeen on death row the last 15 years for the 1979 murder-robbery of air
“traffic controller Hubert Tobey. The U.S. Supreme Court stayed his last
‘execution date to allow time to review an issue regarding admissibility of
facts about his troubled childhood. The Supreme Court notified court
officials Friday that the stay had been dissolved, and’state District Judge

Nhe dw MEWS
IA}3 1994


VIS000%Z4°E eR”? “ACY “T°R**°A*°Y-“F*\Texas Plans Double
Execution*CCISAP 30 Jan 95 17:26 EST VO782@b
@b
Copyright 1995. The Associated Press. All Rights Reserved. éb
@b

HUNTSVILLE, Texas (AP) -- Two men convicted in separate murder
cases faced lethal injection before dawn Tuesday in Texas’ first
multiple execution in 44 years. @b

The U.S. Supreme Court denied last-minute appeals Monday for
both men. @b

Since the high court allowed the death penalty to resume in
1976, only Arkansas has carried out more than one execution on the
same day, putting to death two killers on May 11 and three on Aug.
3. @b

In Texas, 33-year-old Clifton Russell was to be executed first,
followed about an hour later by Willie Williams, 38. Both were
convicted of committing murder during robberies. @b

Prosecutors said it was mere coincidence that the two were to
die on the same day. Execution dates are set by judges. @b

The hour between executions was to give officials time to
replace needles and tubes used to administer the injection. The
sheet on the death chamber gurney, which is bolted to the floor,
was to be changed between executions. @b

Russell was convicted of killing Hubert Tobey, 41, an air
traffic controller, in Abilene in 1979. Tobey was kidnapped from a
gas station and found dead outside an abandoned house with his
throat cut, his skull crushed and his car missing. @b

Williams was convicted of the 1980 shooting of Claude Schaffer
Jr., an employee at a convenience store. Schaffer was shot in the
back while squatting behind the counter. Williams confessed to the
slaying. @b

Before Tuesday, Texas had carried out 87 of the 261 executions
in the United States since capital punishment resumed in 1976 --
far more than any other state. @b

Ny yose | (Te oN

weey

we2}

NATION

a DOUBLE EXECUTION SET:
HUNTSVILLE, Texas — Two men convicted in sepa-
rate murder cases faced lethal injection before dawn
Tuesday in Texas’ first multiple execution in 44 years.

The U.S. Supreme Court denied last-minute
appeals Monday for both men.

Since the high court allowed the death penalty to
resume in 1976, only Arkansas has carried out more
than one execution on the same day, putting to death
two killers on May 11 and three or, Aug. 3.

In Texas, 33-year-old Clifton Russell was to be exe-
cuted first, followed about an hour later by Willie

Williams, 38. Both were convicted of committing mur-
der during robberies.


VISOOO*2Z2°E**W*R***A*Y*#*W°R***A*Y*( OH“ Z Texas Plans Two
Executions*CCISAP 30 Jan 95 4:50 EST V0476@b
@b
Copyright 1995. The Associated Press. All Rights Reserved. @b
@b

HUNTSVILLE, Texas (AP) -- For the first time in almost 45 years,
Texas officials were preparing to execute two convicted killers in
a single day. @b wom

Clifton Russell, 33, and Willie Williams, 38, were scheduled to
die by lethal injection early Tuesday morning. @éb

"It’s just a coincidence," said Ward Tisdale, a spokesman for
tie Texas Attorney General's office. Execution dates are set by
judges. @b

Russell was convicted of killing a 41-year-old air traffic
controller in December 1979. Williams was convicted of killing a
convenience store worker during a robbery in October 1980. @b

Appeals were pending before the U.S. Supreme Court. @b

Since 1976, when the court ruled that states could use the death
penalty again, only Arkansas has carried out multiple executions,
including that of two murderers on May 11, 1994, and three
murderers on Aug. 3, 1994. &b

The last time Texas executed more than one person in a day was
On April 5, 1950, when two convicted murderers were sent to the
electric chair. @b

Before that time, there were at least 28 instances of multiple
executions in the state. Five killers were executed on Feb. 8,
1924, the day Texas inaugurated the electric chair in Huntsville.
@b

Russell was convicted of killing Hubert Tobey, 41, who worked as
an air traffic controller in Abilene. Tobey, abducted from a
self-serve gas station in December 1979, was found dead outside an
abandoned house, his throat cut, his skull crushed by a large
concrete block and his car missing. @b

Russell and an accomplice, William Battee, were arrested the
following day in New Mexico, driving Tobey’s blood-spattered car.
Bettee testified against Russell and received a 60-year prison
term. Russell got the death penalty. @b

Williams, a laborer from Houston, was convicted of shooting
convenience store worker Claude Schaffer Jr. in the back during the
1980 robbery. He was arrested three days later and pleaded guilty
to capital murder. @b