Arkansas, D-G, 1881-1995, Undated

eT es

, skidded sideways and crashed into a “ditch,

He glanced down at his green fatigue work:
clothing, faded almost blue from many wash-. —

ings. He was glad he wasn’t wearing the prison ©

whites. Trusties didn’t have to wear the whites. ”

Trusties wore khakis, or GI fatigues like his ;

own. Maybe nobody would recognize him as a
convict. Maybe they’d think he was a farmer. ~

A few minutes later, just about 10 AM.,
prison commissary operator B. C. Howard.
spotted Fields walking along a country road:
about one fourth mile south of .the junction of -
Highways 31 and 15. This junction forms a Y,.
near the big prison farm; 15 continues north: >
and west to Little Rock ‘and 31 veers: north-
east. ‘

Howard recognized Fields immediately. He:
braked and wheeled around, pulling up along-: nea

side the marching trusty and rolling the, pickup
window down. ~

“Hey, Fields, what you doing off the farm?

Where you going?”
Fields pulled out the 45 and pointed it at
Howard.

“Get out. I don’t want to hurt ‘you. Ive cos oN

a Fields’ description: “Short, stocky, about 140
pounds, curly brown hair; wearing. faded green .
fatigue | ‘work clothing, | corduroy “cap,” thick —
rimmed, Dea passes Armed ‘with a prison ~

to have the truck.” Pg
Howard stepped out. - a!

“Hand me your money,” Eins ordered pe

ously,

Howard pulled out-his money, $36. Fields

held the gun on him and slid into the ‘truc

threw it into gear and sped off down’ the road: ,

Howard, stranded, ran toward the. neares'
house to telephone authorities. = 9.9
While Howard raced for a phone,” Trust

shield at the future that’ careened ‘wildly ©

about what he would do next squirted around
in his mind. He’d get to Pine Bluff someho

where, anywhere, just as far- awaya from
. Tucker Farm as he could get. ads
He leaned forward, scowling at the’ nish
ahead and his. foot pressed hard. on ‘the
celerator, The prison pickup hit an ice-slick.
Fields jammed on the brakes and the ‘truck

‘The trusty got out, swearing. The vehicle” ‘was
damaged: only slightly, but he'd. never get’ it
out of the, ditch. He was Bega pew

Fields was speeding down the highway, squint- ~
ing. through his thick glasses and the wind-»

front of him. His knees were shaking and ideas

and, if he got there, he’d go. to the bus station
and buy a ticket and get on a bus for ‘some= :

7

ry
i
om

~ breathing hard and: shaking all over. He’d

# © pulled: that gun on Howard and he'd stolen
the truck.

The thought of what this meant scared him.

Sand he’d almost got killed in the truck. He <

“had to. get out of here. He stuck the gun under
‘his belt, pulled. his fatigue jacket down over it

and began walking down the pavement of

Highway 15, thumbing every car that. passed.

“It was C. A. Mencer who finally stopped: his
--car and let Fields get in.

~ “Turn right at the next intersection and take
“me to Memphis,” Fields: ordered as Mens

started .the Olds rolling again.

“Can't do it,” the Jarmer-said’ “Lm going ‘ont

~ north, the other way.” '

0: -Memphis,” he growled. ...

“It was a few minutes after, 11 A™M.,, and in
his office in “Pine Bluff Sheriff Harold Norton
“ was:on the phone jotting down the first ‘in-_
formation-on the escape.’ Howard’ had: sounded.
the alarm and supplied. the: escapee’s name, the *
license number, of his stolen prison pickup and

AS UES ies Fo pag Sy, Aahes-

ued:

“A man’s been’ shot here ‘
I think he’s dead,” the’ excited voice blurted. -

“car? and headed: across” the Arkansas
speeding. northeast. ~~ 9 prt
“It. would * Riaked them: only, minutes

Fields: pulled out the! gun. “I said. take. me.

4 Another shone i in “the sheriff’s office rang. It
‘was someone calling from the service station ©
*at-the Highway 15-31 intersection just south — ing marth on Highway 15 towards the town of.
of Sherrill, in the same neighborhood where:
‘the fugitive ‘had stolen Howard’s truck}? * re
St looks bad", in’Yaney’s back. Several minutes passed. After ”

“From Sheriff Norton's office, it was- about 15
-miles to the scene. Norton, his visitor Arkansas —
prison superintendent Lee Henslee and ‘Jeffer- .
son County Deputy Buck Oliger: jumped in a ©
iver,: {_ gection.:

| ‘get.
> there, they knew, but it might: be: too late to”
help’ the victim. “They. theorized ‘that. Fields
“could be involved’ in the shooting. News of » “young” ‘housewife had been’ working on her .

‘to ‘tobacco salesman Charles Yaney inside the
station just before the shooting. Then one of
the station operators left the building to go to
lunch. As he walked out, he heard tires scream-
ing. He looked up and saw a big, late model
auto ‘hurtling to the side of the road. Two men
were struggling in the back seat. Then’ two
shots exploded inside the car.

~ He ran back inside the station, yelling
“There’s been a shooting!”

All three men ran toward the car. They had
almost reached it when a small man in fatigues
and wearing thick glasses jumped out: and
pointed a .45 at them.

“Okay, get back, get back, get back. I don’t
want to have to°kill anybody else,” he called
‘nervously.

4 ae stopped, staring at the- gunman and
at the middleaged man slumped in the
bloody ' back seat. He lay still.

» The gunman, trembling, ordered, “Get back
e Sic: the station. All three of you.” He marched
them inside, then said, “Now, he drives the
tobacco. truck ?”” oe (
< Yaney said; he did, The gunman took him

-enclosed truck just behind Yaney. :
“Drive,” he commanded, the gun Siguise
“into Yaney’s back. The truck roared off, head-.

v. Coy. Rei aN

‘The Panian said nothing, just held the gun

“they had traveled about three miles, his captor
pprodded: Yaney with the gun and said “Stop.”
“Yaney eased ‘the truck to a.stop. The man

er, tarn around and head back to the inter

+The Filleved® ‘tobacco > salsseaatt ae a
~U-turn,. leaving the’ gunman standing in the
yqniddle “of the road.

Near the spot was ‘the fanahouss where the

“the “escape ‘and shooting went out on police “morning dishes, The gunman, Fields, headed

radios as. they. drove. ‘Other officers converged ES
: : ‘When he got “to the‘doorway he kicked open .

“was con

ene A
fusion, The two owners: he ‘the. Service ‘station
at ihe plenyey intersecti ion a sbeeay pings

for. the house. He was looking for another car.
the unlocked door and strode in, gun in hand.

facing ‘him. ‘Hér eyes widened and she recoiled.
‘Fields held his gun on her. She knelt, instine-

ey tively opening. hee arms sand her little boy ran

into them. +> ©

“Don’t cry. “out, % Fields said. “Don't mas a

sound..I don’t want to have \to hurt you, If

4

4

“It was very. warm: inside the~ house. ‘The

Bit Bees

acy the handle.?

Fin © station were no longer with him, For a moment

eelice ‘at the intersection service sta-

outside and made him get behind the steering”
“wheel. Then ‘the: gunman took a stance in’ the;

got out: Waving his gun, he ordered his prison- |

“The; woman | twisted around from’ the sink,-

you:do what: I’ say you ‘won't get. hurt.” >

levision ‘set blared some giveaway _ program. i
‘Leave’ the boy in’ ‘here’ to watch “the tele-
vision,” the beast Gee “You go into the bed- _

Fields pushed in behind her’ and shut? the :
‘| "door, His fear and’ shakes after he’d’ shot the
“7man-and faced ‘down the trio at the service

take’ anything! the’d*been denied for 15 years.’ x
Holding” es on hers, he snarled, eS sess

st om Smithey ‘already was there’

The man i
parently shot
for control ¢
twice,
Some
aband
the deowuapes
was Fields.

Yaney, wt
his tobacco
made me let
road. Near a

“Get in f
Sheriff Nort:
sheriff’s car
salesman w:
“T thought
not sure. He
cap and fat

“Tf you «
out, the bl
We can go
dogs if we «

“Look, tl
said, “He’s
like him, It

The car Vv
was gather
work, grin
sheriff.

“Mornin;

“We're k
He’s shot «
At first we
~ neighborho
ing for a
close watc!
the farme:
officers’ ca
and pulled
in the sea
Yaney sai
.» As he w

> thought o
‘house. He
a ~shortcu

_ in the sha

- said to A
“Yes,”

~ A little

: into the

+* stumbled

, the othe:

__~ itime wit

* “juries ha


iside the
a one of
to go to
; scream-
te model
[wo men
hen two

yelling

Chey had
1 fatigues
out and

.. I don’t
he called

man and
{ in the

Get back
marched
lrives the

took him
> steering
ce in the

1 digging
~ “yead-
m of

i the gun
sed. After
iis captor
d “Stop.”
The man
is prison-
the inter-

made a
1g in the

where the
zg on her
s, headed
other car.
ked open
1 in hand.
the sink,
e recoiled.
t, instine-
e boy ran

vt make a
rt you. If
urt.”
ouse. The
program.
the tele-
> the bed-

-d toward
ing hands

shut the
1 shot the
he service
a moment
who could
15 years.

ed, “Take

n the

that
ind Oliger
ervice sta-
was there
ut.

The man in the wrecked car was dead, ap-
parently shot as he and the gunman struggled

for control of the vehicle. He had been shot —

twice, once in the hand and once in the chest.
Someone had found the wrecked prison pickup
abandoned in the ditch down the road. From
the description, officers felt certain the slayer
was Fields.

Yaney, who had returned to the station in
his tobacco delivery truck, spoke up. “He
made me let him out about three miles up the
road. Near a farmhouse.”

“Get in the car and show us the place,”
Sheriff Norton said. Yaney climbed in and the
sheriff’s car sped up the road. The tobacco
salesman was still shaken by his experience.
“J thought it was right along here. Now I’m
not sure. He was wearing a brown cordtroy
cap and fatigue clothes, I remember.”

“If you can remember where you let him
out, the bloodhounds can pick up his trail.
We can go back to the farm later and get the
dogs if we don’t spot him,” the sheriff said.

“Look, that man in the cornfield,” Yaney
said. “He’s wearing a brown cap. That looks
like him. It was along here where he got out.”

The car wheeled into the cornfield. The man
was gathering corn. He looked up from his
work, grinning broadly as he recognized the
sheriff.

“Morning, Sheriff,” he said. /

“We're looking for a convict who escaped.
He’s shot a man. He’s wearing a brown cap.
At first we thought you were him. He’s in this
neighborhood. Bound to be. And he'll be look-
ing for a car to steal. You’d better keep a
close watch on your pickup,” the sheriff told
the farmer whom he’d recognized. Then the
officers’ car backed away in a storm of dust
and pulled back on the pavement, proceeding
in the search for the farmhouse near where
Yaney said the gunman got out.

As he watched the car pull away, the farmer
thought of his wife and son, alone in the
house. He jumped in his pickup truck and took
a shortcut the half mile to his house. He

parked in front of the house and took the
keys with him. He walked in to discover the
gunman the officers had been hunting was hold-
ing his family in the kitchen. The gunman now
was forcing the weeping woman to make coffee.
_ Fields whirled on the farmer as he entered
the kitchen. “Don’t move. I don’t want to kill
you. Give me the keys to your truck.”

The farmer handed over the keys. Fields
backed out and ran to the pickup. With a.
screech of tires, he raced the motor, then the
vehicle sped off toward the highway.

As Fields turned the pickup, heading north
towards Coy, the carload of officers passed
him, heading south. They’d already gone by
the house once, before seeing the farmer. in the.

cornfield. Fields had been in the house when
they passed the first time.

“That’s him,” the tobacco deliveryman and
Superintendent Henslee yelled together as the
pickup passed them. They saw the farmer and
his wife rush out into the yard, waving fran-
tically and pointing at the fleeing vehicle.

The official car wheeled in a tight U-turn
and sped in pursuit.

The late model pickup was traveling at top
speed, the fugitive hunching forward in his
cap like some mad overweight and bespectacled
jockey. The pavement was damp and slick in
spots, but. the two vehicles raced on. About
three miles along the road, the pickup swerved,
spinning off the road pavement. It sheered off
a mailbox and went: hurtling on into a deep
ditch 30 or 40 feet wide. With a rending crash
it plowed into the opposite embankment.

“That must have killed him,” one of the
officers shouted as the sheriff's car screeched

-to a stop and they piled out.

But Fields jumped out of the wrecked truck
and took off, running toward a nearby house.
Guns drawn, the officers pursued. They were —
almost up with him when Fields reached a
side door of the house. He fumbled to open it,
but it was locked. ee,

“Give up, Fields, we’ve got you covered,”
the sheriff called.

Was the Ripper’s Identity Hushed ?

continued from page 43

in the shadows. As the woman passed, the man
said to Annie: “Will you?” and Annie replied:
“Ves.”

A little after six, a lodger at No. 29 walked

into the rear courtyard of the building and
stumbled over Annie’s Chapman’s body. Like
the others her throat had been cut but this
time with such savagery that she almost had

been decapitated. And the additional surgery:

had gone much further than-with the others.

As the London Times reported: “The in-
juries had been made by someone with consid-
erable. anatomical skill ... . There were no
meaningless cuts . ... no mere slaughterer of
animals could have carried out this operation.
It must have been someone accustomed to the
post-mortem room.” .

As Jack the Ripper warmed to his chores,
public hysteria mounted ; especially now that
the killer’s full character was revealed. Jack
was a brazen sort who could perform a deli-
cate operation in a brief period of time, then
blithely walk through Hanbury Street, his
clothes certainly covered with blood, at an hour

of the morning when the street was crowded
with people on early morning duties.
Scotland Yard was getting desperate. Every
crank letter that had come in on the case was
re-examined and when it was seen that Lees’
letter had correctly predicted the next murder,
two police inspectors were sent to interview
him:*Nothing much came of that. One officer
immediately dismissed Lees’ statements as
“pure moonshine.” The other officer was a bit

‘more interested and asked Lees to get in touch

with the Yard if he had any more pertinent
dreams.

Why the Yard failed to take Lees more seri-
ously is a mystery in view of the other oddball
measures the Yard did follow. One popular

journalist of the day compounded the interest- .

ing theory that when a person dies, the last
thing he sees is irradically imprinted on the
pupils of his eyes. Darned if the police didn’t
perform such an experiment with Annie Chap-
man’s eyes! :

The unhappiest man in the whole investiga-
tion was Sir Charles Warren, Commissioner of

“wy

"Don’t shoot, I give up,” Fields screamed,
turning and dropping his gun.

They handcuffed him and took him to the
car, heading back to the intersection and scene
of the killing. It was 11:30 a.m.

Meekly, Fields told how the shooting victim,

‘C..A. Mencer, had stopped and given him a

ride. Mencer, his benefactor, had been a pros-
perous planter and civic leader in southeast
Arkansas. He and his family. operated Parnell
Plantation at Halley, near McGehee, and: he
also owned a farm -at Gain’s Landing, near
Lake Village, in the rich Mississippi bottom.

“T tried to get him to turn towards Memphis
and he wouldn’t do it,” Fields said. “I pulled
out my gun and he tried to take it away from
me.I wrestled him into the back seat. He had
his hand on the barrel. The first shot hit him
in the hand, the second in the chest.”

On January 17, separate charges of first-de-
gree murder and rape were filed against Charles
F. Fields by E. W. Brockman Jr. of Pine Bluff,
the 11th Judicial District prosecutor. Both
crimes are capital offenses.

Prison Superintendent Henslee said Fields’
case would not result in guns being taken away
from trusties. Some trusties use guns to guard

- other prisoners. “They get out of prisons where.

they don’t give them guns,” Henslee said. “The

- trusty system is a vital part of Arkansas’ prison

operation.”
During his flight Fields had stolen four

vehicles, wrecked the two trucks, killed a man

and raped a woman. And exactly 90 minutes
elapsed from the theft of the first vehicle until
his capture. The murder and terror all took
place within eight miles from his starting place
at the prison hog pen.

Fields was placed in the prison death cell for

maximum security. It was then that he began

to realize tending pigs hadn’t been so bad after
all. His only motive for going haywire, he said,
was that he decided he could never get his life
sentence commuted. One thing seemed certain
now—there was little likelihood of any com-
mutation in Charles Fields’ future. ™

Scotland Yard, who many were to denounce as
the greatest incompetent ever to hold such an
important police post. His major contribution
to the investigation was the observation that

. since Jack the Ripper seemed to have a fond-

ness for the prostitutes.of the East End it might
be wise for the members of the sisterhood if
they commenced to ply their trade in pairs!

Then about two weeks after the Chapman
killing, Robert Lees wrote to Scotland Yard
again. Sitting in his study one evening, he
wrote, he “seemed to see two persons, a man
and a woman, walking down the length of a
mean street. I followed them with my mind’s
eye and saw them enter a narrow court...
There was a gin palace near the court, ablaze
with light . . . I saw the man and woman enter
a dark corner. The woman was half-drunk. The
man was perfectly sober and dressed in a dark
suit of Scotch tweed. He carried a light over-
coat on his arm and wore a light felt hat. His
bright blue eyes glittered . . .

“The man threw his light overcoat gently on
the ground, laid his cane on it and put one

hand over the woman’s mouth... The man

drew a knife from his inside vest pocket and

-cut the woman’s throat. The blood streamed

over his shirt-front. He held his hand over her
mouth until she fell to the ground. He then
inflicted sundry gashes on her with his knife.
These were delivered in a scientific manner. He

55

92 . REBELLION RECORD, 1860-61.

[June 4,

—Masor-GeneraL Parrerson, from head-
quarters at Chambersburg, Pa., issued @ proc-
lamation announcing to the soldiers that ‘‘ they
would soon meet the insurgents.”—(Doe. 280.)

—Tux First Regiment Scott Life Guard and
the Third Regiment N. Y.8. V., left New York
city for Fortress Monroe.—( Doc. 281.)

June 4.—The Memphis Bulletin of to-day:
contains the following: ‘‘ Persons having
slaves at home, whose services can be dispensed
with for the next ten or fifteen days, would do
a great kindness to tho volunteers at Randolph,
by sending negro men to that point. The vol-
unteers should be drilled, and the fortifications,
on which they have labored so long and faith-
fully, should be finished by negroes.”

—A MAN named Fletcher, living in Columbia
township, Randolph County, Ark., divulged
last week a plot to the citizens which he had
discovered among the negroes in that vicinity.
The plot contemplated the murder of several
citizens who they supposed had money, and
then making their way to the free States. An
investigation led to the development of the
fact that certain negroes had proposed to give
Fletcher $20 each to take them to a free State,
announcing that their plan contemplated the
murder of citizens, the possession of their
means, and their final escape to the North.
The negroes implicated by Fletcher, twenty in
number, were arrested. A white man named
Percifield, found guilty of being an instigator
in the affair, was hung, as was also Fletcher,

the movement of troops. The very wisest
plans of the Government may be thwarted by
an untimely or otherwise injudicious exposure.”

A directly opposite policy appears to prevail
at the North. Not only is every movement of
the Federal troops heralded abroad with light-
ning speed for the “sensation press,” but it
would seem as if the news-gatherers have access
to the records of the Departments, so as to en-
able them to proclaim in advance every plan
and purpose of the Government, whether great
or small.— National Intelligencer, June 18,

—Noan L, Farymam, late Lieutenant-Colo-
nel of the Regiment of Fire Zouaves of New
York, was appointed Colonel of that Regiment,

World, June 5.

—Jupcz Tanery’s written opinion in the
habeas corpus case of Merriman, was published
in the Washington National Intelligencer of
this date. It is simply a protest against the
suspension of the writ by the President of the
United States. The Judgo argues that Congress
alone has the legal authority to suspend this

any emergency, or in any state of things,” au-
thorize its suspension.

—Texn Regiments of foot, with Doubleday’s,
Dodge’s, and Seymour’s batteries of flying artil-
lery and five hundred dragoons, were in camp
around Chambersburg, Pa.—Thirty-two men
arrived at Williamsport, Md., from Berkley Co.,
Va., whence they had fled to avoid impress-
ment into tho rebel army.—A new Collector

==

who was connected with Percifield.—Memphis
(Tenn.) Avalanche, June 5. was appointed for Louisville, Kentucky, with

—Euias Hows, Jr., of New York, the sew-
ing machine millionaire, presented each field
and staff officer of the Massachusetts Fifth
Regiment, at the seat of war, with a stallion
fully equipped for service.—N. Y. Express.

—Tuz Tenth Regiment N. Y. Volunteers,
National Zouaves, Colonel McChesney, left their
encampment at Sandy Hook for Fortress Mon-
roe. Previous to their departure they paraded
through the city of New York, where they re-
ceived a flag.—N. Y. Sun, June 5.

—Tnx Savannah Republican of to-day has
the following: ‘‘ Notice to the Press.—We are
requested by the military authorities of the
Confederate States to urge upon our brethren
of the press throughout the South the impor-
tance of. abstaining from all specific allusions to

(1566 )

orders to prohibit the shipment South of pro-
visions, via that port.—lN. Y. Herald, June 6.

—dA procLaMATIon dated Fort Smith, Arkan-
sas, and signed “ W. I’. Rector, Asst. Adjutant-
General,” says, “tho authority of the United
States has ceased upon this frontier.”—(Doc,

282.)

has the following:
was passed by the Confederate Congress, before
its adjournment, prohibiting, during the exist-
ence of the blockade of any of the Southern
ports by the United States Government, the

in place of the late Colonel Ellsworth. Y.

privilege, and that the President cannot “in |

—Tnn Natchez (AMiss.) Courier of this day:
“A wise and salutary law |

exportation of any raw cotton or cotton yarn |
except through the seaports of the Confederate “
States. The penalty for a violation of the law —
is the forfeiture of the cotton or yarn 80 at- |

_ doxx 5.) DIARY

q tempted to be exported, as also fine or impri:
-onment for the person violating it. Ever
steamboat or railroad car, used with the con
| sent of the person owning or in charge of it fo
j the purpose of violating the act, is also for
' feited. This law completely blocks the Lincol:
' scheme, The Administration's idea was, tha
' if Southern ports were blockaded, the cotto:
» would go by inland routes to Northern seaport
for exportation. Great Britain and France wil
| how have to go without cotton, or else raisi
_ the Lincqln blockade.” —(See Doc. p. 292.)

—Masor-Gznzrat Pricz (rebel) of Mis:
_Souri, issued a proclamation “to prevent al)
' misunderstanding of his opinions and inten-
tions,” and expressed the desire “that the peo-
“ple of Missouri should exercise the right to
choose their own position” in the contest,—
» (Doc, 288.)

June 5.—A demand was served upon Messrs.
Daniel J. Foley & Bros., Baltimore, by Mr.
| Bonifant, the United States Marshal, under
instructions from Mr. Cameron, Secretary of
' War, calling for the immediate delivery into
the possession of the Marshal of all the pow-
_ der of the Hazard Powder Company, Oonnec-
ticut, stored in the powder-house of the com-
pany at Lower Canton. The amount of the
| powder on hand was about 8,500 kegs, or 60,-
| 000 pounds, valued at $16,000. The agents
_ turned the powder over to the Marshal, who |
; took an inventory of the same. A similar de-
| mand, from the same source, was made upon
Messrs. A. L, Webb & Bro., Baltimore, agents
| for the Messrs, Dupont’s powder works, Dela-
_ ware. The demand was complied with, and
_ the powder on hand, a small amount, turned
over into the possession of the United States,
| —Baltimore Sun, June 6,

—GerveraL Bzavrecarp issued a proclama-
tion from Mannassas Junction, giving an ex-
_ travagant picture of the deplorable consequen-
_ces to be expected from an invasion of the
Fodera] forces,—(Doc. 234.)

—Art Williamsport a Baltimorean, named
_ Dewitt O. Reuch, swore ho could whip the
whole Union force, and that he had killed at
| least one man in the attack upon the Massachu- |
setts Regiment in Baltimore. His friends tried | ;

_ to get him away and put him on a horse, when
: he drew a revolver and fired two shots at indi-
viduals and three into the crowd. Three shots

~


May » 1860

Pay aA

RE

Ml

FLETCHER and PEBCIFIELD, whites, hanged Randolph Co., Arkansas, on

THE

BELLION RECORD.

D Diny of American Events

EDITED BY

FRANK MOORE

FIRST VOLUME

Property of
George S. Houston Memorial Library

Dothan, Alabama

ail

ARNO PRESS

A New York Times Company

New York / 1977

Lf AR on August 5, 1898
black, hanged Dumas AR. On sug 5
G Fluke Op m1 LLG eS
Flav ANT g Z pi UKE >» MM 5

Goleman, - Alias: Finke, Fleming Pays ia _ FLEMING'S. CRIME, |
OWN y ‘oul, . ee “a eman, alias ¥luk Flemtin ; |
* veel 13. the Death Konalty,", ree. Raultod Nettie Walla” » colured’ sunt
Special to The Mesette of uy, axed 14, of ‘April 2 1807, at: Btunrt's
; Damas, August O—Fluke-Fleming has two wifi sbeiat - of read about
a : tu wea of Pine Bout, 31;
peld-the death penalty Cor'raplog pubes Victim was accompanied by «Mean ag
Wa is, colored, es) se fog 'y¥ Bey (colored), the two girle being - on
He was brought from Pine Bluff to- thelr way to 8chool, Fleming tried to
day ‘by“ttherif Porter and his deputy, Coax them Into the Woods but falled,
W. Ly: Proctor, ,feveral thousand peo- and finally Brebbed the Walls = girt,
Plo ywere in atthndance at the depot r rewgher Into « ditch and accompliahed
When the 12:40 frain arrived and Sherift | bis purpone, Fleming was 800n after.
Porter led the condemned man. from i Warde arresteg and placed In Jail,
the-(raln, Fleming carried a bouquet of |, Fhé grand jory of Jefferson count
lowers and wore a rose in his coat. He found @ true’ bit acalnat Fleming for
r,| Rervoug, though upon bis face the crime of FaD@ on the Ath Gay of
played the same carelces smile which Beptember, 1807, Ile was artalgned a
hah characterized bim Guring his trial the same term of the Jefferson clreuit
$0d conviction. The sherif and a corps court, where a Plea of not Kullty wag
Of deputies took bim to @ roo In the ratered and a change of Yenue taken to
court yard, where he was baptized Into the Watson istrict of Degha cuunty,
| the Christian falth and waa dressed for At the February term of the Desha
' Bie lant earthly scene, OS a dea clreult court he was tried 424 conrictedg
|” At 12:50 D. m. all was made ready at of the crime with Which he stom! charg.
the scaffold and at 1:25 -he ascended the ed, the Jury being ont only Ave min. |
Steym at the scaffold, The opportunity Ulem, He was Pratenced to CXplate bis
was given him to make @ statement and crime Upon the Rallows og the 2104 of
he stepped to the front. Turning to March, Two daya before, on the 10th
Bherig Porter he asked It be Was--0D. of March, an appeal wag taken to the
the trap and wag told na tee. FUDreme court, which tribunal tn. Ite
“Gentlemen, I am not afrald to ‘dle, cloning Beanlon jo June aMrined the
I will.eay the trath.: “It. won't do me Judgwent of the lower court; and aut,
xny £0od to tell a lle and ‘I know I eequently Coy, Jones art the day of
have to die; it ts not bothering mes ‘1 execution for August 6, 1804 ©0 which
am Innocent of the crime = charged day, within the coufnes of ‘tie cowrt
againat me; I wil! noon be gone and yoy house *quare jn the town of Dym
all can pane on this after I am -gone, he was executed, | as,
,Lam not dying for the crime of which — e butianinms
I am acctised, but for what they have

against me. I know there Is a God; I
.#m in hopes that 1 will meet some of
| you some day. I would Uke to” sing a
| #0ng,. but hare not time,” rant

| Sherif! Porter told him he might ging.
If he liked, and he sang “Going Across
Jordan,” Prayer waa then Offered hy
the Rev, J.C. Rattle, of Pine. Blug, and
the black cap pulled down, At 1:50 the
trap fell and Fluke Fleming shot {nto |
oternity, - At 2:03 he was. pronounced
dead and the body wae cut down and
turned over to his relative, and the
reaentatives of the Pine Blur and Lite
tle Nock Preas gave his rolatived money
to’sefray charges for transportation of
the body to Pino Blu es


son wouldn’t
was serving”

led with him

the crowd
and “Jump,
stective. man-
ver, who was
Hospital’ for
d, muttering

ation for the
But behav-
causes. The
vasic hostility
in kind. Or
usly reminds

cidal impulses -

rtable aware-
iously.

yn your own
lly, however,
hich prescribe
y defeat their
ersons fearful
1ermore, most
today agree
suicide should
rather than
lassify suicide
xcuse for
‘evention.

ng a few

re extreme so-
and persistent

Also typical
stite. Only a
is exhibit the

a threat. of
nely prevalent

2ill themselves

suicidal, offer
And, as diplo-
t you can to

vciety is often
persons regis-
health clinics.
derstaffed and
These preven-
» proper finan-
ic sources.
I talked to a
ously awaiting
efficient office
ort herself and
of being both
taken its toll.
yrong with the
ften,” she told
from a mental
is so big that
name. I tried
wanted $20 an
fford that.
tried to end it
a sleeping pills.
chbor when he
conscious. The
1 and had my
later, IT found
1e on the
iad a pre-
‘en almost

ne making.

4 Reverend. es (

: The nisi famous. Americ: pioneer. inter
guhized suicide prevention: was Reverend:
‘Harry Marsh Warren of Central Park’ ‘Baptist:
Church in’ New: Yorke ‘Reverend “ “Warren’s
-dedication to. this “field began quite *uninten.
~~ tionally,.one, winter. morning in 1906.\ ‘Se pt
A clerk fat, a Fifth | Avenue hotel summoned
: him > to. ithe room oe ie ie au, ‘who

told, Reverend’ rwietedl AN
find” ‘a’ minister ‘the Seal se She sa

save, we

counseling on a round-the-clock basis, “Inthe >

> resigned, his pulpit to,.devote. full time to, the
work. He- personally. solicited’ funds to found —
the organiation that is now: known as” the”
National Save-A-Life. League, Incl haa
*When’ Reverénd | Warten died in 1940; the.
leadership’ of the Save-A-Life League: passed
to ‘his’’son; “Harry. Warren ‘Jr. » The elder

¢

Warren’s monument is the 24-hour answering, er.
I

| service now maintained at the ppc Fifth
Avenue headquarters. 9 - 4 cow
The League today comprises +185 minister-

' Each.

> se more. afthett n 30
ye “would’ not. have taken the poison. if she: a praia alas &
n to. IMILAR ae

- Vienna ‘has.a Socie

Stockholm has. the Emergency Clinic for. De-

__ pression and p Tokyo shas_ the’ ‘Wait-A-Bi

’ Society...

New. York's i untelpal: Elmhurét “Hospital:
is pioneering, ‘with a clinic that offers pSychi-.
atric first-aid

, quiring
ments.

geles in

¥

the: arranging. of low-cost! Plastic surgery. for

eke

a de fe en

fe Lg eA

Another walk-in emergency fi
as. the? Benjamin Ruy ba 3

ems of Living, was ie

January, 1962. ° sete ee

Dr. Menninger reommends, that ayes

sit
that the alithorities “wil die bares “accurate | “holism, / irrational: criminal ‘violence and ©
show ; serious ° the. problem -is)at any

There are League consultants in Chicago, /To- idea»

a peka, Cincinnati, ‘Dayton and... Fort Worth.

“And the League’ “offers. mail ‘counseling: “ine
parts of the country. © ~
In addition to advice’ and’ epiflitia coma

fort, the organization »provides marriage: coun" “ti been the:
‘formation of ‘the: o Prevention Center.’
-The Suicide Prev ‘ntion Center was founded

seling} financial aid; ‘medical referrals-and job’,
contacts. . The staff’ prides itself on its.reputa-
tion of: acceptin every challenge,. including:

¥

given. time...

apee cenreen

a counselors plus’ a: volunteer. team of psychi-, | classified , as ..a legally.
a atrists, physicians, lawyers. and businessmen.

Is:

; a Nis

also! ad¥écates ‘fat the-search.
for-definite-iclues to. ‘suicide: be «expedited by;
reo istories of © ae eee

“Ship. of Edwin S. Shneidman and Norman L.
Farberow, with the assistance’ of a grant
‘from the U. S..Public Health Service. The

1px, Cae ‘ne eo yieea ut: 1800 Center has’ its: nee he le at the: Los An-'

: eases” Wass its» New” York: Readquarters: and. ‘it
2 approxi mately. 1000" requests © bys”

The. a Boa dividta

hae,

to. case histories of all - suicidal - ‘patients
“brought there. "Many other records’ of’ at-:
tempts*are’ obtainéd * from private’ physi¢ians-

“time! They are persons whd- have sought help
emselves’ or who- have. “been « “referred by
friends; physicians or welfare. ‘agencies. They

at the Center on are. “patented ‘elsewhere.

“more that: science ‘needs to learn about. these
patients, as eviriced - by the fact that suicides
have occurred “among the patients. oft the
ation’s leading therapists. *

“As might be. imaginéd, all of the above

0’ suicidal. persons withotit re+(*sagencies. are able; to reach {only a small per-
fees,” fentifcation or, “even sae

ntage «of. suicidal’ persons. And ‘suicide: re-

Be gene the ‘one: scourge. that has never been.
ore.

e target of a. major public campaign, ..,
l=
eed for. expanded treatment. and | research ‘is
‘urgent. The various forms of. siticide—includ-
6 ing’ such ‘indirect methods as addiction, alco-

reckless: driving—have teathed epidemic
proportions. Pit bar oe
«Even those; vio believe: their: family and

now make it possible for suicide “to be prac-

4

‘in his pocket. He had $16. He wondered what
16 would buy. It depended’ on where you

ould buy a bus ticket, a hotel, a woman for

4 i he could just ‘get: a ‘commutation sand get

-away from Tucker.) (45.05 cae
oS mea “Arkansas, some minors are eae “torthe’
. penitentiary instead of. ‘toa. juvenile, institu-

“been
how. his kne oe wobbled : every” i
he-stood in*f

the massive walnut

tion, depending on, the nature of‘the. case. The™ where the. board dibs sit and studied:

authorities had decided Fields’ was a. _peniten-
“tiary. case and he had arrived ‘at the. prison
- February. 20, 1947. Two days later, he had his
» sixteenth: birthday., He’d. settled down as a
model prisoner for: 14 yee and soon became
a-trusty.
After approximately seven years, a life pris-
oner ‘becomes eligible for commutation. Lifers
can’t be paroled. Their sentences must, be com-

% ‘muted to lesser sentences, after which the in-

mates can become eligible for parole, Fields had
gone before the parole board seeking. commu-
tation every. year since he’d served the, seven.
And every year they’d interviewed hi studied :
bis record—and turned him down. | ete
Fields recalled bitterly his last ieelowt, on. :
January 3, just two weeks earlier. Standing imy ¥i,
the windswept hog field, he remembered how ~
his hands: had ener’ while he sat on his bunk.

ee ee i ws

- with their. bla
~ qualities of a

They

ayxiety, too, “he
detected what th
tone in his: voice,
thing had mad
looked at'the’record,'

him up

them to decide a

was. determiried ‘to be a law aa
» “VIL never ge
grim, “TIL Be ve

pont id

had. d ett

and that alo

out,” Fields decided, h
et out of here through

ne “was always” enou ta
was a bad’ risk.” Ad
nmutation. No- thoes fo
this) t would be’ another year

th 7 In this hog field, nothing. In Pine Bluff,
hit

hour. Sixteen dollars might. buy forgetful-
for a while, but not in the hog field.

Hog, tending. was ‘considered a ‘choice job: by

Th he g tender had responsibil-

C $ trusted, ag. he guards

i t him: ‘to do his jobea he t, ee This

morning Fields hated” it. ‘shoul “of ithe

odigal in the Bible; who iad "wasted himself

taken the: prodigal back. - “
How Fields longed to be’ taken bach! any-
where away from here. How he longed. fora
der, a ‘celebration. But he wash’t) eligible.
Not eligible. Not- eligible. The words’ rang in
his cold ears. He thought bitterly, the ® Bible
prodigal never pleaded guilty to raping @ Tady
of Yellville. Ifhe had, he’d still be tending pigs.
Suddenly Fields’ legs were in motion, swihg-
g fast. The blood surged into his limbs, pow-
x adding power as his legs in motion seemed

to have already made his decision for him.
Porn Get out of here..His feet slapped at
he soil of a stubble field as hisvlegs Carried
him down a prison lane, through a stretch of
‘gnarled winter dead trees, over a fence, and
it onto a country road.

DWE rf ‘try ® teceive upto 12% hours Of diagnostic inter-
a to prevent: similar’ tragedies. ‘He ‘enlisted: the patbalingl “group ema canbe teach by is without chatee: ‘Later, the families”are ~
3 aid of his congregation to’ ‘spread “the ‘word “< dialing ‘a « telephone 1
that he! would: be® available for’ emergency!” ‘organization's “‘name) ‘eR tends." wet a i
ety, for the dite: ‘of Peo
is -- months that followed, he was'able to dissuade* ple -Tired-of Life; London ‘has ‘the Samaritans; <
4-11 persons. from killing themselves. Then he.

“It would be an understatement ; to say the

ej must te a ae that ae Weapons.

iced on a gigantic Scale that conceivably ‘could :
i Lee come Vesti «cua all hutnanity, (OO 8% 9° oom

Sa
“His Hast lobed on mee ‘watt eee woth bills

d wound up tending swine. The. father, chad .

“The Center’ Staff*includes, in addition to...

clinical -psychologists = Shneidman and Far-~ -

i o» berow, two psychiatrists, two psychiatric so-.

: -yigeclal workers . and. pre pther clinical PSY= P

t Gussie eno gists. tee af ua
= doproxinatel 20. patients ‘are treated ‘ath ne

aThe. Center founders emphasized to me: that...
leir. main -concern. is research. There: is: much...

i

FLT LS TE

TUCKER, ARK., JANUARY 17, 19% é
m With his one good eye T: wate Charities Field 9a 6° Weperen ¢: a ethlis id Nortom talked with his geod friend

ne 4 ; f ts
through his thick glasses atthe ho:d of h Pithahe Dap Herse, | atencent in charge’ of all Arkansas
at Arkansas’ Tucicer Prison Face twa eo GRR Uprleans. 564 ee n a guutine tour and by coincidence
day, January 17, 1962, and a damp, coki n % Paar d the mort |) 6 »y a chat with Norton.

*

sple would meet Trusty
Jaboty stispected, not even

splinters of dirty ice left after los
him as Fields turned one, side, t
away.from the gusts. His glasses oio:

wind made a tear leak out oi ‘re corne: ‘“Syeker awis over 5000 aeres along
and streak his cheek. e Ss s than an hour’s drive south-

the Acks

: victs end first offenders are
vice, hogs and cattle. Most of
themselves and other state

Fields pulled his xorduroy cap down over hig
his clenched fists deep inside his pockeis and |
shoulders trying to burrow. do» i
watched the pigs rooting with the!: 19
muck of a puddle. They were covered with
that bristled red through the mid on the
grunted and squealed and wallewed in
not minding the cold. Fields hated thar

“Oh, God, i’d rather be anywhere it the.
here,” | he thought, shivering. “Tf only it hacn't
mistake ‘J5 jeatsago, That wormar ang th 5
tion... ff only they’d commute my serils

A few miles away, 50-year-old Charie

pfosperous Mississippi River bottom piatiter |
Arkansas, was driving his Olds north on
route to visit relatives in the central part

Farthérnup the; toad, farmer's
at her kitchen sink, hands imroesvca in
as she did the breakfast dishes Hen
was tugging ai her skirt, wanting her-

Three miles away, at the intersection

and 31, nea: Sherrill, Charles Yaney,
tobacco supply truck at @ service stat

B.C. Howard, operator of the fucker)
missary, was also traveling the toads rps:

pick-up truck from Pine Bluff.

in the Jefferson County sheriil’s:affice at

at the hog herd. These
bud fatten and be slaugh-
end other prisoners, who
nm and slaughter and eat the pigs
dy ‘eaten. It was an endless circle.
‘ht. from whith there was no release.
“Liueeived..‘wo different Christmas fur-
his own both, times, too, And as a
ermitted tc carry a gun. He fingered
@ gun. they'd issued him to protect
sacks. of wiki dogs.

to the field to work and go back to
br: radedi, "They. clothe me, feed me,
hey fusiome,,enough td give me

seh he was 15 years old.
aybe he would have got
advised the plea because
(Continued on paste 53)

vy;

Hastily set up roadblocks didn’t get wea a se first time in 15 years.

4



SMe 16692 13.43 BH202 737 C824 ; MCKINEY_ & MCDOWE

FOR IMMEDIATE RELEASE CONTACT: Gwen McKinney
September 16, 1993 202/737-6225

AFRICAN AMERICAN LEADERS DEMANDING JUSTICE FOR INNOCENT BLACK MAN

The NAACP Legal Defense and Educational Fund (LDF) and leaders in the African
American community are demanding justice for Barry Fairchild, a mentally disabled Afmcan
American man convicted of murder in Arkansas. Fairchild is scheduled to be executed next week,
despite alarming evidence that overwhelmingly proves his inocence.

The Arkansas Superior Court will hear oral arguments in the case on Friday. The
execution is scheduled for Wednesday, September 22. LDF is mounting support for Fairchild
among leaders across the country to gain a stay of execution and a pardon by Arkansas governor
Mike Huckaby. LDF is also seeking support from President Clinton who, during his tenure as
governor of Arkansas, was criticized for his failure to reverse the injustices surrounding Fairchild’s
Casc.

The Fairchild case will be on the agenda at the Congressional Black Caucus Cnminal
Justice Braintrust. NAACP Executive Director Ben Chavis, Jessie Jackson, and LDF Attorney
Dick Bur wil] participate in the session which will address systemic racism in the nation’s
administration of justice. The session is scheduled for Friday, September 17 from 9:00 a.m. to
12:30 p.m.

in a dragnet staged by the Little Rock Sheriffs Department, African American men were
rounded up and allegedly forced to confess to the murder of a white Air Force nurse.

"The Arkansas police department wanted to solve a murder quickly -- at the expense of
the life of an innocent Black man," said LDF Director-Counsel Elaine Jones. "The Fairchild case
ig an example of the assault on African American men by the legal system in this country."

Fairchild has languished on Arkansas’ death row since 1983, when he was convicted of the
murder. The Little Rock sheriff's department used a videotaped confession from Fairchild as the
primary grounds for Fairchild’s conviction. LDF lawyers have produced evidence that Fairchild
was beaten and coerced into making a confession.

Moreover, the defense produced 50 witnesses that substantiated these allegations. A
former deputy sheriff also came forth to admit that he, then-Sheriff Tommy Robinson, and other
deputies severely beat and threatened Fairchild’s brother, Robert, to force him to confess to the
crime just days before Fairchild’s arrest.

#30

AO?

MEMPHIS, SATURDAY, AUGUST 28, 1993
prance A REL ES NSE OLS EEE dee hee ee

Sept. 22 execution set
in Ark. for Fairchild

By Joan I. Duffy
The Commercial Appeal
Little Rock Bureau

LITTLE ROCK — Gov. Jim Guy
Tucker set a Sept. 22 execution
date Friday for Barry Lee Fair-
child, a black man who says
white sheriff's deputies beat
him until he confessed to mur-
dering an Air Force nurse.

The NAACP’s Legal Defense
Fund filed notice Thursday it
will ask the state Supreme Court
to stop the execution because of
the condemned man’s alleged
mental retardation.

Fairchild’s IQ measures
between 60 and 80, 10 to 30 points
below the average.

Convicted before the state al-
lowed executions by lethal in-
jection, Fairchild will be eligi-
ble to choose between lethal in-
jection and death in the electric
chair.

Fairchild’s sentence for the
February 1983 rape and murder
of Marjorie ‘Greta’ Mason, 22, of
Panama City, Fla., already has
been appealed three times
through the state and federal
court systems.

The Eighth U.S. Circuit Court
cleared the way for Tucker to set
the latest execution date when it
upheld a December 1991 district
court decision that Fairchild
confessed truthfully to the
crime despite evidence that oth-

er suspects in the case may have
been abused by Pulaski County
sheriff’s deputies.

Fairchild was within hours of
being put to death in 1990 for the
Mason killing when several for-
mer inmates in the county jail
Said they had been beaten by
deputies searching for a confes-
sion in the case.

The U.S. Supreme Court stayed
the execution in order for the
Eighth Circuit to grant an unu-
sual third round of federal hear-
ings to examine NAACP claims
that sheriff's deputies rounded
up young black men in the after-
math of the Mason murder and
beat them until they obtained a
confession.

Former congressman Tommy
Robinson, who sought the Re-
publican nomination for gover-
nor in 1990, was sheriff at the
time. During his testimony at
the Fairchild hearing, he denied
the abuse occurred.

In his 428-page ruling, U‘S.
Dist. Judge G.Thomas Eisele
concluded from 18 days of hear-
ings that Fairchild confessed
voluntarily and truthfully and
was not coerced by abusive sher-
iff’s deputies.

The judge agreed that black
men were rounded up for ques-
tioning, but he said that was
based on a sighting by a state po-
lice trooper of two black men in
Mason’s car within an hour of

©y ER)


Fairchild

® Continued from Page 1A

Fairchild has had four ap-
peals before the nation’s high-
est court, Gillean said.

' Gillean said it appears that
Tucker will follow the same
policy and procedures govern-
ing executions as did Govs. Bill
Clinton and Frank White:: : -
Fairchild
could be exe-
cuted in early
October, Gil-
lean said. He
said he did
not expect the
execution to
occur before | -. grag.
Monday, Oct. |, — :

4.

“It seems to Fairchild
be a proper
course” was all Gillean would

say about Fairchild’s possible’

execution. “I have no reaction.
I have pursued the case and re-
sponded to allegations and
tried to defend the state’s posi-
tion.”

Gillean said the 8th Circuit
Court decided earlier this
month to lift the appeal if the
U.S. Supreme Court declined
to intervene, which it did. Hall]
Said Tuesday that he last talked
with Fairchild about two weeks
ago. He said Fairchild was “Just
fine,” but had not received
word of the stay being lifted. .

Hall referred a reporter toa

filing in Jefferson County by
Little Rock attorney Les
Hollingsworth in the Fairchild
case. Hollingsworth is repre-
senting the National Associa-
tion for the Advancement of
Colored People Legal Defense
Fund.
. “The gist of the petition was
contending that since the state
Legislature passed the act in-
dicating individuals who are
mentally retarded may not be
sentenced to death, then he
should not be executed,” Gil-
lean said of Fairchild.

Fairchild is mildly retarded,
=e an IQ in the high 60s to the

S. :

ARK. DENocRArT- CAZETTE

Gillean said a Jefferson:

County circuit judge denied the

‘petition about a week ago and

did not know if Hollingsworth
would appeal to the state
Supreme Court.

Gillean said Hollingsworth
has 30 days to appeal.

' Hollingsworth was in court
and could not be reached for
comment Tuesday.

: A Supreme Court clerk said
Tuesday that there had been no
recent filing in the Fairchild
case.

_ Steve Hawkins, assistant
counsel for the NAACP Legal
Defense Fund in New York,
said Tuesday that an appeal
would be filed today to stop the
‘execution because it would be
cruel and unusual punishment.

Chris Raff of Searcy, who
prosecuted Fairchild, said
‘Tuesday, “It has been 10 years
Since the case (began). The
‘Arkansas Supreme Court, fed-
eral court and the U-S.
supreme Court has looked at
‘several issues and affirmed it
was a fair and just trial. If ever
a case justified the death penal-
ty, this brutal rape and murder
‘of that poor girl did.

“She did not get a chance in
‘that abandoned field to choose
‘life or death, or make peace
with her God. Justice will be
served if he is executed.”.

Fairchild’s appeals have
‘centered on his confession,
‘which his attorney has argued
was coe”ced.

WED,
8-25-93


ARKANSAS TIMES ¢ SEPTEMBER 16, 1993

AS GEORGIA GOES?

If precedent in Georgia is a guide, Arkan-

Sas won't execute Barry Lee Fairchild as

scheduled Sept. 22.

In a motion for a stay of execution filed
last Friday with the state Supreme Court,
Fairchild’s attorneys argued that it would be
cruel and unusual punishment to execute
Fairchild, a convicted murderer, because he
is mentally retarded, with an IQ below 65.

The motion argues that Act 420 of 1993,
which outlawed future executions of the
mentally retarded, reflects a “moral consen-
sus” against imposing the death penalty even
in cases, like Fairchild’s, not covered by the
new law. Fairchild’s equal protection rights
also would be violated, attorneys argue.

In an identical situation in Georgia, that
State’s Supreme Court granted a stay and,
after a review, ruled it

would be unconstitu-

tional to execute any ———s
mentally retarded per- teen
son. The Georgiacourt oO
cited a legislative act ————— 1
identical to Arkansas’s | === <0

and, as exists in Arkansas, a public opinion
survey showing majority Opposition to ex-
ecution of mentally retarded people.


years, attorneys for Barry Lee
Fairchild say, they tried in
vain to convince the con-
demned killer that attacking
his sentence of death could be
the best way to save his life.

But Fairchild, sentenced to
die for the 1983 murder of a
young Air Force nurse, was
firm in his preference for death
over a life behind bars — until
he relented and allowed his at-
torneys to file a motion Mon-
day challenging the decision to
sentence him to die.

A federal judge’s order
Wednesday setting aside the
death sentence, and a federal
appeals panel’s decision not to
consider the state’s appeal in
haste, saved Fairchild from be-

ing put to death as scheduled -

Wednesday night.

If the ruling stands, Fair-
child’s sentence would revert
to life in prison without parole,
the only other possible sen-
tence for capital murder in Ar-
kansas.

A lawyer for Fairchild, John
Wesley Hall of Little Rock,
said Fairchild’s change of
heart stemmed from conversa-
tions with other inmates.

“As time went on, they’ve
been able to persuade him that
there is a life beyond Death
Row,’ Hall said.

Fairchild remained in a cell
a few feet from the state prison
system’s death chamber as the
9 p.m. appointed time. for his
execution came and went. Hall
said he was with Fairchild at
8:30 p.m. when a law partner

telephoned with word of the
appeals panel’s decision.

He said Fairchild took the
news matter-of-factly. “He’s
never been really surprised
about anything,” Hall said.

Attorney General Winston
Bryant decided against an im-
mediate appeal to the U. Ss, Su-

preme Court after. ‘a. “three”

judge appeals court panel’ de
clined to overturn the ruling by
U.S. District Judge G. Thomas
Hisele earlier in the day.

Less than eight hours before
the scheduled execution, Eisele
set aside Fairchild’s death sen-
tence. The judge ruled that
Fairchild never should have
been given the death penalty
because he did not play a sig-
nificant enough role jn the Feb,
26, 1983 death of Air Force
nurse Majorie “Greta” Mason
to warrant the death penalty.

Bryant said the state will
argue vigorously to overturn
the ruling that averted Fair-
child’s execution.

The attorney general's office
appealed Eisele’s decision to
the 8th U.S. Circuit Court of
Appeals at St. Louis, seeking
to overturn the ruling in time
to continue with the execution
Wednesday night.

But the three-judge panel
declined to grant the state’s re-

quest to reinstate the death.

penalty. The appeals judges in-
stead said the case would be
argued on its merits at a hear-
ine in St. Paul, Minn., the

Judge’s ruling called threat
to state’s death penalty law

LITTLE ROCK (AP) — At-
torney General Winston Bry-
ant says he’s worried that a
federal judge’s decision to set
aside Barry Lee Fairchild’s
death sentence sets a prece-
dent that could affect many
cases — and could even over-
turn’ the state’s death penalty
law.

Fairchild’s execution, sched-
uled Wednesday night for the
1983 murder of an Air Force
nurse, was set aside earlier in
the day by U.S. District Judge
G. Thomas Eisele.

That night, a three-judge
panel of the 8th Circuit Court
of Appeals refused the state’s
request to swiftly overturn
Eisele’s ruling, and Bryant de-
cided against a late-night ap-
peal to the U.S. Supreme
Court.

Eisele ruled that, since Fair-
child was not the triggerman
in Majorie “Greta” Mason’s
shooting death in 1983 and
there was no evidence that he
had any intent of killing her,
he should not‘have been given
the death penalty.

Bryant said the state would
vigorously appeal the order.

“This is a very important
case for the state of Arkansas,”
Bryant said Wednesday night.
“This case could affect a num-
ber of death-row inmates — in
fact ... any inmate’s case that is
pending now that involves a
felony murder where the in-
mate was an accomplice.”

In addition, Bryant said
Eisele’s-ruling ‘could endanger
the. state’s overall death-pen-
alty law.

State law now allows the

death. penalty if, .a> felony :is.:. :
, gommitted along HAP a jah nf

ing, Bryant said, but

Judge LHisele ruled i in this case

is that you've got to prove some

specific act by the defendant in

addition to the felony ... that
shows specific intent to commit

murder or to kill.”

‘Eisele announced his ruling
about 1:35 p.m. during a con-
ference call with Fairchild’s at-
torneys and the attorney gen-
eral’s office. The ruling came at

the end of an extensive review
of relevant Supreme Court rul-
ings in other cases and of Fair-
child’s case, including his vid-
eotaped confessions and testi-
mony.

Throughout his case, Fair-
child had insisted he’d rather
die than spend the rest of life
in prison. Legal efforts on his
behalf were aimed at overturn-
ing his conviction until Mon-
day, when his lawyers chal-
lenged the sentence for the
first time.

Eisele denied Fairchild’s re-
quest for a stay of execution
but said he set aside the death
sentence on the merits of the
case. Bryant said that step was
unique.

The victim was abducted,
raped and shot to death, only
days after being assigned to
Little Rock Air Force Base.
Fairchild claimed an accom-
plice was the triggerman, but
he never named the accom-
plice. No murder weapon ever
was found.

Fairchild confessed that he
was there when Ms. Mason
was killed but later recanted,
‘saying Pulaski County author-
ities, including then-Sheriff
Tommy Robinson, beat the
confession out of him,

He came within 33 hours of
being executed in September
1990, when Eisele agreed to
hear the beating allegations.
The judge ruled in 1991 that
Fairchild’s confessions were
authentic and that he was not
mentally retarded.

In his confessions, Fairchild

yoadmitted.to, raping Ms. Mason.

Eisele ruled that, besides
the confessions, the state pre-
sented no evidence that Fair-
child fatally shot Ms. Mason,
that he aided or abetted in the
murder or ever intended to kill
her.

“No reasonable jury could
have sentenced Fairchild - to
death on that evidence,” Eisele
said.

time to prepare a brief and
submit it to the U.S. Supreme
Court. “We're not even certain
we have an. appealable order,
since the 8th Circuit has -re-
tained jurisdiction of the case,”
he said.

At the prison system’s Cum-
mins Unit, where the death
chamber is located, Deputy At-
torney General Jack Gillean
said the state would instead let

_the 8th Circuit appeals process
run its course,

“We certainly didn’t want to
to act out of haste,” Gillean
said, “This way there will be a
full briefing and full consider-
ation of the issues before the

peared before U.S. Magistrate
Henry Jones in Little Rock to
acknowledge in court his
change of heart about his sen-
tence.

Fairchild was on his way
back to the death house soon
after the five-minute hearing.
His mother, Merdine Fairchild,
was there and afterward said,
“T am a long way from giving
up. We're leaving this in Jesus’
hands.”

’ Jones relayed Fairchild’s
testimony to Eisele, who could
not hear it himself because of a
prior court commitment in
Jonesboro. Eisele announced
his decision to the attorney


Fairchild
ten:
set for. :

VSR ED

Dec:-3

By George Wells. Bees Co i
Gazette Staff. . ae :
A hearing on Leathe Bany ibe
Fairchild’s confession was coerced
was postponed Monday from Nov.
13 to Dec: 3 so his lawyers could
interview officers who investigated
ithe case and, ; suspecta ee were
interrogated. 2j4¥ 4:, Mi

U.S. District Judge G. ‘Thomas
Eisele advised the lawyers not to
‘try to do “a full-scale investigation:
of the investigation” because: he’
.would limit the subject of the heax-:
‘Ing to the question of coercion, ;:

- Fairchild, 36,-of North Little:
Rock, is sentenced to death for the
1983 ‘slaying of Air Force 2nd Lt.
Marjorie “Greta” Mason, a nurse:
at the Little Rock Air Base Hospi-
tal. He is seeking a new trial, saying
he is innocent; despite two confes-
sions he gave Pulaski County srl
uties at the time.s! - ss fhe

« His lawyers contend that the bee
confessions: he gave: were coerced |
and were part of a pattern in which |
deputies rounded up suspects and:
tried to make them confess. Fair-:
child has said before that Tommy
Robinson, then:sheriff and now’d.
U.S. representative, and ‘Major
Larry Dill threatened him during
interrogation, but Eisele has re-
jected that claim before.

Fairchild’s lawyers, John Wesley
Hall Jr. of Little Rock and Richard
Burr of New York City, an attor-
ney for the NAACP, want to show
that there was a pattern of coer-
cion against several possible sus-
pects.

During a telephone conference
Monday, Eisele granted a request
from Hall and Burr to delay the
hearing.

After reviewing the files of the
investigation, Hall and Burr said
they needed to question every em-
ployee of the sheriff's office who
was on duty or at the jail when
Fairchild was brought in or who
interrogated other suspects. They
said there were at least 21 possible
suspects. questioned.

“All the people we have found on
that list were brought in and inter?
rogated,” Burr told Eisele, indicat-
ing that several were coerced but.
that they did not know the identity
of the officers.

we "asi

ARK AWSAS
CAZETTE

TUES.
NOv. 6, 1990

Lifted stay of.execution puts Fairchild’s life-in Tucker’s hands

BY SHERRY SNOW
Democrat-Gazette Searcy Bureau

Gov. Jim Guy Tucker's first
executive action involving a
death-row inmate could come
before Sept. 2, ending the 10-
year battle to keep Barry Lee
Fairchild from the execution-
er’s chamber.
; The 8th U'S. Circuit Court of

Appeals at St. Louis lifted a
three-year stay of execution
Aug..J7, paving the way for
Tucker to set Fairchild’s exe-
cution date. A Lonoke County
Circuit Court jury convicted
Fairchild of the Feb. 26, 1983,
rape and murder of a nurse sta-
tioned at Little Rock Air Force
, Base in Jacksonville.

Fairchild’s attorney, John
Wesley Hall of Little Rock, said
Tuesday that he received notice
last week of the 8th Circuit
Court order being lifted and will
“seek no rehearings.”

Deputy Attorney General .

Jack Gillean, who has handled
the state’s case since a 1984 ap-
peal of the Aug. 3, 1983, convic-

tion, said his office hand-deliv-
ered the notice Thursday to
Tucker’s office.

Tucker representative Max
Parker said Tuesday that the
governor has set no execution
date; but will do so within 10
working days of the notice’s re-
ceipt. She said the execution
should occur,“generally, no,

more than 30 days after that.”
Fairchild, 39, formerly of

North Little Rock, received the,

death sentence for the rape and
slaying of Lt. Marjorie “Greta”
Mason, 22, of Panama City, Fla.
She died less than two weeks af-
ter being stationed at Little
Rock Air Force Base.

See FAIRCHILD, Page 14A

URGENT ACTION PROGRAM OFFICE e P.O. Box 1270 « Nederland, CO 80466-1270 + 303-440-0913 « FAX: 303-258-7881
EXTRA 76/93 Death Penalty 8 September 1993

USA (Arkansas): Barry FAIRCHILD

Amnesty International fears that Barry Fairchild faces execution in
Arkansas, USA, on 22 September 1993, for a murder where judges
recognise he was not the killer.

Barry Fairchild, black, was sentenced to death in August 1983 for the
kidnap, rape and shooting death of 2nd Lt. Marjorie "Greta" Mason, a
white Air Force nurse in February 1983.

Two Federal Court judges, while upholding Fairchild’s death sentence,
have ruled that he was not the actual killer. In June 1991 US District
Judge G Thomas Eisele said "...the court is convinced on the evidence
before it that he (Fairchild) was not the one who shot and killed Ms
Mason". Ina further ruling in November 1992, from a three-judge panel
of the 8th US Circuit Court of Appeals, according to newspaper reports,
chief judge Richard S Arnold said "He (Fairchild) probably did not
kill Ms Mason" and that "The actual killing was probably done by his
confederate and Fairchild may not have intended or even expected this
_to happen".

At Fairchild’s trial the prosecution said that he may not have been the
one who carried out the murder. However, under Arkansas law an accon-
plice to murder can be sentenced to death.

Fairchild was convicted largely on two videotaped confessions which he
recanted during the trial. According to his lawyers, apart from his
confessions, there was insufficient evidence to convict him. They also
claim that these confessions - obtained in police custody before
Fairchild was allowed to consult a lawyer - were made under duress, and
that the County Sheriff’s office also abused and coerced a number of
other black suspects to obtain confessions in the crime. It is also
alleged that while in custody, Fairchild was beaten by the police and
badly bitten in the head by a police dog.

Fairchild has maintained his innocence and states that the accomplice
shot the victim and that he was not present when the shooting occurred.
Fairchild’s accomplice was never apprehended.

According to Fairchild’s present lawyers, he is mentally retarded. They
claim that an early pre-trial mental evaluation of Fairchild which
found that he was not mentally ill or mentally retarded was inadequate.
They allege that substantial evidence was discovered later which showed
that Fairchild is mentally retarded and has been for many years. This
evidence was not presented to the jury. His lawyers maintain that if
the jury had known of his mental retardation, they might have doubted
the accuracy and reliability of his confessions, and his actual role in
the crime.
This Urgent Action appeal originated from Amnesty Internationals research headquarters at the International Secretariat in London, United
Kingdom. Amnesty International is an independent worldwide movement working for the international protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color. sex, ethnic origin, language or religious creed, provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on

behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.


er ey.

a gt

ods
we

rehilds, 96,,Was eonticted: of
‘tape and. kidnapping ‘in:thé..1983°

* Force’ Basesi:-2:} ;

OM. eID See oe : ¥

Monday’s ‘petition thats:
M1 Until Fairchild’s arrest ‘and
confessions, «all’ of the- available

- evidence indicated that Mason was:

abducted in the.vicinity of McCain,

* Mall in North Little Rock,-not in

the 600 block of East, Washington.

' to Avenue in.North: Little. Rock .-.-
4 areas which are:a considerable dis-.
ca_ tance apart, sayy ac ny tpg aige hi

__, Mf Additional questions regard-
ing a Casio diver’s watch. recovered.
from Fairchild’s: sister,..a «watch
thought to..be ‘Mason’s, have. also
surfaced. ‘Two, of Mason’s:-col-
leagues remembered Mason,weari
ing a-watchiwith a black band, but
one person- was :certain ‘and.-ané
other was fairly certain that Mason
was not wearing that watch ‘when
she was murdered. Rather;:.they
believed, Mason was wearing a gold
or white-gold watch Feb. 26, 1983.
In addition,:Mason’s roommate at
the time did not identify the watch
recovered from Irene Fairchild as
having belonged to Mason. , ask
-. “None of these facts was ‘made
available’ to the ‘defense priot ‘to:
this time,” the petition said. “Con;':
sequently, they are not: yet’ ready.
for presentation ‘to the ‘court; for :
there are still’ many--unexplored :
questions‘with respect to‘each:of ©
them.” .).- 4 wee +2. wt AM sise st

URI Tainted ast petit oR

ithat evidetice-repealed tH*tecently,
‘Obtained docuhientr Fsignifis

reant Sevidenves that ubstantiates
-Fairchild’s telaine thatthis*Confes:-
‘sions: were: coettedsin‘Vidlaticn’ of
the’ U.S Constitutionsitveiucs
NFairchildshas:imaintuitied=since.
his arrest:that officerd beat-a.con:,
fession: from:him thagmaset oie.
™Leadstprovided *bytumerous
witness statementa‘placing/Mason
int the’ McCain *Mall‘iarda ‘around
5:30" p.nii"On: Febh2671983; were
apparently*iignotedyiafter.Barry
Fairchild’s-confessions?were:ob«.
tained, the ‘petition saidsz. 6s yer \
“Wack Gillean, absistantiattorney
general, said.late:Monday. that he
couldn’t comment:on ‘the tase be-
cause -he:hadn't-yet:-reviewed ‘the
filingas! sunset brary ycabisseees trays ts. <
‘The U.S District Court’ of Ap-
peals“in-St.-Louis sent’ the Fair-
child vase :back: to. U.S. District
Judge G.-Thomas Eisele about’30
hours-before:the scheduled -éxecus
tid by. lethal injection: Sept:i62:, =.

NM.0.Fre. (6-8-1887 2:3 reports double ECxecutvron
at FF. San Ank. of Seaborn breera ane! Silas Hampton ,
Gives theip ages as /8. Greens crime commitbed on

11787. Hampton S crime Commid¥fed on 12/9/96. S%

ps oes Vou already Aave KampYen

/1sted asa _Juvente . Cheep may also he one.


seized a maul which happened to be within reach and before the bystanders could realize,

the situation of the unfortunate man, beat him to death, crushing his head to a shapless
masse Greene immediately sprang into a skiff and made his escape down the river, He was
captured at Commerce, Miss., brought back, tried, found guilty and the sentence of death
passed upon him, An appeal was taken to the Supreme Court but the decision of the loer court
was sustained, and Governor Churchill r: using to interfere, the culprit died today."

DAILY NEWS, Galveston, Texas, 7-16-1881 (1-7.) ‘

. FURTHER ON GREEN'S CRIME
"May 7, 1881-A horrible murder is reported from Councqil Bend, LéeCounty, Isaac Green, a
negro desperado, quarreled with John Richards, colored, accusing the latter of circulating
in the neighborhood a report that he (Green) was a coward, and would not fight unless he
had the advantage, Richards, who is an inoffensive man, denied making the remarks, but as
Green advanced on him threateningly he stbuck him, knocking him down. Green sprang to his
feet, furious with rage, and, seizing a big maul lying near him, hit Richards with it.
The latter fell.on the ground, insensible, when Grem pounded.his head into a jelly. Green
then got into a dugout and paddled swiftly down the river, but was pursyed and captured
and jailed." NEWS, Galveston, 5-8-1881 (1-6. )


Neither one appealed.

GREEN, Isaac, and HARDIN, John, blacks, hanced Marianna, ‘rk, (separate crimes), 7-15-1881.
g q e ¢
"July 15, 1881-Isaac Greene and John Hardin, colored, were executed at Marianna, Ark., today,
The former murdered William Brown, colored, and the latter killed a colored man by the name
of John Richards. About 8,000 people were present. At -12-o0'clock the prisoners were taken
from the jail and escorted to the scaffold, in front of which the Lee Guards were drawn up.
The condemmed men were calm Greenegave out the hymn 'thy should we mourn dep arting
friends, /Or shake at death's alarms?', and among the thousands of voices which sang, his was
the loudest, When the singing was concluded he made an effective prayer, and then spoke at
some length, confessing the crime of which he was charged, and asking his friends to meet
him in heaven, Hardin then asked the people to sing, 'Am I a.soldier of .the Cross, / A
follower of the Lamb?', after which he made a lengthy and rambling address, saying that he
was mot an innocent man; that he had killed William Brown, but that Jesus's blood had washed
away that and all other sins, The arms of the culprits were the pinioned, the rope and
black cap adjusted, and the trap .sprung.e. They died easily and were cut down after hanging
about twenty minutes, The wildest excitement .prevailed-at times among the throng. Such a
spectacle was never before witnessed in this portion of Arkansas,
"JOHN HARDIN'S CRIME,
"The story of the crime for which John Hardin today paid the death penalty forms one of the
most interesting chapters in the criminal annals of the State, It was committed two years
ago, At that time Hardin was considergd one of the most prosperous cotton planters in
Phillips County, Hehad recently married a colored girl noted for her personal beauty and
superior intelligence and the future seemed bright with promise, But a cloud shortly rose,
Among the frequent visitors at the rustic home of the young couple was a man of the name of
William Brown, who had been an unsuccessful applicant for the hand of Hardin's wife and who,
when she married another, still professed to love her dearly, There is no evidence to attest
that his wife was unfaithful to her marriage vows, but Hardin grew suspicious, Suspicion
rapidly ripened into savage jealousy, and jealousy suggested a horrible vengeance, Peace
fled from the home of the Hardins, and strife and bitterness reigned. One quarrel followed
another, then hurrying Hardin to the consummation of a dire purpose, He learned one day
that Brown wuld 4% on thet night return from a neighbor's, passing along an unfrequented
path which led through a dark and desolate ravine, and he determined to waylay and slay
him, He repaired to the glen about twilight, hid himself in a clump of sumac bushes and
waited for the arrival of his victim, He had armed himself with a clumsy brier-hook, which
he picked up inside a hedge as he hurried to the spot, lhe blade was keen and sharp, and
with this clutched tightly in his hand he waited calmly for his human prey. Brown appeared
presently, unconscious of danger, and whistling blithely, ‘vhen he neared the place where
hardin lay concealed, the latter rose up like an avenging Nemesis, and XR flung himself
on Brown with a cry of fury. A desperate fight ensued, Byoown, howgver, was cut down and
litérally hacked to pieces, his head being severed from the body, ardin hastened home and
found his absence had not been missed. He madeno attempt to slay his wife, and conducted
himself so directly that when the body was found a day or two after, and the country thrown
into a tumult of excitement, he was the last one suspected of the crime, Subseaquerfly he
was arrested on suspicion when, to the surprise of everyone, he confessed the murder, and
detailed the circumstances in all their ghastliness, He was tried, after months of delay,
found guilty, and sentenced to death, today being fixed as the time upon which the sentence
should be carriedinto effect, Governor Chupchill refused to interfere and the condemed
man prepared for death. He professed religion, united with the Methodist Church, and was
baptized, the latter ceremony taking place in the corridor of thejail a few days ago, in
the presence of forty or fifty persons, mostly his friends and relatives, In an intefview
with the NEWS correspondent, Hardin said that he was prepared to go; that his sins had all
been blotted out, and that he had a passport for heaven}
"GREENE'S CRIME

"Isaac Greene, who also today paid the death penalty, was a desperado whose career has been
marked by some of the most bloody deeds on record, ending with the mrder of John Richards
on May 6, 1881, On thedatementioned the parties met at a gathering of coloref folks, where
Green demanded a retraction from Richards of some words said to have been spoken by him, in
which Green was denounced as a coward. Richards could not remember having made such re=

marks, but Greene insisted that he had, and must retract.. At this time Richards.turne
and with a well-directed blow fell Green to the ground, who, spring Ame okt Y €o his paed |

*

Two separate appeals, both 70 SOUTHWESTERN 1038.
GREENE, Jay, and RUFFIN, James, blacks, harmed Star City, Lincoln Cow, Arkey 3-20-1903.

"Star City, in Lincoln County, will have a double hanging on Friday, Feb. 13, Gov. Davis |
yesterday set that date for the legal execution of James Ruffin and J, Greene, colored,

upon the confirmation of the supreme court of thejudgment rendered by the circuit court |
of Lincoln County. Ruffin and Greene are charged with the murder, early in 1901, of Don
McGhee, also colored, ihe men were convicted March 12, 1902, and sentenced to hang April
25 of the same year. Appeal was taken to the supreme court, which tribunal has sus tained
the lower one, ‘The original date of the hanging having elapsed, the duty of fixing a

date for the execution devolves upon the governor. The hanging, according to the ggwernors'
proclamation, one of which was issued for each of the cases yesterday, will be at Star City
between the hours of sunrise md sunset, at the county jail. The crime for which the men a
are to pay as forfeit their lives was a case of ambush, There was the usual woman in the
case. A negro lawyer named McCombs was held in connection with the case for a time, but
nas since been released, It was claimed by the prosecution that McCombs had written a
letter to McGhee asking him to come to a certain place one night, “‘cGhee had been visiting
a woman in whom Greene and Ruffin were interested, McGhee was waylaid and shot to death

on the way to his trysting place with McCombs, The crime was fastened on Ruffin and Greene
by circumstantial and otherproff, The killing occurred near Yorktown, Lincoln County,"
ARKANSAS GAZETTE, Little Rock, trke, 1-16-1903 (8/3.) -

",. The murder was done from ambush und was cold blooded. McGhee had beencalling*on a
woman and Ruffin, who was jealous, waited,for him to leave the woman's house and shot him,
Green was with the ruffin and the shooting was done with Green's gune Mcchee lived about
twelve hours and said Ruffin did the shooting and that he had seen him by the flash of
the gun, After beine arrested Ruffin made an alleged confession which implicated A, G.
McCombs, a negro lawyer, whom Ruffin charged, hired him to kill McGhee. McCombs was
arrested, but was discharged on account of insufficient evidence, Later the negroes
withdrew these confessions and claimed they were'hoodooed! into making them by a negro
preacher, There,is a sentiment herein favor of Greene, who is hardly mre than a boy.

It i@ the general opinion that he was drawn into the affair and was only a tool." GAZETTE
(ARKANSAS), Little Rock, Ark., 1-29-1903 (1-6,)

"Star City, Feb. 11, 1903-There is great excitement here today over a confession of Jay
Greene, who, with James Ruffin, is under sentence to be hanged here Friday for the mrder,
in 1902, of Don McGhee, He says that he committed the murder himself, and that Ruffin was
not present and knew nothing about it until afterward. Owing to the confession, Sheriff

B. Ae Meroney and Prosecuting Attorney Jones of Pine Bluff, this judicial district, will

go to Little Rock on the earliest train tomorrow morning to apprise the governor of the
circumstances in the case and secure a stay of sentence, +he confession of Greene implicate
a woman here named Jenny Dennis, whom Greene claims instigated him to commit the crime,
Greene made the confession to his attorney, wnom he sent for in the afternoon with an urgent
request to come to the county jail at once, since he had something of importance to say to
himy They were in consultation some time, and when it was over the lawyer announced to
Sheriff Meroney that he had confessed-to the crime, Greene said, in part: 'I am the one
who shot Don Mc¢hee, We had a fight on Christmas day before the killing. There was bad
feeling between us after that, Before I killed McGhee, Jenny Davis told me that McGhee was
carrying a pistol for me and was going to kill me whenever he got a good chance,' He said
that the woman had told him that she also wanted McGhee out of the way, -and that he (Greene)
had better killhim first. He said that he pickedhis time, and found one night ‘when Mc¥ hee
was comins along a certain road, He went out ahead of him and:stood by a small bush on the
roadside, As McGhee approached, he shot him down, 'I want to say further,’ continued the
condemned man, 'that James Ruffin had nothing to do with the killing, H as not even pre=
sent at the time, I make the statement because I do not want an innocent man to be hung,!
Sheriff Meroney has dispatched officers to arrest the Daniels woman, He left for Pine
Bluff this afternoon to consult with Prosecuting Attorney Jones, whose headquarters for
this district are in that city. It is probable that one or both of them will go from Pine
Bluff to Little Rock tonight or in the morning to endeavor to secure from the governor a
eT een tne Gal ioe has" been erected and SveapeRihe” prBarel toh 4AE Hahede

che two men side by sidebetween the hours of 10 and 12 o'clock Friday, 19 preveny one
. both of the men torn beihe hung at the time specified by law, they ot ay of axe cut on

oS

yet Petey cesta et

e
ie

SHS

TeNP

36 Ark.
economic group. The defendant did not
choose to call the sheriff as a witness and
prove just how he selected the veniremen,
or question him in regard to whether he
excluded or included any one on account
of his race. The mere fact of inequality
of the number selected docs not of itself
show discrimination. Smith v. State, Akins
vy. State of Texas, 325, U.S. 398, 65 S:Ct.
1276, 89 L.Ed. 1692; Washington v. State,
213 Ark. 218, 210 S.W.2d 307; Zimmer-
man v. State of Maryland, 335 U.S. 870,
69 S.Ct. 161, 93 L.Ed. 414 cites the Akins
case. Also, the Akins case was cited with
approval in the case of Cassell v. State of
Texas, 339 U.S. 282, 70 S.Ct. 629, 631, 94
L.Ed. 839, in which case Mr. Justice Reed,
speaking for the court, said: “Jurymen
should be selected as individuals, on the
basis of individual qualifications, and not
as members of a race.” There is no show-
ing in this record that the sheriff selected
the veniremen on any other basis.

{9] The Constitution requires a fair
jury without regard to race. Proportional
racial limitation is forbidden and an ac-
cused is’ entitled to have charges against
him considered by a jury in the selection
of which no one has been included or ex-
cluded because of race.

[10] The burden of showing facts
which permit an inference of purposeful
limitation is on the defendant. Martin v.
State of Texas, 200 U.S. 316, 26 S.Ct. 338,
50 L.Ed. 497.

[11] It would not be proper for the
court to instruct the sheriff to summon so
many of one race and so many of another
for there must not be inclusion or exclu-
sion because of race. § 43-1904, Ark.Stat.,
provides : “When the panel is exhausted,
the court shall order the sheriff to sum-
mon bystanders, to at least twice the num-
ber necessary to complete the jury, whose
names shall be placed in the box and drawn,
and such jurors shall be sworn, examined
and disposed of in the same manner as
is provided for drawing, examining, and
disposing of the regular panel. If the jury
is still incomplete, the bystanders shall
again be summoned to twice the number

necessary to complete the jury, who shall,

240 SOUTH WESTERN REPORTER, 2d SERIES

in like manner, be drawn, sworn and dis-
posed of, and the mode herein provided
shall be continued until the jury is com-
pleted.”

{12] The regular panel was exhaust-
ed by reason of having been, disqualified
by the trial of the Smith case. Pursuant
to the Statute, the court ordered the sheriff
to summon 40 veniremen. There is no
as to the reason 37 white and 3
and

showing
Negro veniremen were summoned,
there is no showing that the sheriff employ-
ed a systematic course of action in select-
ing fewer Negro than white veniremen
for jury service. We cannot assume that
the sheriff did not do his duty, which was
to summon 40 qualified electors, regardless
of race.

In addition to examining the points ar-
gued in appellant’s brief, we have explored
the record searching for errors. Finding
none, the judgment is affirmed.

STATE et al. v. EASON.
No. 4—9524.

Supreme Court of Arkansas.
June 11, 1951.

Suit by the State by Jewel Evers as a citi-
zen and taxpayer against I, C. Nason to re-
cover possession of a truck for Miller Coun-
ty, wherein the Hughes Motor Company in-
tervened. From a decree of the Chancery
Court, Miller County, James H. Pilkinton,
Chancellor, dismissing the suit, the plain-
tiff appealed. The Supreme Court, Ed F,
McFaddin, J., held that there was no sul-
stantial compliance with statute setting forth
procedure for sale of county property in the
disposition by county of a used truck, that
reference to credit allowed on used truck
which was turned in on purchase of new
truck by county Was insufficient ratification
of sale of used truck and that use of the
new truck by county did not create any es
toppel precluding taxpayer from maintain:
ing civil suit to recover the used truck.

STATE v. EASON

Ark. a7.

Cite as 240 S.W.2d 36

Decree reversed and cause remanded with
directions.

1. Counties C>110
One of clear purposes of statute with

respect to procedure for selling county
property was to make public all disposi-

tions of county property. Acts 1945, Act

No. 193.

2. Counties C110

Where county judge orally requested
tax assessor to appraise county truck which
was to be sold and judge kept letter from
tax assessor stating his appraisal, but no or-
der was entered in county court describing
property and giving reason for sale, county
clerk was given’no order to deliver to as-
sessor, assessor did not file with clerk his
written certificate of appraisal and no or-
der was entered approving sale, there was
no substantial compliance with statute set-
ting forth procedure for sale of county
property. Acts 1945, Act No. 193, §§ 1-6.

3. Counties C110

Where statute prescribed certain for-
malitics to be followed in disposition of
county property, it was necessary to ob-
serve same essentials and formalities if al-
leged act of ratification was to validate the
original act of authorization of sale of
property. Acts 1945, Act No. 193.

4. Principal and agent €>163(1)
Generally in agency matters the same
essentials are required for ratification as

are required to constitute original author-
ization.

5. Countles C>110

Where statute setting forth procedure
for disposition of county property required
entry of two orders describing property
sold, one giving reason for sale and the
other approving sale, order allowing claim
against county for purchase of a new truck
and containing reference to credit allowed
on surrender by county of used truck con-
stituted insufficient ratification of disposi-
tion of used truck since such order did not
contain essentials required to make orig-
inal authorization valid. Acts 1945, Act
No. 193, 8§ 2, 4.

6. Estoppel €=62(3)
Where statute provided that sale of
county property without compliance: with

terms thereof should be void and that a
taxpayer could bring suit within two years
to recover property sold, and county in pur-
chasing new truck turned in used truck
without complying with statute, subsequent
use of new truck did not create any estoppel
precluding maintainance of taxpayer’s suit.
Acts 1945, Act No. 193, § 6.

oo

G. W. Lookadoo, Arkadelphia, ‘Thomas
E. Webber and Van Johnson, Texarkana,
for appellants.

Smith & Sanderson and Shaver, Stewart
& Jones, all of Texarkana, for appellee.

McFADDIN, Justice.

This is a civil suit brought by a taxpayer,
seeking to recover a Chevrolet truck al-
leged to be the property of Miller County,
Arkansas. The suit was instituted and
prosecuted, pursuant to the provisions of °
Act 193 of 1945, now found in Sec. 17-304
et seq., Ark.Stats.

Hon. Elmer Freeman was County Judge
of Miller County for the four year period
ending December 31, 1950. The appellee,
I. C. Eason, was a Road Supervisor in the
employ of Miller County, and had control
of, and drove, the 1949 Chevrolet pickup
truck here involved. In September 1950
Judge Freeman orally ordered a new GMC
truck from the Hughes Motor Company of
Texarkana, with the understanding that the
County would trade in the Chevrolet truck
for $510 as part payment on the new GMC
truck, Shortly before, or contemporaneous
with the making of the contract with the
Hughes Motor Company, Judge Freeman
orally requested the Miller County Tax As-
sessor to appraise the 1949 Chevrolet truck;
and the Tax Assessor gave Judge Freeman
a letter, dated September 7, 1950, and read-
ing:

“Miller County Road Dept.
“Miller County Courthouse
“Texarkana, Arkansas
“Sirs:

“On the 1949 Chevrolet 1% ton pickup,’
motor no. GBA 857597, I wish to submit my
appraisal of $475.00,

“The appraised value of the property,
described above, is given in accordance


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Pend) horse for which
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reporter, “AIP we are
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Of ude quick. work
repriations: bill; swhich
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“grants for states: for
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Pah: farm: labor: Pro=

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‘Senator: ~Miirray
peblertea: in’ aistate-
060,000; slash proposed!
$C} ture Department!
bing the® house ee
pd ALOR ae
evlared® this” “supplies
‘fete. evidence “of thel-

no chances “on: trouble.” i. a
“West: said the’ Negto: had ‘ad

mitted thatehe fatally: stabbed: and .

rapeds-Mrs,. Frank “Boyd, ‘pretty;
blonde, 35-year-old’ taxt ‘cab driv:

er on: a. lonely.” Toads Near: here}
+ tod: ee sake *

 Shoen. ‘Tdentitied. eas

The Negro: surrendered: ‘withou
resistance» ate 4 ‘py ime today @t
state: highway, patrolmen,! sheriff\
deputies’ and «city: ‘police -whofol:
lowed=4wo state fe prison’ |

} KIN

bloodhounds over, a tortious trailfy

thats

leéd> “through: ‘ditches, bacl=|;

water ‘and: sloughs ‘to'the fugitive’s|..—

hiding }place “in the? ‘dense? woods!

ofthe -river’ bottoms.) 1.5);

“We identified, hime at’ on
}the “shoes: he. >was *.
Sheriff’ West: said.

a tee

murder. scene."
We knew, we® had the!
anand we had:

“S
ag F

ight

i
m ‘al confessions:

Sheriff West said: As: $00n as wer ;

‘got to/‘the” highway we’ shoved
him: into! mp thee, hi gtk rushed
him: Baa fs eS

ive" of the. Republican io. @.

tri ful: ite, ‘campaign
economy and. fax jre~
ithes ait ie S 208 the
gi:

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{the services: rendered}
‘throughs othe: “aRrint
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servation: service, the!»
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Sng Ene earlys 3044
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when. news of” the: ‘slaying: spread.
Most: of the: crowd: Was made “up
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Garces on. hi iad con

Mia Fla May 42

new): =Callfornia-to- Ham i Hari
record for commercial: ‘alreraft Was
set tonight. as <.an -Eastern -Air}
Lines:
crossed “the “Milam airport::towst
utP 52.49 po om. (EST). after fl

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them and said, “Frank—Ostell;
take it easy now. You boys better
get back to town.”

The huskier of the two men, his ©

face blue-black from a_twenty-
four-hour growth of whiskers, his
eyes red-rimmed, said, “Then it’s
—it’s—”

“It's Ethel,” the sheriff said quiet-'

ly. “I’m sorry, Frank—sorry as the
devil—and I’ll catch whoever did
it. Believe me, I will. But there’s
nothing you can do to help me.
You’d better go home, Frank.”
Frank Boyd’s rather heavy face
sagged ‘pitifully and he. seemed

about to collapse. Ostell Ellis, the

murdered woman's brother, took
the bereaved husband’s arm and
led him back to the car; but Boyd
refused to go home. :

-Coroner Parker joined the sheriff.
He was wiping his hands on an im-
maculate handkerchief. He said,
“She was stabbed in the neck, be-
hind the right ear—apparently
from the rear. Then the knife blade
was brought downward in a slash,
severing, the jugular vein. She
fought for her life, grabbed at the
knife and cut the inside of her
fingers badly.”

“How long has she been dead?”
“Seven or eight hours,” the cor-
oner’ said.

The sheriff thought eight hours:

would about make it. Ethel Ellis
Boyd had last been seen alive the
previous night at eleven o’clock. At
that time her husband and brether,
co-owners with her of the Ellis
Taxicab Company, had left her in
the office while they went out for
coffee.

“She either got a call for a cab
or somebody came by the office and
she carried them herself instead of
getting us from the restaurant,”
Boyd told Forrest City officers
around midnight. “I worried about
her.” :

“She could have had a flat tire
or motor trouble,” Constable Tatum
said. j

Frank Boyd hadn’t: thought so.
“Our cars are brand new,” he
argued. He paced the street nerv-
ously,

“Ethel shouldn’t have done that.
We've told her a dozen times not
to pick up a- fare, especially at
night” —

Throughout the balance of that
night he and Ostell Ellis had

snapped his fingers, said,.-

searched for the missing woman.
The police had done their part and,
because more than one taxicab
driver has been abducted, a de-
scription of the missing car had

* been given to the Arkansas State

Police at Little Rock. But neither
the car or the woman had been
“found until seven o’clock the fol-
lowing morning when the share-
cropper’s little daughters had come
upon the mutilated body.

Sheriff West. strode thoughtfully
back to the ditch where the dead
woman lay. He searched the ground
with his eyes, paying particular at-
tention to the footprints left by
the slayer. Some of them were dis-
tinct and in several instances he
was able to make out the trade
name of rubber heels.

“He had Cats-Paw .heels on his
shoes,” the sheriff said to Constable
Tatum. -

“He and a few million other peo-
ple,” Tatum nodded.

“I know,” the sheriff said, “but
it’s at least something to go on.”

He circled the body, peering into
grass and brush, and suddenly he
stooped and reached into a clump
of sumac. His hand came out with

The killer bought this
Right, Frank Boyd, the

ARKANSAS

knife for twenty-five cents.

husband of the slain woman.

a blood-stained pocket knife, the
large blade of which was open. The
point of the blade had been fresh-
ly broken. é .

The knife had a bone handle an
West thought, “There’s no chance
for prints. Too rough.”

Nevertheless he wrapped the
weapon in his handkerchief and
placed it carefully in his pocket.
“Might be able to trace it,” he
thought. : '

Though there was*much grass
between the road and the ditch
containing, the body, there were
also open spaces and it was ap-
parent from the tracks that the
killer had returned to the car and
driven away. “That would be ob-
vious in any event, unless there
were two of them,” West said. |

“But where is the car—why
haven’t the state cops caught up
with it?” Tatum asked.

“It’s only forty-eight miles to
Memphis,” West pointed out. “The
guy could have crossed the Mis-
sissippi before we put anything on
the air.”

“But this is west of town,” Ta-
tum objected.

True, Mrs. Boyd’s body had been

x

SIS SE SS AT i a ry AR a AT ST

itd

ence, black, elec. Ark, (St. Francis County

seston alta “

es a

4 ; <1 PRR TTS AR te

ceqreenenne tt
,

HE frozen terror on Ethel

Ellis Boyd’s face did not hide

its beauty—and neither did
the blood. She was covered with
blood, now congealed, and the
trampled ground around her dead
body was soaked with it.

Sheriff Roger W. West of St.
Francis County, Arkansas, stared
at that dead face, the horribly
slashed throat; then he looked
hard at the Negro family stand-
ing in frightened silence on the
country road. some thirty yards
distance. He turned to Coroner J.
B. Parker. “Take over, Doc,” he

said and strode to the road, his.

angry legs slashing through the
tall grass and weeds. To the Ne-
gro man he said, “All right, boy,
suppose you start talking.”

The Negro rolled his eyes and
shuffled his feet. He said, “I don’
know nothin?’ — not nothin’,
Cap'n.”

“You found her, didn’t you?”

“No, suh. My little gals done
found her; hit liked to scared dem
to death, Dey come a-runnin’ home
all out of bref and tol’ me and I

10

BY CAPTAIN HAVELOCK-BAILIE

or

run to my boss man and he tol’
me to git over here and keep peo-
ple away. He’d fone you, he tol’
me, so I come over here and wait-
ed, like he tol’ me to. That’s ever’
las’ thing I knows, Cap’n, suh.”

ONSTABLE Otis Tatum of For-
rest City braked his car to a

‘stop near the sheriff. “Is it her?”

he asked.

Sheriff West nodded. He said,
“We've got the wires and the air
hot for that car, so that’s taken
care of. I guess we had better start
working from here. The way it

. looks to me, she jumped out of the

car and whoever was with her went
after her—caught her over in that
ditch and knifed her to death. It’s

‘a nasty deal.”

“Robbery?”

The sheriff shrugged. “Could be
and could be that whoever killed
her just wanted a new car. Of
‘cburse,” he added, “that’s robbery
Another car braked to a stop in
a whirl of dust and two men piled
out. Both of them showed in their
faces a terrible strain and anxiety.
Sheriff West stepped quickly up to

//- 19 #2

*.

: ow ,

Mrs. Ethel Boyd was the victim of crime. Above, the
taxi she was driving, when killer pulled a knife. _

TRv-LIFE QETECTIVE CASE

|
:

ye

al inembers

yicilaloyg ava

heh: eae Hi

Ea ieula?

wat. of een die

Re at deep

eM -the mem-
ted dent they ba

wore of thelr

he ere merely is
iy. mem-

ry aly catou er. Was!)
‘assBclations either
execiitive or busi-
ich sfeliowed, i
othe Association

oe
t

igh; existed
“The avet
od ‘onthe

climbed= from $64.00. ‘a sharé the |
laste market. session®. before ‘Mey:

the om eeting in
Yecinesdays If any:
fed, they did so as |
i not as represen- i
% oofer

ie Quoled* :

rE Johnson and I
brrectly= quoted: in
an this connection.

‘4 inte;- Th nev
Rents attributed to}
mhpapers, that the
ang le or thet
dy had agreed
edwrntite The
3 ane h. agreement
e theeting or. else-
uch ‘concerted ac-
pie) 43 tl was: in-
id ison as. Stating
wotk <order is ‘de~
prices from go
tty withholding
s market. i
smember of the
clbaed: his planing
shipments of lum-
Ow “available
- bers-of the}

ions ‘of: feet}:

h t¥bess vIti¢ true
‘many: types and
ber: have. &reatly

oneots. impression
ress was that. the!
mpany “(Alexan=
umber. Company),
,Certain of its op-
senin. concert-with
ef the. Association.
t-interror,-= Such
ve'itaken: has been
reference to what
of the, Assoclation
think’ the e- reporter
N remarks by tak-
pany! an: app in
foperations of: tance
arate ee, ‘Which
peen | ino concerted
the members
anlifacturers As=,
5 matter,
n' taken has been
ro. asin the case

“ine making this
correct the: erro-
Ons. — the = public
€en given’ inthis
Humes AS I stated,

isquotations
been unin-

Ay,

Manutfac-)/ \

“So: far |

~Such'§

Aaa “high: of. $82.40 on: May
/29,.1946, before it began a decine)
iThe low. paint since the wat) was
$98. 50: a share. on “May: 17, 1947...

Largest— me ae
(Continued from Page 1)o
dent of Jocal clubs and Henry A.
Stewart, Cedartown, =
‘Reports: Will. bes ‘by. Presta

} dent ° Littlejohn, And *Treasure

Baxter, + Participating tn a. Forura
of, Exchange: Education will: be
Henry A. .Powell,. Atlanta

dent; and: Major: Ro S& Pedelton,}:
Atlanta, district: governor.:>:

Maynard» Ashworth, ‘publisher
of the Ledger-Enquirer,. will: speak
at the noon luncheon after which
delegates will’ tour Fort’ Benning:
At-7-p. m. a: Schlitz buffet. supper|.
will be given:.

Saturday. the second - ‘business
session; will: ict underway» at».10
a: m.- at» which :time committee
reports will be’ heard and new of-
ficers elected... 7°;

~~ Ends Saturday Night ptiavet

The convention. will=conclude| >
witha cocktail’ party. and
dance Saturday night. ©

Committeemen © areaneinee the!”
convention. were Phil Friou,’ gen-=|!
eral chairman** Allen Moore, sec-
retary: Harry. ‘Noble, official host:
L. C. Kyle, Jr. and’ Roy Andrews,
program; * Roy “Tucker, * banquet
and entertainment: Ken Neil, re-
freshments;> Pel Fuss, ‘programs;
Charles’ Ewing,. publicity?: cand. J:
W.. Woodward,. decorations,

This summer the’ famed. Salt
Lake’ City Tabernacle Choir will
move into fts 19th. year of nation=
wide and world-wi le broadcasting.

ee se + 2 6 6 © ©

Jpn nan
fy

es

: picture eS

. ducel

regional vice ‘presidents. “Millard! —
Beckum, Au usta, state vice presi-)

» | roadside ditch

dinner:

movie that shad’ bee
ven, such in tavoreniesce im
and: patriotic organ
zations: eee Ne bie 1
“=?Holly wood ‘measures: ts 4 pictures!
ate tbe boxoffice--not- by protests:
favorable?! , comments

rell gio

Ob,

py ae i Bibbicounty wee fl
5.0)

S63, 46,00 006 sibs Columbia

‘ood: sues” in) PM ascogen Saupe
wete.7 $13,227,0003 “ts
with” ($10,502. 000%: in

vas: com ared with $f2.+
“1944. ° ibb- county. ted:
le. of ‘geriéral mercharn-|
ith total sales last’ year to-.
Re 948, 000, Muscogee “had
Of°.$9;750,000° and. Rich= |

nond’s wag’ $11,146,000) 2
‘+ Augusta led in wholesale. sales:
last year with, ac total of $78, 125%-;
000, as compared: with» Macon’ 8;

fall

‘of).the” i ae
the v continug Hy W

ed
a} But" witk
Passion, *
aves receive
‘avorable. minient
ad spatt io «0
the: movies be
minors,

; Pay nis

oat *= (Contimied ‘from ‘Page 1)"
spread, ‘however; “andsthe* town
was reported =‘quiet’” ‘tonight. ae

West said the: Negrovwas cored :

in the cab as a’ messcnuer |
time ‘of the slaying. .
‘Evidence ‘indicated. ‘tha
Negro
driver below’ the ear, “severin
jugular’ vein," ‘Gragged. the:
woman \) from “Ire ‘
criminally.¢ ‘assay, ted

her}

~ Mrs... Boy
was: vero nuldre

clot es which were: a lett beh

The cab;
stepson’s uhiy about a mile we
of* the. tape-murder: ‘ scene
bloodhound: from: the: prison.
picked up the’ trial beside the’ ca
followed it to’ the stepson’s hous
and then on to the woo s dn

Duke was. found;+

t the|,
‘stabbed the ‘pretty: cab ‘

‘found nearthet


found off old and not-often-usea
Highway One, two miles west of
Forrest City. Of course the killer
might have cut back to U. S. 70,
the Little Rock-Memphis Road, or
he could have gone northward to

Wynne, thence to Augusta and.

many other places in almost any
direction.

“Or he might be around here—
have the car in his barn or garage,”
West thought. “It’s almost a cer-
tain cinch he lives around For-
rest City. Mrs. Boyd surely wouldn't
have picked up a stranger.” ,

car of course was an all-
important item. It either held

_ the killer at this moment or it

could hold some clue as to his iden-
tity; but how to find it was a prob-
lem. If the state cops with un-
limited facilities had failed, how
could he, Roger West, with the lim-
ited facilities of St. Francis County
hope to succeed?

This question wads answered a
moment later by the hesitant, ex-
tremely frightened approach of an-
other Negro. Several feet from the

officers he stopped, removed his .

hat and nervously shuffled his feet.

“What is it, boy?” West asked.

“Cap'n, I done found a auto,” the
man said. “Hit’s a new auto und
somebody done wreck hit yp the
road a piece. Hit’s got blood all over
hit, Cap’n, and I done hear about
this dead white woman and I think
I better—” ,

“How far up the road?”, West
interrupted.

“Hit’s about three miles,” the Ne-
gro said. “But, Cap'n, I, don't
know—” ; :

“Get in this car and let’s go,”
West ordered.

A few minutes later he stopped
his car at the side of a new Chevro-
let sedan. The car was indeed
wrecked.and skidding tire tracks in

12

Lieutenant Alan Templeton, of the Arkansas State Police, worked
_ with Sheriff Roger. W. West, to a quick solution of the crime.

the dirt road, leading to where the
car reclined tiredly in a water-filled
ditch, indicated that the driver had
unsuccessfully fought for some dis-
tance to get it under control.

“Must have been a lousy driver,”
West muttered, but he was glad
about that. Here, he felt, was some-
thing concrete to work on. He said
to Tatum, who had followed him,
“Otis, you get back to town and get
thé state. police on the phone.. Ask
them to get a fingerprint man down
here—and any other help they can
spare. We need it.”

He stared at the car a moment
and at the footprints leading away
from it. He saw again the distinct
Cats-Paw heels marks. He said,
“Maybe we can follow these tracks
and maybe we can’t. While you're

phoning get hold of Lee Henslee, |

down at Tucker Farm. Ask him to

.send us some dogs.” Then he said,

“Send a bunch of men out here.”

This last order was unnecessary
for within minutes cars from’ For-
rest City began to make their ap-
pearance. Coroner Parker drove up.
“They took the body in,” he said.
“I found this beneath it.”

“This” turned out to be a wom-
an’s black handbag. West took it
and examined its contents. There
were the usual countless and inex-
plicable items carried by women
and there was a small sum of mon-
ey.
yvrhen she wasn't robbed,” he
said.

“The killer probably overlooked
it,” Parker said. “She fell on it
and—” -

West waved his hand toward the
wrecked car. He said, “She was at-
tacked in the car. There's blood all
over the inside—even on the ceil-
ing.”

He removed his hat and wiped
his forehead with his handkerchief.
Though it was but a little after

~

State Officer De

stained weeds where

Imar Cam

«ee
ie litt, DS

eight o'clock, the morning of May
22nd, 1947, it was growing hot in
the. bottomlands between the St.
Francis and the L'Anguille Rivers.
The area was one of heavy brush
and cane brakes and rice planta-
tions. It was miserably humid.
Aside from that, it offered many
hiding places for the fugitive killer
and looking for him would be no
easy task. Too, there was no know-

‘ing which way.to look, beyond fol-

lowing the tracks as far as they
went.

Sheriff West called two men to
him, said, “From right now until I
tell you different you boys are dep-
uty sheriffs: I want you to stay
with this car. Don’t touch it and
don’t let anyone else touch it. Un-
derstand?”

The men said they did and to
others of the rapidly growing crowd
West said, “We've got a line this
far on the man who killed Mrs.
Boyd, but he’s got an eight or nine
hour start on us. However it might
be he lives around here or, not
living nearby, he might be hiding
out, waiting for night. He’s covered
with blood—that’s for sure. We'll
follow these tracks as far as they
go. When and if they play out, I
want you fellows to help me beat
some brush and ask a few ques-
tions. It could be that he has been
seen. If any of you see him or get

ee
bell points
body of Mrs. Boy

d was found.


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—_


DRIVER GOES TO

s post 8

Pale and Gaunt From me er
ness, Slayer of Marshal 4

a

. Walks Upon the «+ .~;
Scaffold. a

‘ ges
MAKES NO DISPLAY OF FEAA *:

ee Di

Declares He Bears Malice Toward None |
“Leaves His Pistol and Body .
to His Wife.

Special to the Gazette, ° 4

Walnut Ridge, Jan. 31.—Pale ah
gaunt from illness and eonfinemegt in’ a
his eall, Dock Driver walked upon the;
seaffold here today at 12:35 o’clock ta: tk
pay the death penalty for killing Mate.’ os

shal J. P. Biggers on October 30, 1912, #
He made no apeech before the black cap. AS
was placed igen his head, nor did he‘:
show signe of fear. His only wornts /
were’'* Nay the Lord be with you all!!".
five minutes bofore the trap waa
sprung. Within 12 minutes Driver wis!

pronouneed dead. The body was eut ”
down, placed in a enacket and thon tn » 4
the ball way of the courthouse, where’.
more than @ thousand persons viewed”:
the body. The body was taken to Mama; of}
moth pring tonight. and burial will bé:
made tomorrow near that place, Driv,

ex's wife accomnanied the body, “it ‘ae
Laaves His Body and Pistols
Bheriff J. Owens ught Driver:

hefe from Newport this aerate

deqlared that the cay -atatentent atk
Driver made was! know
golag to bang me and I do not foal ha
toward "you for ot it, You
been my ‘ous through all ¢ trouble
and have treated me a adly, “omy
request is that you hang me as scon‘ag™?
we reach Prager oe ane 7 phen
vo my wife my and m ta
oat In all T have,’’ 4 id . bey
Driver was exeented in the attie af
the courthouse, the execution bel

nessed only by the tumber required vy

law.

DEATH CALMLY, 1)

Erica wi TY Tease ome ea
Mees, if Mr aa heme dat ts

ae sited nuit Bie paths

Please Mark My Grave, ae ae

Tanase Driver's leet statements -of '
length was one which he diptatad °

lth ¢ mornin oy waa addressed. to bia
iwifet

"and jo the the nant swt er mae

Chatty" Janie tha Wales ‘lin
om avd: pleneq thew oat tn’ Fa

wo and feel. that I: fy se

he penutonce,
eee ie nlnl wit Sq without hort ‘mew

maa bap erittnapt hae

C. Gardner: to’ wiite whi Ly,

kpow bow I oe 1.5
ina request It ta be ponuaneasnt i
mot now, and a
‘and havé alwa

eat, hard: wor ag: te ec rane

someone will ti being ‘om. t
scaffold, and thos'sipt bév@ to meet tig?
judgment ae I have,’ was bern in Mite:

at
as James creek. W on tfite small, mycg
mother and J oct ee! Soma ott:
Apring. Bhe wae e god Christian wore?

Jan, and I am going to’ bey and. tive wi } i ae

walt for m

who trust

her and other loved gned. where X ‘wil!
; loving wife and all. athe

n God, Bo farewell) tof M
‘| world and, worldly things,?%e0iia\' er

History, of the, Orta Ss)
Driver was ‘io. ‘a! daratvay: andi Of at,
Walnut Ridge'on the: pad bry 47 af’ Ov taher: %
30, 1012, and Marshal ‘Biggerst”.@
wan n minister and had served abt
officer but.a Ay atten ptyd:! tae

arrest him. He i @ warrant sydrai: %

out by Driver's wife, who aceused: bine. y

of beatlog ber, While Marshal B ae

and ona of his deputies waa eer

td seareh' Driver, he he vy alee

resol onan shot Bf Ye) way ;
poeial aeasion pf the Grand ‘Ju y

cpavlal tore of, tegst eeeaived ih mono
8 o

| boing Sonne a Del eno trad}
naver sppeala) to. the "o

Owlng tat PRAWN
nut Ridge st Driver he ‘waa te: “a
moved to Nowporty whery ta, wan plage;
ed ia jail, Pacts a

Attempts to ‘wot o PRM

Driver believed that Be” had ‘been
araates a-stay of -exeéation ing
an appeal ef: ease’to the
Court, avd only jearned wore. ‘Weds:
neaday that te ento had not’ been.
real Realizing that ‘daly the. Jp!
Verwnna of the governor could save, <
fe, Driver made what the office
clare. to be an-eattempt te. ead.
in bia cell, Other privenera back,
the oficets of Driver's intentio

when they appeared. {n. the. col} vith:
the latontion” OP. oy" pelea i
taking’ th i f

have Iu

the situation: Sa" wea taper: toe tut!
a cell at mule: Riana $
reglat died,’ Tas gs CAA

id

i aaa’!


a line on him, come to me. I'll stand
for no violence.’ ;

In eight hours a man might rea-
sonably’ be expected to walk up-
wards of twenty miles, so long as
the going was fair. The road offer-
ed fair walking but if the killer ever
left ‘it he would find the going
tough. Likely for reasons of safety,
he would leave it. This was some-
thing the sheriff felt would not be
difficult to determine.

Nor was it. Within half an hour
he found where the tracks quit the
road. They were almost immediate-
ly lost in a cane-brake.

“If he keeps to them, we should
get him—if we get the dogs,” West
said. “Until then, I’d better try and
find out who we are looking for.”

He drove from house to house,
questioning planters as well as
share-croppers. He got no help—
no stranger had been seen in the
area, no blood-splashed native had

we

On their first try

trail in this sw

been seen and no one was missing
that he could learn about.

The possibility existed, and he
knew it, that the killer had delib-
erately led his pursuers to the cane-
brake. Knowing the impossibility of
covering the tracks. he had made
at. the scene of the murder, he
might have walked down the road
to the cane-brake, where his tracks
could not be followed, then cut
through the brakes and made his
way back to Forrest City. West’s
lead might be at that place but
picking it up would not be easy.

HE knife offered little hope but,

leaving the searchers under re-_

sponsible leadership, he drove back
to town and showed the weapon to
several hardware merchants and
other dealers. One hardware dealer,
James Peabody, nodded. “I sold it,”
he said, “but I sold several just like
it.” .
“How car you be so positive—it
seems a common enough knife,”
West pointed out.

“That’s true, but for almost five

bloodhounds lo
amp. Later. they

years I had no knives in stock—
couldn’t get.them on account of the
war,” Peabody replied. “A while
back I got a dozen, four of them
like that one. They didn’t last long.
after word got out that I had
them.”

“You know who you sold them
to?” i

“Pretty well.”

- The hardware man gave the .

sheriff four names—Marvin Hurt,
Willis. Brady, George Unger and
George Harmon. “They got the
bone handled ones,” he said.
Forrest City was excited and
business almost at a_ standstill.
West thought. that few, if any, men
would be at home. Mrs. Boyd’s mur-
der was of course the cause of this.
Every downtown street corner was‘:
packed with men and each group
had its spokesman. The subject on

every.man’s lips was what should
be done with the killer. He should
be strung up; he should be burn-
ed. :

He should first be caught, West
“thought. He knew if the killer were
caught, and he meant that he
should be, his life would not be

worth a plugged nickel in: that’
* community. Mrs. Boyd had come

from a good family, had been well
known and liked; the hot-blooded
Southerners do not _like to have
their womenfolk hurt. ;

Sheriff West thought he’d find a

- way to protect that murderer, when

he caught him; he would see to it
that the man was legally tried and
as legally executed. He _ could
handle any mob, he thought, but
right now the gathered men and
their angry tongues interfered with
his investigation. Forrest City is
not a town small enough to quickly
pick up the trail of just any man.
The men he wanted to talk to were,
he thought, somewhere on the
streets. It would not be easy to
locate them and it would not be
safe to ask others if they had been

5 Be a a .
S. E. Hayder, +

seen. It might cause trouble—lots
of it.

The whispers would spread every-
where. “The sheriff is looking for

Marvin Hurt, for Willis Brady, for

—I’ll bet anything Marvin killed
Ethel Boyd—I'll bet Willis did it—
why is the sheriff looking for Unger
if he’s not got anything on him—
why, I'll bet George—”

No; the sheriff had to be care-
ful.

His progress about town was
slowed muchly by questions from
the excited and curious but at last
he located Unger. He motioned the
man to one side. “George,” he said,

he handler
to track down the slippery killer of Mrs. Boyd.

; See.
= es?

of the bloodhounds used

“you bought a knife recently from
Peabody—a bone-handled pocket
knife. Have you got it with you?” |

“What is this?” Unger asked,

“Have you got that knife?” West
demanded.

He had not expected to strike
paydirt so quickly, but he could tell
by the expression on Unger’s face
that the man did not have the
knife he had bought from Peabody.
Unger said. “You don’t. mean it’s
got something to do with what hap-
pened to Mrs. Boyd? That’s not
what—”

(Continued on page 27)


‘DURHAM, George, and UNDERWOOD, Fred, whites, hanged Clarkesville, Arke, on June 19, 1903.

"George Durham and Fred Underwood mst give their lives in payment for the death of Sheriff |
John H, Powers of Johnson County, who was killed by safe-blowers at Clarkesville on the night
of February 5, 1902. testerday in the supreme court Mr. Justice Riddick affirmed arally the
decision of the lower court. A written opinion will: be handed down: later. Few crimes are
so vividly remembered by the people of Arkansas as the death of Sheriff Powers. On the night
of the murder the sheriff was sleeping in the building adjoining the bank, With him was
Deputy Sheriff Joe King, his roommate, When the robbers fired the charge intended to

wreck the bank's safe, the noise of the explosion awakéned the sheriff, his deputy and

Jesse Ragon, who occupied a room in the same building, Powers snatched up his pistols and
ran down the steps to the bank. He,saw the robbers and called on them to throw up their
handse .A fusillade followed and when King and Ragon, reached the foot of the steps the
sheriff was staggering back, ‘Ihey've got me,' he said, as he tottered and fell at the

foot of the steps, Half an hour later he was dead, The robbers escaped but detectives

were secured and a determined search for the murderous thieves was begun, In the course of
a few weeks Durham was arrested in Wichita, Kans., where he had accompanied John P, Dunn.

to a hospital. Dunn was suffering from a gunshot wound. Durham was brought back to Clarks-
ville where he waived. examination and was bound over to await the action of the grand jury.
Dunn was under surveillance in the hospital at Wichita., He escaped, however, a few, days
after the arrest of Durham and has not been recaptured, A few eeks ago it was reported

that Dunn had been captured by a marshal in the Indian Territory, but the report was not
true. The detectives had meantime picked up a thread which led them to Evansville, Ind,
where Durham was arrested, He and Underwood have since been in prison, James Wallace, a
fourth man who was arrested on account of the robbery, was tried and released for want of
evidence. From the evidence in the case it wasproven that Dunn, Durham, Underwood and
Wallace had been living together at Fort Smith for several weeks prior to the robbery, and
that Durham and Underwood were seen in Clarksville during the afternoon and night of the
robbery3, that Durham, with others, was seen riding away from Clarksville on afreizht train
0ing west about an hour after the mrder and robbery, and that the next morning Dunn and
Durham went to a hotel in Van Buran, engaged a bed and stayed all night, paying their bill
in advance, leaving before the other people at the hotel were up, the maid finding blood
upon the bed after they were gone, Underwood refused to testify, but Durham went onthe
stand. He corroborated the evidenceintroduced by the state so far as to havine been at

Fort Smith with the other parties accused and boarding a train coming toward Clarksville

the day of the robbery, but said he stopped at Coal H ill and stayed there with a crowd of
tramps by the railroad. later he was at the depot, about an hour after the killing was
supposed to have vake n place, when he heard some of the train men say a bank had been

robbed at Clarkesville and the sheriff killed. He says he immediately decided he would
leave Coal Hill for fear he would be suspected, so he caught the first train out of Coal
Hill going west. Durham had worked for the railroad company for several years and was known
to many of the trainmen and he was reoognized riding between the boxcars by the condcutor
and brakeman who testified there was another man with Durham who walked as though he was
hurt. Durham testified he met Dunn by chance on a train bound for Wichita, Kanse, where
Dunn wasgoing to the hospital and that Dunn insisted oh his going with him, whitch he did,
and that he did not know how Dunn had got shot nor did he inquire, Underwood had a crimi-
Nal record before the robbery and murder at Clarkesville, but Durham is considered a more
danzerous man than Underwood...." ARKANSAS GAZEITE, Little Rock, Ark., May 3, 1903 (3=3/.)

"Clarksville, June 12...The scaffold has been erected in the courthouse yard. Both of the
prisoners, seem well and spend most of their time reading the bible. Durham professes the
Catholic faith and talks almost constantly on the subject of religion, Underwood has ae
somewhat different demeanor and talks freely and with evident pleasure to the many visitors
who are allowed to communicate with the doomed men under the watchful eyes of guards. Many
of the visitors are latlies. the scaffold has been erected in plain view of the prisoners,
who are unnfined in the courtroom under a heavy guard. The appearance of the placeupon
which they will be executed does not seem to affect the men mache ee" ARKANSAS GAZETTE,

Little Rock, !rk., 6-13-1903 (1/5.)

The following condensed from GAZETTE, Gr20-1903 CL/Le ). pmmnewone corif essed, shning tracy
Dunn had fired fatal shot, Said he was thé ‘leader an a am w

inst hi 411. Underwood admitted he should be hanged but ‘said Durham should : ee on eb are
regielagententar ©: ad people of Clarksville an S
From gallows Underwood said: 'I want to thank you go00c peop

cers here for your kindwss, ‘Je could not have been treated hetter. Ithank you. Goodbye.'
Durham's:last remarks-were:r 'I want to say the same thinr,. We have received, the best of
treatment. For a man in my pssition a long statement ---' he paused here, hesitated as
though he had lost the idea he intended to express. The he said: 'I think I am as well
prepared to die as a man in my position could be, Despite.what takes place today there is
no hard feeling on my part, and I hope there is not on yours,' After last rites of Catholic
Church, Sheriff asked: 'Are you ready?' A harly audible reply of 'Yes' came from both men
and trap sprungeee.Durham swayed a little before the drop, but Underwood seemed made out of
stone, Neither struggled in the least after he fell, ‘Theonly sound made by either of the
prisoners came from Durham. There was a death gurgle-for an instant, and then both the
blackeclothed bodies: hung still, except for the turning of the the rope itself, Their necks
were broken at the drop. The hangman!’s knot twisted around to the back of Underwood's
head while that of Durhamwas directly under his chin...,. Durham waspronounced dead in 10
minutes and Undersood in 17 and a half, They were allowed to hang about 25 minutes, . The
bodies were taken in charge by the German Catholic fhurch and removed to the Catholic ceme-
tery adjoining the church where they were interred this afternoon,

. UNDERWOOD'S LIFE
"2,4 senseof shame for his ignominous end. seemed to weigh upon Underwood and prevented hi m

~from relating emerything connected with his family and past history. He admiited that he

had once been married, but would say nothing further about his wife..,Underwood has two known
aliases. they. are Johnson and West.. Under the latter name he served 2 years in the Fort
Leavenworth penitentiary for the robbery of a small postoffice in the same county in which

Wichita, Kans,, is located. He was arrested on this occasion, he declared by the Wichita

officers, He served his 2 years there but went back to his old ways after a short attempt

to reform, He admitted that he was a native of Illinois, but steadfastly declined to tell

what city or town he was born or reared in, He said that would be giving a clue by which
his shame might be traced to his parents and relatives. He did not know whether hisfather
or mother was still living. Was 27 years and nine months of age. is career of crime has
extended over a period of nearly 16 years or since he was 12 years of age. was a man of
medium sizee..'I don't suppose I ever want to school more: than § months in my life, I
learned to make the letters of the alphabet and figures. Beyond that I have learned every=
thing I know from observation, I havetraveled from one: end of the country to the other,

I have come in contact with every class of people. Some I have robbed; som I have not,

I have read a good deal when I had time, and from books I- learned something but by far from
everything, I have made safe-breaking a profession, a trade, the same as an honest mane

I have lived by it, made money by it, and never did but two bad jobs. One was near Wichita
and the other was the Clarksville bark, Yest, I have been lucky for that term in Eort
Leavenworth, outside of this, was theonly time I was ever sent up..."I was born on the 19th
day of September, 1875, Sunday morning, My father and mother were separated when I was 3
years old. My grandmother and uncle took me to raise, I lived with them until I was 12
years old, Then I ran away from home and got in with bad company who taught me how to
steal, Finally I got with professi onal thieves who knew something about the business,

When Iwas 18, 1 got acquainted with men who understoodabout safe-breaking, With them I
learned the nature and use of nitro-glycerine and engaged in several bank robberies,

The only time I was arrested was in Wichita, Kan ., for robbing a postoffice, That was

im 1890, I served my time and when I got out of there I came pretty near turning over a
new leaf, But it looked like the honest dollar was too hard to make...J never had at any
time a desire to take a human life, It was always contrary to my motto and instructions

to kill. I am very sorry for this crime, and for all the rest. of them, I don't think tha t
I deserve anything, only to be hanged for this crime, but 1 think George Durham ought to
have clemency.” It is my honest prayer that the governor éf thestate of Arkansas will show
it. I led him into this business, being an old and experienced hand at it myself, He was
not to blame for anything that occurred." Underwood was at all times a model prisoner as
was Durham,

; DURHAM'S LIFE

"George Durham had apparently far less mental capacity than his partner in crime.,,He was
a man of superb physique, weighing over 200 pounds, butnot having a fleshy appearance, He
wore a coal black mustache, while Underwood was clean@bhaven, Dmrham s hair was also a coal
black, while Underwod's was a light brown, His brother, Dr. John Durham of Xofkford, Ill.,
Came to be with him,e.eHe ran away from. from home whth young ahd lived over the West by

workine for his living at the railroad business. He worked on nearly all the roads of Kansas
Missouri, Illinois, ‘rkansas, Texas and the territories, In 1892 aie in charge of ee :

DURHAM and UNDERWOOD, hanged Clarksville, Arke, 6-19-1903 (Continued)

engine in the Iron Mountain yards here and worked in Argenta for 8 months. His brother,
De. John Durham of Rockford, Ill., is older than the man who was executed, H e is a pro-
minent physician at his home and has the appearance of a man well fixed in life He had not
sem his brother for 17 years until he heard a short time ago that he was to be hanged for
robbery and mrder, Up to a few years ago, Durham said, his life was honest and open, He
worked hard for a living at a rough business, and gradually drifted out of it. Durham was
about lO years of age. There was a slight sprinkling of gray in his mustache and hair.
le had a fresh complexion, which had become pale in confinement, If deessed in fashionable
clothing he would make a good if not strikine figure..,d&KKXKX

SHERIFF POWERS, THE VICTIM
John H, Powers had been sheriff of Johnson County for 12 years when killed at the age of
38, For six years before being elected sheriff he had shvered inthe office as a deputy,
le wasunmarried and had a state-wide reputation for intrepidity, The me would not have
made the attempt to rob the bank had they not been under theimpression Powers was out of
town, Photos oB both Underwood and Durham and of Sheriff Powers on Page One, cols 2 & 3
of ARKANSAS GAZETTE, June 20, 1903.


known and as soon as this infor-
mation reached Sheriff West he
made a line to their small home;
Lee Henslee and the dog handler
trailed him. Warren Jordan met
West at the door but before the
sheriff could ask thé man a ques-
tion he noticed excitement on thé
part of the bloodhounds. Obviously
something excited them and in the
circumstances that could be but one
thing. The sheriff became a little
excited himself.

“Where is he?” he demanded of
Jordan,

“Where is who?”

“You know,” the sheriff said and
yet he wondered if Jordan could
be his man. He hoped not, for Jor-
dan bore a good reputation. Never-
theless the spoor of the murderer
was strong here and he was near-
by, or had been nearby not long
ago.

Warren Jordan hesitated but a
moment. He said, “I reckon you’re
looking. for Lawrence: but I sure
didn’t know he’d done anything
bad. He told me he’d been in a
fight and got a lot of blood on his
clothes and—”

“Where ts Lawrence, whoever he
is?” West snapped.

“He ain’t here,” Jordan said. “He
had a uniform here and he changed
to that and ‘took off.”

“When was this?”

“He left here about five o’clock
this morning,” the man replied.

“What kind of a uniform?”

“A sailor uniform, ‘Sheriff.”

West thought, “Then Jack didn’t
see our man and neither has any-.
one else.” Then, “But we followed
the trail of a limping man to this
place—a man in neat. civilian
clothes. How could that be a coin-
cidence?” Rie

He asked, “Who is Lawrence?”

“He’s my wife’s step-father,” Jor-
dan replied. “His name is Lawrence
Dukes.”

“Step-father?” West said.

Here again things sounded wrong.
He was looking for a-youngish man
—a man recently .discharged from
the navy; a man named Lee. Yet,
somehow, he was on the right trail
here and he. knew it. .

“How old is Dukes?” he asked.
“And where did he get a sailor’s
uniform?” ‘

Dukes was only thirty-one years
old, Jordan told him. He had spent
two years in the. navy. This didn’t
make sense with the step-father
business but Jordan’s next move
made plenty of sense. He turned
back into the house, returning a
moment later with a shirt and a
pair of trousers, Both were muddy
as well as blood-stained. “I ain’t
holding up for him if he done some-
thing he shouldn’t,” Jordan said,
“and from all the excitement
around here I reckon he did. Here’s
the clothes he took off.”

The two bloodhounds went wild
at the smell of the soiled garments
They cut a small circle and showea
a great eagerness to be off. Jordan
said he had no idea where Dukes
was headed and West said to the
dog handler, “Let ’em go.”

He thought, “A man in a sailor’s
uniform would sure as the world :
be conspicuous in this part of the
country, the war being over all this
time; yet no one has mentioned
Seeing a man in that sort of garb.
Certainly none of the hundred or
so in the search has seen him. They
would have said so, I-don’t get it;
could be Jordan’s lying.”

28

said.

The search for. the slayer of
Ethyl Boyd had become an Intensi-
fied thing and those engaged in it
meant to have that man. Their
tempers were high and yet most of
them realized that Justice had to
be served rightly. They were for
the most part responsible people.
Owners of two planes had joined
in the search and men on mules
were scouring the flat wooded
countryside. '

However, the bloodhounds did not
agree with that angle—did not at
once go into the woods. They cross-
ed fields, where now and then the
Cats-Paw track was seen; they
were not interested in that, but in
the spoor of the fugitive. Present-
ly they came to a stop outside a
house in which the sheriff knew a
minister lived. The baying of the
dogs brought the minister to his
door. He was a “string bean” sort
of fellow. °

Sheriff West nodded a _ brief.

greeting, He was short of breath
and not too long on good humor.
He said, “If you’ve got a man
named Lawrence Dukes in there,
send him out and save all of us a
lot of trouble.” .

“What has Lawrence Dukes
done?” the minister asked.

“Send him out!” the. sheriff snap-
ped.

“But he is not here,” the minister
“He was here. Where did he go?”
“I don’t know. He came here this

morning and sat around a while;

apparently his mind was heavy
laden. After’a time he said it was
going to be a hot day and I agreed.
He said he sure wished he had
something to wear, aside from his
uniform. He said that several times
and finally asked me outright if I
had some clothes he could borrow
until he got his clothes from the
cleaner in Forrest City. It was a
funny request. I don’t know him
very well but at the same time I
couldn’t see my way clear to turn

-him down—not in Christian char-

ity. We’re about of a size, so—”

“You let him have some clothes,
eh?”

“Yes; I did,” the minister said.

This then was the explanation
for a lot of things. The sheriff
thought, “So Jack did see’the killer
after all..He sure is: a quick-change
artist, leaving us too many trails.
‘The dogs couldn’t pick up his trail

- where Jack saw him because there

was some difference in the spoor
from the original trail. If we can
pick it up here—”

The minister showed them in
which direction the killer had left
his little farm. He also gave them
Dukes’ discarded uniform. The
bloodhounds were some moments
in making up_their minds but at
last did; there could be no doubt
about this. Over fields, down lanes,
through woods and at last to the

country road near Rose Lake the

dogs ran, followed by the exhausted
officers. The dogs were never freed
from their leashes but their eager-

ness gave the officers a hard run. *

bys spoor led directly to where
Jack West had talked to the
“string bean” fellow who had lied
about cutting wood for Jake White

‘—and on from there into the

Swamps and lowlands environing
Rose Lake.

Runners were sent out to bring
in all the searchers—and they were
concentrated in a long semi-circle

about that area. It was a real
brush-beating. ‘The dogs  bayed,
now and again lost where swamp
waters had washed away the spoor;
men yelled back and forth, planes
roared overhead—and the hard-
pressed fugitive at last broke from
the brush.

“He ran almost into my arms,”
Constable. Tatum said.

He had brought his prisoner to ©

Sheriff West. “He came out of a
field and started across a road and
I drew down on him with my gun,”
Tatum related. “He gave up with-
out a word.”

“We want some words,” the sher-
iff said.

He looked hard at the gangling
prisoner. He said, “All right, let me
see the bottom of your shoes.”

The man held up his right foot.
The heel of the shoe was of ‘rub-
ber—a Cats-Paw heel. West said,
“Why did you kill Mrs. Boyd, fel-
low?”

The prisoner mumbled something
that could not be distinguished.
West repeated, “Why did you do it,
Dukes?”

“I don’t know,” the man mum-
bled.

“But you did?”

Lawrence Dukes nodded. “I need-
ed some money,” he said, his voice
low and trembling. “I thought a
cab driver would have some. I call-
ed a cab and this woman was driv-
ing it. I’d gone so far and I could-
n’t back out, I—”

“How much money did you get?”

The killer said he had got only
fifty cents and he found that on
the floor of the cab where, some-
how in her excitement, Ethel Boyd
had dropped it.

“You paid twenty-five cents for
the knife you killed her with—that
right?”

Dukes nodded.

“So you came out twenty-five
cents to the good, eh?”

IEUTENANT Alan Templeton

4 came up, Others were congre-
gating—angry others, friends of
the murdered woman, The sheriff
knew well the temper of the people
in Forrest City. He said in a low
tone, “Lieutenant, I am taking this
man in my car to Highway 70. You
follow in a patrol car, with several
state policemen. When we get to
the highway, we’ll switch him to
your car and you rush him to Little
Rock or the state prison as fast as
you can. Keep it quiet where you
take him. He wouldn’t last long if
the people around here got hold of
him.”

The switch was presently made
without a hitch and the killer of
Ethel Boyd was spirited from St.
Francis County before prospective
mobs knew he had been captured.
Whether he was taken to Little
Rock or the State Prison for safe
keeping no one aside from the of-
ficers—and just a few of them—
know. However he is being held and
will soon be tried for the brutal
murder of Mrs. Boyd. Since his
arrest, he has signed a full confes-
sion, has been indicted on a charge
of murder in the: first degree and
has also cleared up the mystery
surrounding “a fellow called Lee”—
he is Lee.

Lawrence Dukes went by more
than one name and one of these
was Will Lee; another was Will Lee
Dukes. He preferred the name Lee
to the one rightfully his and it was
thus that Ed Randolph came to
know him in Forrest City. But by
any name, he could not be con-
sidered’ an admirable citizen.

Sheriff West put it this way, “No
matter which name he likes best,
his name is now mud.”

And that is for sure. Lawrence
Dukes is living on borrowed time
and before many moons the loan
is sure to be called in the electric
hair at Tucker Prison Farm.

Again Dukes nodded.

| HELP WANTED: 1 KILLER

“(Continued from page 19)

The sales representative turned
white.

“We have reason to suspect,” the
sheriff went on, “that the killer
applied—or was about to apply—
for this job you advertised in this
morning's ‘paper.” Swiftly, he re-
peated Ince’s sketchy description
of the man seen entering McGraw’s
caf.

No light dawned in Cole’s eyes.
“Frankly, gentlemen,” he declaréd,
“the response to my ad has been
so overwhelming, I can’t remember
what any of the applicants looked
like. All their faces are one big
jumble in my mind.”

The Officers exchanged glum
looks.

“How many men applied for the
position?” Shaw asked.

“About twenty-five.”

“Do you have a list of their
names?” the investigator pursued.

“Only the men still being con-
sidered for the job,” Cole replied.
“I-eliminated most of them on the
basis of the first interview—on
grounds of unfavorable appear-
ance, poor speech and so on. The
only names I took were those I
thought might do for the posi-
tion.”

“Better than nothing,” Bozeman
growled. “Let’s see it.”

Swiftly, he copied down the list:
William Bowman, Cral Fleeck, Lo-

etme age ete os

renzo Abbot, Jr., George W. Clap-
per, Simon Petersen, William. A.
Pierce, Jack Barlow. All the names
had addresses or telephone num-
bers alongside. The Sheriff noted
these, also.

The copying. task - completed,
Bozeman and Shaw Ieft the hotel.
“That hot lead sure petered out
fast,” the state investigator grum-
bled, “Too bad that salesman didn’t
list all the applicants. Now, even
if the murderer did apply for the
job before entering McGraw’s store
—and we don’t know that he got
around to it—we still have only
7 chances out of 25 of having his
name on this list.” =

“We'll check everyone of those
job-hunters anyway,” the sheriff
declared. “And they all better be
able to account for their where-
abouts at 4:45 this afternoon! But
before we get to covering’ that
crew, I wanted to ask Lester Ince
one question.”

Shaw regarded the sheriff quiz-

. Zically but Bozeman’s set jaw gave

no hint as to what his new lead
might be.

The investigators soon found
Ince recounting the afternoon’s
events to a group of his neighbors.
Leading the old-timer aside, the
sheriff shot his question: <

“Has Sam Culver been around
the store lately?” he asked.

(Union) 2-4-1926...

' an ie elec. Ark.
NATTY Cl Roy and WALKER, é,
in

y

FU NEGROES ARE

EATENCED TO DIE.
| _ HERE FEBRUARY 12

‘| Six Now Scheduled to Be Elec.

Deati Cells, :

Isham Jones, Jobn Cuuuuy, Cline ;
Masoy and Cepbus Jvhason, UGuachita :
county Negrves why ure being heig at,

| Quachity county Merchant, will. be ;
j PXCCuiog on Briday, Vebruary ) LY

date from the Supreme court, |

© Wwaile’® Under deur Sentence, ;
ix of them are to be execuced |
dyring February,

Jove Walker and Roy Edmonu, Un. |
ign county, ure Under death Fenlencve |

i them for filing an appeal in the su.
i Preme court has not yet expired, The
j Were Convicted lage week

ry 4nd did not take the witness |
Stand during their trial] at Carney, !
a enc CEM


EDMUNDS, Howard G., white, hanged at Warren, Arkansas on Dec. 9, 1881.

"Monticello, Arkey 12-9-1881-Howard G. Hdmunds was hanged at Warren, 20 miles west of here,
this evening, for the murder of his sister-in-law, Miss Alice Watson, in June last, Ede
munds confessed, but this morning claimed he was innocent and had made a false confession
to appeasethreatened mob violence, At lo "clock he mounted the scaffold, and, declining

to talk, the preliminaries were soon over, the trap falling at 1:10. He died instantly.
Five thousand people witnessed the execution,

"The crime for which Howard G. Edmunds paid the death penalty at this place today was
committed on June 29, 1880. The victim was his sister-in-law, Miss Sallie Watson, a lovely
girl of 16. ‘The Watsons and Edmunds were prominent people, the young lady being an acknow-
ledged belle, while Edmunds himself was a prosperous planter of means and intelligence,
Threeyears before he had married an elder sister of Miss Sallie Watson, and later that young
lady became a member of his household, The girl was vain as she was beautiful and Edmunds,
by adroit flattery, succeeded in leading her astray, Then, fearing discovery and loss of
social pssition, he deliverately murdered her} The tragedy occurred in a strip of woodland
which separated the dwellings of Edmunds and Colonel Watson's, The girl met her betrayer
there by appointment, when Edmunds announced his purpose, and, despite her prayers for mere=
cy, took her life,

"then the body was found, suspicition pointed to him, a rumor of his criminal intimacy with
the dead girl having previously been circulated, He was arrested and lodged in the Mohii-
cello jail. A mob soon after attacked thejail, int&nding to capture and lynch him, The
jailer and guards, however, beat thepeople back and saved his life. The following night

he was secretly taken from jail and hidden in the depths of an adjacent woods, where he BRE
remained closely guarded until morning, Durine thenight a masked mob got into the jail,
searched it and went away disappointed, the precaution of the sheriff having cheated them
out of a victim, It is understood that they intended to burn Edmunds at a stake, had he
fallen into their hands,

"His life was saved by just such expedients until the excitement had somewhat subsided, when
he was tried, convicted and sentened, today being slected as the date of exeuction, In an
interview with THE GALVESION NEWS correspondent, Edmonds declared that he was innocent in
the sight of God, and that he died a victim of circumstantial evidence, He said, further,
that he had 'supped with horror! for some time past, his coffin having been placed in his
cell and the gallows erected in sight of his window. He was respectably connected, his
relatives being among the leading KAMXXAXXXSXXSHHEK families of South Carolina, The crime
and punishment will 'point a moral and adorn a tale' in this section of the state for many
years to com," NEWS, Galveston, Texas, 12-10-1881 (1/7.)


woen it,

The body of Blakeley ‘was re-
moved by ambulance to Haider’s
Mortuary in Santa Barbara. There

it was formally identified by the °

victim's step-father and a friend,
Ralph J. Curtis. Then Johnson was
booked for murder. see

The autopsy was performed by
Dr. William O. Russell. It disclosed
that the first shot had struck

ee eee

Blakeley’s right elbow, shattering

it. The second heavy slug had torn
into his heart.

‘T was a most brutal murder, but
the mild-mannered Johnson

RET See

“That’s exactly what I mean,”
West said.

Unger shook his head. “I never
thought the day would ever come
“when anybody would think a thing
like that about me. I lost that knife,
Sheriff—rather somebody nicked
me for it. For a guess I’d say it
was Ed. Randolph.” ,

“You got something against Ran-
dolph and trying to point the finger
at him?” :

“It’s not that,” Unger said. “The
‘way it happened, I. was sitting
around the loading platform of
Gray’s Gin a while back. Several
of us were batting the breeze and

' I was messing with that knife, cut-
ting notches in the edge of the
platform. I’d just got it and some-
body asked to have a look at it—
Henry Slocum, I think it was. I
let him take it and it was passed
to first one fellow and then an-
other. Sornebody called me across
the way about something or other
and while I was gone the knife dis-
appeared. I raised hell about it but
everybody claimed he had handed
it to somebody else and that’s the
way it went.”

“What makes
dolph got it?” ~ j

“Just the way he-acted, Sheriff.”

West said that wasn’t much to
go on. “Not enough to accuse a
man of murder on.”

“I’m: not accusing Randolph of
murder, Sheriff; all I’m doing is
defending myself against such a
charge.” :

“I hope you can prove your
story,” West said»

“Anybody that, was there will tell
you I lost my knife,” Unger insisted.
“Let’s look some of them up.”

“That’s what I was getting ready
to suggest,” West said. .

Accompanied by George Unger,
and keeping a close eye upon that
worthy, the sheriff. again shoved
his way about town and it was Un-
ger who first caught sight of Henry
Slocum. He called the man from
a crowd and motioned for Sheriff
West to do the talking.

“So you won’t accuse me of put-
ting words in Henry’s mouth,” he
said.

Slocum quickly substantiated Un-
ger’s story about losing his knife.
“But I haven’t any idea about who
got it,” he said. “It might have
been anybody.” :

“Even you?” West suggested. .

Slocum acknowledged that this
could be true.
it,” he said.

you think Ran-

it .

“I wouldn’t even make a guess,”
Slocum said. ; :

At. the sheriff’s request the two
men got their heads together and.
‘after some discussion named all
those who had been present at the
time the knife disappeared; again

West started about town. Now and.

‘

“Only I didn’t get -
a you think Ed Randolph got .

was looking for and he gradually
came to the conclusion that Ed
Randolph had made: off with
George Unger’s knife. Randolph
had in fact later been seen with
such a knife—or at least the stories
had it that way. __

When at last Randolph was lo-
cated, West accused him outright
of stealing: Unger’s knife. “You're
just as wrong as you can be, Mr.
West,” Randolph said. “Yes sir;
you’re plumb wrong.” ;

_ He took the offensive. “Anyhow,
how come you're out checking on a
two-dollar knife when Ethel Boyd's
been murdered? Why ain’t you
working on that?” he demanded.

“Mrs. Boyd was killed with that
knife—or one exactly like it,” the
sheriff stated flatly. He added, “But
I am asking questions and you’re
answering them, Ed. You were seen
with a knife of that type, so—”

Ed Randolph's face blanched and
his thinnish lips trembled. “Sher-
iff,” he said, “don't you even act
like I had anything to do with kill-
ing Mrs. Boyd. I’ve known her all
my life and I’m not about to—
Sheriff, I hada knife like the one
Unger. lost—I'll admit that right
now but I ain’t admitting I got it
the way you think. I had one and I
got shed of it; I had reasons that’s
got nothing to do with this busi-
ness. I sold it last night for a quar-
ter.”

*“A quarter?” West questioned.
“You mean you sold a new knife
for’twenty-five cents?”

“That's right. I was broke and I
needed the quarter a lot more than
I needed the knife; besides, the
point was broke on the big blade
and—”

“Say that again,” West com-
manded.

‘Say what—about the point being
broke? It was and I wanted ‘to get
shed of it anyhow and—”

“You: told. me that,” West inter-
rupted. “Who did you sell it to—
if you did sell ite” *, | s+

“I sold it all right to a fellow
called Lee.”

“Lee what?”

“I don’t know, Mr. West. I don’t
know if his name is Lee or if they
just call him that. All I know is he
wanted that knife and he said. all
i had was a quarter and I took

“Anybody witness the transac-
tion?” ;

“Not anybody I know about,”
Randolph said.

This, from any angle, was a flim-
sy tale but its very weakness gave
it an air of truth. Nevertheless West
was not accepting it without proof.
He said. “You come with me; see
if you can take me to this Lee or
somebody else that. knows him bet-
ter than you seem to.”’ :

It soon became: apparent. that
‘such a man did live in or near

then he found one of the men he

Forrest City—that he was an ex-
sailor, recently come to that area.
But no one seemed to know much
about him; he was not to be found
and Randolph’s tale went unsub-
stantiated.

One thing, however, was positive.
Randolph’s .knife, or the one he
had owned, no matter how or where
he got it, hdd been used to Kill
Ethel Ellis Boyd.

“If I lock you up, you'll be mob-

- bed,” West told the man. “The only

thing I know to do is to keep you
with me until I find out more than
I know right now. Maybe when
they get there with the dogs—”

HE dogs arrived : from‘ Tucker

prison farm about nodn—two
bloodhounds and a handler in
charge of Lee Henslee, assistant
superintendent of the Arkansas
Prison System. :
. Almost simultaneously, five. car-
loads of Arkansas State Police, un-
der Lieutenant Alan Templeton, ar-
rived from Little Rock. Templeton,
head of the State Identification
Bureau, at once put, Sergeant Joe
Ferguson to dusting and photo-
graphing the murder car for prints
and making plaster moulds of the
footprints left by the killer, |

“If he’s a young man, chances
are he was in the armed forces
during the war and his fingerprints
will be on record,” Templeton said.
“Of course we've got to find his
prints on the car before we can do
any checking.” :

“I’m half-way looking for a man
who supposedly was in the navy,”
Sheriff West said, “but I don’t want
this case to last long enough to be
checking prints with Washington.
Let’s try out the dogs.”

The bloodhounds were shown the
tracks, which they snuffled with no
display of interest but they took
off up the road as though they
knew where they were going. Ar-
riving at the cane-brakes, they
started through but within fifty
yards they gave their handler a
disappointed look and- bayed
mournfully. As is generally the case
in cane-brakes, they had come
upon a broad stretch of stagnant
water. :

“The fellow likely figured on dogs
being used,”* Henslee said. “He
knows how. to cover ‘his trail.”

“He knows too much,” Sheriff
West said. :

He had a sudden idea. “Let's have
those dogs take a sniff at Ed Ran-
dolph,” he said. “I got an idea they
might find his smell interesting.”

But the bloodhounds did not.
They sniffed at Randolph's feet and
legs, turned back to the tracks on
the road and circled aimlessly. The
spoor there interested them all
right but it had not been left by
Ed Randolph.

“And so?” Lee Henslee question-
ed.

Sheriff West shrugged. “You bet-
ter send your dogs to the other side
of this canebrake,” he said. “It
might be they can pick up the trail
where the fellow came out. Of
course,” he added, “he might have
come out on this side.”

At that moment a car contain-
ing Jack West and several other
Forrest City residents drove up and
stopped. Jack West, an attorney,
was the ‘sheriff’s son “Dad,” he
said, “I think I talked to your killer
half an hour ago.”

“Talked to him?" the sheriff said.

Jack Wést said that was right.

“At least I talked to an awful liar
—a fellow trying to hide some-
thing,” he said.

He had, he said, come upon a
man on a road near Rose Lake.
“He was a stranger to me, so I
stopped and talked to him,” young
West said. “I asked him wheré he
was going and he said he was going
to cut wood for’Jake White. He was
neatly dressed and I said, ‘You go- .
ing to cut wood, dressed like that?’
He said no; he lived nearby and
was on his way home to change
clothes, then he was going back to
White’s. :

“I let him go,” Jack West con-
tinued, “then I got to thinking
about it and drove over to White's.
Jake said there wasn’t anybody
coming .to cut wood for him—not
that he knew about. So I beat it
back to where we'd seen this fellow
and he was gone—no sign of him
anywhere.”

The man was a “string-bean sort
of fellow,” Jack West said and his
further description matched well
the description Randolph had given
of “Lee.”

“Let’s get the dogs oyer there,”
the sheriff snapped.

At the designated spot, the
bloodhounds seemed unable to pick
up a spoor. Sheriff West shook his
head discouragedly. Then he said,
“There's enough of us here; the
only thing I know to do is to sur-
round this neck of the woods and
beat the brush until somebody runs
out.”

Sergeant Ferguson joined the
other Officers, his eyes sparkling
with excitement. He said, “I be-
lieve the man we are looking for
hurt his left leg or foot in that car
wreck.” :

Explaining this opinion, the ser-
geant said it was very apparent
that the killer had “favored” his
left foot from the time he left the
car. “His left track is considerable
lighter than the right one,” the
state policeman said, “and it’s sort
of twisted. That was not the case
around the spot where the body
was found.” :

Sheriff West looked at his son.
“How about it, Jack?” he asked.
“Was the man you met limping?”

“Come to think of it, I believe
he was, a little,” the young at-
torney said. “Of course I didn’t see
him do a lot of walking‘and I was-
n’t exactly thinking of that at the
time,” he explained.

“He might well be our man—
probably is,” the sheriff said. He
wiped perspiration from his face
with a limp handkerchief, said, “If
he is, it’s evident he knows some-
body near here—he got hold of a
change of clothes; if he’d stolen
them we would have heard about
it, so if there is anyone around
here by the name of Lee—”

There Were enough officers on
hand to supervise civilian activities
and several squads of searchers
were detailed to cover the area in
every direction, looking for a family
named Lee or a man with a newly
acquired limp. By mid-afternoon
the conclusion was forced upon
them that no one so named lived
nearby, but two tenant farmers
were found who had seen a “limp-
ing man" dressed in neat clothes
near their place. One of them said,
“I don’t know what his name is but
I believe he is some sort of a rela-
tive to the Jordans’.”

town. Jordans, though extremely
poor people, were well enough

27


w yorer, fitillrows wad Vesetiis
ga durder committed 11-20-35. Jf
loca _d and wire Sherif Ralph Buck-
ley, Spokane Co., Spokane, Washington.

ANDY EDWARDS. Murder. Rewards:

True Detective, $100; authorities,
$100. Age, 64; height, 5 feet, 6 inches;
weight, 142 pounds; hair, black; eyes, black;
complexion, black. Was wearing mustache
when last seen. Scars, 2 over right eye;
wind gall below left knee. Jf located, hold
and wire Sheriff Jim Beardon, Washington,
Arkansas.

AUL WILEY MAXWELL. Bank Rob-
bery. Rewards: TruE DETECTIVE, $100;
authorities, $500. Age, 27; height, 5 feet,
11 inches; weight, 158 pounds; build,
medium; hair, chestnut; eyes, blue; com-
plexion, fair. Crime committed, 3-17-30.
If located, hold and wire Louisiana State
Bureau of Identification and Investigation,
Shreveport, Louisiana, or Sheriff J. E. Cur-
rie, Arcadia, Louisiana.

1 U OO! 10
F. P. C.
1 U OO! 8

5 ROI 4
F. P. C.
19 — OI 188

ERRITT NEWMAN. Aliases R. C.

Gale; Merritt Jackson Mewman.
Murder. Reward: True Derscrive, $100.
Age, 31; height, 6 feet; weight, 190 pounds;
hair,- light brown, thin; eyes, hazel, deep
set; brows, heavy; complexion, medium.
Occupation, miner and cafe owner. One
tooth, upper jaw, missing. Scar on nose
flattened by blow. Receding forehead,
broad square shoulders, erect carriage. If
located, hold and wire Sherif C. J. T obias-
sen, Nevada County, Nevada City, Cali-

fornia.

OM WINSTEAD. Murder. Reward:
True Derective, $100. Age, 44;
height, 5 feet, 6 inches; weight, 148 pounds;
complexion,. brown. Murder committed
5-25-35, when this man cut another’s throat
after a quarrel. Jf located, hold and wire
Superintendent of Police, John P. Smith,
Police Department, Detroit, Michigan.

a? U 100
21 U OOO

F. P

THE LINE-UP IS A FREE PUBLIC SERVICE

Five dollars is paid for each photograph used in THs Line-Up. “Screen” photos, metal
cuts, newspaper photos and police circular photos CANNOT be used. Send only original
photo, or copy of original. When sending in photo for THE Line-Up, give fugitive’s name,
aliases, name of crime, rewards, occupation, age, weight, height, color of hair, complexion,
all distinguishing marks. personal characteristics, date photo was taken, date and place of
escape, finger-print classification and the name and address of the officer who wants the
fugitive. No photos will be used except those authenticated from official sources. Photos of
fugitives who have committed the more serious crimes, such as murder or armed assault,
are preferable, but all are considered.

Ninety-six captures have been made to date, including fifty-five murderers.

IMPORTANT NOTICE

Readers of True Detective MysTEeRIEs possessing authentic information concerning any fugitive pictured in
our Line-Up are urgently requested to: FIRST—Communicate with their local police or the police in the city
where the fugitive may be located. SECOND—Advise us IMMEDIATELY upon identification of fugitive
through THE Lixe-Ur. Where authorities are notified by letter or wire, send copy of same to: Line-Up
Epiror, True Detective MystTeERIES, Chanin Building, 122 E. 42nd St., New York City.

It is essential that this magazine be notified the moment that direct action is taken. Applications for reward
ae ~ postmarked within 24 hours after the hour the fugitive has been positively identified through Tue
LINE-UP.

True Detective reward offers are effective up to six months after publication of photo and the reward is
payable to the person who first identifies the fugitive, prior to his arrest, from the photograph of the wanted man
appearing in Tur Line-Up and gives the tip which leads to his capture.

True Detective reserves the right of final decision in determining whether or not the evidence submitted

’ by the claimant to the reward is sufficiently clear and conclusive.

Total rewards this month $1700.

>

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LE61/42/6 (

Nore on the case of Thomas Edmunds, firkansas (Fo,

sited orh Herald 5/24/80 $2. He was a white rnars who
/h 4ori/ /E72 abandoned hts litte bed children th Atviagston a.
Kentucky and efoped 1 Artonses with al7 ytar old Sar
tamed Julia Ashbrook. He settled at Washington Co. Are.
And parsed a Crop there. ere he begap a Lastard datyhler On
tus paramour. Soon after bot bis Seeret [eaked cup and he
resolved to return to Bentucky. On Y1U/78 he hibed a {tery
and headed east Will POSSI, parapions and whup. On
Wf45{78 Mulia Ashbrocl $ ecomposed body tes Sotnd tiitshed

to on a Sandbar th the Arkansas fiver. The baby tits ttver
und. Edmunds Was subsequemtty Cxtowdi cred Kentucky,

THE hangman has beenlverylactively engaged
throughout the country during the past week,
hot taking into‘account the eight or ten fatal
but irregular operations of Judge Lynch
through the west and south. Last Friday
wasn heavy day for tho scaffold operators.
Howard G, Edmunds was hanged at Warren, ’

Ark., for the murder, last July, of Miss Sallie
Watson, his sister-in-law. The victim was a
very beautiful girl, and had held illicit rela-
|} tions with the prisoner, with the effect of.
separating him from his ‘wife, her older sister.
The girl was murdered-and: the body hidden
in the woods: Tho murder “was a young
nlanter of good family and-all the parties con-
corned ‘were wealthy... a

[2-2MES/

Zt } P-1 (OW &

ra Slo

ye

XK, we,

EDMUNDS, Howard G., white, hanged at Warren, AR, 12-19-1881.,,

 TO* HEAVEN . VIA THE GALLOWS.
~ Byt . t Mon-
6 latest reports of the hanging a
Gate Ark.; a few weeks ago, it appears knee
the murderer, Howard Edmunds, a wealt HM
young planter of the place, who was convicte

wifo’s sister, aged-only_16. and-

| then beating in her skull with an axe because

‘he discovered she was insane, had a regular

| religious jubilee at the scaffold.. The parson

dealt out hymn books among the row ane)
| they all sang hymns selected by the cond ees
ed,who started the tunes and sang ene bled
stanzas ina clear tenor voice without n, e mor
in it.. The reports say everyone pre en he
much moved. And that is the way they t
angels ou. of devils howadaya,

/-+TAF FZ

LOOtL. E Crp BE TTS

4 ;
7 Ve) % f CY a,

MURDERS: MONTH

detective work was of/outstanding
and exceptional merit.

in which the ar-
ed the criminal
showing particu-

kirk Indicates a cas
resting officer capt
under circumstance
lar gallantry.

tek Indicates a casejin which excellent
cooperative work among several of-
ficers or offices solved the crime.

* Indicates a case \presenting some

difficulties to the poli

No star is placed befo
which the criminal gave
without resistance before being Sts

‘door with’.12 gauge shotgun,’ killing
him instantly.

x Victim—Cross Lamb, Hope, Ark-
ansas. Method—Head cut off, axe.
Motive—Robbery. Remarkable features
—Crime took place 1935. Sheriff Bear-
den identified perpetrator as Marion
Edwards, negro; broadcast description
of him. Arrest by—Officers Maupin
and Ross, Pine Bluff, Arkansas. Con-
fession.

* Victim—Haywood Mayo, Charlottes-
ville, Virginia. | Method — Shooting,
shotgun. Held for trial—John_ T.
Wolfe. Motive—Police allege quarrel
over right of way on farm road. Arrest

a
ve .,

volver:
son and Ann
—Police Chief
St. Louis, Illinois.
tures—Police say
1936; that car pulled, up in front of
tavern, opened fire on tavern-keeper,
Welch killed by stray billet. That Mrs.
Nicolas fled with Thompson, both
traced by telegram she] sent to her
mother in Galveston, Texas.

for trial—Arthur Thomp-
icolas. Investigation by
J. O’Rourke, East
Remarkable fea-
illing took place

* Victim—Mary Jane
Michigan. Method—B
ing. Held for trial—J
Remarkable features
at Day Break Innwhich burned; vic-
tim’s body foutfd in ashes. General

ohan, Detroit,
ting and burn-
es McCormick.
rime took place

pected.

Victim—William Colantonio, Chicago,
Illinois. Method — shooting, revolver.
Held for investigation—Mrs. Alice Col-
antonio, wife. Remarkable features—
Couple had been quarrelling, witnesses
say victim was drunk; often beat his
wife. After shooting she ran four
blocks to police station in her night-
dress covered with blood. Self-defence
plea.

kktkVictin—Mrs. Eleanor Morgan,
El Paso, Texas. Method—Strangling,
electric light cord. Held for trial—
Collan Morgan, husband. Arrest by—
Night Police Chief Leonard Butchofsy,
who went to apartment on discovery of
body, alleges that he found seven cards
at Mrs. Morgan’s feet, seven more on
floor opposite, indicating card game for
two; that he discovered witness who
heard suspicious sounds in apartment
shortly after Morgan returned from
work, traced down pair of Morgan’s
trousers, stained with blood correspond-
ing to Mrs. Morgan’s in type. Motive
unknown.

* Victim—Clarence Kreise, Pasadena,
Texas. | Method — Stabbing, _ pocket-
knife. Held for trial—O. L. McLain.
Remarkable features—Barroom quarrel ;
witnesses say McLain was kidding
Waitresses in café, one of them Kreise’s
wife; men went outside for fight. Mc-
Lain pleads self-defence, saying Kreise
hit him with broken beer bottle.

* Victim—Helen Schuler, Tell City,
Indiana.

Victim—Eugene Harper, Little Rock,
Arkansas. Method—Shooting, shotgun.
Held for investigation—Beatrice Wash-
ington, divorced wife. Remarkable
features—Witnesses say Harper, drunk,
tried to force his way into Miss Wash-
ington’s house; that she fired through

96

by—=Deputy~Sheriff——Abbott.Smith. Tip
off.

* Victim—Mrs. Grace _ Christensen,
Elgin, Illinois. Method—State charges
murder by abortion. Held for trial—
Mrs. Hilda Holmes, bath-house © pro-
prietor. Investigation by—Prosecutor
O’Connor, who secured deathbed state-
ment from victim.

tehckk& Victim—Paul Krochmalny, Wil-
mington, North Carolina. Held for
trial—Pete Krochmalny, son; Paul
Krochmalny, grandson; Evin Williams,
son-in-law. Remarkable features—Vic-
tim disappeared in 1936; never seen
again. In charge of case—District
Solicitor John J. Burney, who says he
can prove death and that money orders
known to be on victim’s body at time
of disappearance have been cashed by
accused, .

* Victim—Joe Campbell, Oklahoma
City, Oklahoma. Method—Beating with
revolver butt. Held for trial—C. H.
Vestel. Remarkable features—Killing
came as result of quarrel in pool-hall,
witnesses say over game of dominoes;
self-defence plea by Vestel who com-
plains Campbell and three companions
were cheating.

wkk Victin—Mrs. Ida Ewing. Method
—Axe. Held for investigation—Sam-
uel Ewing, husband. Arrest by—Of-
ficers Herman ‘Talghader, Bernard
Kreutzinger, Ernest Wachter, who were
summoned by victim’s granddaughter,
say they found suspect standing over
body brandishing axe and two open
razors; bravely disarmed him. Be-

Method—Shogtigg¢ yalweR - ;lieved insane.

‘*& Victim—Albert Dubs, Springfield,
Hlinois. Held for trial—Edward Mc-
ill. Arrest by—Radio Patrol S. L.
Myers and Elijah Neale. Remarkable
»/Satures—Victim’s wife says Dubs quar-
relled with McGill every night, when
the two men customarily got drunk to-
gether. Victim died of broken neck
as result of strangle hold. Suspect re-
ported by police too drunk to talk.

bo tad Victim—Walter Welch, East St.
Louis, Illinois. Method—Shooting, re-

Nae

alarm-broadcast for McCormick, parol-
ed convict, who was employed at inn.
Arrested as he left bus in Cleveland,
he protested innocence, said fire origi-
nated in manner unknown to him; says
he fled because of record.

* Victim— Mrs. Minnie  Bianconi,
Chicago, _ Illinois. Method—Throat-
cutting, razor. Held. for trial—Angelo
Audi. Remarkable features—Victim’s
body found near roadside, . Audi, seri-
ously wounded, found in his home later,
throat also slashed with razor. Motive
believed jealousy.

Victim—Fred Sidall, Detroit, Michi-
gan. Method—Shooting, .22 rifle. Held
for investigation—Mrs. Helen Sidall,
wife. Remarkable features—Confession ;
Mrs. Sidall says “I’m glad I did it,”
adding her husband, always drunk and
abusive, was beating her 13-year-old
son.

* Victim— Mrs. Florence Jackson,
Whitestone, Long Island. Method—
Strangling, leather belt. Held for trial
—Stanley Martin. Remarkable  fea-
tures—Martin and Mrs. Jackson, both
married, were lovers; in confession
Martin says victim asked him to kill
her. Killing took place at 4:00 a.m.
in car, which met police radio car. Mar-
tin stopped police car and asked “help”
for victim.

Victin—Mrs. Peter Poznaik, Interna-
tional Falls, Minnesota. Method—By
hatchet, while she slept on davenport.
Alleged attack-murder. Held for trial,
and charged with first degree murder—
Paul Poznaik, her brother-in-law.
Surrendered voluntarily, after being
absent for fortnight.

Victims—Henry Boyachuk, 24, and his
sweetheart, Mary Presilowski, 20. Cou-
ple drove to cemetery and Boyachuk
put bullet through lover’s heart and
then one through own temple. Near
Sifton, Manitoba, Canada. Left note
to Mrs. Jessie Lupchak, Mary’s sister
and her husband, Fred, telling of pact.
They arrived at graveyard few minutes
too late. Said Mary in note: “I’m
leaving for good. Please say something
nice at my funeral.”

iin iain ill

Nev (43°)

f- JU. Let CCL A Le l LL Cx Apt

tet

EVERS, Bén, black, elec, Ark. (Arkansa s) January 2h, 1930.

/

Peruly cloocy omser tomight frase
. ; i eat ptt. Lf wel: cheeie,
Wetoceday acnnreiy fav. wesiper bp

~ exUeme BOTinweat purtion.

“aph of Associated Press. Today's News Now fo
ainda ve anutnbn =“ ee SA AOOTINEEIN se gts x . Sa Sa SD HR RNS AT NEE
PE, AAKANSAS. TUESDAY, MARCH 26, 1929 a NUMBER 73

ree eee pe wn = oe ena RRR? >)
= = = ee ta 3

DERS GUARDSMEN T0 DEWITT.

ee reat ice Heeling High Against Two
- - BUTLDING Ler ~«=Vegroes Held tor Murder

ogmoamasce Of Marshal Perry Miller '

Company to Start New an

Project.} | LITTLE ROCK, March 26.—.2)—

; 5 INVES TM E N T A] 4 A Qu ° National guardsmen were dispatched
12 090 t from Little Rock today under orders
3 ) ! . apone NSWEYTS es 10NS from Groverncr Parnell to bring to
the <tate peniventiary from the coun-
ty jail at DeWitt two Negroes. Ben
ver and Clarence Garrick. who ire
; held for the slaving of Perry Miller,
nt 6at) DeWitt last week.
taken as a result of
reports that feeling was high againsr
the Nevroes. and .t was feared an at-
tempt Would Ge amacde to take then
from the jaii.

Captain Harry Simith and 28 men
at Battery Ho 206th Coast Artiller:
tanticmirerains of Little Rock. Cap-
mrry Screetor and four men cf
the didtn Ambulance company of
Haves ond Captain Phi! E. Thomas
ee HE LS4th Observa-

rE. (. Royse of Pine Bluff,
Will Have Charge of
Construction.

‘

Contract for constructing the O. K.
Ice Cream and Candy Company,
building at Eisghth and Main, which:
which completed and equipped, will
tepresent an investment of apprexi-
, Lately $125,000 will go to E. C. Royse,
of Pine Bluff. Mr. Royse'’s bid was
the best of 10 offered. three of the
bids coming fromrmout of the city con-
tractors.

Mr. Royse’s bid on the construction
of the building was $32.990. This bid
coes not include plumbing. electrical
work or special features. which wii
bring the total cnst ef the building
to more than $50.000. The remainder
of the investment will be represented
in value of lot and factory equipment

Other bids submitted were as foi-

: lows: M. M. Redmond. $37,400: A:-
Sunday and her /kinson and Jaggers. $39,343; Quinn
3 when George (and Quinn. $37,424: G. E. Smith, $37 -

Hawaii. In the , 112: H. E Brock. $37,775; J. H. Leveck
nday‘ center in . aad Sons $33,200: Wiliam Peterson
| (left): Mrs. Oo. $36 .890.

shortly before

and medicai off:-
mtend both Ne-
TOSS, WHO ure Wounded Ever wv.
eerniousie wounded  2hen captured
after che gun battle in
ver Jost his life. while Gar-
< severely “Sounded during the

Frans Nutter an automobile sales-
mam. ulso was wounded
The shooting occurred alter Miller

ver, of the boat | Work willfbegin immediately on the summoned from his winter home in Miami. Fla. Scartace Aj Capene and Nutter had gone to Ever's home

ome ‘bullding which will be. constructed Fetirec king of Chicago's underworld, fearlessly answered questions put sO Teeover a pistol which Ever was
from plans furnished by Mitchell Se!- ta mim in regards to the Chicago Heights 'Nquor situation Photo shows aileged to have stolen from Nutter,
jligman. Pine Bluf! architect. and) Capene conterrince with his attorney, Wilham Waugh Miler entered the front door of

-- oe Evers home and Nutter the rear en-
res of reinforced concrete and fire trance The Negroes were alleged to

pp which will be 80 by 150 feet, two ae meee seamen a .
) OSED proof. ' | hy Nase opencd fire the officer being
| The building will be faced with light! L sMstantiv Kuled = Garrick and Nut-
, buff Arkansas brick with stone trim- | |

ter cere wounded on an excnange of

T0 AID mings with plate glass fronts on Main | shot and Ever escaped He was
street and returning 17 feet of Eighth! . aplured oxe days later be a poss
Avenue. Two stores for rental pur- | and ¥ as Ysuor severai times by a

g t

| oo heal

5

Drother uf che slam Inarshal

poses, each 20 feet wide and facin
; Main will be arranged in the north | a tee
P4 half & the butiding | BY GRAND JURY REMOVAL REQUESTED
4 The South half of the first Noor and! 5 DEWITT, Ark. March 26.—Re-
the entire second floor will be occu-: moval of Clarence Garriux ana Ben
or Denounces pted by the O. K. Ice Cream and Can-: Ever. Negroes accused of the slaying

p His Sick scoune Heoriienl te weeds thereon, | Bord Cy pert, Proseeming Ate Verdict Returned) After Ie. Sf Cte Marshal Dery Miller, from

ot ; ' .
Betas ba, > ; a ; — he jaa here to the svate penitentiar:
rescott ay factory and the north half as a foerucs, to Present Evi- liberation wf lwo Hours at Little Rock was requested by Cir-
i | stock room. dence Before Bods and to Miuntes cit Judge Woo. Waggoner It wa: ;
Fg From Office Spaces wnnounced today by Shenf! CC. aq. |
‘ tine) Fhe first Moor will contain office LiTTLE ROCK Muren 26 Ots Baugh last night was foung Calister

© Getousiwed the spaces. freezing room, refrigerator The storm-battered bil te
90,000 deficiency boxes and al! mechanical equipmest pari-niitue., betting on horse racing gree murderoin connectuon with the
ck eradication which will require in the neighbor- BArs rast awaviin ai fy with other ¢ara! shootirg of Car: J Fact ood

' *h «} rf an ee ot: . - e
legalize not guilry of the charge of first de- eae nthe Mid Governor Parneil

Was asked to send Nationa! Cruards-
Men here after a easy ence between

has

thes belief the: hood of 60 horsepower in various sizes vetoed levisiation today whie the Pu- pere last Feoruare A verdict was hers and Jucze Wagsoner ia *
rt unis economic ‘of motors. The freezing room will be jack: count: rand vary eet to Ik Setormad oz erece esces G  ee
i session, of the on the corner of Eighth and Main gyi je at HICNOY WS ny after ce roerati eed eg hothere fas been wo surtals
,and will be plainly visible through uses oy) ons ' ae Oo a5 es oe on oe thatoan attemp: would
en’. made public the plate glass fronts This roam will ain, ste a? ' . ~ ; 2: :, ;
or 9 CF? 008 AY te tet oe Te ea! . ' diye

WIFE KR al Le

. . PINE BLUFF (ARK.) COMMERCIAL, WEDNESDAY, MARCH 27, 1929

—

leelesnhiametbnaniesiaditinihueidtisesini son << ahs tone

LITTLE ROCK. March 27.—.7--|
Called to pay his respec's. Being Tro sageoin held for the slaying of |
lite sch a toad alate Sealine a Perry Miller. city marshal at Dewitt. |
ne atvited to stay to be eninrtaien Ark. were in the state penitentiary
It was up 0 Tum ie & ked mostiy| {or safekeeping today, having been
gl lars he owns inva? (brought here last night fro the De- |
to law aioe and har in| ot BY talon puree OS

tic 1d} or ell.

rance business, They say he ialted | der orders 0

WINTER PARK, Fla. March 77.~—
()—The espionage act, whatever use.
ful purpose !t served in war times, hag!
led to "many gross misearriages of |
Justice and provisions complained of
should be repealed.” Senator
J. Walsh of Montana,

--;-Sese ahiean en . ORT RCN
rans sinsenenaenmenmntermrinstsineeerae,
= ; - SHOULD REPEAL
mr sure NEGROES SENT TO » | | 7
ch to Say Just Yet PENITENTIARY ESPIONAGE ACT
Bn part of $ Ricu.ariy -| wwe i fe. peer
Dae. mars Oe ie partic “ oo + hal Suen ir Senator Walsh of Montana|} :
j Slayers of DeWitt) Marshal ah it lew
It seems that last winter “ne Mis- ‘Removed to Walls for | Declares t o Longer
hag bgt net pie - oie Safe Keeping Useful | |
ting. Ppened to whl . j ~———— ‘7
ier wAs there The mid-western- } |
FONT RET
eee le

f at a round table discussion’at the in.
sterfull | The removal of the Negroes, ‘| — ee ne at Rollins
pee as = ‘Ever and Clarance Garrick, was re- co. a
a snot cae oe hur M. Hege quested by Ctreult Judge W. J Waz-, The statement of the Montana sen~
ton, hog is how ores y goner of Lonoke, after a conference.
mes to S07... «OF s ecUt

ator who sponsored the espionage bil!
in the senate was made during a dige

cussion of the Topoc “party Tespon-
sibfity in congress,”

Prof. Arthur C. Cole of Me 4
versity of Wisconsin brough up @|
subject with a statement that inal
} | strictions on expression of opinion re-
prisoners removed. sulting from its enactment largely
YEW YORK—~("—The latest au- A special term of circuit court at were responsible for political apathy
ritative surveys show there are! Dewitt {s expected to be called shortly for Kansas City and Brownsville. Tex. today.
investment trust companies and! to try the Negroes. both of whom are! othe ship of the Universal Air Lines; ‘That portion of the bet ae
dred organizations in the United | wounded. Garrick was shot in the Date ich has been here for the past| Which most eh a a nl
tes and Canada today. They rep-' tle in which Marshal Miller was Slain.!| | ek took off at 8 o'clock for Kan-| Senator Walsh said, “shoul
‘nat a combined capital exceeding; ang Ever, who escaped, was wounded

; with Sheriff C. C. McCallister of Ark-
‘ansas County. Although there was no

VESTMENT TRUSTS Sk meter
GROW AT DIZZY PACE | stormed reached authorities ang they

, immediately took steps to have the

i led and could be now {if the matter j
sas City and the two new ships which | pea :
00.900,900, and the amount? us in-/ by a brother of Miller at the time he janded here yesterday took off five hard — the senate with
ising — , iaare | was captured two days after the slays: and seven minutes later for Browns- pee tappe ia us tans
wenty-six of the compan | ing. ' ville, é lared -
met in financing and other sc-| "Jack rice, former Cotton Belt spe- plonage act cei mere =
les which might take them out clal agent, who will pilot one of the|it was during Motes ol roam, nd
he class of ordinary investment F(R) TRI-MOTOR ' ships on its run f Mexico City to science a eB rabeiewig
ig BY 2 remaining 172 con-, Brownesville, was with the party that| institute ve in the United P perbed
es of the general ees | PLANES TAKE OFF arrived here yesterday. Other mem- governmen : at ther
hie and 32 of the spectal- |bers were Ray Keeler, Charles Lau-| could be put in jail oo
aed Laid a nee at de ' ber, Capt. C. D. Swinson and C. D.} Were giving utterance to. j
fferent siuctur t nder
ila sorecnnu ewe pata Planes Housed Here Leave fo: Kansas, Wright.
any trustees and called the Oity and Brownsville

C. E. Hauer, New Orleans, La.,
ractual type.

| The staff of KGO, Oakland, mailed | thinks he has made a record for DXi /4
€ aggregate value of all stocks. Despite a low ceiling the three Ford; to Atlantic coast }

isteners 293 proots! reception on a crystal] set. ceili :
Fork | t ion during | WENR, Chicago. that he hear! tiles
ben listed on the New York | tri-motor planes housed at Toney;of reception of that station .

| serhatige is almost 100 times. Field last night took off this morning | the first three weeks of February. station distinctly on several occasions,
resent total holdings of invest- | anenrie iti = = ==
trusts, Converts to the trust

therefore are Saying that the

ce has only been scratched and!
there is a wide area for expan- |

je well informed persons in’
financial district predict that |
€xt step will be the merger of;

{k trust companies into larg- |
sanizations, and so on.

HARDIN COMPANY
AWARDED LARGE JOB,

{
;
4
‘

| Bough
a! to pass them;

i AtO

of the largest furniture deals

Incl ea
ade in Pine Bluf!, was consum- ' ENTIRE .
yesterday when the O. H. Har- | of More |
rniture company was awarded . i
tract for furnishings a large! J JUSTIN
ent buiuding in Little Rock. |
al store is furnishing the fur- |

curtains and draperies, and al)

ing for the entire 24 separate | -
ents which compase the build. |

te contract price for the fur-!

and accessories amounted to:

lan $9,000, and shipments are!

being made from the loca]

he entire lot wag selected and |

=

No Hat I
Ever Bef

place ~~ Gilbert H. Hardin, | ~

, Inal of the O. H. Hardin |

e CO} }
spartinent building has Just | i
mpieted and is one of the!

WidiIngs of tha kind tn the.

fmmng
3
8
ps

Nd uw located cr Capital ave- | { | } e Ca I foo
ittle Rock t Fy e
|

TT CO. BECOMES

hd a


n Fose

=

| CONTRACT F 0 R'
= LOCAL FACTORY

= BUILDING LET

i —_-—
0. K. Ice Cream and Candy

Company to Start New
Project.4 |

$125,000 INVEST MENT

E.

otf Ma

Te a

w..

Al Capone Answers Questions

C. Royse of Pine Bluff ,

for comstructing the 0. K_ The
Ice Cream and Candy Company ;
building at Eighth and Main, which |
‘which completed and equipped. wil!
represent an investment of aDpIyXi-
/ Lately $125 000 will 80 to E.C. Royse,
of Pine Bluff. Mr. Royse’s bid was
the best of 10 offered, three of the
bids coming from~out of the city
tractors,

Mr. Royse’s bid on the construction
et the building was $32.990. T i

Contract

*
—_— ———

tain

the

cone

LITTLE ROCK, March ;
National guardsmen Were dispatched
from Little Rock
from Governor Parnell to bring to
the state penitentiary from the coun ~-
ty jail ar

Haeei:

flivdss
igaal

Feeling High Against Two ~°
Negroes Held tor Murder
rshal | Perry Miller

26. P}—
today under orders

DeWitt

ue two Negroes, Ben
Will Have Charge of Ever and Clarence Garrick. who are
FY held for the laying of Perry Miller,

Censtruction, city marshal, ae Dewitt last week

Action wuss taken as a result of

reports that feeling was high against
i the Negroes. and it was feared an at-
tempt
from the jail.

| Captain Harry Smith
Of Battery H

fant

Would be made to take the:n
nd 28 men
206th Coast Artillery
s-Aireraity) of Little Rock. Cap-
Jerry Screeton and four men of
lidth Anibtilaner company of
Phi E. Thomas.
iS4th Observa-

. Goes not inelude Diumbing, a} tion SNortly before
Work or special features, wh: hoon for
bring the total ense of the build The anbulanes and medical otf:-
to more than $30.n00 The rema:: cers attend both Ne-
of the investment Wil be represe: ATGSS Ever wis
in Value of lot and factory equipmer: eri Captured
Other bids Submitted were as toi- two battle in
lows: M. M. Redmond. $37.400: Ar- bE Which } . *, while Gar-
bday acu ver | kinson and Jaggers. $39,343: Quinn ek was Sounded during the
when George ‘and Quinn. $37.424: G. E. Smith, $27 - kin -
wali In the (112; HE Broek. $37.775: J. Leveck 4, ; F: er an automobile sales-
Ay‘ center in , 4nd Sons $33,200: William Petersan Nia, nal ae . ; heel aiso Was wounded,
eft): Mrs. 0. . 36.890. Appearin [fe federal grand jury in Chicago where he had been The Suooting occurred alter Miller
, f the boat i Work willf begin immediately on the eis Sinter home in Miam Fia.. Scarface A} Capone anc Nutter had gone to Evers home
tay . ‘building which Will be constructed cr $3 underworld, fearlessly answered Questions put a recover a pistol which Ever was
| from plans furnished by Mitchel! Se!- ta * Chicago Heights quor situation Photo shows allezed to have stolen from Nutter,
: —ligman, Pine Bluft architect. and: Cemne csr: Tring cast] attornes, William Waugh ___Muler entered the front door of
‘which Will be 80 by 150 feet, two sto- | - Evers home and Nutter the rear en-

ries of reinforced concrete and fire!
proof.

The building will be faced With light !
buff Arkansas brick with stone trim- |
mings with plate Slass fronts on Matin!
street and returning J7 feet of Eighth!
Avenue. Two stores for renta! pur-'

POS
0 ADD;
ATION’

BAUGH OF

trance

GRAFT CHARGES JURY A CQUITS ore:

Sho0°-

The Negroes were alleged to
the officer being
Garrick and Nut-
an exchange of

and Eve; escaped He was
iWa dass later BY A posse
site several times by a

Poses, each 20 feet wide and facins | Ne slam imarchat
Main will be arranged in the north ! - =
hal A ine bullding ; BY (; ND JUR REMOVAL REQUESTED
The South half of the first Noor and! | 2 DEWITT. ary March 26. Re.
the entire second Noor will be occu. ! moval of Clarence Garnecx and Ben
Denounces pied by the O. K. Ice Cream and Can-: ——.. — Ever. Negroes accused of the slaying

is Sick dy company. The south half of the Boed Oy gyeqe Pr

: . POsectiare Vb.
the ran. | ; ‘ > a
reeHes. to Present Evy.

dence Before Deecds

Verdict Returned After De.
hheration wf Iwo Hours

of City
the jail here to

at Lirde Rock

Perry Miller. ‘ron.
the state benitentia::
Was requested br C:r-

" ' an > Mi . Cull Judge w . rag ae
_—P—From | Office Spaces ind 1) Miuntes snnounced today by Steen, c Me
Oday, former , The first Noor wil] contain office LuTTLE RocK Ons Baugh tas: ny ht: foun Callister . f .2
nounced the | spaces. freezing room, refrigerator The storm-bartorna ee ugh las? Zot was found The sherse said CJ earnes ;
0 deficiency | bo t cits? oe mot guilty of the charge of first de. ay SG Governor Parnej!

xes and all mechanica) equipmest pari... Det ting . . WAS asked to send Natics, :
eradication ! which 11 ire tn th - erase gee etee murGer in connection With the "SS as iy eS NaUonal Guards-
wul require in e neighbor- 4... cast anay fata! shoorine ny asi nee Men here atter a conterence between
» belief the | hood of 60 horsepower in various sizes Vetoed levistqe: heen ees ie . ar. J. Eastrood the sherifs and Judae Waggon 1 “
is economie | of motors. The freezing room wi!] DE lask cot nere last’ Februar: A verdict was avs : aggoner ja
t :  Teturmed in etreuit court ati d5 aio
. ° ad ae ene of | gry sien Quire av WAS om. after deiiberating txo heures and Aithouch there has vcen nO surfa_s
| y e roug. Used Ponwlaener ; , - ihe 0! ace? H Tatin iy acurs INDIeahons Hae av . si
ised te ins : Dass the , inutes pe thn Aaiealions thy van attempt « :
made public the plate glass fronts. This roam wil! Meare al the revept foth, *? Minutes by the jurors nade to seize ae eros aod oe
fr of Com-| be treated with tile floors and orher tegen is Fae RMtRSMES Were Offered tor he tnen: fron: the act it ay Geceerea
a move for ; (Continued On page 12) Geverior Royse cevense ‘O prove that the vouts WS here that plans hore ‘anon t ' artes
j _ yee) stew toe . [Ot Tle aguressor my the attrac THO storm: the inet. to AN tO
" H ‘ ar teetemoi: Hlecad we jc aéy : . : ee mn a} Row Lemiede
and the Rst Nes Role be ¢: mony offered by his Witnesses aac Sherif McCalliste; ‘aid he wa
hor of Ar- seu ® racing oon stat the sivin nan Had appeared at Warned before tha ¢ Dture of
Brag | * Wer be srtoed the yc “he door of Baugh's room ae the not ta return ios fe che mi here
defi Mato cenetit te tng Boneh wagon On Wes: Barra. . he eid so wih " understands
ener H Raita aa cen Tenn: tracey and “th relanives and friends of the slain
\: ; WE nhs agar ‘a demanded entrance 2 marshal ons. “ ‘
to appro- an mar ea n wt ‘ anes a we en France Thha Marsha! at opie altemypye Nould he
yee a ried. re eerawe} 4 Q wt; Mt 5 pan 0 q } igs ee . ~
k eradica- ; sai vAuld Deo: en ee eee ae 20 gu MUO to take Boer ang Gerrek tron
g ts that _ — €has foranotie: ‘ : eee ten  Calise — ee g Jiidze Warroner was id
adjourned . ; ; _ Derse racing wy aieaent ROSCI, tM ON had ~ FRTeed to can a SPecial terion
“tation for, Hope Was High Today QS will be taboo . hised ane sh before he Rad of CPO en; or Ma- R ; “a
al way to! Missisippi Shaws Slight PINGS actian wa, pened tyre “ec that he had Necrop : :
te oT ) % nae 4 x Ye ‘] . ° .
is for the! a ;

Drop _

_——- +

ession cf

NO t9 ar peee -

ae”

ie a iad


dvance

of 10,-

rs un-
ex-President
rn in the above
by an NEA Ser-
» who is in the
Calles army, <A
ridge, dynumited
stop the advance

of the federals, is shown {in the

| Note that Calles, shown on the

upper right. The temporary track left, wears the typical Mexi-
built below it so the trains could | can general's field uniform. Fed-
Proceed may be scen in the pic- eral soldiers, climbing down
ture. A closeup of agrarian | from their box cars to go Into
troops who left their plows to | action against a rebel cavalry
fight is shown in the upper left. | force, are shown jn the lower
General Eliaa Calles, former left. The raiders had attempted

president, and now secretary of
| war, is showmin the lower right.

| to capture supplies and attacked
| part of the train.

The infantry-

! men Promptly clambored off the
cars to beat off the revolution-

}

ista,
| one of the
airplanes,

movements and

escape.

to

In the center fs pictured
regular
belng used
fovernment to watche the rebels’

destroy
bridges behind them to prevent

passenger
by the

tere:

Resolution Made Special Order;
Nineteen Charges Will Be

Considered

ANTI-FORCES IN CONTROL

The Governor Maintains Stout
Reticence to Defend His
Position in Matter

Baton Rouge, La., March 27,-— (Py
Sitting as a grand Jury, the Louisiana
house of representatives
Will consider the impeachment

Governor Huey P,

tomorrow

| charges against

i Long accused of nineteen offenses
l from a plot to commit murder to this-
| demeanors in office, ;
| The hopeachmen resolution today
1 wus

made a special order of busi.
‘ness

for tomorrow when the house
) WITT consider jt as a conim.ttee of
ithe whole, Managers of the resolu-
| tien plan te stop with the adoption
hof rules gyverning impeachment
Pr PediNgs mitt hold off ftnat actie

| by the house until Monday.

Administration floor leaders were
routed by the anti-administration
, forces in their attetnpt to forestall
the impeachment procedure by rais-

jive the point that the impeachment ---—
/ resolution was out of order since it

had not heen included in the gover. “¥ :
'nor’s call for the Present special oe
| session of the legislature. This pro.

I

'voked long debate, ending with the
| house voting 8&8 to 3 to carry for-
) Ward the Impeachment Inquiry. The
| Vote came after Speaker John B, 2
| Fournet, formerly regarded as a long 22
| Supporter, had ruled the motion was :
‘in order, tuking the stand as one gs
' member shouted: ; o
| “Do you imagine the governor -—+-
| would jssue a call to impeach hime --
| self?”

Adoption of the special order mo
tion with only three protesting
votes came as a surprise to the
members and the On-lookers who
jJammed the chamber. But even his
Opponents do not regard the yote as
& test of strength and they expect:

“ALSIN
TY HERE ||
0 changes or | HOOVER HAS DESK PHONE

'roperties

—— »

Prominent

$45,000
rr record with
Nichol.
53s were sold by |

mm James, widow [6 lady’ in carnival shows.
doall were part

'S estate.

jand according to the guady placard
Z& proprietor of}

becume }had earned her living by making of
for the transac-|her a laughing stock of the world.

ment store, pur-

iilding,
iS Company

upied hy
nvol N00.
ansa Sam

the Louis
1 Eas. Third
he bu.lding oe-
rr $15,000,

insaction were
- Danaher, Pine

ee

ENTS

the shoe jing walst.
at |
the East red organ wearied by tts long fight to
ne

|

CARNIVAL FAT LADY DEAD

Mysterious Host to ’"Leggers

|

Detroit, March 27. PI ""ITony ;

“Jolly Pearl,” 27-year-old, weighed
643 pounds and since her eleventh

birthday asniversary had been a

She

apartment,
}was but four feet five {inches tall

vacant lot
joutside the carnival tent within fiscated.
|which she died, was nine feet around The hort

Pearl died of heart disease — the

Support the mountain of flesh which
was pearl, and she died sitting up,
for she had been unable {n more
than elght years to He down.

Her home was tn St. Charles, Ill.
She is survived by her husband who
acted as her manager.

__—-

March 27.—(P)—aA

ithey = talked

Denver,

tO @n exclusive
Pine | Pearl” Stanley died today, victim of }ment house.

H . . Athough they were
ses yesterday in |/@ freak of nature which for 15 years thts Kientity,

with all manner of alcoholle refresh
ments to supply the
seribed by the new

Today 21 alleged bootleggers faced
charges of violating
laws, As fast as they arrived at the
A their
a
where they were con-

automobile and

Washington,
President Hoover has
a White House Precedent and a tele.
Phone now Ig installed within arms
reach of his desk.

Chief executives during the tele-
Phone age prior to Hoover rarely
used a telephone and

mMyS8-|booth tn a room ad}
terious host summoned bootleggers | dent's Office o

ifrom all parts of the city last night |dent's study

Capitol Bia

unaware o
Nquor carriers hurrie:

customer.

patrolmen
drove

seized

them into

Was Chief

Robert F. Reed,

March
departed from

7

when they did
elther over one In
r the one in the presi-
On the second floor.

em ee =

a&pant-

“hls pa rty’’ de-

the prohibition

of Police

(Py

t| The second of the
q) Workers in
- |Commerce

ht at noon

board reports will
each day for
week,

Ing with a workers’
Hotel Pines.

W. Hz. Adama,
merce and
Cc.

Commerce, also spoke

| Twenty-six business
Stonal men are workin
naign ANd exerting 2,

out the favorable attitude

sumed by towns and cities through-

out the state and country towards
a ’

olning the presi. Chambers of Commerce.

cg

and

2d

support
nlarged

profes-
in the cam.

cet

‘AD CLUB WILL ©
HEAR REPORTS

\C. of C. Workers To Attend
| Noonday Luncheon
|

daily reports of
the local Chamber of

membership campaign
will be made at the Ad Club meet-
today. Short black

be made at noon
the remainder of the

The drive opened yesterday morn-
breakfast at
short talks were made
;at that time by E. Ww. Freeman and
who pledged
and spoke obrfefly on the e
program of the Chamber of Com-
the advantages of the
program to business men. .
8S. Hanby, campaign director
of the Arkansas State Chamber of
He pointed
being as-

the governor to rally sizable
Port on the final vote ~.
ment. Befora adjournment the. hopse,,
also doomet to death the Proposadic
occupational tax on oil at this sess a
sion by adopting 88 to 6 a resohy
tlon condemning the tex. This tax
constituted the governor’s major calt;
for the special session, which hes
has since vainly struggled to .
journ,

Since the impeachment move was
started Governor -Long

ed in pee gh has mf
word publicly. not appear-*
ed on the streets of Baton Rooge+
and denies himself to callers, TS ae 2.
message from the Associated Press; ‘
that tt would carry any -state:
he wished to make, he sent } ae
the reply.that he had nothing t ae
BBY. er ne

ACCUSED NEGRO DYING
IN STATE PENITENTIAS

Alleged Slayper of DeWitt Me
Was Wounded in Affray .

Little | Rock,. Mar. 27.7}
ence Garrick, one of the tye * Hex
ed negro slayers of City -M
Perry Miller of DeWitt, tra:
from that city to the state:
tlary for safe keeping yen!
night was believed by
officials tg be dying.” * Pr
The negrg was wounded th: :
battle at the home of Ben.2ver. ie 25
other accused negro, in which’ the "5
officer was slain, and Frank Nutter)
an automobile salesman, Wounded -


SA@QuTU osgu I
UG} jupe
ata ou se 41

atk
EN
t
:

Generally fair tonight an
cold in northwest por.
+ Somewhat warmer Sat-

E
a
:
ry
E
9
:
>
fa
Ga.
E |
be
>
|
&
°

3 T0 ELECTRIC

_
°
°

Bound and Ice- NO
Near Big Lake, Arkansas|

eee

—~~

. unless help reaches them soon. } Seht and yet beyond aid.
the ship there were sacks of | Three miles below Red Cross head-
al and small Sacks of f

lour ! quarters, ice blocked the boat. Tro
t at Blytheville when we learn- : crews were chopping lanes through
couldn't reach the Red Cross the ice.
upply’. families in the } But almost as fast as the lane was .
nO EMOke was eter ot ng oUses | Opened floating ice rushing down the

UMBER 21

aul 8 — e = »- j!
phis Paper Describes Plane 'BYpp PARTY [NTPINe BLUFF 1s7 BREAD
“lood ! E ESTABLISHED

M.S. Pogue, S
Pogue-Buick Co
tablish a free lun
door to his place of
Second avenue.

Mr. Pogue Said

r.. proprietor of the

=
s
es
=
=
Pry

today that he will
© building form-
Ie Bluebird Cafe,
€ poor, destitute
ity Can come and gct

Expedition No

t Equipped to
Spend Anotl

wr Winter in
» However

eriyv occupied by th
a place where th
people of this ¢

Execution
hour during t

L coffee. mullig

afc auch sede 2 gout "be oer ao the eens NOT ON REDUCED RATIONS

I ray out.
> With the motor. ; their own way m

an stew and
plenty of SO0d bread,

; | The rush of the current almost was ' JIas Good
MS appeared at Windows and!

as swift as the upstream progress of |
Nd we +-g Jo Win front of e ;

IS PRESENT
! Dauehter and Brother Also
in Death Chainber

been disastrow
In Pine Blast,”

Pogue, “and Oo something

This Year

‘ _ +, , the boat and at least half of the ma- H
oo wt ral food note | rooned familics are six or more miles
cad: u nee Wave | upstream, i sate Oo
ne ~~. If you need fuel | | About 100 feet above the Reg Cross |, , NEW YORK, Jan.
mething dark.” '

This Morning
24—'.P;—Capt

| headquarters is a break in the levee. ey H. Railey, pers
yn ahd time to circle they / Water rushes and boils through i¢ | Of Admir
AVINE both White and dark |

; *Sainst the main bridge on the

| Blytheville- Jonesboro highway.

|
ast of the flour Supply was |

representative LITTLE ROCK, Ark., Jan. 24—_P _.
year-old Negro, died
the electric chair carly

| Statement Published today
ice pack bar

ion from reachin

4nate who cans
There will be

en,

although NO charge whate:

To the east the hichway is bincked /Of the expedit
at a cabin that Seemed to be | by

i & wall of ice. To the west water / base on the A
at least a dozen persons | is rushing over it at a depth rang- | ™lral Byrd a
them children. ine from two to eight inches. j Mediate food
mall area that we were able{/ And the water still is rising, | The State
closely in the next few min-|___ _ ae sted New York T
ounted 27 houses that show-

of life.

! papers Said:
| ities
the north anq Muth we} fo tle
Scores of other cabins, all
cut Off from the outside by

td and some of them half

supply.

were coming fn to Rea |
ned fas of fn

on serving y last spring of Pe
-{i er, DeWitt city m
i The Negro wal
| chair unassisted a
| turned on at 7:22
later he was

Among the person

) the electrocution
tives of the Slain
ing his widow,

: ntil the cold we
Dtarctic ice barrier,

n his men faced no ked to the electric
nd the current was
a.m. Four minutes
Pronounced dead,

getseme
* Nour dunng the day."

h

associated news.‘
it is true that the expedi-
y €quipped to spend
in the Antarctic, there |
ge of the food:
ample fuel for heat
of the radio. The:
reduced rations.

”

iS Who witnessed
were several rela-
city office, inelud-
daughter and broth-

LOOSENS GRIP 22:

and for

RRESTED FOR

,

Evers, on the ver,

Iness Among j Theos “ “
ned families. Scant rations ON A R K A NS A S Bd Nod (es
to be Sapping the Strength | 1

|

uce crew found 30

; Quate

Be of collapse for
preceding nis death, de-

in Walkiyg to the Ceath

neditate Prospect that
h

ey are well clothed,
| comfortably housed

Supply of wh

| seceral weeks

HALL ROBBERIES

T- | . - . : ;
single room cabin, A hall } Warmer Weather Is Forecast | will sustain life—

iren. were among them,

no Visitors until
: ; és Thursday night, when
but those who might One Confesses to Obtaining |

by Bureau foe rg to rely up
5 eating the last of their |

! Saturday
Y¥—& small strip o¢ ray! .

_

Se — + @ays was retattanthy loosening its |
; mometer registering ~ near
t

freezing tempeartures would con

such a diet o

Worker visited him,
@ Prolon

aire aetna

Food and Cigarettes From

&§ at Dewit:,
to Little Rock
al guardsme:,

to the killing
Who attempte to

niuinor charge,
ting Gecurred when
Pproach of Yi.
arby house, where
in the affray, Ey.
several bullet

Arresting two
| Obtaining from on
the! confession,

Negro youths

(Continued on, :
| &Tip today. i Provide informa
| Sub-freezing tempefatures prevailed | ‘UP Other rohbe

NAY DEPT | Senerally early today with the the- SHAW Vy] C TIM The two Negroes,

e | and Charles Wilia

j last night by

' Failla and Off

\

i: ; notice <a —

er and entered a ne
the fatally wounded
Robert Canigan! ers suffering
» Were arrested! himseif.
Mayberry and:

' mun to be pus
ePpe|r, follow-| to

zero in
some sections.
' Warmer weather was forecast for to () F HIJACKERS
! morrow, Indications were that sub- j 5)

hours wag 18

penitentiary

the of-} since Pete Robin: 1 Dorado Nes

| 8TO, WAS Plectrocuted

to obtain cle
fan Was arres

Culpepper! Evers was my

tinue |
} tonight however, | i

MATERIAL Little Rock's coldest temperature
; Within the past 12 |

| above. Fort Smith to the west, had
uh la low or four above - this morning

Was picked y filed no appeal.

AVIATION, MEDICINE
JOIN HANDS TO SAVE

Brought to ¢
questioned by
Mulliken, Chief
: Other officers ar
‘ing Canigan

; Which he Sald

Fiveash and |

er *he question. i

sensi a
Jan. 24 —(Spec

fom Il Be a The weather bureau predicts a low of | Ofic ers at Dallas Be
Saving tu the 28 degrees above here tonight and Was
; Milder weather in the west and north- .
aXpPavers | West sections of the state tomorrow.
nel ' All Arkansas Streams were reported | DALLAS
ighway Engineer Ed! falling and fair skies were promised i--Wilber
panted by other high-| by the weather man. :

It appeared to-

and several Prominent: day thut the cold Weather’s good mix.
tod&y ts making an’ ston of checkin

Id isin ease Arkans

morning,
S45 streams hac heen
that %he IMspection es ae. mt ‘

et ener ene

man,! Hall store ar Six
' Whose body

LIFE OF SMALL CHILD
s the rise of Waters | Wntial apie, a jast Wednesday a

A Ser.
gazine
make
plete,

——
————.

ui?
ARKANSAS, WEDNESDAY MORNING, MARCH 27, Pd2s,

PINE BLUFF,

CHAMBER DRIVE

LEADSBAND | RECORD FLIGHT

TO BE STARTED.
THIS MORNING

sreakfast Planned for Workers.
Expected to Take Part in |
the Campaign

'UDGET NAMED FOR YEAR

. S. Hanby, State Chamber of
Commerce Man, To Have |
Charge of Drive |

el |

Workers in the local Chamber of

loca wea, Pek 28 Pr —Virw yy Hankins, the brite
. pinn } Yally unreported since leaving the ) aie lies ty,
Pee membership — campaign , coast of Attics, the Spanish airplane aNd groom, and itt,
_. as Afrien, * Spanish airplan . . 4
1 assemble at Hotel Pines at 7:30 | ‘Jesus Del Gran Poder’ with Cup. Miss Ma ry Margaret
o : . . - ? vee e
3 morning for breakfast, which Htains Ignacio Jimenez and Francieco Thomasson, the flowe
| officially open the drive. Capt. Arthur Prevost Pilg oer briliant ent them girl, Mrs. Hankins was
‘he first report of the workers | j ev ea oe at. on today on the) Miss Ollie Mae Ely.
a ' t the Kiwdnis Clun: Vhen the symphonie band of the’ Latercoere fieli here wholly unex. Above is the A bridal
e€ made a Ves Iwao Ss suh Sass Rider Guar pectdely, J ‘ Teg
ting at nvon, Reports also will Roval luff te guards comes te Only onee since toaving the Ati! arty when the plane had
Seay A Ad Club meeting Pine Bluff in April it will be di- nly onee since loaving the Afri. Party r Ne t
hte din 7 x os ‘ ea rected by Capt, Arthur Prevost, (can coast were they reported. Phat landed, after the vw le
radia the Civitan Crun ” Wereicn of the late war and consid. Was by an operator of the National ding: Left to right: Pilot
,, ered to be one of the Sreatest band Telegraph at Natal, who said they |
budget calling for an expendts leaders on the continent. The band had passed over thar place at 2055
Of $25,575 was drawn up at the win ubpear here under the auspices.2. m., so Closely ty schedule was
Uma at the Chamber of weaiins und SPONsership of the Shriners of this that tz seemed fo aviation €X-
'@ rooms yesterday morning, {t

announced following the meet-
S. Hanby of the Arkansas

Chamber of Commerc e spoke
@ interest of the campaign aL,
Rotary Club yesterday. Mr.

Sahara Temple.
ica, whic
Albert,

New York,

corded a big welcome upon {ts a rj.’ §asoline making it inndvisable to

val. |continue the fight whien had last-
< : mpd . : > helena’ niin diaomenicene
fed 43 hours and 48 m

Bi MADE BY AIRMEN
y 70S. AMERICA

PRINCIPAL'S IN GRAPHIC’S AERL)
Z 7

Land Unexpectedly at Field at
| Bahia, Brazil; Supply of Gas
most Gone

?

"HAD BUCKED HEAD WINDS.

—_—_—_—

'Bevins Lands on West-East The |

| Flight and Then Makes a Pe iia ad weddings
7 ! unday afternoon OVer

| New, Start to Ngw York ' Toney Landing Field.

~ Below are Mr. and Mis.

.. Here are the principals
in The Graphie-Universal

Bahia,

The tour of Amer. Perts ai fent
his at the behest of King liance.

Started some time aro at, The chief reason of the
Where the band Was ac.) Was because of the low

of Cutstanding: brit.

‘TRIO OF FORD
PLANES HERE

'
landing
leve! of the

y declared that the majority of
erous cities have active and;
fupported Chambers of Com: |
> OF Similar business organiza- |

the suo ley } to Rio J t Toney Landing Fie!'d Just night
( on e S8v0 miles hop to 0 Janetro . iemotor a3!
the meeting held at the Cham-! which hud been the Boal of thetr housed _three huge = tri-motor
f Commerce FOOmMs yesterday | Mene ‘metal Ford monoplanes. the laursee
i é ; f . mber sigantic man-bird,
NE explanations of the plans National Guardsmen Are Sent The aviators Raid their time In| number of the pigantic t
¢ drive were made by ©. S.j

| and B. W. Benton, president }

3 ai t at one time.

| to cover the distance to Rio de; *88 alrpor : bk
H ’ ! lanes, owned ty the

local chamber. —— Janeiro had they not encountered | nie aie Sian here

following have signed uD for! Little Rock, Mar. *6.—P)—Nation-| Constant head Winds after crossing | ea ‘ctecks veuterday dfterneen

um work in campaign: «, U. ial guardsmen tonight delivered Ben | the equator. | after ° record breaking trip fron

*, W. C. Hudson, F. L. Dil- Byer and (larence Garrick, negroes, | Deter -

. W, Taylor, W. L. Matthew S:!held for the fatal Shootnig of City | BEVINS LANDS, REPAIRS | pig . i the Uiivercai

2. A n, J. W. Martin Lee | Mors — ; re | r . . The other, owned by the Univer<a!

D E. WI ty — r G | Marrhal Perry Miller of DeWitt, to PLANE, CONTINUES FLIGHT Air Lines, hus been at the field since

- : nchester, re Bes the state Penitentlary for safe keep. Willard, N, M., Mar. 26.--(Py_ ! Monday of last week.

zer, J. H. Mann, FE. ag. ling, iNew Mexico {

J. Lonnle Jones, M. g.| ve ; ’

NEGROES GIVEN

The troopers were sent to DeWite

inutes, covering’) ~~ . : a
@ distance without a stop of 4,10u New “Tin Geese”’ Spend the
miles,

! > * a

The extreme fatinue of the avia. | Night Here; Leave Tod y
tors caused them to decida to rest at |
Bahia for two days before Starting |

TO STATE PEN

the air would h

to Stop Trouble Ave been sufficient | Ver to be assembled on an

Which is becoming

a: All three will depart this mor: ing
. ; ' veritable morgue for the aspira- | at daybreak, the Universal plane
at areal ir AUams. ‘today by Governor Parnell as a pre- | tions of non stop flyers and alr | heading for Chicago, via St. Louis,
. vere, Ne Ww rett, Si — ;caudon against mob Violence and to | derbyists, tonight held the wrecked / ond the other two for Brownsytile, |
racy Mills, WL ON, Trulock, remove the prisoners to Little Rock, ambitions of Okeh :
Rosenzweig, Paul Clay,

. Glenn, T. g, “‘Dewoody, A.
n, Wendell D. Lee ,F. H.
Jr., C. M. Leavitt.

AY PIMPER

Tha SHOCKED i LANE FINANCING |

Garrick was

!
'mors that plans wer
storm the jail tonight,

Bevins to lower }
in a critical condi-

Texas, for a stop before Going to T 0
the Los Angeles-New York non-stop | Panama .
tlon On arrival. Ever will recover, air record of Captain Frank Hawke | The two planes arriving yesterday , a
Circuit Judge Ww. sod; Waggoner Beset with engine trouble, Bevins | wil! be put into service carrying
requested the troops for the remov-! landed two miles from here early |
al o the negroes after he

had ru- today
e under way to

passengers and mai] between I’anama
and Nicaragua. In connection with
this there enters Into the story a
local angle.
Jack Price,

In his Lockheed monoplane,
after takfng off from the Metropol.
itan airport in Los Angeles late yes-
; $erday in an attempt to solo hig way

New York

Special Representative [s In tl
City for Two Days

former Cotton Belt

‘ and a new speed | special agent at Camden, who was font fon <“ coreg gnitely q
| Fecord, injured in a fall between two box antiemenn. . " onaemery Ward d

M Is ORGANIZED The flier landed “sity In a large! cars and forced to remain at Davis ! Statement i: ‘thi ffect w é
; eine jfield and then walked to Willard, | hospital here for three months, wi! here yeaterdac ues i. oliman
; Y a ere Ostend: xy Ts. OlIman
Golden Accidentally [ Avlcwien Natural Gas Stock Hold. | Slept for three hours and relurned to; be senior pilot for the Panama- Special representatice 7 theo ie
. : ers Offered Shares hls plane, Hie repaired ag pair of Nicaragua air line. hinPenegs etUrning ty ue 3 ‘as ae “—_

shes Electric Switch : ~ . 'Spark plugs and then took off and! He ig In one of the ships in ye: en Paceuart

New York, Mar. U8. UP $20..| Continued his flight eastward, ‘terday. With him were pita ;
1 900.000 ; ircraft) finaner corporntian . .
". Gaiden, aged 37, Pumper’, ft ‘ mn ida

Ane en amt


FAIRCHILD, Barry Lee, black, LI ARSP (Lonoke) August 31, 1995

Ark. Executes ‘Retarded’ Man
AP 1 Sep 95 4:47 EDT V0209
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Ark. Executes ‘Retarded’ Man

VARNER, Ark. (AP) -- A convicted killer was executed despite his
claim that he did not know right from wrong when he abducted a young
Air Force nurse as she shopped for furniture.

Barry Lee Fairchild, 41, had no final statement before being put to
death by injection Thursday evening. The U.S. Supreme Court rejected
his final appeal without comment.

"Barry Lee Fairchild was very much at peace with himself and the
real tragedy in all of this is all of the uncertainty that surrounded
this case," said his lawyer, Steven Hawkins.

Fairchild confessed to abducting and raping 22-year-old Marjorie
Mason in 1983, but said he did not kill her.

Ms. Mason had been at the Little Rock Air Force Base for just 10
days when she was killed. Her mother, Sandra White of Fort Worth,
Texas, wrote to Gov. Jim Guy Tucker asking him to refuse clemency.

“Since Greta’s death, we who loved her Have been held hostage by a
judicial system which protects the rights of the truly evil, while
denying any relief to the bereaved," she wrote. "Each telephone call,
each newspaper article, each stay of execution opens the wounds anew,
and precipitates in each of us the pain and horror we initially
experienced, "

A federal judge ruled Aug. 3 that Fairchild was not the triggerman,
although Arkansas allows the death penalty for accomplices to murder. A _
second suspect has never been named.

Tests showed that Fairchild's IQ was as low as 60 or as high as 87.
Under an Arkansas law passed last year, the state cannot execute anyone
with an IQ under 65. The law did not apply to Fairchild because the
murder was 12 years ago,

Fairchild was the 33rd person executed this year, and the 29ist
since the 1976 U.S. Supreme Court decision allowing states to resume
capital punishment. |


Man Executed In Arkansas
AP 31 Aug 95 22:37 EDT V0065
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Man Executed In Arkansas

VARNER, Ark. (AP) -- A man who claimed he should not be executed
because he was mentally retarded was put to death by injection Thursday
night for the 1983 kidnapping, rape and murder of an Air Force nurse.

Barry Lee Fairchild, 41, and his lawyers claimed that he was
incapable of distinguishing right from wrong when he abducted Marjorie
Mason, 22, while she was shopping for furniture. - |

Fairchild had confessed to the abduction and rape, but not the
killing.

A federal judge ruled Aug. 3 that Fairchild was not the triggerman,
although Arkansas law allows the death penalty for accomplices to
murder. A second suspect has never been named.

Tests showed that Fairchild’s IQ was as low as 60 or as high as 87.
Under an Arkansas law passed last year, the state cannot execute anyone
with an IQ under 65. The law did not apply in Fairchild’s case because
the murder was 12 years ago. 3

The U.S. Supreme Court on Thursday rejected Fairchild’s 11th-hour
appeal without comment. No dissent was noted in the decision.

Prison spokesman Alan Ables said Fairchild declined a final meal and
had no final statement. He said Fairchild’s lawyers provided him with
$50 for incidentals in his last days, and about half of it was spent on
candy and junk food.

Ms. Mason had been assigned to the Little Rock Air Force Base for
just 10 days when she killing. Her body was found in Lonoke County the
next day. Fairchild was convicted half a year later.

Ms. Mason’s brother said that more than a dozen years was too long
to see the death avenged.

"When you have someone admit to a murder and they put his execution
off for almost 13 years, there’s something wrong," said Billy Mason of
Panama City, Fla.

Fairchild was the llth person executed by the state since it
re-instated the death penalty in 1990. He was the 33rd person executed
this year, and the 29ith since the 1976 U.S. Supreme Court decision
allowing states to resume capital punishment.

44 6-27-13
Will appeal
execution,
group says
Will ask high court
to spare Fairchild

_ BY SHERRY SNOW

Democrat-Gazette Searcy Bureau
The National Association for

' the Advancement of Colored

People Legal Defense Fund
filed notice Thursday that it will
appeal to the state Supreme
Court to halt Barry Lee
Fairchild’s execution because
of his alleged mental retarda-
tion.

The notice, filed in Jefferson
County Circuit Court, says it
would be “cruel and unusual
punishment” to execute a per-
son such as Fairchild.

Fairchild, 39, formerly of

North Little Rock, has an IQ be-
tween the high 60s and 80. The
average IQ is between 90 and
110.
A state judge sentenced
Fairchild to death in August
1983. A Lonoke County jury con-
victed him of the February 1983
rape and murder of Little Rock
Air Force Base nurse Marjorie
“Greta” Mason, 22, of Panama
_. City, Fla.

Fund also has filed an appeal —

with the U.S. Supreme Court.
Deputy Attorney General
Jack Gillean, who has handled
the Fairchild case since 1984,
said of the latest appeals, “I do
not want to characterize them
as a last-ditch effort or frantic
... but they are somewhat of a
longshot because both have
been presented previously. It
does not seem all that likely.”
Steve Hawkins, assistant
counsel for the NAACP Legal
Defense Fund in New York, has

See FAIRCHILD, Page 5B

2

(OChK4 TC —
LT /

XS gd
Wj )
i S
Ca

I

)

=

GQ

avo

Qe

A

a
. ig ! €cution date. Parker did not re-
Fairchild ses

y Tucker
ad not yet Seta date, other than

to sdy, “He wil] Set it the Same as

® Continued from p age 1B ¢ other execution dates,”

said the U.S. sy reme Court pe- th

ition deals With

F he 1980
adn doting death Of a Fort Smith
execution date for urniture stor Own » Teceived
airchild as of Jat Thursday af. _@ Stay April 3 by the state
€rnoon. SA cae, Supreme Court.
The U.S. 8th Circuit Court of The go
Appeals lifte Y Sta

fi Ty eovernor also Scheduled
of Fairchild’s execution Aug 17.

er Cc upreme
Schedule the e l Court agreed in June to review
ept. 2 to occur ¥ Oct Ingleton’s case and halted the
€ Said Tucker had no com. execution.
ment regardj & the latest -
beals, and th

Thon. A jury. convicted him in the
at they would have... 1979 Stabbing death of a Ham-
nO bearing Of his Setting an exe ‘Purg shop owner. r }

eens - ey

@ @ SATURDAY, OCTOBER 9;+893 ¢ 78

Fairchild beats system

|

| Ithough I oppose capital punish-
ment as a matter of principle and

am not, like so many Arkansans,
displeased that the execution of Barry
Lee Fairchild was averted, I do not like
the archaic laws that made it possible
for him to manipulate the system.

Fairchild delayed his execution for
10 years by insisting through a series of
extensive and expensive court proceed-
ings that he was innocent and had been
wrongly convicted. When the courts fi-
nally decided this was not the case, he
embarked on a new round of judicial pro-
ceedings by saying, “Well, yes, I did par-
ticipate, but you can’t execute me be-
cause I didn’t pull the trigger.”

Fairchild managed to make fools of
everyone involved in the process, in-
cluding U.S. District Judge Tom Eisele,
who listened to and rejected Fairchild’s
pleas ad infinitum, ad nauseam and then
said, in effect, upon commuting
Fairchild’s sentence, “Shucks, fellows,
I'd have ruled this way long ago if any-
body had asked the right question.”

Reaction to Hisele’s ruling included
some really stupid comments, including:

e From John DiPippa, a University of
Arkansas at Little Rock law professor
and death penalty coordinator for
Amnesty International: “There is no ev-
idence in the Fairchild case that sup-
ports that he knew there would be vio-
lence.”

(The victim, 22-year-old Majorie “Gre-
ta” Mason, was raped, sodomized and
brutalized, which would fit most people’s
definition of violence and would, I sus-
pect, be defined by DiPippa as violence
had the victim been his wife or daugh-
ter.)

e From the Rev. Daniel Bowman, who
would not be recognized by any respon-
sible journalist as a spokesman for any-
body or anything: “I’m glad that he (Eise-
le) did take another look and made the
move he did of not taking an innocent
man’s life for a murder that someone else

(Fairchild may not have been guilty
of murder, but to describe him as “inno-
cent” is ridiculous.)

Bill Clinton promised during the cam-
paign that he would do something about
the laws that give an accused the right
to abuse the judicial system the way
Fairchild did before he decided to quit
trying to get loose and to try to stay alive.

Not MeCuen’s boss
John Earle Davis Jr. of Hot Springs

John R.
Starr

complains about the “vicious, vindictive
nature” of Secretary of State Bill McCuen —
and suggests that Gov. Jim Guy Tucker
should tell McCuen that Tucker is the
boss now.

Unfortunately, Tucker is.not McCuen’s
boss. The Arkansas Constitution makes:
constitutional officers such as McCuen *:
answerable only to themselves and 40.
voters once every four years. ;

The Waco fiasco

Investigators from the Justice De-.
partment took a long, hard look at what
has become known as the Waco fiasco
— the raid on cultist David Koresh’s ©
complex that resulted in 85 deaths — ©
and concluded that all the mistakes in
judgment were made by federal agents at
the scene and that no blame attached to;
Attorney General Janet Reno, who gave: -
the order for the raid. Since Reno is their
boss, wouldn’t you say, “Smart investi-.
gators”? ew

Clinton looks good

In a recent issue, the Arkansas Times -
referred to the magazine American Spec- ..
tator as “a conservative pub that some”.
might say sees President Clinton through:
jaundiced eyes.” es

The Times is, of course, a pub that al- :
most everybody says sees Clinton (and °
anybody associated with him) through
rose-colored glasses. one

Last stand in the hills

In a travel article about Montana, An- ,
drew Bill of Copley News Service wrote:
“It was only 117 years ago that Gen. ;
George Custer was cut down on the Mon- -
tana plain of Little Big Horn by the Sioux -
braves of Crazy Horse.”

The passage obviously was written -
sans a visit to the Custer battlefield. The
much mythologized battle took place in
rolling hills that do not even vaguely re-
semble a plain.

ots
John R. Starr is the former managing editor of

the Arkansas Democrat-Gazette. His column
appears every day.

~<a

Little justi

Gwen Stiles of Little Rock (Voices,
Sept. 23) has written about the Arkansas
federal employees’ lawsuit and the fee
requested by Carrold Ray of the Sam
Hilburn law firm — $11.25 million for
2,945 hours of legal work at $3,800 per
hour.

Those of us who were lucky enough

- to have jobs back in the Great Depres-
sion of the 1930s working for 5 cents an
- hour think $3,800 an hour is obscene.
- But big-city lawyers, who can become
: multimillionaires by winning one case,
' consider that chicken feed.
There are 1.3 million prisoners in
our jails. Every prisoner incarcerated
results in the early release of another
prisoner to make room. I read some-
where that there are 900,000 lawyers in
the United States, three-fourths of all
the lawyers in the world. Law schools
are turning out graduates in record
numbers.

The legal system in the U\S. is the
most expensive legal system ever con-
cocted, and it results in very little jus-
tice. With smirks on their faces on fre-
quent trips to the bank, these lawyers
have contributed to the decline of what
was once the greatest nation on earth.

Justice delayed is justice denied, and
lawyers who extend the legal process
10-15 years have made the system a
farce. Judge Thomas Eisele in the
Fairchild ruling is a dramatic case in
point, a bigger circus than even the ones
in Washington, D.C., all at the taxpay-
ers’ expense.

Every time you visit a doctor’s office
or a hospital or purchase almost any
item, you are paying an inflated price,
because these services require legal in-
surance against the ever-present dan-
ger of frequent and unrestricted law-
suits instituted by sue-happy lawyers.

Lawyers and lawyer-politicians have
created a gold mine for themselves at
public expense. Your big-boy lawyers
are doing well, but the justice system
has already gone to hell.

°
-~

PB. WOOLPaT AAW


“ @ @ FRIDAY, OCTOBER 1, 1993 ¢ 7B

The value of life

Justice’s cruel reasoning

t

| one of them. Initially,

life. .

On Feb. 26, 1983, Barry Lee Fair-
child joined an accomplice in an outra-
geous series of assaults on the person of
Marjorie L. “Greta” Mason, whom they
had kidnapped as she left a North Little
Rock furniture store,

The next day, her partially clad, much
abused body. was discovered behind an
abandoned farmhouse about 10 miles
outside of Scott in rural Lonoke County.

, .. She had been beaten; She had been
raped. She’had been sodomized. She had
been shot twice in the head with a .22-..
caliber pistol. - ; ae

. There is little doubt that two men par-
ticipated in the brutalizing of Greta Ma-.
son. Barry Lee Fairchild was found to be

Li talk about the value of human

he did not tell the
_truth about the iden-
tity of his partner in
crime; subsequently,
he merely refused to
reveal his accom-
plice’s identity; sx
Police and prison
officials say privately
they know the identi-
ty of Barry Lee’s part-
ner. They just can’t
prove it. In any event,
they know the sus-
pected accomplice to |
be serving a 40-year sentence on unre-
lated charges, and they take some com-
fortfromthat = : a
As for Barry Lee, he is areal piece of:
work, A misfit since his youth, his actiy-.:::
ities grew increasingly violent as he grew**:
older. Armed robbery became his spe-’.
¢lalty. He was known well enough to Lit-
é Rock law enforcement officials that: .
he often worked as a drug informant; but
who expects honor amfiong thieves?
_., Barry Lee shared his first newspaper’:
headline, in August 1974; when he and.
four other “youths” were charged in'a
series of armed robberies. He was 17.)
_ FourYears later, while not mentioned.
by hame, Barry Lee got a headline of his °
own: “McAlmont man arrested, escapes.” _
By March 5, 1983, he was a statewide
newspaper’s “Shooting, slaying suspect.” *";
Two weeks later, his name would finally *
move from the story to the headline:
. Fairehiqa yg os eaaoaiaetees iene ee
ett Hig Deccine shame with whlch;
” sans are all tod familiar, one des-
: ted to ant us forthe vest bis na |
UP. eee ee

-ne/\ccording to Barry Lee; he was Hot”

present when Greta Mason was mur-
dered;.he changéd other details a few ,

times; but he consistently admitted to be-:*

Tee Te EE a ee le a RR eee

Meredith
Oakley

ing in the process of rifling through the
young woman’s handbag when the shots °
were fired. The shots took him by sur-’
prise, he eventually would claim, be:
cause he thought his accomplice was go-
ing to let her go once night fell;
Barry Lee claims his actions — the ‘’
kidnapping, the terrorizing, the raping, *'
the robbing, all events leading to the ‘
cold-blooded murder --
of Marjorie L. “Gre-*?
ta” Mason — were”
not indicative of his »:
“extreme indiffer-::
ence to the value of «
human life.” gg
Here’s Barry Lee’s +
take on the situation:
He didn’t mind kid-..
napping her at gun-.,.,
point, he didn’t mind
terrorizing her mo- |
ments before the.
physical assaults oc-?’
curred, he didn’t~
mind taking the brand-new watch, a gift:
from her parents, from around her wrist
or helping himself to the $70 in her hand-
bag, and he didn’t mind inflicting the?
most savage physical pain upon her body.:'
But, gee whiz, Barry Lee insists: He:
has respect for human life. Why would:
anyone think that just because he would:
kidnap, rape, rob and beat a woman, he’:
would condone or, God forbid, partici-v
pateinmurder? 6
_ Barry Lee apparently thinks that one.
can brutalize a human being, treat a hu-,
man being worse than any. lower-order,
animal treats another lower-order ani-:
mal in the wild, and still be a respecter:
of human life. °
_ So, apparently, does the law.
Last week, U.S. District Judge G.
Thomas Eisele halted Fairchild’s exe-"
cution based on a bizarre finding that”
Fairchild was guilty, of capital murder,‘
he just wasn’t guilty enough to have to:
pay for his crimes with his life. =
It seems there just wasn’t enough ey-’
idence at trial that Barry Lee has no re-'
spect for human life. "

+ ,
Associate Editor Meredith Oakley’s column:
appears every Wednesday, Friday and Sunday.

¥

ad


ae tei

~~ Bl

ee ee 2 <a ee

) p.m. execution time, would
main valid until midnight
yuld the appeals court over-
n Eisele’s ruling, a Correction
partment spokesman said
dnesday evening.
The Correction Department
ceeded into the evening as if
ire would be an execution.
out 100 extra prison guards
re on duty at the Cummins
it, in addition to. 30 state
opers.
‘orrection officials estimat-
the cost of the extra security
yetween $55,000 and $60,000.
visele’s decision to overturn
death sentence was.:made af-
Fairchild appeared before
. Magistrate Judge Henry L.
es Jr. on Wednesday before
n and told him he wanted to
llenge the death penalty.
Juring a decade of appeals,
rchild has never challenged
death penalty in his case,
ing Eisele he wanted his con-
ion overturned but didn’t
it to spend life in prison.
isele has previously ruled
rchild’s confessions to the
on murder were not coerced
that Fairchild was not re-
led. Eisele was unable to
e the trip to Little Rock to
sonally ask Fairchild if he
a change of heart about be-
out to death.
isele criticized an appeal
‘ess that permits an inmate
Fairchild to maintain con-

trol of the punishment in his
case. Eisele said federal law
should require an overall review
of all issues that might be raised
in an appeal so as to avoid a
decade of appeals of the kind
that have occurred in the
Fairchild case.

' After a five-minute hearing
held under strict security in
Eisele’s courtroom on the fifth
floor of the federal courthouse,
Fairchild was returned to his
cell near the death chamber to
await a decision.

John Wesley Hall Jr.,'a Little
Rock attorney. who had repre-
sented Fairchild during three
previous appeals that dealt.only
with his conviction, predicted a
50-50 chance.the federal.courts
would grant a stay of execution.

Eisele said he denied the stay

of execution, finding it unnec- .

essary because he intended to
rule on the merits of Fairchild’s
latest appeal. In addition to rul-
ing that a jury could not have im-
posed the death penalty in
Fairchild’s case, Eisele ruled
this latest appeal wasn’t:a vio-
lation of court rules.

In prior decisions, the feder-
al courts have ruled the appeals
process was abused: in

Fairchild’s case because new is- -

sues were raised that should
have been dealt with in previ-
ous appeals.

+ Fairchild appeared before
Jones in Eisele’s courtroom in

the company of two state troop-
ers and a battery-of attorneys
representing Fairchild and the
attorney general’s office.

Jones asked Fairchild if he
wanted to challenge the death
penalty in his case, and
Fairchild told the judge, “Yes.”
A small group of supportexs and
Fairchild’s mother, Merdine

Fxirchild, went through two lev- -

els of security before being ad-
mitted to the courtroom.

Clad in a white prison uni-
form, Fairchild stood before
Jones. Fairchild was also hand-
cuffed to a chain that went
around his waist, and wore an-
klechains.

’ Everyone entering the court-

house is required to pass

_ through a metal detector and be
searched for Waapane on the
first floor.

In an unusual security mea-
sure, they were required to pass
through a second search for
weapons on the fifth floor before
being admitted to Eisele’s court-
room.

“This is the first time he has
ever challenged the death penal-
ty,” John Wesley Hall Jr. told re-
porters. “He’s ineligible as the
death penalty.” '

Fairchild’s attorneys aveued
he was sentenced to death for
his participation in a series of
events that culminated in Ma-
son’s @eath.

At the guilt phase of his trial,

the state’s chief evidence against
him was two videotaped confes-
Sions, .

In two confessions, Fairchild
said he never contemplated that
someone would be killed and
didn’t expect his accomplice to
murder Mason and had planned

_to leave the victim at the farm-

house.
. Fairchild’s sthereitys gated

that i in a 1992 decision in the
case, U.S. Circuit Judge Richard

S. Arnold, chief judge for the 8th
U.S. Circuit Court of Appeals,

noted Fairchild “may not have

intended or even expected (the

‘murder) to happen.”

. They also argued that under
the 8th and 14th Amendments to
the U.S. Constitution, a person

is not eligible for the death -

penalty if he lacks the intent to
kill or his mental state is not one
of extreme indifference to hu-
man life.

Fairchild contended there
was no credible evidence to sup-
port a decision that he possessed
the mental state of extreme in-
difference to human life re-
quired under Arkansas law and
the federal Constitution. Fisele
agreed.

Fairchild’s attorney argued
that in two confessioiis,
Fairchild testified he was in-
volved only in the abduction and
rape of the victim and was not
present when she was killed and
had neo knowledge that she

would be killed.

“He was shocked and upset
by his accomplice’s act,”
Fairchild’s attorneys argued.

Ina transcript, Fairchild said
that “after he shot two times, I

_Yrun up in the house, I asked him,

I said, ‘What you done did?’ He

~ said, ‘Forget it,’ just like that, he

said, ‘Forget it.’ So, I looked out
in the back, (and) the woman was
lying out in the back on the
ground.”

Eisele ruled in a prior deci-
sion that he was “convinced on
the evidence that (petitioner)
was not the one who shot and
killed Ms. Mason.”

- Eisele said he was inclined to
“credit Mr. Fairchild’s own con-

fessions wherein he expressed

both great surprise and disap-
proval immediately after hear-
ing the shots fired on the other
side of the old house.”

Eisele, who read lengthy pas-
sages from earlier rulings in the
case while rendering his deci-
sion Wednesday, previously said
“Barry Lee Fairchild intended,
and believed his accomplice
also intended, to wait until it
was a little darker and then de-
part the scene without further
abuse of Ms. Mason.”

“Fairchild was using this time
as ‘an opportunity to rifle
through Ms. Mason’s purse and
to take the money,” Eisele said.
“It jwas at this pointithat he
heard the unexpected choles. ”

NING TIMES, WEST MEMPHIS, ARK., FRIDAY, SEPTEMBER 24, 1993 PAGE3

Prosecutor still says
Fairchild should die

LONOKE (AP) — The man
who prosecuted Barry Lee
Fairchild for the 1983 shooting
death of an Air Force nurse ex-
pressed dismay that Fairchild
was able to avert his scheduled
execution again.

“Barry: Lee Fairchild has
once again been able to use the
system to delay justice for his
crimes,” said Chris Raff,
Lonoke County prosecutor for
the case.

“Congress and the Supreme
Court need to act and remedy
this situation that allows these
appeals to continue,” Raff said
in a_ telephone interview
Thursday.

U.S. District Judge G. Tho-
mas Hisele set aside the death
sentence Wednesday, less than
eight hours before Fairchild’s
scheduled execution. If the 8th
U.S. Circuit Court of Appeals
allows the ruling to stand,
Fairchild’s sentence would re-
vert to life without parole, the
only other sentence Arkansas
allows for capital murder.

Kisele said Fairchild
shouldn’t have been given the
death penalty because his role
in the slaying of Marjorie
“Greta” Mason, 22, wasn’t
shown to be significant enough
to warrant the death penalty.

Except for confessions by
Fairchild, the state presented
no evidence that Fairchild fa-
tally shot Ms. Mason, that he
aided or abetted in the murder
or ever intended to kill her, the
judge said.

“No reasonable jury could
have sentenced Fairchild to
death on that evidence,” Eisele
said.

Tommy Robinson, later a.

ongressman, was _ sheriff of
>ulaski County when Fairchild
vas arrested. Robinson’s depu-
ies deputies did much of the
iyestigation, that, led to, Fair-
hild’s prosecution, a ee
“T guess he’s saying that the
itizens that comprised the
iry in Lonoke County were
ot reasonable people. I’d dis-

aT

agree with that,” Robinson
said Thursday.

So would at least two of the
people who served on the jury.

“He was there. He did it.
That's all there is to it.” said
Juror Lloyd E. Hurley of Ward.

Hurley said Fairchild de-
served the death penalty, and
Eisele was wrong to change the
sentence.

‘I'm disappointed in the
lawyers and judge,” Hurley
said. “When a jury convicts
somebody and they come
around and throw everything
out, it’s no good. That's a
bunch of bull. The man is
guilty and that’s the way I look
at it.”

Members of the juror had no
doubt that Fairchild was guilty
of killing Ms. Mason and that
he deserved the sentence he
got.

“We sure thought so,”
agreed fellow juror Kenneth
James of Carlisle.

Another juror, Phillip Gil-
bert of Cabot, declined on
Thursday to comment on
Kisele’s ruling.

After being abducted, Ms.
Mason was raped before she
was Slain. Fairchild claimed an
accomplice was the trigger-
man, but he never named the
accomplice. No murder weapon
was found.

Raff said, however, that
Fairchild “may very well have
been the triggerman.”

“And certainly, if anyone
who abducts someone at gun-
point, kidnaps them and drives
them to another county, rapes
them and participated in that
and certainly, has to have a
gun on the victim some, if not
all the time, then they’re
guilty. This is major participa-
tion in the crime and this is
what the law requires,” Raff
said.

-+ «Attorney: General: Winston

‘Bryant’ said the state ‘would
vigorously appeal the order.
The 8th Circuit set a hearing
in St. Paul, Minn., for the week
of Oct. 11-15.


Arkansas Democrat 7 ®azette

@ @ WEDNESDAY, NOVEMBER 11, 1992

B

Judges upheld
death sentence
for Fairchild

BY LARRY AULT
Democrat-Gazette Federal Reporter

A federal appeals court Tues-
day upheld Barry Lee Fairchild’s
death sentence and rejected
claims that the Pulaski County
sheriff's office routinely abused
or coerced suspects to obtain
confessions.

Also, Fairchild’s attorney and
the chief justice for the 8th Cir-
cuit both agreed Tuesday that
Fairchild probably could get his
death sentence reduced to life in
prison with the right appeals.
However, Fairchild refuses to
make those appeals.

“Fairchild does not wish to
bring such an attack,” U.S. Cir-
cuit Judge Richard S. Arnold of
Little Rock, chief judge of the 8th
Circuit, wrote in a separate opin-
ion. “He has a right to make this
decision, and, in my opinion, he
is bound by it,” Arnold said.

Fairchild, 38, claimed two con-
fessions were beaten out of him.
Fairchild was convicted and sen-
tenced to death for the murder
Feb. 26, 1983. of 22-year-old Mar-
jorie “Greta” Mason. Mason, an
Air Force nurse, was kidnapped
and taken to an abandoned farm-
house in Lonoke County, where
she was raped and shot.

A three-judge panel of the 8th
U.S. Circuit Court of Appeals at
St. Louis rejected Fairchild’s ar-
guments in a third federai chal-
ienge to his conviction.and death
sentence. In addition, Fairchild
also contended the prosecution
failed to reveal to him that it had
evidence that could help acquit
him.

John Wesley Hall Jr.. a Little
Rock attorney representing
Fairchild, said further appeals
will probably be filed with the
full 11-member 8th Circuit Court
and the U.S. Supreme Court. But
Hall added he expects that
“sooner or later, he’ll be execut-
ed.”

“I don’t have much of a reac-
tion. This is what I expected,”
Hall said.

Hall said he told Fairchild of
the court’s decision Tuesday and
“he was matter-of-fact” about it.
Fairchild has maintained he is
innocent.

“Arkansas has a man on death
row who probably could have

avoided being there,” Hall said.
Fairchild “could have made a
well-founded attack” on the

death sentence but chose not to

because he didn’t want to serve |

life in prison, Hall said.

Hall said Arkansas law re-
quires that a person either must
have planned or have partici-
pated in a murder and “in this
case, he probably didn’t expect
a murder would occur.”

The 8th Circuit panel said this
third appeal, which raised ques-
tions about newly discovered ev-
idence that alleged Fairchild’s
confessions were coerced and
unreliable, was an abuse of the |
appeal process.

U.S. District Judge G. Thomas |
Eisele ruled June 4, 1991, that he
was convinced Fairchild’s two
videotaped 1983 confessions to
the rape and murder of Mason
were accurate despite evidence
that investigating sheriff's
deputies might have abused or
coerced suspects to obtain con-|
fessions.

Deputy Attorney General Jack
Gillean said the 8th Circuit kept
intact a stay of execution that has
been in effect for two years. That
development means an execution |
date can’t be set, he said.

When asked how long it might
be before the appeals are ex- |
hausted, Gillean said, “I don’t |
think it will take six months. |
Whether they will act quickly is |
real hard for me to predict.”

Arnold said he is “convinced |
beyond a reasonable doubt that |
Fairchild’s confession was both |
voluntary and truthful and that |
he did abduct and rape Marjorie
Mason.”

Arnold described Eisele’s con-
sideration of the case as “ex- |
haustive” and “fair-minded.”

He said Fairchild has been

erence
SO ee er ene

“steadfast in deliberately with- |
holding any attack that would |

gain for him only a reduction of
sentence to life imprisonment.”

“He probably did not kill Ms.
Mason.” Arnold said. “The actu-

al killing was probably done by |

his confederate and Fairchild
may not have intended or even

expected this to happen.” Arnold |

said.
Police believe Fairchild
wasn't alone.


High court rejects stay
for Fairchild; attorneys
turn pleas toward Eisele

BY RAY PIERCE
Democrat-Gazette State Reporter

Attorneys for Barry Lee
Fairchild tried again Monday
night to secure a stay of execu-
tion for their client, a few hours
after the state Supreme Court
denied their most recent request
for a stay and two days before
his scheduled death by lethal i in-
jection.

In a late filing, attorneys for
Fairchild — scheduled for exe-
cution at 9 p.m. Wednesday —
asked U.S. District Judge G.
Thomas Eisele to issue a stay
and consider another appeal
that contends Fairchild is not el-
igible for the death penalty.

Deputy Attorney General Jack
Gillean said Eisele held a tele-
phone conference with the at-
torneys Monday night and told
them he would talk to them
again about noon today and an-
nounce what he wanted to do.

Federal appeals courts have
ruled in several earlier appeals
that Eisele was wrong to consid-
er additional issues in the ap-
peal and that Fairchild had. ex-
hausted all his federal appeals.
: Fairchild was sentenced to
death in‘1983 forthe rape’ and
murder of Air Force nurse Mar-
jorie L. “Greta” Mason, 22, of
Gainesville, Fla. Prison officials
on Sunday moved’ ‘Fairchild from
his cell at the state Department
of Correction’s Tucker Unit to
one near the death chamber at
the Cummins Unit near Varner
(Lincoln County).

Earlier Monday, 1n a two-page
unsigned opinion, the high court
said Fairchild’s attorneys could
not reassert claims of his men-
tal retardation. The attorneys
have said Fairchild was mental-
ly incapable of waiving his rights
against self-incrimination when
he confessed.

Saying Fairchild was not re-
tarded, the justices rejected
claims that Arkansas law passed
in the last legislative session

barring the execution of the

mentally retarded applied to the

case. Justices David Newbern .

and Steele Hays dissented.
Gov.

Southern governors’ conference,
had not yet seen the decision
and would not comment on the
possibility of clemency or a par-
don. The state Post Prison Trans-
fer Board recommended Friday
that Tucker not issue a pardon.

Also Friday, Rep. John Cony-
ers, D-Mich., a senior member of
the. Congressional Black Caucus,
urged President Clinton to in-
itervene.and get the execution
Postponed: Conyers wants the
'U.S: Justice Department to re-
view the case.

The White House had no offi-
cial comment Monday on Cony-
ers’ statement.

Monday night, about 85 peo-
ple attended a rally at Hoover
United Methodist Church, 4000
W. 13th St., to hear calls for
prayer and fasting for Fairchild.

x FAIRCHILD DID GET A STAy oF EXECUTION,

Jim Guy Tucker's |
spokesman said Monday the gov- |
ernor, who is in Virginia ata ‘

wx

i


BN ee aOR Te REN GRE, © Tae a BRE ss

Fairchild ruling no bar
* to Clay Ford execution

A federal court ruling billed
as an obstacle to the execution
of several inmates on Arkan-
sas’ death row won't affect the
Crittenden County’s lone con-
victed murderer who is await-
ing execution.

State Attorney General
Winston Bryant has said that
he feared the ruling that set
aside Barry Lee Fairchild’s

death sentence-could_affect..al-. = :
,was on death row for a short

most one in five of the state in-
mates awaiting execution.

U.S. District Judge G. Tho-
mas Eisele’s ruling in Fair-
child’s case came hours before
Fairchild was to be put to
death by injection for the 1983
rape-murder of Marjorie
“Greta” Mason. Eisele ruled
Fairchild should not have been
eligible for the death penalty
because the prosecutors pre-
sented no evidence that Fair-
child shot the woman, aided or
abetted in her murder, or ever
intended to kill her.

The judge said that Fair-
child only was eligible for life
imprisonment without parole.
A capital murder conviction ‘in
Arkansas is punishable by ei-
ther life in prison without pa-
role or death by injection.

Clay Anthony Ford, con-
victed in 1981 of the 1980 mur-
der of Arkansas State Police
Sgt. Glen Bailey, is the only
convicted murderer from this
county awaiting execution. His
case is currently on appeal to
the Eighth U.S. Circuit Court
of Appeals.

Ford was convicted of shoot-
ing and killing Bailey when
the veteran sergeant stopped
his car at a roadblock in Mar-
ion. He was arrested minutes
later after fleeing from the
scene on foot.

Ronald Ward of West Mem-
phis; convicted of the 1985
slayings of two elderly women
and their 12-year-old nephew,

time until his conviction was
overturned and a new trial or-
dered. In his seécond trial,
Ward was again convicted but
the prosecution did not seek to
have the death penalty im-
posed; Ward, now 23, is’ serv-
ing a life-without-parole term.

Bryant said last week that
the ruling would help other in-
mates with appeals. Of the 38
men on Arkansas’ death row,
seven may have circumstances
in their ‘cases where the ruling
may apply, based on an exami-
nation of news reports about
their cases.

Bryant said any inmate who

‘is an accomplice in a murder

can raise the issue. .

The ruling should not affect
the case of another Death Row
inmate who was convicted in

Crittenden County more than

10 years ago on a change of
venue - from Mississippi
County, either. Eddie Lee
Miller of Blytheville was con-
victed in circuit court in Mar-

(See DEATH on Page 2)

DEATH— =

(Continued from Page 1)
ion of the murder of 4

; a.
lytheville businessman.
Ae both Ford and Miller's
cases, there was no evidence
‘dividual was 1n-
in el der.
lved in either murde .
i The last execution involving

a Crittenden County inmate
occurred in 1961.

Arkansas Democrat-Gazette/Staton Breidenthal

COURT RULES — Convicted murderer Barry Lee Fairchild looks out the win-

dow of a prison van after appearing in Little Rock for a court hearing Wednes- x
day morning. U.S. District Judge G. Thomas Eisele set aside Fairchild's death w

sentence because he wasn’t the triggerman in the death of an Air Force nurse.

Fairchild sentence
changed to life term:

BY LARRY AULT
Democrat-Gazette Federal Reporter

A federal judge set aside the
death sentence Wednesday of
condemned killer Barry Lee
Fairchild because he wasn’t the
triggerman in the death of an
Air Force nurse.

Fairchild, 39, has been
housed since Sunday in a cell
just a few feet from the death
chamber at the Cummins Unit
near Varner, where he was
scheduled to die by lethal in-
jection at 9 p.m. Wednesday. He
was sentenced to death for the

@ Text of ruling 1A

Feb. 26, 1983, murder of Air
Force nurse Marjorie Mason-at

an old house near Scott. ~
U.S. District Judge G. Thomas
Eisele set aside the death sen-
tence during a telephone con-
ference he conducted from

Jonesboro. - 2
The conference was held just
over an hour after Fairchild was
brought to Little Rock for a brief
hearing on his request for a stay
of execution so he could argue
See FAIRCHILD, Page 11A

~

Ww

N

Arkansas Coalition to Abolish the Death Penalty |

Fall 1993

L

if

Nationally-known author to speak at annual meeting

The Arkansas Coalition to Abolish the
Death Penalty will hold its annual meeting
in Little Rock on Nov. 18. The speaker will
be Helen Prejean C.S_J., a Roman Catholic
nun who is the author of "Dead Man
Walking" an Eyewitness Account of the
Death penalty in the United States."

The annual meeting will be at Christ
Episcopal Church at Fifth and Scott in
downtown Little Rock. It will begin with a
reception at 6 p.m. and the banquet will be
at 7.

The book was published in June of this
year by Random House. In Helen Prejean's
compelling argument against the death
penalty, the book tells the unusual story of
a Catholic nun's meetings with convicted

* The 32 prisoners executed in the United
States so far this year is the most since the
47 executions in 1962.

*There were 31 last year.

*The number of men and women on
death rows is approaching 3,000.

*The number of U.S. executions
dwindled throughout the 1960s. There were
46 in 1962, but only 46 over the next five
years.

*The National Coalition to Abolish the
Death Penalty will hold its Annual Meeting
Nov. 5-7, 1993, in Pittsburgh, PA. Regis-
tration information can be obtained by
writing or calling the NCADP, 1325 G
Street, NW (LL-B), Washington, D.C.
20005, (202) 347-2411. Art by death row
prisoners, including some from Arkansas,
will be on exhibit and for sale at the meet-
ing.

murderers, families of the men's victims
and Louisiana's governor and parole board.
The book has been reviewed in national
magazines and the author has appeared on
several national television shows.

Tickets for the banquet are $15. They can
be obtained by sending a check to Dr.

Lillian Chaney, 1412 Airport Road, B1,
Hot Springs, AR 71913.

Helen Prejean is now working with the
Washington-based National Coalition to
Abolish the Death Penalty. She also has
Started victim services programs in Loui-
siana.

Update on Fairchild case

I first saw Barry Fairchild in court on
Sept. 22, 1993. He was due to be executed
that night at 9 p.m. He is an immense man,
simple but proud. When Judge Henry Jones
asked him whether he understood that he
was now challenging his death sentence
and, if successful, could be in jail the rest of
his life, he answered quietly, but firmly,
"yes."

Steve Hawkins of the NAACP Legal
Defense Fund had been Fairchild's main
attorney for:more. than’ two-years, chal-
lenging the validity of Fairchild's confes-
sion and his understanding of the proceed-
ings. Fairchild steadfastly refused to chal-
lenge his death sentence, but Hawkins
gained Fairchild's confidence and, with the
help of Clay Ford, another death row in-
mate, Fairchild saw that the only way he
could challenge his conviction was to stay
alive.

This issue is now before the Court of
Appeals for the Eighth Circuit after District
Judge Tom Eisele granted Fairchild's ap-
plication for a writ of habeas corpus and set
aside the death sentence.

Judge Eisele found that there
was no evidence ... that
Fairchild had acted with "ex-
treme indifference to the value
of human life.”

Judge Eisele found that there was no
evidence from which areasonable jury could
find, beyond reasonable doubt, that Fairchild
had acted with "extreme indifference to the
value of human life." The only proof was
Fairchild’s confession and that placed him
waiting in a car outside when his accom-

plice killed Ms. Mason. Fairchild was not
the killer.

Without the vigorous representation of
Steve Hawkins and John Wesley Hall, aided
by Charles Baker and Les Hollingsworth,
another inm2tc would have been put to
deatii. We now await the decision of the
Eighth Circuit and hope it upholds Judge
Eisele's ruling.

While we wait, another case challenging
Fairchild's sentence is pending in the Ar-
kansas Supreme Court. In that case,
Fairchild is challenging his death sentence
under Act 420 of 1993 which prevents the
execution of mentally retarded defendants.
The Supreme Court denied a stay of execu-
tion, but may reconsider after hearing the
case in full.

Herbert C. Rule, II
Chairman, ACADP


New phy a4
sHigh court
zrejects 3
death row
appeals

The Associated Press

Y, NOVEMB

The U.S. Supreme Court on
' Monday turned down, without
comment, the appeals of Arkan-
Sas death row inmates Barry Lee
Fairchild, Richard Wayne Snel]
and Charles Laverne Singleton.

Of the three inmates, Snell is
Closest to execution, according
to Olan Reeves, senior assistant
attorney general. “This is it for
him,” Reeves said.

Reeves said that as soon as the
Attorney General's Office re-
celves paperwork from Mon-
day’s Supreme Court rulings, the
office will ask Gov. Jim Guy
Tucker to set an execution date.

Reeves said Singleton stil] has

MEMPHIS, TUESDA

sentence for the Nov. 3, 1983,
Slaying of William Stumpp, a
Texarkana pawnbroker. He also
( 1S Serving a life sentence for the
| 1984 slaying of Arkansas state
| Trooper Louis P. Bryant of De
| Queen.

| Snell is a Self-styled surviva-
| list, sympathetic tO militant
white supremacist groups.
| In January, a three-judge pan-
el of the Eighth U.S. Circuit
Court of Appeals at St. Louis
upheld Snell's Conviction and dj-
rected a lower court judge to
reinstate Snel]’s death sentence
Fairchild, 40, was convicted in
| 1983 in the Slaying of an Air

| child’s appeal. which was based
On a 1993 state law that Prohibits
executions of mentally retarded

in a stay of execuuon request
Prior to his scheduled execution

|

| Court. He was Sentenced to die

| for the Stabbing death of Ham.

| burg Shopkeeper Mary Lou

' York. Singleton was Scheduled

| to die in July 1993. but his execu.
Non was stayed by a federaj


Allegedly Retarded Man Avoids

Execution in Arkansas Rulin

{733-40
By Lynne Duke

Wastungtoa Post Suall Wrter

An allegedly mentally retarded black man
sonvicted of murder narrowly avoided the
Arkansas death chamber late last night after a
federal appeals panel let stand a lower court
ruling that the convict should never have
been sentenced to die in the first place.

While eleventh-hour stays of execution are
routine in death penalty cases, U.S. District

Judge G. Thomas Eisele’s ruling, which was © /

allowed to stand by the 8th Circuit Court of
Appeals, went further. Eisele vacated the
death sentence of Barry Lee Fairchild, saying
it was unconstitutional because the state
court failed to prove that Fairchild was liable
for the death. Eisele changed Fairchild’s sen-
tence to life without parole. Fairchild, 39, was
convicted of capital murder for the 1983 kid-
napping, rape and killing of a young Air Force
nurse, Marjorie Mason, who was white.

Fairchild’s case became a rallying point for
lawmakers, led by Rep. John Conyers Jr. (D-
Mich.), as well as civil rights lawyers and ad-
vocates for the mentally ill. The case, Fair-
child's advocates said, fits a pattern of judicial
bias based on race.

Fairchild was not the triggerman and his
attorney, Richard H. Burr, maintains his cli-
ent did not participate in the crime.

A jury, however, found him guilty of capital
murder on the basis of “accomplice liability,
and what the [U.S.] Supreme Court has said
is accomplice liability is not enough for a
death sentence,” said Burr of the NAACP Le-
gal Defense and Educational Fund. To receive
a death penalty, “You have to have either
been the killer or intended the killing or at
least known that one might occur,” he said.

But Arkansas Attorney General Winston
Bryant said that the test of accomplice liabil-
ity is whether a defendant acts with “extreme
indifference to the value of human life.”

“By the mere fact that Mr. Fairchild, num-

Oo
oe

; :
pee. 3 Tes 4
.

BARRY LEE FAIRCHILD
... judge vacates death sentence

ber one, kidnapped the victim at gunpoint,
robbed the victim, raped the victim and sat
while someone else apparently shot the victim
in itself amounts to extreme indifference,”
Bryant said. The appeals panel still could al-
low Fairchild to die. It set oral arguments in
the case for next month. Whether Bryant will
appeal to the U.S. Supreme Court before then
was not clear last night.

,urr maintains Fairchild was subjected to
racially inspired physical abuse by Pulaski
County, Ark., sheriff's deputies who coerced
a confession with physical abuse. Burr and
others say Fairchild was susceptible to the
coercion because he is mentally retarded. De-
spite a series of tests and expert testimony
showing Fairchild to be mentally retarded,
Eisele in a previous hearing ruled he is not.

WASHWE TON: fost
THURS. %B3<95


Ar

te ec, ee
—_—_———

For 5 on death row,
time is running out...

By Tamara Mohawk: - 4, men ot the state's. death row are,,
Gazette Pine Blut! Bureau : closest to being executed is “guess- -

‘Eugene Wallace Perry, on death

row for the 1980 shooting deaths of
two Van Buren residents, could
become the first person executed in :
Arkansas since 1964. .

The U.S. Supreme Court could:
announce its decision whether to:,

hear Perry's case today, according": through the same steps again.
to-Jack Gillean, an assistant state; ‘In addition to Perry, Gillean ,

attorney general. who handles’:
death-row cases. cs ae
but identifying which of the 34

: cess. A journey that can take cases

‘+ work at its very wofst,” he said. '_
Gillean said Perry and four oth-

ers are nearest to exhausting all

phases of the lengthy appeals pro-

‘ftom trial courts to the U.S. Su-
preme Court.— .and then back
said, the top five list — in, the
Sed CASES/6B a |

afta
.
afer

Cases ¥

Continued from Page 1B ee

moat-likely order of execution —
includes John Edward Swin-
dle},Ronald Gene Simmons,
Thomas Winford Simmons and”

+ a ee eee. oe
ry :

family home after the Russellville
shootings. A ee
Simmons has said he wants to .
die. Over his objections, fellow -
death-row inmate Jonas H. Whit-
more is attempting to block Sim-
mons’ execution by asking the U.S.
Supreme Court to decide whether

Barry Lee Fairchild. oe ‘ggtithe U.S. Constitution requires an

y : -
hé |," appellate review. of all death sen- va TSS -
stake where their appeals will have «tence. ‘ °°" A lA A aa Ean

bedn exhausted,” said Gillean., , .¢ «The Supreme Court is expected d

. “(They're moving toward thé.y

“It dépends entirely on the out-
come of the present appeals.”
Perry, 48, was sentenced in July
1981 for the September 1980 .
shdoting deaths of Kenneth Staton
and Suzanne Staton Ware during a’
rohbery in Van Buren.

“The court’s action exhausts Per-
ry’} traditional appeals, but his 4:
attorneys are expected to file a
lasl-minute appeal based on a
clajm of fellow death-row inmate, .,
Marion Albert Pruett. sa

*ruett, on death row since 1982
for. killing a Fort Smith conve-.'
niece store clerk, claimed in Au-
gust that he, and not Perry, killed
Staton and Ware.

“¢ don’t think the U.S. Supreme
Cotrt is going to review the case,
ang I don’t think this last-minute
argument he's going to make has
any merit,” Gillean said.

The fate of others topping the
dedth-row list also could easily
change, but he said they all are in
the final stages of appeals. _

John Edward Swindler, 45, was
serttenced in February 1977 for the
Sept. 24, 1976, fatal shooting of
Fort Smith police officer Randy
Basnett. The officer was killed af.
ter'stopping a car driven by Swin-
dlet, who was wanted in the slay-
ings of two teen-agers in his home
state of South Carolina.

The U.S. Eighth Circuit Court of
Appeals upheld his conviction and
sentence this year, but his attorney
has filed a request for the court to
rehear the case, Gillean said. «© «4

Ronald Gene Simmons, 49, of
Dover, received two capital murder °
convictions: one for killing James }
Chaffin, 33, and Kathy Kendrick,
24,'on a Dec. 28, 1987, shooting
rampage in Russellville and the
second for killing 14 relatives
whose bodies were found near his

" Holly Gentry, 30; Jawana Price, 21;

to hear oral arguments in the case
in December or early 1990, and
probably would rule in the case by
id-summer, Gillean said. .
"Thomas Winford Simmons, 46, °
was sentenced to death in August
1981 for the January 1981 shooting
deaths near Van Buren of Fort
Smith detective Ray Tate, 34;

ARES

// HW a

and Larry Price, 21.

‘His execution was stayed last Vy
year by the Eighth Circuit Court of KK
Appeals in St. Louis where the case | v
is pending. ;

Barry Lee Fairchild, 35, of North ‘
Little Rock was sentenced in Au-
gust 1983 for the February rape
and slaying of Marjorie Mason, 22,
a nurse at Little Rock Air Force.
Base.

Fairchild’s case is pending before
the Eighth Circuit, which heard,

- atguments in June on whether evi- ,

dence that Fairchild was mentally.
retarded should have been intro-
duced as evidence at his trial.

Gillean said a decision is expec-
ted anv day now. ‘

The “dean of death row,” Lloyd
Dewayne Hulsey, has been there-—
since 1975.

The U.S. Supreme Court last ,
month refused to hear his case, but
Gillean said unresolved issues have
yet to be addressed at the federal
district court level.

Only the newest inmate on death
tow, Roger Lewis Coulter, has an
execution date set.’

But Coulter, 29, convicted of
capital murder last month for the
slaying of a 5-year-old Warren girl,
ig extremely ‘unlikely to be exe- :
cuted Dec. 11. . ' ‘

Based on the existing appeals
process, Coulter could be awaiting
death for at least seven years, Gil-_
lean said. ;


a t

Arkansas inmates
Closest to execution -

Barry Lee Fairchild
*Born: March 5, 1954, See

Fairchild, of North Little Rock, is to die for the:
February 1983 rape and slaying of 2nd Lt.
Marjorie L. (Greta) Mason, 22, a nurse at the :
Little Rock Air Force Base. He had an eae
accomplice, but has refused to name him, °
Prior. ‘tecord: Grand larceny (1 97 ); robbery
Cues theft OMe ae

Ta. Hayes”
*Born: Nov. 10, 1937.

“Hayes, of Pine Bluff, is penlenced | to die ici
the July 16, 1979, shooting deaths of his girl

friend, Catherine Carter, 36, and J.W.: oe
Lunsford, 35, a Pine Bluff cab driver.

of “Prior record: Second-degree murder and
; Shooting with intent to kill nt 972

Thomas W. Simmons _
»Born: Sept. 2, 1943.

«Simmons, of Kibler (Crawtord County is to die’
for the January 1981 shooting deaths of Fort):

Smith detective Ray Tate, 34; Holly pemonct 30;
Jawana Price, 21; Larry Price, 21, S

- DEATH ROW
Population: 31 (all males). :

Blacks: 10.
Whites: 21.
No. of cells: 54.

Death sentences by county: |

Benton — 5.

Sebastian — 4.

Logan, Crawford, Montgomery, Jefferson and Pulaski — 2 each.

Ashley, Mississippi, Faulkner, Franklin, Lonoke, Searcy, Miller, Phil-
lips, Yell, Prairie, St. Francis, and Cross — 1 each.

Inmates who stabbed victims to death — 2.

Inmates who shot victims — 25.

Inmates who beat victims to death — 2.

Inmates who strangled/suffocated victims — 2.

Inmates who committed murders during robberies/burglaries — 14.

Inmates on death row for killing law enforcement officers — 10.

Avg. number of years spent on death row: 5 years, 7 months.

Longest term — 13 years, 2 months (Lloyd Hulsey).

Shortest term — 8 months (Ronald Gene Simmons).

Number of victims claimed by death row inmates: 43°

*This total includes Louis Perry Bryant, the state policeman killed by Richard
Wayne Snell. Snell is serving a life sentence for that slaying, a death sentence for
another killing. This number does not include the 14 dead family members of Ronald
Gene Simmons. All information on Simmons takes into account the two people he has
been convicted of killing.

“Prior record: Auto theft Cor: assault (Okla,
1963); forg “43 and uttering (1965); forgery and
uttering (1967 ); assault (19 0, federal prison, =:
Leavenworth, Kan. i kidnapping (1976). Ee

Charles ce Singleton _
“Born: March 29, 1959.

*Singleton, of Hamburg, i is sentenced to die

for the June 1979 stabbing death of Mary Lou.
York, 62, of Hamburg during a rooney ather..
grocery store.

Prior record: : Buroiany grand lrcony (1 976). ee

Ronald Gene Simmons
*Born: 1940,

-Simmons, of Dover ‘Pope Countyk is to die
for the December 1987 deaths of Kathy
me f | Kendrick, 24, and J.D. Chaffin, 33, and the
a £ mf wounding of four other people. He has no =

‘ rior record, although he was charged in Ee
; F ew Mexico in 1983 with incest. The charge
54 was dropped a year later because he
ge? couldn’ be found: eG
. R.GENE SIMMONS


34. 1995
.CH B ; slack, ‘fl, LI ARSP (Lonoke) August 31, 196
FAIRCHILD, Barry Lee, black, 1, LI AR@ (

Ak. € Ber

Fairchild

sh at 1a PEE Ef pet aa = ey:

ar nF sent EY

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‘a8 | gat “oy

, y iailor tealeerahy ot. er tt bea 7

t

ped &
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TRE: Bi

: uy owalt
ago
upheld =
maw e Disa ay |

By George Wella @ pu newt
Gazette Staff tt a pala ites dba age
~ Barry Lee Faitchild’s death’ seri?
tence was affitmed once’ agaiti
Tuesday by a ynree indie panel of
the 8th U.S.: Re
Circuit Court of
‘Appeals in St.>
Louis that said.’
his latest claims :
should not have«
been heard. »: 1." 8
Ina’ toughly
worded 15-page 4 » 2a
opinion by U.S... | er otis: |
Circuit Judge Fairchild
Richard Arnold, the panel agreed
with U.S. District Judge. G,
Thomas Eisele that’ Fairchild, 36,
was not retarded, received a fai?
trial and was guilty of participating
in the 1983 abduction,.rape and
murder of 2nd Lt. Marjorie
“Greta” Mason, a-nurse at Little
Rock Air Force Base. . “"’.* ‘
The panel said Risele should not
have agreed to hear’claims about
Fairchild’s low intelligence because
they had not been raised in the
state courts. Arnold said the claims
amounted to an abuse of the nee
system. ~
The stay of Fairchild’s executiin
will remain in effect for the time
being, Arnold said, but if Fairchild
does not: act’ quickly to-seek a
; higher review it will be dissolved.
John Wesley Hall Jr. of Little
| Rock, an attorney for Fairchild,
said he would ask the entire ap-
peals court to review the panel’s
decision “even though there’s only,
about a l-in-30 chance.” |*:’
If that is refused, he said, he will
ask the VJ.S. Supreme Court to
review the decision, but said me
chances of that happening “a
slim and None. ‘In | & : worst- ehas’
; eres AY Ape te im rete be: 7

S6 COURT/9A Regehr tine x

: penal

POE, Ext ? dd


.

[Fairchild —
jloses bid
for retrial

Judge calls him ‘con man’;
execution stay set-aside ;

t

By George Wells. nial hob. eae
,| GAZETTE STAFF :

Barry Lee: Fairchild isn’t mentally retarded; he's:
more likely a “con man” trying to beat the death , *
penalty.

That was the conclusion of U.S. District Judge G.
Thomas Eisele in a 137-page opinion Tuesday. He’
rejected the death-row inmate's arguments fora new
trial and set aside a Stay of execution he entered :
March 3, clearing the way for Gov. Bill Clinton to set;
a new exccution date.’ Se Se

An execution is unlikely soon, however, because of
appeals, ; ole aia

Fairchild, 35, of North Little Rock, was convicted ’
in the 1983 abduction, rape and murder. of 2nd Lt.
Marjorie “Greta” Mason, a nurse at Little Rock Air
Force Base, largely on the basis of two videotaped
confessions he fave officers the night he was ar-
rested. In the confessions, hé said ke raped Mason but

Ssomcone else killed her.

Notice of appeal filed

John Wesley Hall Jr. of Little Rock, an attorney for:
‘Fairchild, said he would appeal to the 8th US. Circuit
- Court of Appeais in St. Louis. Ife‘ filed notice of
‘appeal immediately and asked the appeals court to °
Stay the execution.

“He really trashed our case," Tall said, referring to
Eisele's determination that evidence Hall presented
was not reliable. “It wag almost humiliating to read
the opinion.” sf cia

Hall had relied primarily on psychological tests
that showed Fairchild had alow IQ to argue that the
inmate did not understand his legal rights when he
was arrested. He also argued that the state failed to
provide a complete competency test to Fairchild
before his trial and that deprived Fairchild of the

(See FAIRCHILD on Page 3A.)

ARKANSAS GAZETTE Wednesday, April 5, 1989 ...


fhe end of June.” |.

‘United States Supreme .Court.”. 2%

sy

Continued from Page 1A. ee

er)
ons

scenario the case could b

; 8

d the high
ourt to reject the case because‘;
the Supreme Court is dominated:

by Nazis ... they’re trying to reduce -:
their workload. Life is cheap in the. *

‘
t

. Hall said he expecte

§

4
iM

et

- Monday, the Supreme .Court-:
lifted a stay of execution on a”
retarded Louisiana man, Dalton’™:
‘Prejean, who as a teen-ager mur-.
dered a state troo
is 76. ay
|_Assistant Attorney General Jack
Gillean, who handled the Fairchild
case for the state, said he was
pleased by the decision but expec-
7 Hall said he met Tuesday morn- .
ing with Fairchild and said the

inmate had little reaction. “It was .
hot unexpected,” he said.
| Fairchild “still holds to eve

per. Prejean’s IQ’:

d Hall to seek a higher review. ©

thing or nothing,” Hall said, refer- © |

ring to Fairchild’s rejection of ef-
forts to have his sentence reduced -
to life. He has elected to raise only
issues that would lead to a new trial
ff successful. -
| “He wants it to be over with,”
all said.
' Fairchild appeared before Eisele
n August 1986 saying he wanted to
nd his appeal. That set off a series
f events when Kisele appointed
all to investigate whether Fair-
thild was ‘competent to waive his
bppeals rights.
| Lhe judge determined after. a
hearing the next year that Fair-
child was competent, setting off a’
-tound of appeals.
| Last year, Hall raised the issue of *
airchild’s intelligence, arguing
that Fairchild was mentally re- |
tarded and didn’t know what he
Was doing when he confessed to the
¢rime. Fairchild admitted taking ‘
part in the abduction and rape in
two videotaped statements to po-
lice, but said Mason was killed by -
another person. She oe
| Hall argued that Fairchild wa
told what to say by police and

- mot retarded.

"y
the

. different result
' wrote.

: Arnold said in his opinion up-
olding Eisele that Hall had
dropped the argument that: the

‘confessions were inadmissible be-

fre
,

h

‘cause of Fairchild’s intelligence.

y The remaining argument was
that’ the state failed to find out
about Fairchild’s low 1Q during a
“mental evaluation before his trial
... and that prevented Fairchild from
" presenting that evidence to the

jury. Hall contended that if the
jury had known about Fairchild’s

: low intelligence, it might have dis-
:, counted his confessions and ac-
“* quitted him.

| “We are unpersuaded that there
is a reasonable probability of a
at trial,” Arnold

“Our confidence in this verdict

, remains unshaken,” he said.

’ After reviewing the record of the
case and the confession tapes, Ar-
nold said the test results on Fair-

_ child were contradictory and the
. panel agreed with Hisele that Fair-
-.child’s appearance on the tape led

to the conclusion that he was not
mentally retarded and was not led
by the police during the interview.

_ Initially the panel ruled, how-

ever, that Fairchild’s petition for a
new trial, his second, should have
been rejected without a hearing by
Eisele because the issue of the
prisoner's intelligence had not
been raised in the state courts.
Second habeas corpus petitions are
not permitted under federal rules

‘unless a prisoner can show that
_there was an acceptable reason

why the new issues were not raised

earlier, Arnold wrote, and there

was no showing of that in Fair-

_child’s case.

He said the panel decided to rule
on the merits of Fairchild’s argu-

“ments anyway because it expected
“the case to be presented to the
-Supreme Court. -. -

ralirCnig

Continued from Page 1A.

right to argue to the jury that he '

was mentally retarded and didn’t
understand his rights.

Eisele said there probably was a
point at which mental retardation
became so severe that a person
could not be held accountable for a
crime. But he said there was no
“bright line rule based on IQ — or
for that matter mental retardation
itself — that automatically deter-
mines a defendant's competence or
ability to waive constitutional
rights.” !

Hall told a press conference that
he filed a motion for a certificate
of probable cause with EFisele and
the 8th Circuit and one or the other
must grant a certificate before he

‘can actually appeal. That is be-

cause habeas corpus cases, such as
this one, do not have an automatic
right of appeal as most cases do.

Attorney General Steve. Clark
said he was pleased because Fiscle
rejected arguments that Fair-
child’s low IQ prevented him from
understanding his jegal rights.
“Judge Eisele said ‘it's IQ plus
strect smarts,” Clark said.

He said Clinton would probably
set a new execution date within 10
days to two weeks and that the
appeals court would probably is-

. Sue a stay pending appeal.
Hall said the 8th Circuit might

‘stay the execution before a new .

date is set.

Clark said the state would ask
for an expedited hearing and esti-
mated that arguments could be

heard by the 8th Circuit within a’

couple of months, perhaps by the
entire court rather than by a
three-judge panel.

That could mean a decision this

year, but an appeal to the U.S.
Supreme Court likely would fol-
low, meaning an effective execu-
tion date is unlikely this year.

Ilall said he would be in St.
Touis next week for another case
and had told the appellate judges
he could be available for oral argu-
ments if the court and the state
were ready.

Rejects arguments

Eisele rejected arguments by
Hall that Fairchild was mentally
retarded and did not understand
his Miranda rights when he was
arrested in March 1983. He also
rejected evidence that other in-
mates had coached Fairchild to
understand his Miranda rights

| Decision pleases |
“aunts of Mason >

* Two of Greta Mason's aunts.
were elated with the federal
court decision Tuesday deny-
ing, Barry, Lee Fairchild’s bid
for .a new trial in Mason's
death, “I think it’s great be-
cause it’s about time this thing
gets over with,” said. Barbara

Tex. : ce
*“Oh, thank God,” Said. Beth
Breckur, another aunt from
Corpus Christi, Texas. Breckur
was crying and laughing at the
same,time. : sg ait

_ “Ina way I'm happy and ina
way I’m sad for [Fairchild]. You
have a choice in life — to do the
right or to do the wrong. And
[Fairchild] chose the wrong,”

Irene Fairchild of North Lit-

tle Rock, Fairchild’s sister,
said, “Ilow do you think I'm
gonna fcel — that my. brother
is going. to die?” She hung up
the telephone immediately.

since he was on death row:
He said that testimony from -

Frank Parker, another death-row
inmate, that he had drilled Fair-

child on the Miranda warnings had -

the appearance of something con-
cocted by the two inmates after
learning from the news media that
a low IQ would be the basis of
Fairchild’s bid for a new trial.

“ Hall-not surprised -

Hall said he wasn't surprised at
Fisele’s decision because of the
way a hearing went last month. He

_ Said he didn’t consider Eisele un- °

fair, but said the judge “believes in
his heart that Barry Fairchild com-
mitted the crime and wasn’t as
dumb as our evidence showed.”

Hall contended carlier this year |

that he had uncovered evidence of
Fairchild’s low IQ dating back to
his public school days and had a
team of professional evaluators
test him in prison. The team, using
a test known as WAIS-R, deter-
mined Fairchild’s IQ was about 63.

People with IQ's lower than 70
are considered retarded, several
psychologists testified at the hear-
ing last month.

After Hall brought that to Fi-
sele’s attention, he and the state
agreed to have a disinterested per-
son test Fairchild again. Dr. Judy
White Johnson of Little Rock was
selected, and she administered an

Chalakee of Corpus Christi, |’

im 050 ANOWN aS tne otaniord-
Binet.

She said Fairchild registered be-
tween 66 and 64 on the test, but
she later testified at a hearing that
Fairchild was not mentally re-
tarded and estimated his 1Q was

.more likely in the 75 to 78 range.
-She said other factors, such as
‘ Fairchild’s vocabulary and ability

to adapt to circumstances, were
more important than the IQ score.
: After reviewing all the results,
including tests given Fairchild in
the State Ilospital and at the Medi-

cal Center for Federal Prisoners in
Springfield, Mo., Eisele said 78 to

80 was more likely an accurate

‘evaluation.

"He said Fairchild had a history
of trying to “manipulate the judi-
cial system,” and that the two

.tests ‘this year were probably not

reliable.

' -*“There is much of the ‘con-man’
in Mr. Fairchild and that could

have been noted by those testing
him if they had carefully reviewed
the entire record that is avail-

. able,” Eisele wrote.

The judge noted that Fairchild

had admitted lying under oath on
‘ one occasion about alleged abuse
' by officers after his arrest and had

given testimony in state and fed-
eral courts about the incident that

varied according to changing cir-

cumstances, specifically what
Fairchild knew the state could
prove. -

. “The point here is not simply
that Mr. Fairchild will lie under
oath but to emphasize the mental

‘ acuity required in adopting an un-

true scenario and then staying
with it quite consistently — at
least until the rug is pulled out,”
Eisele said.

Dr. Donald Butts, a psychiatrist

‘who examined Fairchild at the fed-

eral prison in Springfield, testified
that he was “very skeptical of any

finding that Mr. Fairchild was re- |

tarded,” the opinion said.

|
|

Butts said Fairchild had been |

under constant observation by
trained staff members at Spring-
field and said it was “hard to hide
mental retardation on a day-to-day
basis.” Eisele said Butts was skep-
tical of the two IQ tests this year,
and added that he had come to
share that skepticism.

Eisele said Dr. Ruth Luckasson
of Albuquerque, N.M., who headed
the team Hall had brought in, lost
her objectivity after administering
the test and tried to make her
opinions fit the test results. He
said that was “boot-strapping car-

ried to an extreme.”


MEMPHIS, THURSDAY, SEPTEMBER 23, 1993

Fairchild Changes mind.
wins delay of execution

By Joan I. Duffy
The Commercial Appeal
Little Rock Bureau

LITTLE ROCK
before he was sc
shackled and h
Lee Fairchild
Wednesday,

who has presi
vious Fairchi
aside the condemned

versed previous stan

€ preferred to spen
his life j .

rape and murder

nurse Marjorie ‘Greta’ Mason.
In all previous a

Child’s lawyers so
turn his conviction and set him
free. The

latest appeal was the
first time defense

awyers chal-
sy the sentence.

The Attorney General’s Office
+p pealed the ruling to the 8th
U.S. Circuit Court of Appeals in
St. Louis, but a three-judge court
panel declined to Overturn the
ruling Wednesday night.

€ appeals court order Said
the case would be heard on its

merits at a hearing the week of
Oct. 11-15 at St. Paul, Minn.

ee

— Eight hours
heduled to die, a
andcuffed Barry
won 4 reprieve

US, Dist. J udge Thomas Fisele,
ed over four pre-
Id appeals, set

man’s
dea sentence Wednesday
afternoon after Fairchild re.

ds and said
d the rest of

n prison rather than die
by letha] njection for the 1983

of Air Force

ppeals, Fair-

ught to over. Fairchild was Set to

death penalty. F
“Yes.” Eisele vac
tence about 214

Atty. Gen. Winston Bryant said
he decided not to appeal to the
U.S. Supreme Court Wednesda
night, saying there wasn’t time
to prepare a brief.

mnesty International and
the NAACP Legal Defense Fund
asked the Co

Caucus to j{

Y claim he is
mentally retarded and was beat-
en by Pulaski County sheriff's
deputies unti] he confessed.

ep. John Conyers (D-Mich.),
senior member of th

€ caucus,
asked President Clinton in a let-

to investigate the
beating claims.

ngressional Black |
Dntervene on Fairy. |
child's behalf. The

governor in 1990, Clinton
signed Fairchild’s death war.

rant. Thirty-three hours before

ad changed
d about preferring the
airchild Said,
ated the sen-
hours later.

uted to this stor

The Associated Press con trib- |

Beek
“usa tooay A
BB ursony. SEPTEMBER 23, 1993:°US jC

By Tony Mauro
USA TODAY

f Ar-
e death sentence 0
ta inmate my it Spite
witched to life
ig tc less os
rs before he was sc :
to die by lethal injection. Bh

Arkansas eer gied anely

Winston Bryant ae me
led the decision by =
Seerrict — laa Ei
in Little Rock.
ager reduced the ee
after finding insufficient id
dence to suppor the pes

Ity for Fairchi
sh sotiok of Marjorie Mason on

Arkansas allows np oe

ho is
of a defendant Ww
actual killer in a murder ri
only if the person was oe ‘i
participant and showe =
treme indifference to ...
mace said Fairchild’s con:
fession that he raped aa
wasn’t enough. “No see a
| j could have sente 4
J airchild to hency — evi
dence,” the judge said.

The turning point in the Sara
came last weekend when ir
child, for the gor ee -

challenge the ae isd
eae rather than his convic
tion, said his lawyer Rict
Burr of the NAACP Lega
fense Fund.

Condemned man
spared execution

Cre

AP
of
CHILD: Challenge
pair sentence tuming point

. didn’t want to do any-
wens would seem to al
port the guilty finding, ay
he is not guilty,” Burr said. -

“We've won a small cel
sure of justice but there's stl +
lot of injustice in — ae
life in prison for a er
not commit,” Burr said. 5 Phe

Lawrence Graves 0 —
state attorney general's umes
said the judge's pimp a
wrong: “Fairchild did a an
manifest indifference, eu
kidnap this woman at Bunpor Mt,
he did rape her and rol so

Graves said the ruling ae.
could affect some of the ane
37 other condemned inmates.


“are pus

Democrat-Gazette Jonesboro Bureau

_. JONESBORO — USS. District

Judge G. Thomas Eisele today
' will ask convicted murderer Bar-
- ty Lee Fairchild whether his at-

oe tempts to avoid the death penal-
-. fy are his doing, or his lawyers’.

ee nee Birchild is scheduled to die -

~~ by lethal injection at 9 p.m. to-
_ day at the state Department of

i.’

Correction’s Cummins Unit near

Varner (Lincoln County). He was

convicted for the 1983 murder of

_ Marjorie L. “Greta” Mason, 22,

of Gainesville, Fla. She was a Lit-
tle Rock Air Force Base nurse.
_ Eigele on Tuesday ordered

the state to bring Fairchild to
the federal courthouse in Little
Rock this morning for an after-

noon hearing. The judge made
that decision during an hour-
long telephone conference with |
defense attorneys and the pros-

ecution.

The judge held the telephone

conference Tuesday at the fed-

eral courthouse in Jonesboro in
response to a motion by.
Fairchild’s attorneys to Stay the.

execution. :

“For eight years he
(Fairchild) has not allowed his
lawyers to oppose the death

a eS. a a ———----

Judge wants to know if lawyers
hing Fairchild to fight

penalty,” Eisele said Tuesday.
“Now he has. I want to find out if

‘it is his decision.”

Fairchild lost a bid to avoid

‘the death penalty Monday when

the state Supreme Court denied
his request for a Stay of execu-
tion. 3.7.

Defense attorneys had asked —

the court to stop the execution
based on a state law that says
mentally retarded people, those
with IQs below 65, cannot be ex-
ecuted.

The court ruled 5-2 that that
issue had already been ad-
dressed.


EVENING TIMES, WEST MEMPHIS, ARK., WEDNESDAY, SEPTEMBER 22, 1993 PAGE 3

NEWS | |

Denied freedom, Fairchild
says he’d prefer life in prison

LITTLE ROCK (AP) —
Barry Lee Fairchild’s lawyers
say he’s decided that he would
rather spend his life behind
bars than be executed tonight.

Fairchild, 39, sentenced to
death for the Feb. 26, 1983,
shooting death of Marjorie
“Greta” Mason, a Little Rock
Air Force Base nurse, has pre-
viously sought to overturn that
conviction and gain his free-
dom.

But, until Tuesday, Fair-
child had maintained that, if
he couldn’t be freed from
prison, he would rather be exe-
cuted. He was scheduled to be
put to death by injection at 9
p.m.

With the change of mind, his
lawyers were scheduled to ap-
pear before a federal judge to-
day to seek a stay of execution
to allow time for new argu-
ments that he shouldn’t be exe-
cuted because he wasn’t the
triggerman in Ms. Mason’s
death. If the stay is granted,
his lawyers say, they will later
ask that the sentence be re-
duced to life imprisonment
without parole.

U.S. District Judge G. Tho-
mas Eisele agreed Tuesday to
today’s hearing on the new re-
quest for a stay. The judge pre-
viously has ruled that Fair-
child’s confessions to Ms. Ma-
son’s murder were not coerced
and that Fairchild was not re-
tarded.

Fairchild has been housed
since Sunday in a cell a few
feet away from the death
chamber. He was to be brought
to Little Rock today for the
hearing before Eisele.

“The whole point is to have
Fairchild there so he can say
he has vacated his previous po-
sition, (which was) that he
would rather die than spend
the rest of his life in prison,”
said John Wesley: Hall Jr.:of
Little Rock, one of Fairchild’s
attorneys.

After the hearing, Hall said,
Fairchild was to be returned to
his cell near the death cham-
ber to await a decision on the

Until Tuesday,
Fairchild had main-
tained that, if he
couldn’t be freed
from prison, he
would rather be ex-
ecuted. He was
scheduled to be put
to death by injec-
tion at 9 p.m. to-
day.

request for a stay. That ruling
could be appealed to the U.S.
Supreme Court regardless of
Eisele’s ruling.

The chances that the federal
courts will grant a stay, Hall
said, are about 50-50. That
means Gov. Jim Guy Tucker
ultimately could decide
whether Fairchild lives or dies,
Hall said.

Fairchild has asked Tucker
to grant a conditional pardon
to allow time for further ap-
peals. A spokesman for Tucker
said the governor wouldn’t an-
nounce a decision on that re-
quest until all court proceed-
ings are complete.

In Washington, Fairchild’s
situation was the. topic of a
news conference held by U.S.
Rep. John Conyers, D-Mich.,
and activists Jesse Jackson
and Dick Gregory. Conyers re-
peated his earlier call for Pres-
ident Clinton to seek a stay of
execution and order a Justice
Department investigation into
Fairchild’s case.

But White House spokes-
woman Lorraine Voles said no
written request had been re-
ceived, so “we’ve had no com-
ment on that.”

At the state prison system’s

-Cummins Unit;vBairchildytold |
Jofficials Tuesday:that heswould

eat the same'dinnher'tonight as
other prisoners. Prison spokes-
man Alan Ables said Fairchild
would have fried chicken,
steamed ice, gravy,: pinto

beans, buttered squash, beets,
sliced bread and milk.

Eisele postponed a 1990 exe-
cution scheduled for Fairchild
and agreed to review claims
that confessions were coerced.
He later ruled that Fairchild’s
confessions were valid, and
also rejected arguments that
Fairchild should not be put to
death because he is retarded.
The 8th U.S. Circuit Court of
Appeals at St. Louis upheld his
ruling.

Ancther lawyer for Fair-
child, Charles Baker, said the
latest motion deals with a dif-
ferent issue and should be con-
sidered independently.

“This is a new effort that fo-
cuses just on the appropriate-
ness of the death penalty: can
you impose the death penalty
on people who did not do the
actual killing?” Baker said. “The
(U.S.) Supreme Court said you
cannot.”

According to the state attor-
ney general’s office, the new
motion in federal court was
based on cases in which the
U.S. Supreme Court decided
that state laws regarding capi-
tal murder should determine
who can get the death penalty.

Arkansas law allows a death
sentence for a person who may
not have actually killed a per-
son, if the defendant was a ma-
jor participant in events pre-
ceding the crime and showed
“extreme indifference to the
value of human life.”

“We think we have that evi-
dence that Fairchild was a ma-
jor participant, even if he was
not the trigger person,” said
Olan Reeves, senior assistant
attorney general. ,

Fairchild confessed to help-
ing an accomplice stalk the vic-
tim, Reeves said, was there
when she was kidnapped, rode

jn, fhe car ta the murder scene,
raped the woman, took her
watch, was there when she
was shot, saw her lying on the
ground and did not attempt to
assist her, and rode from the

scene with his accomplice.


&
Ty

Friday, September 24, 1993

Jurors say
Barry Fairchild
deserves to die

The Associated Press

LONOKE — A judge should not
have set aside the death penalty
given a man convicted of killing a
young woman, a juror in the 1983
Capital murder trial said.

U.S. District Judge G. Thomas
Eisele set aside the death sentence
Wednesday, less than eight hours
before Barry Lee Fairchild’s sched-
uled execution.

B ‘“He was
N BRIEF so sda
is to it.” said

Arkansas Lloyd E. Hurley

of Ward.
The Associated Press Eisele said
Fairchild never
should have been given the death
penalty because he did not play a
significant role in the Feb. 26,
1983, slaying of an Air Force
nurse enough to warrant the
death penalty.

“T'm disappointed in the lawyers
and judge,” Hurley said Thursday.
“When a jury convicts somebody
and they come around and throw
everything out, it’s no good. That’s
a bunch of bull. The man is guilty
and that’s the way I look at it.”

“We sure thought so,” said fel-
low juror Kenneth James of
Carlisle.


EVENING TIMES, WEST MEMPHIS, ARK., MONDAY, SEPTEMBER 20, 1993 PAGE 3

LITTLE ROCK (AP) — Barry Lee Fair-
child is spending his days and nights near
the room where he is scheduled to be put
to death on Wednesday.

A state prison spokesman said Fair-
child, sentenced to death for the 1983
slaying of a nurse at Little Rock Air Force
Base, was moved to a “quiet cell” Sunday
near what is called the death house.

Fairchild, 39, is scheduled to be exe-
cuted at 9 p.m. Wednesday

He was given the death sentence for the
Feb. 26, 1983, fatal shooting of Marjorie
L. “Greta” Mason, 22, of Gainesville, Fla.

Fairchild came within hours of being
executed in 1990 when a federal judge
agreed to review claims that his confes-
sions were coerced. U.S. District Judge G.
Thomas Kisele later ruled that the confes-
sions had been voluntary.

Alan Ables, a spokesman for the state
Correction Department, said by telephone
Sunday that Fairchild was solemn and co-
operative as he was moved at 6:07 a.m.
from the maximum security unit at Cum-
mins Prison, southeast of Pine Bluff, to a
cell at Cummins near what is called the
death house.

The cell is in a one-story building con-
nected by a short hallway to the facility
where prison executions take place, Ables
said. The cell looks like an ordinary prison
cell, according to Ables.

“It’s all been freshly painted,” the
prison spokesman said. “There’s a televi-

STATE NEWS
Fairchild moves closer to death chamber

Fairchild is scheduled to be
executed at 9 p.m. Wednes-
day He was given the death
sentence for the Feb. 26,
1983, fatal shooting of Marjo-
rie L. “Greta’’ Mason, 22, of
Gainesville, Fla.

sion, and he can watch television. Of
course, it’s got a toilet and a sink and one
bunk.”

Fairchild can have the visitors he nor-
mally sees, Ables said.

The state Supreme Court was expected
to decide today if Fairchild’s execution
would proceed as scheduled.

On Friday, the state Post-Prison Trans-
fer Board recommended that Gov. Jim
Guy Tucker deny a conditional pardon for
Fairchild, which would clear the way fora
new trial. A spokeswoman for Tucker said
the governor would wait for the state Su-
preme Court to rule before deciding on the
clemency request.

Fairchild’s lawyers told the parole
board that a court should consider evi-
dence uncovered since Fairchild’s convic-
tion. They said the evidence included alle-
gations that the Pulaski County sheriff's

office had rounded up several other black
men as suspects in the abduction, rape
and murder of Ms. Mason, and that then-
Sheriff Tommy Robinson or Maj. Larry
Dill abused some of the suspects.

His lawyers also told the state Supreme
Court that Fairchild was not eligible to be
executed under a law that prohibits exe-
cutions of mentally retarded people —
those with an IQ below 65.

Various I.Q. tests have placed Fair-
child’s IQ at 60, 63, 65 and 87. An average
IQ is between 90 and 110.

Also Friday, Rep. John Conyers, D-
Mich., a senior member of the Congressio-
nal Black Caucus, urged President
Clinton to intervene and get the execution
postponed. Conyers wants the U.S. Jus-
tice Department to review the case.

Ables said Sunday that witnesses to
the execution would be selected by acting
prison director Larry Norris and the Cum.
mins warden. Two members of the news
media who will be allowed to witness the

execution will be selected Wednesday eve-
ning, Ables said. About 19 witnesses are
expected.

The death chamber is about 20-by-12
feet. Witnesses will be in a larger room
that has a one-way mirror to allow them
to see into the death chamber but not be
seen.

-10 4Z

Fairchild’s fate
rests in judgment
of 8th Circuit

Bryan says Eisele applied:
wrong case law i in ruling —

14 Bey cencuase
Democrat-Gazette State Reporter,

A federal appeals court will
decide whether Barry Lee
Fairchild demonstrated enough
“reckless indifference to the
value of human life” to deserve
the death penalty in the slaying

ofa Little Rock Air Force’ Base

nurse.

Also, a day after Fairchild
narrowly missed being execut-
ed, Attorney General Winston
Bryant said U.S. District Judge
G. Thomas Eisele applied the
wrong case. law in his decision

to throw out Fairchild’ s death —

penalty and replace it with’ life
in prison without parole. »
Adding to the debate was

Fairchild’s decision not to raise _.
questions about his’ death: sent. ye"

tence until Monday — two, da}

10 years after his sentencing.

Fairchild, 39, came within 10.
hours of execution by lethal in-
jection Wednesday before
telling federal Magis rate Hen- |
ry L. Jones Jr. he wanted to chal-
lenge his death sentence. «

Until then, Fairchild had told .
attorneys he would rather be ex- |
ecuted than spend the rest of his"
life behind bars.

Less than two hours later, .

Eisele blocked the death sen- |
tence after ruling’Fairchild
didn’t fire the shots that’ ‘killed |.
Marjorie “Greta” Mason‘in 1983 |
and declaring the execution un-
constitutional because-the jury |
“was not instructed'to find that .
the petitioner has the mental in-
tent required for a sentence of

@ Reactions of anger, relief 7B

death.”' ° MAS
- Kisele accepted evidence
that: Mason was shot by an

unidentified accomplice after
being kidnapped;‘raped and

robbed: Although Fairchild in
a videotaped confession said he

‘was surprised to hear shots 'be-

ing fired while he was not with-

in sight of the victim, he stead-

fastly refused to identify the

gunman.

The judge also accepted
Fairchild’s statement that at the
time of the shooting, he was

‘awaiting darkness to leave with-

out harming Mason further. -
Eisele ruled that since pros-

_ecutors presented no evidence
. that Fairchild fatally shot Ma-
° son, 'é aided or abetted in the mur-
before the execution date~ and

der, or ever intended to kill her,
“no reasonable jury could have

sentenced Fairchild to death on
‘that evidence.”

Eisele. ruled that without ev-
idence about his state of mind,
Fairchild was “innocent of the
death’penalty.” Although still
guilty of capital murder, the |
maximum penalty Fairchild
faced was life in prison without
parole, Kisele said.

But Bryant said Thursday
that Eisele was wrong to sepa-
rate Mason’s murder from the

ther crimes committed that day
at ‘gunpoint: kidnapping, rape
and robbery. ~~

“The judge is focusing in on
one narrow aspect of an entire
crime,” Bryant said. “We’re fo-

? See FAIRCHILD, Page 7B


‘kcewosquoW ‘YaST Ls Adv

(T-2 ‘vl) O66T-T-6 6° 8TV

dont pet

Execution becomes political

issue for Arkansas governor

LITTLE ROCK, Ark. (AP) —
The scheduied execution of a
man convicted in the rape and
murder of a nurse has taken on
political overtones for Gov. Bill
Clinton, who is seeking a fifth
term this fall.

Civil rights groups want Gov.
Clinton to delay the execution of
Barry Lee Fairchild, a black man
who contends he was: coerced
into confessing. They warn the
Democratic governor could lose

his traditionally strong support.

in the black community if
Fairchild dies as scheduled
Wednesday.

“There is too much uncertain-
ty in this case for an execution to
take place,” the Rev. Ellihue
Gaylord, president of the state
National Association for the
Advancement of Colored People,

said at a recent news conference. —

Gov. Clinton, 44, has nurtured
a zealous anti-crime reputation
the past few years, supporting
prison boot
camps and the
state’s first
drug czar in a
1989 legislative
package.

‘“He’s in a
tough spot no
matter which
way he turns,”
said Mahlon
Martin, one of
several black
appointees to
Gov. Clinton’s Cabinet.

Clinton

Mr.
Martin left the administration
last year.

_ The execution of Fairchild, 36,
would be the third in Arkansas

this year. Cop-killer John
Edward Swindler and mass mur-

E> 8
Sct Reel YE

derer R. Gene Simmons were
white. Swindler was the first
Arkansas inmate executed since
1964.

Fairchild was convicted in the -

1983 rape and murder Marjorie
Mason, 22, a Little Rock Air
Force Base nurse. A key for
prosecutors was two videotapes
in which Fairchild unemotional-
ly detailed the abduction and
rape of Ms. Mason. His head is
bandaged in the videotapes.

The head wound was received
during the arrest and he also was
bitten by a police dog, police
said. ‘g

On appeal, Fairchild said he
was beaten by police and con-
fessed to a crime he didn’t com-
mit. U.S. District Judge G.
Thomas Eisele dismissed the
claims Wednesday. He said no-
body testified that they saw
Fairchild being beaten.


Fairchild —

® Continued from Page 1B

cusing in on an entire sequence
of events.”
Bryant said Eisele was rely-

The state is relying ona later
Arizona case that allowed the

crime.

Fairchild also Said police co-
his Confession. A series
of tests and expert testimony in-

Eisele ruled in a
Previous hearing that he is not.

Appeals in St.

Louis. But a three-judge Panel —
refused to Overturn Eisele’s.

Opinion and allow the execution

Instead, the panel decided to

review the issue at an October © th

hearing.
In a written opinion, Chief
Judge Richard Arnold said the

istrict court has found, but
ta reasonable jury could

find.”

manipulation,” Case law re-

quired further Court review.
Eisele also voiced concerns

about the lengthy delay before

Attorneys for the defense and
the state agreed the delay was
too long.

“It’s not the burden of the
State,” said J ack Gillean, deputy
attorney general. “The burden

hose not to pur-

Sue it,” Hall Said. .
“But seven years on death

Tow can change anybody’s views

i ty-unit
near Tucker (J efferson County).

asl The submarine Requin, lower left, being pushed by a tugboat up tne Um1o raver ows! ee — :
Requin will be docked at the Carnegie Science Center next to Three Rivers Stadium, center, as 4 tourist attraction. pinin x

tory drug

the pain a

have little

sion of the

Arkansas Execution Stayed on New E vidence of Forced Confessions \ir3.s:

The no

: ; genetic <
Le special to The New York Times S ean gloves” after his arrest. N.D., and Donald Ross of Omaha. what of a
a LITTLE ROCK, Ark., Sept. 4 — A Now, witnesses Today he called the new witnesses| National civil and human rights the disea
Federal appeals court today stayed the liars and charlatans. ‘The action of the] groups have intervened on behalf of ple regat
accuse a appeals courts merely has delayed the| Mr. Fairchild, who would be the third Ge hae

, »milial te!

.~ Q execution of a retarded prison inmate
Q » after hearing new evidence that Sheriff inevitable," he said, adding that after| person to be executed in Arkansas|’:- of th
tis of the

Tommy F. Robinson, who is now a Con- Congressm™ an the next District Court hearing ‘‘Mr.| since June 18, when the state reinstated ji
gressman, tried to coerce the confes- Fairchild’s attorneys will come up with] executions after 26 years. osteoart!
to run in

sions of other inmates in the rape and riff. four more liars who will claim they| As the execution date neared, state
murder of an Air Force nurse seven «wha wassher’' _ were beaten but have. not bothered to} chapters of Amnesty International, the| For re
years ago. oe tell anybody until now. - _ | American Civil Liberties Union and the| is how
The inmate, Barry Lee Fairchild, 36 Elected as a Democrat, Mr. Robin-| Nationa! Association for thé Advance-

son switched to the Republican Party] ment of Colored People have protested _

years old, had been scheduled to die tal impairment, but by the end of last
Wednesday by lethal injection. Instead, | month he feemed to have exhausted last year and was defeated this year !N| with petitions and candlelight vigils.
the appeals panel ordered his case | his appeals. its primary for governor. Heisnotrun-| “The black community was living Ge)

back to Federal District Court here for| Today, however, his lawyers Pre ning for re-election. | under a reign of terror under Tommy
a hearing on the new evidence. Arkan- sented new evidence, including testi- The Federal Bureau of Investigation} Robinson,” zaid Dan Fleshler, a lawyer
d| and Justice Department are investigat-| for the NAACP. Legal Defense and ma

sas's Attorney General, Steve Clark, is |} mony: from other inmates who said} < ment
appealing today’s ruling to the United Sheriff Robinson and his deputies tried| ing allegations of civil rights violations} Education Fund in New York. “It's .
States Supr ff’s office under Mr. Robin-| tragic that we didn’t get to this before, CY11

eme Court, which could | to coerce their confessions aS well.| by the shert
consider the case a ; “
United States Court of Appeals for the child and the other inmates named to-| that the investigation picked up| mmc
Me

s early as Wednes- That led a three-judge panel of the| Son, in this case and others. Mr. Fair-| put it wasn’t until the eleventh hour
day.

Eighth Circuit, in St. Louis, to order a day are black. steam.”

new hearing. , . in two 1983 vide confession®, Aside from the allegations of coer
irchi ‘ ‘ Mr. Fairchild is shown with a bandage -
murder ‘of Second preut” Marjorie “The same kind of coercion directed enforcement officers said he was in the question of Mr. Fairchild’s mental| have a
(Greta) Mason, an Air Force nurse sta- toward’ Mr. Fairchild — physical jured by a police attack dog during his capacity and his role in the murder. soon tc
tioned near ttle Rock, in February abusé, brandishing weapons and| arrest. No other witness has corrobo-| Lieutenant Mason, a former home-| eral is
| ‘ threatening death — was directed to-| rated his story that he was beaten, and coming queen from Panama City, Fla..| neth D
| was abducted by two men outside a] tology
|

Abuse and Threats Alleged

1983. The police say that he did not fire ; chair
ward the other five suspects as well,”’| last week Federal District Judge G. A ;
North Little Rock furniture store. Her | diana.

the shot that killed Lieutenant Mason ; ;
and that the person who did has never said one defens¢ lawyer, John Wesley | Thomas Fisele said that even if he had
Hall Jr., in a petition to the Court of Ap- been, ‘it would not change or affect the| body was found the next day behind an| power

sic car that

_ been found; under rkansas law, an
» 142 | vecomplice to ee nan peur eals. _ © | fact of hk guilt.” Judge Eisele, who abandoned farmhouse 15 miles away. | resear
| death. Congressman Robinseft was sheriff] was appointed by President Richard| Mr. Fairchild, who has scored 60 to| ings oF
| of Pulaski County, which includes Lit-} M. Nixon in 1970, denied Mr. Fair- 90 on I.Q. tests, confessed to kidnapping Wor
Mr. Fairchild has lone contended | tle Rock, from 1980 to 1984. He has| child’s last appeal. and raping her but said an accomplice| to the
that he was,beaten and that his confes- | denied all allegations of brutality by} The appellate judges who ordered toy shot her twice in the head while he| far, re
sion was coerced. He won a stay of ex-| him and his deputies, saying Mr| day's stay were Richard S. Arnold of| waited in a car. No one else was ever| fects |
ecution last year on the ground of men-| Robinson was “treated with kid| Little Rock, Frank Magill of Fargo, arrested, , group
tione:
seven

=e

g Hore, Coss

Arkansas Democrat 7S Gazette

-

e@ @e FRIDAY, SEPTEMBER 24, 1993 e 7B

Reaction mixed to judge’ s decision on Fairchild

BY RAY PIERCE
Democrat-Gazette State Reporter
Reactions to a federal judge’s
‘ruling that changed Barry Lee
Fairchild’s death sentence to
~ one of life imprisonment have
‘been mixed — anger for some,
“relief for others — depending

on who is speaking.
“According to family
spokesman Billy Mason of Pana-
ma City, Fla., the brother of the
woman Fairchild was convicted
of killing, justice was not done
and will not be done until
Fairchild is executed.

“This is a perfect example of
why the murder rate is as high
as it is — judges refuse to en-

~ force the law,” Mason told the

Panama City Nédbe: Herald on
Wednesday. “There is no excuse
for these judges to stop the death
sentences for no reason, espe-
cially taking 10 years to do it.”
Fairchild was convicted of
capital murder in August 1983
in the shooting death of 22-year-
old Air Force nurse Marjorie L.
“Greta” Mason. His death sen-
tence was changed to life with-
out parole Wednesday by U.S.

District Judge G. Thomas Eisele, -

within 10 hours of the scheduled
execution.

Wednesday night, the 8th Cir-
cuit Court of Appeals in St.
Louis refused the state’s request
for summary reversal of Eisele’s
decision. Oral arguments before

f

a three-judge panel on the case
are set for Oct. 11-15 in St. Paul,

_Minn.

Prosecuting Attorney Chris
Raff of Searcy, who originally
prosecuted the case in Lonoke
County Circuit Court, said his
feelings are with the Mason fam-
ily. He said Fairchild and his at-
torneys have used the judicial
system to circumvent his pun-
ishment.

“This has been just one more
assault on the family,” he said.
“Law-abiding citizens deserve
to have criminals’ sentences car-
ried out.”

Raff said that Congress or the
U.S. Supreme Court should
place limits on the number of

appeals condemned prisoners
can make to avoid the carrying
out of death sentences.

“Everyone deserves a full
and fair appeal of their case,”
he said, “but to allow this to go
on for 10 to 15 years isn’t right. It
isn’t right to allow criminals to
avoid justice.”

Fairchild deserves to be ex-
ecuted, said Lloyd E. Hurley of
Ward, a member of the jury that
convicted Fairchild.

“He was there. He did it.
That’s all there is to it.” Hurley
said.

For those who support
Fairchild — or those against the
death penalty in general — Eise-
le’s decision was a great relief.

John DiPippa, a University of
Arkansas at Little Rock law pro-
fessor and death penalty coor-
dinator for the Little Rock group
of Amnesty International, said
that from his reading of past cas-
es, the judge made the right de-
cision. -

“I think Eisele and the 8th
Circuit have identified a sub-
stantive issue in the Fairchild
case and in the entire scheme
of the death penalty in
Arkansas, that of accomplices
being available for the death
penalty,” he said.

“In circumstances where an
accomplice knows violence is
going to take place, the death
penalty is available,” DiPippa

said. “There is no evidence in
the Fairchild case that supports
that he knew there would be vi-
olence.”

To the Rey. Daniel Bowman
of the Central Arkansas chapter
of the Natiogal Association. for
the Advancement of Colored
People, Eisele’s ruling was ap-
propriate. Bowman said there
were serious flaws in the state’s
case against Fairchild.

“I’m really glad that Judge
Eisele went back to the way he
used to be,” Bowman said. “I’m
glad that he did take another
look and made the move he did
of not taking an innocent man’s
life for a murder that someone
else did.”

q

Execution Stayed 7-(—-

Little Rock G O |

A three-judge panel of

the
Court of Appeals stayed the execu-
ae yesterday of Barry Lee Fair-
child, 38. United Press International ~

Stn fr QM CISCa

CArenre i

CO Arkansas

2 Court upholds execution stay

“LITTLE ROCK, Ark. — The U.S. Supreme Court
s let stand a stay of execution Wednesday, saving an

‘literate black man from execution and granting Ar-

7-\ kansas Gov. Bill Clinton a political reprieve. Barry

c.” Lee Fairchild, 36, was to die Wednesday night for

the rape and murder of Marjorie Mason, 22, in 1983.
wt A three-judge panel of the 8th U.S. Circuit Court

c’’ of Appeals issued a stay Tuesday based on state-
ve ments from four black men who said they were beat-

\.en by deputies during the Mason investigation.

A The stay will delay Fairchild’s execution until af-
ter the election Nov. 6 in which Clinton, a Democrat,
| is seeking a fourth term. Anti-death-penalty activists
S’ and black political leaders had been pressuring Clin-
ton to grant executive clemency to Fairchild.

4B—west County Times

Thursday, Sept. 6, 1990

Pannle :


3.

ARKANSAS TIMES » SEPTEMBER 23, 199

IT WAS A BAD
WEEK FOR...

THE STATE SUPREME
COURT, which saw no need to re-
consider evidence that condemned
killer Barry Lee Fairchild is retarded
in light of a 1993 state law ending
executions of mentally retarded
people.

: ARKANSAS TIMES. ¢ SEPFEMBER 23, 1993:

Bary Lee Fairchild, who was scheduled to
die at dusk Wednesday, was the second men-
tally incapacitated man in a row whom the
State of Arkansas sent to the death chamber.
Arkansas is getting some notoriety around
the world for executing retarded men. Butin
the grim history of capital punishment, that
is not unusual. Mental incapacitation is a
common quality of people who are put to
death by the state in this country. There are
other fairly common qualities, too. People
who are executed tend overwhelmingly to
be poor and to have had clumsy lawyers at
their trials, and their victims were white.
The death penalty is outlawed in every
developed nation except the United States,
South Africa and a few radical Muslim coun-
tries, and it increasingly troubles the con-
science of Americans. Though polls show
that a big majority of people favor it in Arkan-
sas, they are ambivalent about its application.
They don’t favor executing retarded people,
for example, and so the legislature last spring
voted not to sentence people to death if their
IQs are below 65. It came too late for Rickey
Ray Rector, who was executed last year, orfor
Fairchild, who was convicted and sentenced

- before the law was enacted.

Arkansas and other states that use the
death penalty continually try in this way to

ERNEST DUMAS

THE IRRATIONAL
EXECUTIONER

find rational grounds for determining who
among the thousands who murder each year
will die and who will be spared. But it is an
inherently irrational undertaking.

During the 1980s, 1,445 murders were com-
mitted in Arkansas. Every one was savage, an
outrage against humanity. But the state chose
Fairchild and a handful of others to die, al-
though the awful nature of their crimes usually
was no more unspeakable than others.

They were not randomly chosen as ex-
amples, which would at least have repre-
sented a sterile logic, but as a result of a
mixture of values: what crimes editors choose
to play up, what kinds of lives are considered
most valuable, the political and social im-
pulses of various prosecuting attormeys.

So the lives of blacks are not judged to be
as valuable as those of whites. Few things are
so rare in the South, where nearly all execu-
tions occur, as the execution of someone for
having killed a black person. Yet, nearly half
of all murder victims in the U.S. are black.

Rarer still is the execution of a white per-
son for killing a black. Of some 16,000 people
who have been executed in U.S. history, only
30 were whites who killed blacks.

The other critical factor in getting the death
penalty is the quality of lawyers. People on
death row generally are poor and had weak

lawyers or else lawyers who gave the cases
little effort, often because the reward was so
meager that the defense cost them. A 1990
study by the National Law Journal concluded
that lawyers who defended death-row in-
mates at their trials in six Southern states were
46 times more apt to have been disciplined for
unethical conduct or for lousy representation
than other lawyers in those states.

Whatever one thinks about the morality
of taking a life in vengeance, a practice with
results so random and discriminatory has no
moral basis.

The other moral equation—that the death
penalty deters murder—was shot down long
ago. Next to the District of Columbia, the
highest murder rates are in Texas, Georgia
and Florida, which also lead the country in
executions. Killing policemen is uniformly
a capital offense in states with the death
penalty, but FBI statistics show that the
tragic rate of policemen killed in action has
been 80 percent higher in those states than in
those without the death penalty.

Violentcrime has escalated since the states

’ began restoring the death penalty in 1976.

No direct cause and effect is provable be-
cause the rise in violent crime coincides
with the arming of America with handguns
and assault rifles.

The evidence, both anecdotal and statisti-
cal, is that executions actually are followed
by even more killing in the weeks afterward.

One day soon we’ ll end the ambivalence
over the official taking of life and replace it
with a speedy review of convictions for hei-
nous crimes and a final, immutable sentence
of life imprisonment without parole. &


In Arkansas, a Death Row Struggle

|

By Lynne Duke
Washington Post Staff Writer

PULASKI COUNTY, Ark.

n his videotaped
$ confession, Barry Lee

Fairchild, a black man, is |
flanked by three white lawmen. |

' His head is wrapped by a thick

bandage covering a scalp wound
made by a police attack dog.
Periodically, he glances off
camera and listens to the
whispered voice of someone else
who seems to be directing the
proceedings in the room. But to
his on-camera interrogators, he
answers quickly, almost eageriy,
despite a poor command of
English and a slight stutter.
Yes, sir, he saysonthe March |
5, 1983, videotape, he helped
kidnap the young white woman, |
Marjorie “Greta” Mason, whose |

body was found near an
abandoned farmhouse. And yes,
he raped her, as did another man.
But the other man was the one
who killed Mason, Fairchild says.
He describes his surprise at
hearing the gunshots.

“Well, after he shot two times,
] run up in the house and when |
run up in the house, I asked him,
I said, ‘What you done did?’ ”
Fairchild says.

Fairchild did not confess to
killing the woman, indeed was
never asked that question as
authorities grilled him. It turned
gut that the man he named as the
killer was imprisoned in another
state at the time of the murder.
No one else was charged.

In the absence of forensic
evidence, the prosecution case
hinged almost completely on

See FAIRCHILD, A22, Col. 1

and Doubt

Head bandaged, Barry Fairchild appears on tape with murder investigators.

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we Be Bi ¥:

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FAIRCHILD, From Al

Fairchild’s videotaped confession. A Lonoke County
Circuit Court jury of 11 whites and one black convicted
Fairchild and sentenced him to death in August 1983
as an accomplice in Mason’s murder.

But as often happens in capital cases, the sentence
was only the beginning of a protracted battle for life.
For nearly 11 years, his case has wound through state
and federal courts, raising a plethora of legal issues
that surround the national debate over the death pen-
alty and how it is administered.

“It’s a sad thing. A woman got killed and the way she
got done and I feel bad about not just her but anybody
like that getting killed,” Fairchild, now 39, said in a
recent death row interview at the Arkansas maximum
security prison at Tucker. “But I’m just not the one
that did that.” The case against him, he said, was “fixed
up” by police. He says he was not involved with any of
the crimes against Mason. ;

As seven execution dates have come and gone, in-
terest in Fairchild’s fate has grown far beyond the
boundaries of Arkansas, where Bill Clinton, as govern-
or, refused to grant clemency to Fairchild. It has
forged an unlikely defense coalition linking, among oth-

ers, the New York-based NAACP Legal Defense and :

Educational Fund with politically well-connected Little
Rock lawyers from the Rose Law Firm where First
Lady Hillary Rodham Clinton once practiced.

To Fairchild’s supporters, his case represents the
capriciousness with which capital punishment is admin-
istered. That is one reason death penalty opponents
say condemned prisoners need to have wide latitude
for appeals: so that mistakes made at sentencing can
be corrected.

In a series of habeas corpus petitions, Fairchild’s
attorneys have asserted that his confession was the
product of coaching and coercion by abusive police.
Fairchild was susceptible to such pressure, they said,
because he is mentally retarded. Two police officers
would testify, years later, that they saw and heard law-
men hitting Fairchild the night of his confession. Thir-
teen other black men would testify that they too were
abused when they were picked up as suspects in the
Mason murder.

These kinds of questions about guilt, innocence ana

reasonable doubt arise routinely in death cases. None- |

theless. 76 percent of Americans support the death
penalty, according to a recent Gallup Poll. Many sup-
porters think the penalty deters crime, though that is
the subject of dispute. Last fall, the Senate voted a
huge expansion in the number of federal crimes for
which death can be sought, from two to 52. That fed-
eral penalty can be sought even in the 14 states that do
not have death statutes.

Fairchild’s case also fits a pattern of racial dispar-
ities in death row sentences that has raised grave con-
cerns in the legal community. Supreme Court Justice
Harry A. Blackmun said recently in a televised inter-
view that racial disparities in death sentences leave
capital punishment open to questions “as to whether it

squares with other provisions of the Constitution .. . |

and the Bill of Rights.”

Studies from eight states, including Arkansas, show :

on average that people who kill whites are 4.5 times.

more likely to be sentenced to death than people who |

kill blacks. Although blacks and whites are murder-vic-
tims in roughly equal numbers, 84 percent of the 227
inmates executed since 1976 were sentenced for kill-
ing whites, while 12 percent were executed for killing
blacks. Since 1932, only one white man has been sen-
tenced to death for killing a black, and in that 1991

South Carolina case the black victim was the mass

murderer's 10th.

To former Arkansas Supreme Court justice Perlesta
A. Hollingsworth, who dissented when his fellow state
justices upheld Fairchild’s conviction in 1984 and now
is on his legal team, old-style southern justice sealed
Fairchild’s fate. “I don’t think the jury needed to know
anything but that this white woman was raped” by a

black man. “He’s committed the cardinal sin in Amer- |

ica.” Hollingsworth said.

But Chris Raff, the prosecutor. said it was the ev-
idence, not race. that led the jury to vote for death.
“Remember. there was a black juror in the case,” Ratf
said. “I saw no indication that race played a part [in the
police investigation} and | think federal judges agreed
with that.”


Board rejects

g BY RAY PIERCE
q 4 Democrat-Gazette State Reporter

The state Post Prison Trans-
fer Board voted unanimously
Friday to deny Barry Lee
Fairchild’s request for condi-
tional pardon and recom-
mended to the governor that his
execution be carried out on
schedule Wednesday night.

Fairchild’s attorney, John
Wesley Hall of Little Rock, and
Steven Hawkins, an attorney
with the NAACP Legal De-
fense Fund, argued at the Max-
imum Security Unit near Tuck-
er (Jefferson County) that
Fairchild should be granted a
conditional pardon from the
execution.

They said Fairchild should
be given a new trial based on
new evidence suppressed by

the Pulaski County sheriff's of-
fice and on lingering doubts
about the validity of his video-
taped confession, which the at-
torneys claimed was coerced.

Fairchild, 39, was sentenced
to death in August 1983 for. the
killing of Marjorie L. “Greta”
Mason the previous February.
Mason, 22, of Gainesville, Fla.,
was stationed at Little Rock Air
Force Base.

Earlier Friday, Fairchild’s
attorneys argued before the

state Supreme Court'that he.
was not eligible ‘tobe execut-
ed under a 1993 law that pro-

hibits executions of mentally
retarded people — those with
an IQ below 65.

The state argued the mental

retardation issue had been
dealt with in a 1989 ruling by

_BY RAY PIERCE

Democrat-Gazette State Reporter

cution seems more certain as
the state Supreme Court on
Monday denied a request fora
stay in the case. Justices David
Newbern and Steele Hays dis-
sented.

Fairchild was sentenced to
death in 1983 for the rape and
murder of Air Force nurse
Marjorie L. “Greta” Mason, 22,
of Gainesville, Fla. Prison of.
ficials on Sunday moved
Fairchild from his cell at the
state Correction Department’s
Tucker Unit to one near the
death chamber at the Cummins
Unit near Varner (Lincoln
County).

Fairchild is scheduled to
die by lethal injection Wednes-
day at9 p.m.

In a two-page unsigned opin-
ion, the court said that
Fairchild’s attorneys cannot re-
assert claims of his mental re-
tardation. His attorneys said
that Fairchild was mentally in-
capable of waiving his rights

Barry Lee Fairchild’s exe-

Court rejects bid to stay
Fairchild’s execution ¢a'®

?

against self-incrimination

when he confessed, :. Labi tiig

The court also rejected
claims that Arkansas. law
passed:in the last legislative
session prohibiting the execu-
tion of the mentally retarded
applied in this case, saying

Fairchild:was not retarded... i
Gov. Jim: Guy Tucker’s

spokesman said-that the gov-
ernor, who is in Virginia at-
tending a’Southern ‘governors

conference, had not yet seen.
the court’s decision and would :

not comment on the possibility

of clemency or.a pardon, The
State Post Prison Transfer |
Board on Friday. Trecommend-

ed Tucker not'issue a pardon.
On Friday,'Rep: John Cony-
ers, D-Mich.,'a senior member

of the Congressional Black:
Caucus, urged President Clin-.

ton to intervene and get the ex-
ecution postponed. Conyers
wants the U.S. Justice Depart-
ment to review the case.

_ The White House had no of-
Lmopday on,

ficial comment
Conyers’ statement,

2 AVEO sore ct

Eisele.

pardon for Fairchild

U.S. District Judge G. Thomas

Eisele rejected the con-
tention that Fairchild was men-
tally retarded and did not un-

derstand his rights.

Various IQ tests have placed
Fairchid’s IQ at 60, 63, 65 and
87. The average IQ is between

90 and 110.

excessive.

G-1F -IB

pare t [ ‘ :
Defense works to stop execution

TUCKER — The state parole board recommended
‘Friday the governor deny executive clemency for con-

victed killer Barry

Lee Fairchild.

Fairchild is scheduled to be execufied Wednesday

or the 1983 slaying of an Air\Forcé nutse.
* Defense lawyers argued on two fronts Friday to try
, and stop the execution: They asked the state
Supreme Court to stay the execution, then appealed

to the parole board to recommend
that Tucker grant Fairchild a con-
ditional pardon,

Meanwhile, a senior member of
the Congressional Black Caucus
called on President Clinton to
intervene in the case.

' Rep. John Conyers, D-Mich.,
said in a release on Friday that he
had met with President Clinton
and asked the president to

v

Fairchild

request that the U.S. attorney
general investigate the case.

2A * TUESDAY, SEPTEMBER 21, 1993 * USA TODAY

Death-penalty
foes request

Clinton’s help |

By Tony Mauro
USA TODAY

Opponents of the death pen- .

alty are making’ an 11th-hour
plea for President Clinton to
help stop the -execution
Wednesday of Arkansas in-
mate Barry Lee Fairchild.
The state Supreme Court on
Monday denied Fairchild’s
plea for a delay, leaving the fi-
nal decision on a pardon in the
hands of Gov. Jim Guy Tucker.
But Fairchild supporters
took the unusual step of asking
Clinton to intervene with Tuck-
er, who succeeded Clinton as
governor in January. While
governor in 1990, Clinton re-
jected clemency for Fairchild.
“This is an execution that
must not happen,” said Con-
gressional Black Caucus leader
John Conyers, D-Mich., who
wrote Clinton Monday assert-
ing Fairchild’s innocence.
Conyers wants a Justice De-
partment probe into police tac-
tics that led to Fairchild’s 1983
arrest.
Fairchild, 39, was convicted
of murder in the abduction,

AP
TUCKER: Arkansas governor
will make decision on pardon.

rape and shooting death of Air
Force nurse Marjorie Mason,
22, in Little Rock. He says he
was picked up in a dragnet of
young black men and was beat-
en into making a confession.
A federal judge ruled in 1990
that the confession was volun-
tary. The judge rejected claims
black suspects were rounded
up and some were abused.
Fairchild’s lawyers tried to

By Danny Johnston, AP

SEEKS NEW TRIAL: Arkansas inmate Barry Lee Fairchild with NAACP lawyer Steven Hawkins
during a prison transfer board hearing Sept. 17. Fairchild is scheduled to be executed Wednesday.

convince the state Supreme
Court that he has an IQ below
65 and should not be executed
under a new state law that pro-
hibits execution of the mental-
ly retarded.

The court noted that one of
the four IQ tests Fairchild was
given put his IQ at 87, and it
said he was not retarded.

Last week, the victim’s fam-
ily urged that the execution
proceed. Her father, John Ma-
son, told the state Post-Prison
Transfer Board the family did
not want vengeance but want-
ed to put their grief to rest. The

board voted against any delay.

Over the weekend, Fairchild
was moved from a maximum
security unit to a “quiet cell”
near the death house, where he
is to receive a lethal injection.

Tucker, at a Southern gover-
nors’ meeting in Richmond,
Va., was reviewing the court
ruling and had not made up his
mind, spokeswoman Max
Parker said.

Some Little Rock ministers
sought to expand support for
Fairchild with a rally on Mon-
day. But a doubtful Rev. Wil-
liam Robinson said that Tucker

will “do what is politically fea-
sible.”

If Tucker grants the request,
Fairchild could be subject to a
new murder trial.

In Texas, Clifford Phillips,
convicted in the 1982 murder
of a Houston theater director,
was scheduled to be executed
early today — the nation’s 33rd
execution this year.

The number of executions in
1993 has already surpassed last
year’s total of 31 and is the
highest number since 1962,
when 47 people were put to
death.


Gov. Hi? elinton Set Musi
Of the Execution Dates

Fairchild entered death row in September
1983 to face an execution date of Noy. 10. But
the Arkansas Supreme Court granted a stay of
execulion pending its review of the conviction.

Over the next decade, Fairchild’s life cen-
tered on execution dates set and executions
Stayed while appeals were‘heard and dismissed.
Gov. Clinton set most of the execution dates
and deferred to the courts to settle the legal
issues, That meant deferting to U.S. Judge
Eisele, who controlled Fairehild’s fate for most
of a decade. 1

Eisele, 70, a Nixon appointee who is the sen-
ior judge of his district. is praised, even by ad-
versanies, for his thoroughness, To familiarize
himself with Fairchild’s case, Eisele at one
point toured the Mason crime scene, walking
through the abandoned, ramshackle house
where the rapes occurred. But. the floorboards
gave way and Eisele crashed through, slightly
injuring his knee. ;

He first became intimate with the details of
Fairchild's crime in 1985, when Fairchild filed
his first petition for a writ of habeas corpus,
which means that he asked the court to give
him standing to challenge his imprisonment.

Soon, however, the first of Many twists and
turns in the case landed on Eisele’s desk. It was
‘June 1986, nearly three years into Fairchild’s
residence on death row, and the prisoner had
decided to give up. -

“One way or another he will die in prison,
whether now or 50 years from now, and he
would rather it be now,” said the letter Eisele
received. It was penned by an inmate author-
ized to write for Fairchild. \

Eisele decided he wanted to hear Fairchild’s |

_ change of heart for himself and called for the

defendant to appear in court. “Just like I said: I
have this death sentence and I’m ready to get it
over with,” Fairchild told the judge.

Eisele ordered a state psychiatric exam for
Fairchild, and it found him mentally competent
to withdraw his petition. Eisele also ordered
Hall appointed to the case as expert legal coun-
Se] to evaluate Fairchild’s appeals prospects.

Hall, along with O'Bryan, persuaded Fairchild
to fight to live, but Fairchild stuck to his guns on
one point: He would mount the legal challenges
that would win him a new trial, not those that
would only yield another sentence. “He didn’t
want to do life without” parole, Hall said.

Hall filed an amended habeas corpus petition
that asserted police had no probable cause for
the arrest and that Fairchild’s confession was
involuntary. That petition also Stated the pro-
vision on which Fairchild’s fate now hangs:
“Prisoner expressly waives any grounds for
habeas relief pertaining to the imposition and
application of the death penalty,” meaning that
he was Surrendering his right to challenge the
death sentence.

On Appeal, Witnesses Talk
About Police Hitting Suspect

“Back 10 years ago or 15 years ago, I'm not
saying ass whuppings didn’t take place. It was a
regular routine,” Bobby Woodward, a former
Pulaski County sheriff's captain, said in a recent
interview. “You get somebody who's uncoop-
erative and gonna cuss at you, you might run
upside his head.” a

But Woodward, who was fired from the sher-
iff's department because ‘he was convicted of
skimming money, described Fairchild as
“scared” and “docile” the night he was appre-
hended. “I can honestly say nobody laid a hand
on him,” he said.

Allegations of police brutality, the subject of

two of Fairchild’s habeas petitions, have swirled |

through the case for years, Robinson and his
deputies have denied the allegations, but Fair-
child’s lawyers found three police witnesses
who told a different story of that night. Their
testimony was given.in hearings in 1987 and in
1990 that extended into 1991.

At the 1987 hearing, Hall produced a former
Russellville police officer, Larry! Dalton, who
testified that he saw an unidentified Pulaski
County deputy slap Fairchild so hard that his
head hit a wall at the'Pope County jail. Dalton
also testified that the police dog wag ortlered to
attack Fairchild after Fairchild was custody.

During a 1990 hearing, after Fairchild’s de-
fense team had expanded to include the NAACP
legal defense fund and others, former Pulaski

¥

|

|
|
|
|

1

County deputy Caivifi Rollins testified that he
Was at sheriff's headquarters the Aight Faire
chit was brought ia. He said he heard Pulaski
County Maj. Larry Dill yelling at Fairchild, us-
ing racial epithets. He said he heard what
sounded like open-handed blows hitting skin.

One of the officers operating the video camera
for the confession that night called Rollins into a
toom to help fix a problem with the equipment.
Rollins said when he looked through the viewfind-
er, he zoomed in on Fairchild’s face and clearly
saw that his lips were swbllen. The swelling was
not visible without the zoom, he said.

In the same hearing, former Pulaski County ~

deputy Frank Gibson testified that it was com-
mon knowledge at the sheriff's office that Fair-
child was beaten into confessing,

In each case, Eisele found these former law-
men lacking in credibility or said that their ac-
counts did not jibe with the testimony of others.
Rollins, who quit the force in 1984, had had a
long-running feud with Dill. Gibson, who left in
1989, had secured. immanity from prosecution
for his testimony. And Dalton had been fired
from the Russellville police force from blowing
the whistle on brutality and therefore might
have “animus,” Eisele said.

But Fairchild’s attorneys, led by Steven
Hawkins and Richard Burr of the legal defense
fund, who had taken the lead in the case from
Hall, also had testimony they thought would
show a pattern of abuse involving not only Fair-
child but also the 13 other men who were
picked up for questioning, including Fairchild’s
younger brother, Robert.

Robert Fairchild, who by 1990 was serving
40 years in an unrelated kidnap and rape case,
asserted that Dill choked him with a wet towel,
a technique intended not to leave scarring. He
claimed he lost consciousness and defecated on
himself. His mother said he returned home
from his visit with police wearing an orange jail
jumpsuit and carrying his original clothing, wet
and soiled, in a plastic bag. Ex-deputy Gibson
testified that he witnessed the abuse of ‘Robert
Fairchild.

Eisele, while branding Robert Fairchild as
someone with “no respect for the truth,” con-
ceded that some of his testimony “may be true.”
But the judge could not decide definitively and
did not affix blame.

That was Eisele’s finding in response to some
other witnesses, be they police or alleged vic-
tums: Abuse appeared likely, but it was not clear
who did it. Eisele said in most of the cases that
he felt the black men were lying and appeared
to be tailoring their stories to conform with
Fairchild’s claims. Both he and the state found
it suspicious that the men had not made their
claims sooner.

One of the allegedly abused men, Frank King,
34, today a Little Rock construction worker, said
he did not offer his testimony earlier in the Fair-
child case because, “I was scared. You can’t call

‘the police on the police... . They whupped us

down there and they know they did.”

Eisele dismissed the allegations of abuse as
insufficient to establish a pattern that included
Barry Lee Fairchild. And he wrote that even if
the abuse had occurred, it would not change the
fact of Fairchild’s guilt.

“It was simply a matter of black people not
being believed when they gO into ccurt cieiming
abuse,” Hawkins said.

Federal Judge Dismisses
One of Fairchild’s Petitions

Eisele also simply did not believe F airchild’s
claim of mental retardation. In a 1989 habeas
corpus hearing, Hawkins argued that Fair-
child’s confession should not have been admis-
sible in court because he is mentally retarded
and did not understand the Miranda rights he
waived when he was arrested. Those rights
include the right to remain silent and to have an
attorney present.

Several experts testified about Fairchild’s
development and education deficits, George

traordinarily delayed.” Baroff also said that
Fairchild could recognize such words as “,”
“am,” “have” or “and,” but that his reading and

elligence, .,
psychiatric evaluation, and one of the six expea

heed

Faitehld diso took tests to rank his wudwes
the right® he waived when he re-

stan

sponded 4g de Miranda warning. The experts
found that although he had difficulty under-
Standing the concept of “waive,” he had a gen-
eral understanding of the concept of giving up
one’s rights. He had done it many times in his
criminal history.

“All parties to this controversy acknowledge

that Mr. Fairchild is of below normal intelligence,
is a functional illiterate, and that he had a disas-
trous academic experience,” Eisele wrote in his

. 137-page opinion after the hearings.

The judge concluded, however, that “Fair-
child is not now retarded and was not in 1983.”
Eisele dismissed the petition.

Although a law that became effective last
year prohibits the execution of the retarded,
the state Supreme Court rebuffed Fairchild’s
attempt to use it to his favor, saying the issue
of his retardation was settled in federal court.
The results of a fuller appeal are pending.

In September, Eisele Rules
Death Penalty Unconstitutional

‘The fdge-once called Fairchild a “con man,”
and in his writings in the case offered backhand-
ed compliments to the tenacity of Fairchild’s
defense.

And so it was begrudgingly that Eisele ruled

on Sept. 22—with Fairchild already in the |

death chamber—that the death sentence in his
case was unconstitutional. ii
Returning to the words of Fairchild’s confés-
sion—that he “run-up in the house” when he
heard the gunshots and asked his partner “What

you done did?”—Fisele said that Fairchild was |

expressing “both great surprise and disapprov-
al” of the murderous turn of events.
He said the state had failed to prove, as the

1987 U.S. Supreme Court ruling in Tison vy. Ar ,

izona said it must, that Fairchild had a culpable
mental state and intended for Mason to die.

Eisele, however, was clearly angry at the
circumstances of his ruling. He felt that Fair-
child had abused the legal process by not mak-
ing this clearly legitimate challenge sooner.

Fairchild had tied fis lawyers’ hands for
years with the 1986 waiver of his right to chak
lenge the death sentence and his fear of doing
life in prison. But in September, with another
execution date approaching and no other
grounds on which to appeal, Hawkins and oth-
ers convinced Fairchild that at least life without
parole would buy him time.

His mother also pressed him to change his
mind, telling Fairchild during death row visits
that, “life is hope. Long as you living, there’s hope
you getting out of this place,” she recalled saying.

Bryant, the attorney general, has argued to
the 8th U.S. Circuit Court of Appeals that Fair-
child sealed his own fate with the 1986 waiver.

And anyway, Bryant argued, legal procedure |

prohibited Fairchild from challenging the sen-
tence in his fourth habeas corpus petition when
he could have done it in the first.

But a 1992 high court ruling in Sawyer v.
Whitley says that exceptions to procedural rules
can be made if failure to do so would “constitute
a miscarriage of justice.” Eisele ruled that Fair-
child’s case was such an exception.

“A man who was not eligible for the death
sentence under the Constitution as interpreted
by the U.S. Supreme Court would have been
executed by the state of Arkansas... . ” Eisele
wrote in his Sept. 22 order. “That is a chilling
and sobering thought.”

But if the 8th Circuit overturns Eisele and
reinstates the death sentence and if the U.S.
Supreme Court refuses to intervene, Fairchild
could be executed with serious unanswered
questions about his guilt, Hawkins said. “Inno-
cent people do get executed,” he said,

For Fairchild, Life
Proceeds on Death Row

So Fairchild waits. He watches television. He
collects news clippings about his case, which
other inmates read to him as they have read
and interpreted his legal papers for him all
these years. :

His mother visits once in a while, and a nun

from Memphis, Sister Francita, sometimes
comes to offer spiritual help. A newspaper re-
porter who wrote sdme years ago about the
disturbing questions in the case sends Fairchild
letters periodically to see how he’s doing.
Fairchild says he is no longer afraid to ap-

proach death's door. The last: time, on Sept. 22,

he came within a half-hour of the end.

‘Asked what'he had for his last meal, he calls
that macabre ritual “a joke. It’s just like putting
gas ina car that don't have no motor.” | ~~

<*


Death penalty supporters want justice to come more

swiftly in cases such as Fairchild’s, with more limits on |

opportunities for condemned prisoners to appeal. Ar-
kansas Attorney General Winston Bryant, who con-
tends Fairchild’s guilt was firmly established at trial,
said the state considers his numerous appeals “an end
run around the system.”

All four of Fairchild’s federal appeals have been decid-
ed by U.S. District Judge G. Thomas Eisele of the East-
erm District of Arkansas. He has spent the better part of
a decade foreclosing possibilities for a Fairchild retrial by
ruling that Fairchild was not wrongfully arrested, was not
coerced into confessing and is not retarded.

Then last September—after years of refusing to

challenge the penalty phase of his case—Fairchild al- |

lowed his lawyers to appeal the death sentence.

The challenge gave Eisele cause to view Fairchild’s
videotaped confession in a new light, and the judge
decided that the state did not prove a critical element

of its case: intent to kill and knowledge that a killing '
would occur. Eisele ruled the death sentence uncon- |

stitutional and converted it to life without parole.

|
!

Bryant has asked the 8th U.S. Circuit Court of Ap- |

peals to overturn Eisele’s ruling and allow Arkansas to
kill Fairchild by lethal injection. A ruling is expected
soon. Meanwhile, Fairchild, his supporters and his le-

gal observers wait to see whether the same videotape |

that convicted the condemned man ultimately may be
what saves him.

Air Force Nurse Is Found
Raped and Murdered on Farm

The woman’s body, nude from the waist down, lay
sprawled on the ground behind an abandoned farmhouse in
a rural area of pecan trees and cotton fields. It was 10
miles east of Little Rock, just inside Lonoke County. Her
white nurse’s dress was open; her bra and slip partially
torn off. She had two bullet wounds in her head. The con-
tents of her purse were scattered around the yard.

Mason, 22, a Florida native and Air Force nurse
posted at Little Rock Air Force Base for less than two
weeks, had been raped and sodomized. Her body was
discovered on Feb. 27, 1983, a Sunday.

A day earlier, her stolen Toyota had been chased by
a state trooper. Two unidentified black men bailed out.
The men escaped, but one left behind a cap that said,
“CAT Diesel Power.”

Soon after the discovery of Mason’s body, Officer -

Wayne Chaney of the North Little Rock Police Depart-
ment told Pulaski County sheriff's officials that the
“CAT Diesel” hat resembled one worn occasionally by
one of his informers, Barry Lee Fairchild.

Since he was 16 and stole a horse, Fairchild had been in
and out of prison for theft and robbery. He drank a bit,
hung out a little at gambling clubs and split his time be-
tween his mother’s house and his girlfriend's. He picked
up a little money working as Chaney's police informer on

street drug deals, and also worked part time loading gro-

cery trucks or busing tables.

Fairchild grew up in North Little Rock, a heavily

working-class city just across the Arkansas River from
more affluent Little Rock, in a poor black neighbor-
hood of small wooden houses next to an old train depot.
His boyhood environment remains largely segregated,

with small houses and shoestring businesses in the |
black section, and a sparkling new shopping mall in the |

white section.

In school, Fairchild did not do well and was recom-
mended for special education. By ninth grade, he
dropped out. He remains a functional illiterate, accord-
ing to court records. His raw IQ scores fall in or near
the range of mental retardation. His mother said he
alwavs was “slow.”

His father died 31 years ago and Fairchild took it hard.
“He went out there in the graveyard and got some dirt
from his father’s grave and put it in his room,” said his
mother, Merdine, who grew up picking cotton, had six
children, and now works two minimum-wage jobs. |

At the time of Mason's death, Fairchild was a!
wanted man. Police had been around his haunts looking
for him. He and a street buddy, Harold Green, were
named in a Little Rock arrest warrant in which a police
officer claimed Green had fired a gun his way. They
were wanted, in other words, in connection with the
alleged attempted murder of a cop.

When Chaney went looking for Fairchild, he told Fair-
child's mother, “They was gonna shoot him on sight
‘cause he was considered armed and dangerous,” she re-
called. She testified that she did not know about the Ma-
son murder at that time. She said in an interview that she
thought police were after him for a robbery. After
Chaney's visit, she gave her son $200 from her $212 pay-
check and put him on a bus to California.

Crime Investigated by Sheriff
With a Flair for Publicity

Pulaski County, which includes the city of Little.
Rock, assumed jurisdiction for the Mason murder in-|
vestigation because her body initially was thought to,

be in that county. Sheriff Tommy F. Robinson led the |
probe.

Robinson, who had been state director of public safe- |
ty in Bill Clinton's first term as governor, had a rep-
utation for using flamboyant and abusive law enforce-
ment techniques, some local lawyers say, during his.
four years as sheriff.

When a state prison refused to help relieve the coun-
ty jail’s overcrowding, Robinson, to generate publicity,
took a group of his prisoners to the state prison and
chained them to a fence. Robinson once was quoted as
joking that he treated his black prisoners well, fed
them “watermelon and chicken,” according to the Na-
tional Journal.

The county jail that Robinson ran was under court
order to be upgraded. A federal judge ruled that over-
crowding and brutality against prisoners rendered the
jail unconstitutional. When Robinson failed to follow
the order, a federal judge jailed him for two nights for
contempt of court.

A year after Fairchild’s conviction, Robinson went on
to become a tough law-and-order Democrat in Congress,
then switched to the Republican Party in a ceremony
with then-President George Bush. In 1990, after three
terms, he retired to a soybean farm in eastern Arkansas, |
only to make headlines yet again—this time, as the worst
abuser in the House Bank scandal in 1992. He wrote 996
overdrafts. He was not charged.

Robinson refused several recent requests to be in-
terviewed about the Fairchild case. From other inter-

views and court records, however, it is clear that he

led an intense search for Mason’s killer that included .
using officers from three other jurisdictions. Investi-

gators stayed awake nights tracking down leads and |
questioning informers. The investigation focused on

black men, because black men were seen in Mason’s

car. Thirteen men were picked up as possible suspects.

One man, visiting from out of town, simply answered

the door at a fnend’s house and was taken in.


On Bus, Suspect Cludes Police
By Donning a Wig aud a Dress

Police later would assert during Fairchild’s trial that
ne was their early and primary suspect. They based
his. tney said, on a witness besides Chaney who could
hnk Fairchild to the “CAT Dhese!” hat. They had also
gotten a up from Fairchild’s Bag iy ie he arenes
to flee by bus to California. And two ormers provid-
econdhand street talk linking Fairchild and his

hg
nzge

a ger Drother, Robert Fairchild, to the crime.
' Pulaski County shentff’s officials intercepted Fair-
child's bus in Russellville, more than 80 miles north-
west of Little Rock. But Fairchild pulled on a woman’s
wiz. sipped into a dress ae he was carrying and ex-
tec tne bus with the crowd. ;
n Frday, March 4, with pictures of hum splashed
across television and newspapers, Fairchild knocked on
the door of a Russellville house and asked the residents
Ae could use a phone. They called the police, who
surrounded the house and stormed in to arrest Fair-
muic. ;
~ Police testified that Fairchild ran from the house in
2n attempt to flee, although one officer would later
ry that as many as 5¢ officers surrounded the
2 and that Fairchild was shoved out the front door.
In any event, Fairchild ended up in the front yard, at
which time Jubilee, the Pulaski County sheriff's attack
ccg. was sicked on him. The dog chomped down on
F airchild’s head, causing injuries that required seven
st* hes at a Russellville hospital. He then was taken to
Pope County jai for processing, and from there
rven to Pulasky County sheriff's headquarters, where
he arrived at 2:30 a.m. on March 5, 1983.

e
v

2

Officers Say Fairchild ;
Confessed Without Coaching

sneriff Robinson and several of his men were wait-
-ng tor Fairchild and later described their meeting with
~- as amicable. He was given aspirin for his head-
one officer later testified, and another went out
cought doughnuts. And without prompting, coach-
: or preparation, these officers testified, Fairchild
essed before the video camera.
“ne € on the tape is slightly out of focus and
=d. Cramped behind a desk between Pu-
su County sheriffs Lt. Tom Waggoner and North
ttle Rock Officer Chaney in 2 barren police office,
Fa.rcnild sits erect and at times answers questions in a
manner that suggests a student taking an oral exam.
Waggoner asking strategic questions in a

ssemungly offnanded way, Fairchild tes how he and

2rold Green abducted Mason and took her to the
:nouse and how he was outside rifling through her
curse when ne heard the gunshots. The two men then

-n gave the woman's watch to Fairchild, who sold
Itc his sister. Trene. Fairchild says. ;
oner asks u Fairchud had seen Mason's hose

ic

an¢ panties. Fairchild savs he saw them in a cabinet in
tne tarmhouse. Waggoner asks if he threw anything
ca. the window auring the getaway, and Fairchild says
“2-2 pair of gloves he had worn during the crime.
Mt tne ume of the interrogation, those two questions
~7* key. Several officers nad failed to find Mason's
“nes when they searched the scene. A day later,
vever, an otlicer asserted that he found them in a
aw, open kitchen cabinet. Fairchild’s lawyers and his
mother pelieve the panties may have been planted.
ion ol gioves helped police explain at trial
: Fairchild’s fingerprints was found at the
“me scene or im the car or on the steering wheel. No
ves ever were found.

“Pea tne m

none

|

And police learned several weeks later that Green
could not have been involved in the Mason murder be- |
Cause he was jailed in Colorado at the time. |

Sheriff Hit and Threatened
Him, Fairchild Testifies

Fairchild testified at his tria! that Robinson hit him
in the head with a Shotgun and threatened him if he did
not confess. He asserted that the officers coached him
over and over about details of the crime, even wrote
some key words on a piece of Paper so he would re-
member specifics such as Panties and gloves.

Asked in an interview why he brought Green’s name
into the confession, he protested, “That’s the name
they wanted me to use. That's the name they kept
bringing up and kept bringing up and kept bringing up.”

On the stand, Robinson and others denied Fairchild’s
allegations, and Joseph H. O'Bryan, Fairchild's attor-
ney, had no evidence to back up Fairchild's claim.

The case involved an odd mix of evidence. In addition
to the absence of Fairchild’s fingerprints, the state could |
not forensically prove that Fairchild raped Mason.

The semen found in her Vagina was from a carrier of |
Type O blood, but Fairchild is Type A. A smal! amount
of Type A semen was found on her slip, but that could
not be linked conclusively to Fairchild because 41 per- |

|
|

cent of the U.S. population is Type A. No semen was
found on the panties.

The hairs taken from the hat Fairchild allegedly |
wore were of the Negroid variety, but could not be
more precisely linked to Fairchild.

But one piece of physical evidence apparently
swayed the jury: Police officers testified that they re-
trieved Mason's black diver's watch from Fairchild's
sister, Irene, and Mason's Parents testified that it was
indeed the watch they had given their daughter. Later,
when appellate attorneys would uncover a police file
that had not been turned over to the defense at trial,
they would discover that witnesses from Mason's job |
had told police that she wore a shiny metallic watch, |
not a black one, the day she disappeared. But at trial, |
the Lonoke County Circuit Court jury heard no such |
evidence.

Perhaps one cf the turning points of the tnal, accord-
ing to John Wesley Hall, Fairchild’s first appellate attor-
hey. was when Fairchild appeared to be Caugnt in a lie.

Fairchild testified that the bandage on his head was
put there at the Pulask; County sheriff's neadquarters
after Robinson hit him, not at the Russellville hospital.
Prosecutors seized on the inconsistency, calling the
hospital nurse who treated Fairchild. She testified she
dressed the dog bite with a bandage.

“That really hurt,” Hall said.

That August, the Jury convicted Fairchild of capital
murder after three hours of deliberation. Based on his
confession—that he Participated in a crime in which a
murder occurred—he was charged under the state's
Capital murder law in which an accomplice can be found
culpable for a death, even if he did not pull the tngger.

FAIRCHILD ARTICLE:
Susans. JAN, G, (agg
WASH, POS?


THE CAST OF A CRIMINAL CASE

THE CONVICT THE VICTIM

Barry Lee Fairchild, ae ,

who was sentenced to death The body of Marjorie Greta Mason, 22, a
on Aug. 2, 1983, as an native of Florida and an Air Force nurse
accomplice has déiels iad stationed in Little Rock for less than two

: . weeks, was discovered Feb. 27, 1983,
conaae ede or pane behind a farmhouse. She had been
P kidnapped, raped and shot twice in the

were on appeal in state and ‘
federal courts: head. A day earlier, her stolen Toyota was
a Nov. 10, 1983 pursued by a state trooper, but the two men
= Feb. 8, 1985 inside batled out and escaped arrest.
a June 20, 1985
a March 8, 1989
w May 10, 1989
w Sept. 5, 1990 cr Ret nabs Se
a Sept. 22,1993.

On the last date, a U.S.
judge ruled that Fairchild,
shown at left during his
1983 trial, should not have
been sentenced to death in
the first place.

| THE SHERIFF

The murder was investigated by Pulaski
County Sheriff Tommy F. Robinson, who
had been Gov. Bill Clinton’s director of
public safety. After the investigation,

_ Robinson.was elected to Congre. j

" Demotrat and later switched pavtiesthin® =
ran unsuccessfully for governor. Robinson |
&ained notoriety as the worst abuser in the
House check overdraft scandal.

In Arkansas, Debate on Death Penalty

ae

ARKANSAS DEMOCRAT PHOTOGRAPHS

THE JUDGE

U.S. District Judge G. Thomas Eisele, who
heard Fairchild’s challenges of his
Arkansas conviction, rejected his
allegations of abuse by law enforcement
officers and Fairchild’s claim of mental
retardation. But last Sept. 22, Eisele ruled
the death penalty in Fairchiid’s case
unconstitutional. That decision is before
the 8th U.S. Circuit Court of Appeals,

4!

* . oe ;
ed nw | i
BY LYNNE OUKE—THE WASHINGTON POST

Mother of six? Merdine Fairchild, mother of the defendant, raised six children. Fairchild’s father died 31 years ago.
Upset, her son;“went out there in the graveyard and got some dirt from his father’s grave and put it ; in his room.” ».

pelts icici bch et


‘eee Sis Mai RR 4

30 Ark.

v

whether Mrs. Dodd, with knowledge of the
restrictions, chose to buy the property; or,
secondly, did her conduct in not promptly
offering to surrender possession work such
a hardship upon Mills that he should be per-
mitted in all good conscience to retain the

cash payments?

Mills testified that he made demands for
possession some time in December, but Mrs.
Dodd asked for permission to stay for a
while—“‘she thought she could work it out”.
This occurred about Christmas, 1948. Mills
thought the next conversations occurred in
March, around income-tax time; and, said
the witness, this was the first time Mrs.
Dodd indicated she was not going through
with the deal. THe later said that he had
spoken to Mrs. Dodd “two or three times
from January”, and when she did not move

he employed a lawyer.

fall ET Pda Paes!

240 SOUTH WESTERN REPORTER, 2d SERIES

an item of $300 for repairs is included in
appellant’s computations. In view of party
relationships the interest and charges for
repairs should not be allowed, but the in-
surance payment should be a credit against
damages to be computed on a rental basis.
Appellee testificd that “if all of the prop-
erty could be rented it ought to bring in
$350 per month.” Actually, in 1950, appel-
lee rented for a period of six months (be-
ginning in February) for $1,250, or $208.33
per month. On this basis the damage for
six months and 23 days would be $1,409.71,
or $1,066.71 after payment of insurance.
Deducting this sum from appellant’s two
checks would leave $4,433.29 for which ap-
pellant should have judgment.
Reversed with directions to enter a de-
erce not inconsistent with this opinion.

[3] In his answer and cross-complaint
Mills did not plead laches, estoppel, oF ja
waiver. Appellant’s attorncys say that the
first. intimation regarding such a defense
came when the cause was being argued be-
fore the Chancellor, hence, under the hold-
arrett v. Durbin, 106 Ark. 332, 153
be permitted

Key NUMBER SYSTEM,

4nme

: ae DORSEY v. STATE.
ing in B

SW. 265, the plea should not No. 4656.
Supreme Court of Arkansas.

June 4, 1951.

here.

[4-6]
the advantage of infor
the relative position of parties were SO
clearly favorable to Mills
and convincing proof that in accepting the
written contract Mrs. Dodd did so with full
ige of the limited title held by Mills.

The record presents a case where

rmati alues, and So
mation, values, ane Rehearing Denied July 2, 1951.

Peter Dorsey was convicted in the Circuit
Court, Phillips County, Elmo Taylor, J., of
first degree and he appealed.

as to require clear

murder in the
The Supreme Court, Robinson, A. J., held,

inter alia, that evidence justified convic-

knowle¢
imony was insuffi- |.
., _ tion.

In this respect the test
The test would be whether a suit

: affirmed.
be main- Judgment aflirme

cient.

for specific performance could
1. Criminal law emAl4a

In prosecution for first degree murder,
evidence did not establish that a statement

made to police officers by defendant was
ating administered

tained.
£7}: By the weight of evidence Mrs.
Dodd’s first knowledge of the restrictions
came when Mrs Addie procured her own
abstract and pointed out the limitations. It
then became Mrs. Dodd's duty to surrender
possession, which she did not do until Sept.
3, hence she is chargeable with damages
from February 10, or six months and 23
days. She paid insurance amounting to
$382, but received a refund of $39, so the
s $343. Interest on the pay-

net outlay wa
€ $4,000, and $1,500, is claimed, and

given as result of a be
to defendant so as to preclude admission of
the statement in evidence against defend-
ant.

2. Criminal law €=532

In considering admissibility of a con-
fession all courts will consider whether
there has been a violation of the Four-
teenth Amendment to federal Constitution

ments O

DORSEY v. STATE

Ark. 31

Cite as 240 S.W.2d 30

or guarantees of Fifth Amendment that
no person shall be compelled in any crim-
inal prosecution to be a witness against
himself, nor be deprived of life, liberty
or property without due process of law.
U.S.C.A.Const. Amends. 5, 14.

3. Criminal law ¢=806(1)

In murder prosecution trial court need
not give a multiplicity of instructions stat-
ing law in various ways.

4. Homicide €=340(3)

In first degree murder prosecution of
a defendant who was handcuffed to anoth-
er prisoner in back seat of automobile when
such other prisoner grabbed pistol from
police officer sitting in front seat of auto-
mobile and shot and killed an officer with
pistol, instruction requested by defendant
that defendant was not responsible for
murder if defendant and other prisoner did
not agree to murder officer and if defend-
ant did not aid or abet or assist such other
prisoner, was more favorable to defendant
than defendant was entitled to.

5. Criminal law €=59(1)

Generally where persons combine to
do an unlawful thing, if the act of one
proceeding according to the common sina
terminates in a criminal result, though not
the particular result intended, all are liable.
Ark.Stats. §§ 41-118, 41-119.

6. Homicide €=29
One who aids, abets and assists in

murder is as guilty as one who fired fatal
gun shots. Ark.Stats. §§ 41-118, 41-119.

7. Homicide €=253(1)

In first degree murder prosecution of
a defendant who was handcuffed to anoth-
er prisoner in back seat of automobile when
such other prisoner grabbed pistol from
police officer sitting in front seat of auto-
mobile and shot and killed an officer with
pistol, evidence justified conviction even
if statement made by defendant to officers
and allegedly erroneously admitted in evi-
dence had been excluded from evidence.

8. Constitutional law ©=221

The mere fact that jury panel selcct-
ed by sheriff to try Negro defendant for
murder, which panel was selected by sheriff
because veniremen selected by jury com-

missioners were disqualified, contained
three Negro qualified electors and thirty-
seven qualified white electors although
there were 5,144 white electors and 2,616
Negro electors in county, did not show
discrimination against defendant by sheriff.
Ark.Stats. § 43-1904.

9. Constitutional law C22!

_Under the Constitution proportional
racial discrimination in jury panel to try
defendant for crime is forbidden and de-
fendant is entitled to have charges against
him considered by jury in selection of
which no one has been included or exclud-
ed because of race.

10. Jury €=33(5)

A defendant who claimed that sheriff
purposely discriminated against a Negro
defendant in selecting jury panel contain-
ing three Negro qualified electors and 37
white qualified electors although there wet
5,144 white electors and 2,616 Negro ele¢
tors in county, which panel was selected by
sheriff to try defendant charged with mur-
der because veniremen selected by jury
commissioners were disqualified, had bur-
den of proof. Ark.Stats. § 43-1904.

11. Jury ©72(3)

Where veniremen selected by jury
os aapnnay is were disqualified to try a
Negro defendant charged with murder, so
that sheriff had to select jury pancl ‘tak
court could not instruct sheriff to summon
so many of one race and so many of anoth-

er. Ark.Stats. § 43-1904.

12. Jury ©=33(5)

Evidence did not establish that sheriff
who selected a jury panel of 3 Negro
qualified electors and of 37 white qualified
electors to try a Negro charged with mur-
der, although there were 5,144 white elec-
tors and 2,616 Negro electors in county
which panel was selected by sheriff becuse
veniremen selected by jury commissioners
were disqualified, discriminated against de-
fendant. Ark.Stats. § 43-1904, .

Coates & Lear, II[clena, for appellant.

Ike Murry, Atty. Gen., Jeff Duty, Asst.
Atty. Gen., for appellee.

pue

nN °
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34 Ark.

testimony of the defendant given at the
trial. Ile claims that some things he told
the officers were not put into the statement,
and denies that he told the officers there
was any plan between him and Smith to
overpower the officers. Ie does not testify
that he was forced to say that there was
such a plan. He merely denies making the
statement. The State’s case did not hinge
on any statement obtained from the defend-
ant, and never at any time, was the defend-
ant held for the purpose of wringing a
confession from him, When the defendant
was arrested subsequent to the killing, he
had the murdered officer Campbell’s pistol
in his possession. It was known at the time
that he participated in the killing and three
days after he was captured, and before he
made any statement, he was formally
charged with murder.

In United States v. Mitchell, supra, the
court said the detention for the purpose of
illegally extracting evidence from an ac-
cused, and the successful extraction of such
inculpatory statements by continuous ques-
tioning for long hours under psychological
pressure were the decisive features in the
McNabb case, which led the court to rule
that a conviction on such evidence could
not stand. Tere, the defendant does not
say that any inculpatory statements, dif-
fering from his testimony given at the
trial, were obtained from him by any
means. He simply denies that he made any
such statements.

[3] Defendant requested the follow-
ing instruction: “If you find there was no
agreement between Aubrey Smith and Pe-
ter Dorsey to murder Ray Campbell and
you further find that Peter Dorsey did not
aid or abet or assist Aubrey Smith in shoot-
ing Ray Campbell, then Peter Dorsey would
not be responsible for the murder of Ray
Campbell.” The court is not required to
give a multiplicity of instructions stating
the law in various ways, and the court gave
instruction No, 3 requested by the defend-
ant, which is as follows:

[4] “The court instructs the jury that
the mere fact of one person being present
at the time the shooting occurred, and the
further fact that he followed along after

240 SOUTH WESTERN REPORTER, 2d SERIES

the party doing the shooting, will not of
itself be sufficient to convict the party fol-
lowing of aiding and abetting in the shoot-
ing, but before you can find that the de-
fendant Peter Dorsey was aiding and abet-
ting in the shooting, you must find that he
was acting in concert with Aubrey Smith
and actually participated in the shooting.”
Instruction No. 3 given as requested by the
defendant was more favorable to him than
he was entitled to under the law.

[5] In the case of Boone v. State, 176
Ark. 1003, 5 S.W.2d 322, 324, it was said:
“The general rule is that, where persons
combine to do an unlawful thing, if the act
of one, proceeding according to the com-
mon plan terminates, in a criminal result,
though not the particular result meant, all
are liable.”

§ 41-119, Ark.Stats., provides: “An ac-
cessory is he who stands by, aids, abets or
assists, or who not being present, aiding,
abetting or assisting, hath advised and en-
couraged the perpetration of the crime.”

§ 41-118, Ark.Stats., provides: “The
distinction between principals and acces-
sories before the fact is hereby abolished,
and all accessories before the fact shall
be deemed principals and punished as
such, In any case of felony, when the evi-
dence justifies, one indicted as principal
may be convicted as an accessory after the
fact; if indicted as accessory after the
fact, he may be convicted as principal.”

[6] There is no distinction between one
who aids, abets or assists and the one who
actually fired the shots. Burns v. State,
197 Ark. 918, 125 S.W.2d 463.

The appellant contends that the court
erred in refusing to give other instructions
requested by the defendant. We have care-
fully examined the instructions. Every
phase of the law involved was given to the
jury, and no error was committed in the
giving of any instruction on the part of the
State, or the refusal to give any instruc-
tions requested by the defendant.

[7] Defendant moved for a directed
verdict claiming that the so-called confes-
sion is inadmissible, and that if ruled out
there is not sufficient evidence to support

DORSEY v. STATE Ark. : 35
Cite as 240 S.W.2d 30

the verdict. In the first place, the state-
ment designated as a confession was admis-
sible as has been heretofore pointed out.
In the second place, the evidence would be
sufficient to sustain a conviction if the
confession had been ruled out. The jury
could have found that Smith, whose right
wrist was handcuffed to Dorsey’s left wrist,
could not have grabbed Officer Tatum’s
pistol from its holster, shot Tatum twice,
and shot Officer Campbell twice without
the aid of Dorsey. In fact, the-evidence
is that Dorsey was attempting to get Of-
ficer Campbell’s pistol at the time Camp-
bell was killed. Thus, Campbell was pre-
vented by Dorsey from defending himself.
The motion for a directed verdict was prop-
erly overruled.

The appellant, a Negro, filed a motion to
quash the jury panel on the ground that
there had been discrimination against the
Negro race in selection of the jury panel
because due regard had not been given to
the proportion of Negro electors in Phil-
lips County. Subsequent to the selection
of the jury, the motion was renewed; both
motions were overruled by the trial court.

The entire jury panel selected by the jury
Commissioners was excused by the court
because the veniremen were disqualified by
reason of having served as jurors in the
Smith case, supra, or were in the court-
room and heard the testimony in the case.
The sheriff summoned 37 white and 3
Negro veniremen, In connection with ap-
pellant’s “Motion to Quash the Panel”, the
court said:

“It is agreed by and between counsel for
hoth sides in this case that the regular
panel of petit jurors selected by the regu-
lar jury commissioners for the fall term,
1950, of the fall term of the Phillips Coun-
ty, Arkansas Circuit Court were disquali-
fied and that the court directed the sheriff
of the county to summon forty (40) special
veniremen from which to select a jury to
try the defendant; that the sheriff has
selected forty (40) qualified electors from
the total qualified electors of Phillips
County, both white and Negro, and has
filed said list with the clerk of this court;
that the sheriff has selected only three (3)

Negro qualified electors and thirty-seven
(37) white qualified electors; that accord-
ing to the present list of qualified electors
of Phillips County, Arkansas, there are
5,144 white electors and 2,616 Negro elec-
tors; that commencing approximately ten
years ago the jury commissioners of Phil-
lips County, Arkansas, have for each term
of the court, in selecting the jurors to
serve, have generally named one or two
Negro electors to serve on the regular
panel, with the exception of one year when
three were named. It is further agreed by
and between counsel for the State and
counsel for the defendant that the figures
in the records of the Phillips County Col-
lector’s office showing the number of white
electors and Negro electors for each of the
last preceding ten years, ending the 1950,
are correct and may be included in this
record as the correct number of electors,
white and Negro, for said period of time.

“Tt is also agreed that the witness, C. E..
Mayer, called to testify on a similar mo-
tion in the case of State of Arkansas v.
Aubrey Smith, on the 20th day of Novem-
ber, 1950, if present would testify to the
same facts as testified to by him in that
case and that his: testimony in that case
may be incorporated herein as a part of
this record.”

In support of the “Motion to Quash”
appellant cites Ballard v. United States,
329 U.S. 187, 67 S.Ct. 261, 264, 91 L.Ed.
181. In that case the Court held that
“the purposeful and systematic exclusion
of women from the panel * * * was
a departure from the scheme of jury selec-
tion which Congress adopted”.

[8] The case at bar was in Phillips
County on a change of venue, which had
been granted on motion of the defendant.
There is no showing that the Sheriff of
Phillips County, who summoned all the
veniremen in this case, had systematically
excluded Negroes from being selected for
jury service, In fact, there is no showing
that the Sheriff ever selected a jury panel
previous to the one in question, or that he
systematically excluded or included any
one on account of being a member of any
geographical, political, racial, religious, or

EN tte oa

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32 Ark. 240 SOUTH WESTERN REPORTER, 2d SERIES

i sey was charged under the name
at ait SABIE Sect but all the proof shows he
is the person intended to be charged. ee
Stats. § 43-1013; Daniels v. State, 186 She
255, 53 S.W.2d 231; Bridger v. State, 122

On the 2nd day of August, 1950, the ap-
pellant Pcter Dorsey and one, Aubrey
Smith, stole a cow and calf in St. Francis
County, and brought the stolen animals to ee Poi 395, 183 S.W. 962.
the stockyards in North Little Rock in an . ; se ray ae ter
atte ll them, arriving there about Both defendar yh ea RPE
eatin? 3 st 3 d While at the stock- change of venue which was gran ed,
cs rg aoe Sn ith aroused suspicion cases being transferred to Phillips Sed
te pe a, ie Putashi County of- for trial, Smith — aa iat aes
Sais i aah - and sentenced to death, om 4 ate,
Hay 3 Sao Sue psd = ce, 238 S.W.2d 649. Then Dorsey AS
ear et oh Kugast 3rd, Otis tried, convicted and sentenced to death,
eee i ie | heaped Deputy Sheriffs © from which conviction and sentence comes
oe tee ‘Friheis County, arrived in Little this appeal. RS uoe
Rock to return the prisoners, Dorsey and [1] The Information charging eae ae
Smith, to St. Francis County. fendant with murder was As y 3

After Tatum and Campbell obtained ae Ria gets Sgr iad pags + a aoe

Jorsey and Smith, they started the /th day st, 3 P ae
cae ats ‘oatally and stopped at a road- the court made sp pees ee ae
side restaurant, at which a PS ont ~*~ be ores — et ahs Sa

4 + automobile for about doctors a Ste spitd
cbs eS aes fee then returned to Rock. The defendant was, eHow
aise, Tatum taking the driver's scat and transferred to the esis Cen eS

Campbell occupying the front seat to Tat- Little Rock. On 36 i Swink oS :

’s right, Dorsey and Smith, the prison- Sth of August, the defend “—
as Oe ied tl rear seat, Dorsey sitting statement to Ben Kent and W. T. Bolling,
che siete f Smith ‘Dorsey's left wrist members of the Arkansas State Police De-
cy th fied to Smith's “right wrist. partment. This statement was admitted
ota wine Ae seal Camphell, cach had jn evidence over the objection of the de-
ius a scabbard on his right hip. fendant, it being the contention of are

\ een ached a point about a mile Jant Dorsey that the statement was no
sat ae matt eS St, Francis County, admissible because it was obtained by the
ae: S et simultancously grabbed officers while the defendant was in custody

psa ae ria oO Officer Campbell without a warrant and prior to being taken

ae re pctcleld-af Dorsey’s wrist, before a magistrate. Also, in appellant’s
co mane Dorsey from immedi- prief it is argued that the statement was
rete Leg Cam Shell's gun, Smith ob- given as the result of a horrible and un-
anely are ae we! ohtboral difficulty and merciful beating administered to defendant,
shee sae ts he shoulder and in the face. but there is no evidence in the record, in-
ats tae at that hit Tatum was the cluding the testimony of the defendant, to
prgens net Se in the face and he support this argument. The defendant tes-
at raps tered unconscious, Camp- tified that he was mistreated at the time
pert ie one in the head and he was arrested for stealing the cattle, but
ss ee ee be ny and killed instantly. does not claim that he made the statement
race's a SS ra his wounds with the in regard to the killing of Officer Camp-

z set! eae) si artially paralyzed. bell due to any abuse suffered by him when

Aer she ms : we ot the two prison- under arrest in connection with the larceny
Se re ane sod to remove the of the cow and calf. The only thing said
: 1 the next day. by the defendant in his testimony given at

scuting Attorney, in separate the trial from which it might ae sity

pon eg “d Peter Dorsey and that he was threatened at the ot 1c

cay cate ie aaaaer in the Ist de- gave his statement in regard to the homi-
Aubrey Smith

ers fled. They manage
handcuffs but were capturec

DORSEY v.STATE ~~ | Ark, 33
Cite as 240 S.W.2d 30

cide, was that, after he was removed from rested shall be immediately taken before
the Pulaski County jail to the State Police a committing magistrate. All courts will
headquarters where his statement was giv- take into consideration whether there has
en, one of the officers pulled off his coat been a violation of the 14th Amendment to
and said he wanted the defendant to tell the Constitution of the United States or
the truth, the implication being that the the guarantees of the 5th Amendment that
removal of his coat by the officer consti- no person shall be compelled in any crim-
tuted a threat. But, it must be remembered inal case to be a witness against himself,
that this was on August 8th in Little Rock, nor be deprived of life, liberty or property
Arkansas, It would only be natural, under without due process of law.

summer weather conditions, for the officer McNabb v. United States, 318 U.S. 332,
to remove his coat at the first opportunity. 63 S.Ct. 608, 87 L.Ed. 819, and Upshaw v.
It is not claimed that the officers taking the United States, 335 U.S. 410, 69 S.Ct. 170,
statement did or said anything else what- 93 L.Ed. 100, turned on the question of
ever that could be construed as a threat whether the defendant’s rights had been
of physical abuse or psychological coer- protected in accordance with the Federal
cion, | Statutes and Rules of Criminal Procedure

[2] The principal’ contention’ on: the in the Federal Courts, 18 US.CA., and not
part -of appellant with reference to the the constitutional question, The case of
statement is that it was obtained prior to Watts v. State of Indiana, 338 U.S. a,
his being taken before a magistrate. In 69 S.Ct. 1347, 93 L.Ed. we, we decided
this connection the appellant mainly relies on the constitutional tse tes There
on decisions of the Federal Courts. So far WS held that the trial court erred in ad-
as the law of this State is concerned, the mitting a confession obtained in a manner
case of State ¥,. Browning, 206: Ark. 791, which bears no resemblance to the facts
178 S.W.2d 77, held adversely to appel- in the case at bar.

lant’s contention. The Browning case was In the case of United States v. Mitchell,
followed in Palmer v. State, 213 Ark. 956, 322 U.S. 65, 68, 64 S.Ct. 896, 897, 88 L.Ed.
214 S.W.2d 372, in which certiorari was 1140, the court said: “We are dealing with
denied by the United States Supreme the admissibility of evidence in criminal
Court, 336 U.S. 921, 69. S.Ct. 639, 93 L. trials in the federal courts. Review by this
Ed. 1083. Court of state convictions presents a very
Katdectson: tha teinide t wihethor otha: different situation, confined as it is within
fession is freely and voluntarily made, VeTY narrow limits. Our sole authority is
which is passed upon by the jury and trial to ascertain whether that which a state
court, but subject to review by the appel- court permitted violated the basic safe-
late courts, Ashcraft v. State of Tennessee, guards of the Fourteenth Amendment.
322 U.S. 143, 64 S.Ct. 921, 88 L.Ed, 1192, Therefore, in cases coming from the state
the Federal Courts will take into consider- COUrts in matters of this sort, we are con-
ation whether there has been a violation of Ce™med solely with determining whether *
the Act of Congress providing: “It shall confession is the result of torture, physical
be the duty of the marshal, his deputy, or © psychological, and not the offspring of
other officer, who may arrest a person reasoned choice.”
charged with any crime or offense, to take

In the case at bar it is not claimed by
the defendant before the nearest United

the defendant that he confessed to any-
States commissioner or the nearest judicial thing against his interest because of tor-
officer having jurisdiction under existing ture, physical or psychological. In fact,’
laws for a hearing, commitment, or taking there is very little difference between the
bail", 18 U.S.C. § 5951; also, 5 U.S.C. statement introduced in evidence, as hav-
§ 30022 which requires that the-person ar-. ing been given to the officers, and the oral

1. Now Federal Rules of Criminal Proce- 2. 1948 Revised Criminal Code, 18 U.S.C.A.
dure, Rule 5, 18 U.S.C.A. §§ 3052, 3107.

Oe, «
240 S.W.2d—3

Sgedparabankntneaaee


Fairchild.

® Continued from Page One
police investigating Mason's
murder took. “shortcuts” and
failed to undertake a complete
Investigation, Burr sald.

“We have even more evi-
dence that Barry Fairchild did
not commit the crime and that
somebody else must have,”
Burr aad.

On Feb. 27, 1983, Mason's
body was found behind an
abandoned farmhouse in
Lonoke County. She had been
shot twice in the head.

Fairchild was arrested at a
Russellville residence March
4, 1983.

A Pulaski County police
dog, Jubilee, bit Fairchild on
the back of the head during the
arrest. The Injury required
stitches and a bandage from a
local hospital. He then was
taken to the Pope ny sher-
iff's office and fMnally driven to
the Pulaski County Jail late
that night.

ee? Tommy Robinson was
Pulaski County sheriff at the
time and participated in the
arrest.

Confessions

On March 5, 1983, at about
2:30 a.m. and again at 6:40 a.m.,
Falichild gave videotaped con-
fessions. :

In both, he admitted kidnap-
ping and raping Mason with an
accomplice, Harold Green, but
said Green alone shot her.

Green later was found to

have been In jai) at the time of .

the murder.

In the taped confessions,
Fairchild said he and Green
Holes Fo Mason from a
North Little Rock furniture
store. From there they drove
in her car to a remote house
near Scott (Lonoke County).

In the confession, Fairchild
said first Green, and then he,
raped Mason In the house.
After Fairchild came out of
the house, Green re-entered
and shot Mason, Fairchild.

Although the two ear)
morning confessions are simi{-
lar, they differ on at least one
point.

In the first, Fairchild said
Green wore a green and white
cap with “Jeep” on It.

In the second, Fairchild
said Green wore a hat with
“CAT” and “Diesel Power” in-
scribed on it.

Supreme Court

Aft'er the 1983 conviction,
Fairchild appealed his case to
the state Supreme Court. The
court in December 1984 up-
held the conviction and sen-
tence. The U.S. Supreme Court
refused the following May to
hear the case on appeal.

Fairchild's attorneys began
a first round of federal
appeals in U.S. District Court
that questloned whether the
confession was voluntary and
whether an arrest warrant is-
sued on Fairchild for another
crime was legally used in the
Mason case.

The district court ruled
perinst him in September 1987.
The 8th Circuit In September
1988 upheld the district court.
In January 1989, the U.S. Su-

teme Court agaln refused to
ear the case.

Attorneys filed a second ap-

eal In district court that ques-
bowed whether Fairchild was
ey retarded and there-
fore did not have the capacity
to waive his right not to in-
criminate himself in the con-
fession.

The aeeew also argued that
the hospital that evaluated
Fairchild in 1983 hurt his de-
fense by falling to uncover his
mental retardation. (The ap-

» Warrant for

conviction and sentence.

lets stand the conviction.
denies Falrchild's appeal.
decision.

and lets stand the conviction.

second appeal.

Chronology of Barry Lee Falrchild's appeals

, Aug: 2, 1983: Found gullty Ini connection with the kidnapping,
rape and murder of 2nd Lt. Marjorie “Greta” Mason, a Lhile

_ Rock Alr Force Base nurse. -
Deo. 21, 1984: State Supreme Court upholds the lower court's
May 13, 1985; Supreme Court refuses to hear the appeal and
Sept. 11, 1967: U.S. District Court Judge G. Thomas Eisele
Nov. 9, 1968: 8th U.§. Circult Court of Appeals upholds Eisele's
Jan. 23, 1989: U.S. Supreme Count refuses to hear the case

April 4, 1989: Elsele denies Falrchild's second dppeal case.
April 17, 1990: 81h Circult upholds Eisele’s decision on the

Source: Court documents.

peal courts have rejected the
orguipent that he is retarded.)

S. District Judge G.
Thomas Eisele rejected the ap-
ang in April 1989. On April 17
he 8th Circuit also rejected
the appeal.

In addition to the federal
caveats Fairchild's defense
attorney asked Lonoke County
Circult Judge Cecil Tedaer,
the trial judge, to rule the con-
fessions inadmissable. That
motion was denied.

“In the light of the (signed)
rights waiver, and the appear-
ance of the Defendant n the
videostatement, (the court)
finds the evidence sufficient
for the Court to hold the state-
ment ... was voluntarily made,
and fg and intelli-
gently made,” Ted

Joe O'Bryan of Cabot, Falr-
child's attorney at his trial,
began seven years of appeals
in 1983 when he asked the
state Supreme Court to over-
—_ the circuit court convic-

on.

Principal issues

The four principal issues
cited in Fairchild's 22-point
appeal to the state Supreme
Court were: that the jurors had
been mprepery chosen, that
the trial should have been
held in Pulaski rather than
Lonoke County, that the state
death penalty was unconstitu-
tional and that 16 poole raphs
ie apreey d depicting Mason's

ody should not have been ad-
mitted Into evidence.

The court rejected those
four arguments and 18 others.

The federal appeals began
by challenging whether the
airchild’s arrest
was legal and whether hé eun-
fessed voluntarily. eke

Eisele said in his Septem-
ber 1087 decision that al-
though the warrant used was
improper, the police had prob-
able cause to arrest Fairchild
without a warrant.

“At the time of the arrest,
then, police had received vari-
ous reports that the hat found
at the scene of the murder
appeared to be petitioner's:
that petitioner had a history o
sexual assault in the company
of his brother; that petitioner
and his brother had kid-
napped, raped and murdered
Ms. Mason; ... and that peti-
tloner was actively seeking to
evade capture.”

Eisele ruled the confession
was voluntary despite new tes-
timony from Fairchild and a
Russellville policeman that
the confession was coerced,

Police coaching

Fairchild said police
coached him on the confes-
sion, which he sald was evi-

dent the rote manner he
showed in the video confes-
sion.

During the hearing, Falr-

child reiterated his account
first stated in circuit court, 0
the brutality and threats made

der sald. ‘

at the Pulaski County Jail, and
for the first time testified he
had been slapped by officers
and intimidated by police dogs
in’ Russellville immediately
after his arrest,

Larry Dalton, a former Rus-
sellville police officer, offered
testimony during the hearing
ineant to corroborated Fair-
child's claims.

“The Court is persuaded by
the testimony relating to the
events leading up to the taking
of the videotaped statement
and by its viewing of the tapes
that his statements were spon-
taneous and unrehearsed,”
Eisele wrote.

“The court specifically finds
that petitioner was not in-
structed or coached regarding
the content of his confessions.
«. This Court agrees with the
state trial court, and so finds,
that petitioner's statements
were given voluntarily.”

The judge also cited a legal
ruling that “state court factual

- determinations (in this case,

that the confession was volun-
tary) are entitled to a
presumption of correctness.” .

John Wesley Hall

John Wesley Hall, who fol-
lowed O'Bryan as Fairchild’s
counsel, a pee the decision
to the Bh reult.

The appeal was based on
two points - that the defend-
ant's previous attorney was
constitutionally ineffective for
not challenging the legality of
the arrest warrant and that
Fairchild was coerced into
confessing to Mason's murdcr.

The 8th Circuit upheld
Eisele's decision that the ar--
rest was legal.

The appeals court repeated
Eisele’s findings that Fair-
child was not coerced and said
It could not question facts
received from the lower court.

Hall, with help from lawyers


- ~~

ARK. DENoceAr Hots. G~26-9G

Fairchild

BY WARD PINCUS
Democrat Staff Writer

An attorney for Barry Lee
Fairchild says he has uncovy-
ered new evidence to show a
federal judge that the death
row inmate had no role in the
1983 rape and murder of a 22-
year-old nurse. es :

The new information will
have to be convincing because
seven appeals of Fairchild’s
capital murder conviction
have been rejected.

During the appeals, the
courts accepted as valid two
confessions Fairchild said
were coerced, denied claims
Fairchild was mildly retarded
and rejected the contention
his arrest was improper.

“We have new information

not available before,- much. .--

centering on the confession, |

Since that was 99 percent of |

the. case against Barry,” said
Richard Burr, a lawyer with
the National Association for
the Advancement of Colored
People legal defense fund and
co-counsel for the death rcw
inmate.

“Certainly we will be argu-
ing there is new evidence pres-

SS
a

2 e
£ a4 a
/ Of :
L

ay.

ent to Support our argument
that the video tapes do not
have ‘a ring of truth’ (as a fed-
eral judge said during a 1987
hearing) or that what ring of
truth there is is a deception,”
Burr said in a telephone inter-

view from his office in New
| York, «0 oe’

_Asked in what way the infor-
mation is new, he responded:
“It is new in the sense that it
could not be known before
fairlyrecently.” .

Fairchild, 36, contended
during and since his 1983 jury

- trial he had nothing to do with
' the Feb. 26, 1983, death of 2nd

Lt. Marjorie “Greta” Mason, a
Little Rock Air Force Base
nurse.

to the kidnapping and rape in
video-taped confessions made
soon after his arrest. .

Those confessions provided
the strongest. evidence linking
him to the murder.

He was sentenced to death
Aug. 2, 1983, but his case has
since been appealed to the
state Supreme Court and twice
each to the federal district,

attorney clai

He twice admitted, though, _

Barry Lee Fairchild

appeals and Supreme courts.

D

24

i Re - £

}

aap oe ‘

ented s
at *

. rag

Fairchild’s appeals have been
denied at every level.

In addition to the new ap-
peal, his attorneys could ask
the U.S. Supreme Court to re-
view an April 17 ruling by the

24% ; ak “se

Appeals upholding his convic~
tion. m
_ Fairchild, who has had exe-*
cution dates set twice before,
is now scheduled to die Sept. 5.

., Depending on where his -

next appeal is filed, Fairchild

could receive a stay of execu-

tion from either the high court
orthe U.S. District Court.
In the 1983 Lonoke County
Circuit Court jury trial and in
federal appeals since then, his
attorneys argued that the two

-yideotaped confessions taken -
early the morning after his ar-

rest came only after he was.
beaten by police. :

The contention that the con-
fessions were coerced jis only
one of several appeal argu-~

ments Fairchild’s attorneys: ~
have made during the seven- a
‘ year-oldcase. = 3. we}

**. Burr said the new a peal’

3

likely will be filed by Friday. >
The appeal, the specifics of

which Burr would not reveal,; —

will show Fairchild had no,
part in the crime and that the’

t

_ See FAIRCHILD, Page 3A:

evidence ’

8th U.S. Circuit Court of

nem atten nnticinennic eae

ant ae

ee Ne
he dicted ds tad 4

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CLL


FAIRCHI

RCHILD, Barry Lee, bl, LI ARSP (Lonoke) /

lugust 31, 1995

ARKANSAS TIMES * SEPTEMBER 30, 1993

‘HE LAW

SLIPPING THE NOOSE

How last-minute maneuvers blocked, perhaps forever, the
execution of Barry Lee Fairchild.

By Mara Leveritt

N WEDNESDAY,
Sept. 22, the day Barry
Lee Fairchild was sched-

{ to die by lethal injection for the murder

\ir Force nurse Marjorie “Greta” Mason,

S. DistrictJudge G. Thomas Eisele handed

wna strongly worded decision. Itnot only

rred the execution but changed Fairchild’s
ntence to one of life in prison.

His reason: “There is no evidence that he
Fairchild] took Ms. Mason’s life, or that he
“tempted or intended to take it. There is no
vidence that he advised or assisted his co-

rt in the murder, that he knew, foresaw or
ntemplated the taking of her life, or that he
was present when the fatal shots were fired.”

How did the state of Arkansas come within
six and a half hours of executing a man who,
.ccording to a federal judge who had ruled
,cainst Fairchild in two previous hearings,
should never have received the death penalty
in the first place?

The answer lies behind the headlines of
he past four months. And it rests with an
inlikely coalition of lawyers—black and
white, from Arkansas and New York, some
holding deeply divided views of the case—
but all working against a sentence they be-
ieved was unconstitutional and against a
clock that was counting down.

EVEN BEFORE THE EVENTS
»f this summer, Fairchild’ s case was already
one for the record books. In 1991, Eisele,
while upholding Fairchild’s death sentence,
said, “*...the court is convinced on the evi-
jence before it that he was not the one who
shot and killed Ms. Mason.”

Six months later, Chief Justice Richard S.
Arnold, writing fora three-judge panel of the
8th Circuit Court of Appeals, also upheld
Fairchild’s sentence. But he also noted that
Fairchild “probably did not kill Ms. Mason.”

The courts repeatedly found that, accord-
ing to Fairchild’ s own confession, he had, on
a day in February, 1983, abducted the 22-
year-old nurse, robbed and raped her, along
with an accomplice, and that while Fairchild
was on one side of the Lonoke County farm-
house where they took her, his accomplice,

JEFF MITCHELL

ed

3

Ce

-

= =.

are Fa
BETS E

EXECUTION AVERTED: Part of the team that defended Fairchild are, from lef to right, Steven Hawkins of the NAACP Legal Defer

Fund, lead lawyer on the case; Elgin Clemons, a law student who came from New York to help; and Little Rock lawyer John Wesley H

on the other side of the house, shot and killed
her. The accomplice has never been found.

Fairchild was convicted on the basis of
two statements videotaped at’ the Pulaski
County sheriff’s office. For 10 years, he has
claimed he was beaten into making those

confessions and told what to say by depu-:

ties. He repeatedly told his lawyers that he
did not want a sentence of life in prison and

that if acourt could not find him innocent of

the murder, he preferred thathe be executed.

That just about happened in the summer’

of 1989, when Fairchild was scheduled to be
the first person executed in Arkansas since

resumption of the death penalty, He-told.
John Wesley Hall, his court-appointedlaw-

yer, that he wanted no further appeals.
The pending execution, combined with

uncertainties of the case, attracted wide-
spread attention, particularly at the New
York office of the NAACP’s Legal Defense

Fund. ‘

Steven Hawkins, a graduate of Harvard
and New York University Law School, was
one of the lawyers on the LDF team who
came to Little Rock in 1989 to try to block
Fairchild’s execution. Hawkins, now 31,
was back in Arkansas again this month, on
precisely the same mission.

Another member of the 1989 team was
Elgin Clemons, a graduate of Little Rock
Central High School and Princeton Univer-
sity, who is now studying law at NYU. He
also returned to Little Rock this month,
putting his studies on hold, to work on
Fairchild’s behalf.

When Clemons was here before.
worked as an investigator for the te:
mainly looking for evidence of abuse by
sheriff and his deputies. During that ume
met Fairchild in prison and the two est
lished a rapport.

The relationship between Fairchild 's |
yers—Hall and the LDF team—howe
was being racked by discord. Hall, wh
represented Fairchild since 1987, disag:
with some of the approaches for his defe
advanced by the LDF. Hawkins and
other LDF lawyers, in turn, questioned H
commitment to seeing Fairchild cleare

Part of their disagreement centered ar
the question of Fairchild’s mental capa

FAIRCHILD-Continued on pag:


\RKANSAS TIMES ¢ SEPTEMBER 30, 1993

\TRCHILD

nued from page 13

in issue that has clouded this case from
start
‘all said publicly he did not consider
-hild to be mentally retarded. The LDF
vers argued he was, had him tested, and
«htthe mental retardation claim tocourt.
also sought to prove that sheriff's
ities had beaten
hild into making his

— THE 1993
the end, Eisele ac- LEGISLATURE HAD = and thatit shouldn’t be
PASSED A LAW
BARRING THE ‘Baker was also
EXECUTION OF amazed. “I wondered,
MENTALLY RE-—
‘din Mason’sabduc- TARDED PERSONS, _ him? Butlsubsequenty

-d neither argument.
ner, the judge said,
.ccepted the validity
Fairchild’s confes-
n; he believed
rchild had partici-

robbery, and rape—
notin her actual mur-

‘hat ruling provoked an outcry. Some
mbers of the NAACP derided Eisele as a
st. Hall saw the attack as shameful. The
tion widened the rift between him and
LDF.
vevertheless, Hall and the LDF, in differ-
ways, continued to try to help Fairchild.
le’s ruling was appealed and for two
rs, a Stay prevented further attempts at
cution.
ut last month, that stay expired. Gov.
Guy Tucker set Fairchild’s second ex-
ion date, and the race to save him again
on.

his time, though, the legal land-

{ scape looked a bit different. The

1993 Arkansas legislature had

sed a law, similar to one in several other

es, barring the execution of persons
ven to be mentally retarded.

{awkins, in New York, was aware of the

law through contacts with NAACP

vers in Little Rock.

that.”

tatives to Gov. Tucker in July, asking him
not to set an execution date while the case
was pending.”

Little Rock lawyer Perlesta A. “Les”
Hollingsworth was a member of the del-
egation that paid a call on Tucker. Later,
Hawkins said, “I think Mr. Hollingsworth
was somewhat shocked on Aug. 27, when
the date for the execution was set. The
impression the group had was that the gov-
ernor realized we were raising a very sig-
nificant issue in the Ar-
kansas Supreme Court

rushed by a pendiag
execution.”

“What’s the big hurry?» —
Why this. rush to’kill |

found out that the goy- _

ernor had to do what he
did. He’s bound by law to set an execution ~ |
date when the appeals process is over and
there are no more federal appeals. A motion
pending before a state court didn, t change’

THE LAWYERS. REALIZED THE
mental retardation, or MR, appeal might not,
work. There: were a couple. of: Jong-shot '

this execution any time he wanted to,
but he let it go on for 10 years. Any

in a mental institution. These guys are
playing games up there, and it’s not too

country’s legal system. “There are cer-

death sentence, they should not be judges.
They’re damn sure screwing up.

“system’s a joke, and now I think he
_believes me.”

“Judge Eisele knew he could stop

judge that would do that doesn’t need
to be a judge. He needs to be locked up

damn funny.”
Mason complained abouta liberal press
and liberal judges wreaking havoc on the

tain judges in the United States that do
not believe in the death sentence,” he
said, “but if they do not believe in the

“My dad’s always had faith in the
system. I’ve been telling him our

hopes: intervention by President Bill Clinton, -
which some black: members of Congress - :
were seeking, ora clemency grantby Tucker
But no one was counting on them, ~~
-The only approach that could possibly
work was for Fairchild to appeal his own.
sentence, and that was something that for 10.
years he steadfastly refused to do.” Be.
As Clemons noted, “I don’ tthink hee ever
understood when we’d tell him we had more.
room to maneuver on his case if he wast "Gs
under a sentence of death. We could keep
working for him in the future, but if he was

Brie: stake is Re a Dassive man who is
cme “willing to let them because he doesn’t want
life in prison.

5 Since BLF was not the cinaes man and he
id not know a murder was going to occur,
hould we be able io let the state kill him;
y ie effectively ‘have the state aid his suicide

dead, everything was moot.” _~ ~ (which. would be manslaughter if a private
Hall, though now “out of the loop,” as he ‘citizen did it)? :

ecision was made to
eal the mental retar-
on issue once again.
fawkins contacted
b Rule of the Rose
v Firm to invite him
nthe case. Rule, who
is the Arkansas Coa-
yn to Abolish the i
th Penalty and who .
ked for passage of
new mental retarda-
law, agreed. He in
asked Charles
er, another member
1e firm whoalsoop- fo”
2s the death penalty,
in in on the effort.
We filed those papers
» 30, in the local trial
rt in Jefferson

BLF did not deserve death for his
’ crime. ‘He tied the hands of his lawyers
from trial to’ now by prohibiting us from
getting life for him. BLF hada death wish

* from the moment he was arrested.
Fairchild’s obstinacy on the issue, and
the lawyers’ legal inability to fight his
sentence without his permission, seemed
to. be insurmountable obstacles. But then
{/@Clemons and Hawkins noticed achange in
|» Fairchild. He: was different from when
they’d last seen hima couple of years ago.
J eoo1;could jtell he wasn’t as rigid,”
|-# Clemons said. “He was more open. He
1‘; looked at you when he talked. He’d hada
hard: time. doing ‘that ‘before. He said,
"You know my date is Wednesday.’ I
id, ‘I.know.;That’s why we're here.’ ”

Sin large partto the influence of Clay Ford,
Jovani inmate on death row, sent there from

ty,” Hawkins said. LIFER: The court ruled Barry Lee Fairchild committed several;
d we sent represen- crimes, but not murder. i

ge esisiont County in 1981.
s

has had to a brother—a real one. He’s very
articulate. He’s been helping Barry read and
write. Barry always speaks highly of Clay
Ford.”

The question now was, if Fairchild was
open to the alternative of life, would the
courts accept his last-minute petition. And
ethically, how far could the lawyers go in
persuading Fairchild to reverse his stance.

As Baker of the Rose firm said later, “It
seemed to me that Hawkins had several
meetings with Fairchild, trying to explain
to him what we were doing and trying to
get his consent. We wanted to be sure he
agreed. But it was a problem. You looked
at him and you didn’t have a lot of confi-
dence that he understood what you were
saying.”

Clemons, the law student, and Ford,
Fairchild’s buddy on death row, provided
the crucial link.

After a visit Hall and Hawkins had with
Fairchild and Ford six days before the execu-
tion, Hall’s journal recorded this exchange:

How you doing, Barry?

I feel great.

Taking it in stride?

Yeah,

Clay Ford: Has he waived life without
parole?

Steve Hawkins: We can probably still get
@ Stay to litigate that from Judge Eisele
because it is a serious issue to be resolved.

BLF says he may not change his mind
because he did not before.

Steve Hawkins makes his pitch for life
without parole. Life withott parole is like a
breath of fresh air for evidence review.


lack of evidence. The jury at the original ,
trial had been misinstructed, he said. His
written order would follow.

Approximately 3 p.m.: Gillean notified
the 8th Circuit Court he intended to ap-
peal. His brief arrived at the court about 5
p.m. Gillean appealed on the grounds of
procedure: that Fairchild had come to court
many times, but never to have the sen-
tence of death removed, so he shouldn’t
get to seek that now.

Approximately 5:15: Hawkins called
the 8th Circuit’s clerk to say he needed a
couple of hours to send them his response.
“I was told I had 45 minutes to getitin. So
it was very hairy.”

By this time, Hall and Clemons were at
Cummins prison, awaiting the outcome
with Fairchild.

Gillean was also at the prison. If either
the federal appeals court

or the U.S. Supreme AFTERWARDS,

Hawkins recalled. “I think Les and Elgin
and I did pour a glass of wine. But I fell
asleep at the table.”

Afterwards, reporters asked, “Shouldn't
Fairchild have raised this issue earlier?”
Lawyers for both sides agreed that he
certainly should have.

But Hawkins also sees biame for the
ordeal resting partly with the state. “Ar-
kansas is one of the few states that does
not have mandatory appellate review in
death cases,” he said. “If they’d had that,
this sentence would have been thrown out
10 years ago, and none of this would have
happened.”

Baker agrees. “Under Arkansas law,
Fairchild had to raise the challenge to his
death sentence himself. But he didn’t. And
so here you have somebody whois an admit-
ted kidnapper, rapist.and robber, in effect,
tying society’s hands.

“It doesn’t have to be

Court could be per- REPORTERS ASKED, that way. I think it would

suaded to overturn Eisele

be good for us to pass a

and reinstate the death “SHOULDN'T statute that would re-

penalty before midnight,
the execution could still

FAIRCHILD

quire appellate review
in all death penalty

go forward. The ques- HAVE RAISED THIS cases, with a court-ap-

tion facing Gillean, as ISSUE
EARLIER?”

the clock moved toward
nine, was how far and
how hard was he willing
to press to see Fairchild be killed.

AT ONE POINT, HALL WROTE
in his journal:

I wander through an open door, into an
air-conditioned room, maybe 30 feet from
the quiet room. It’s the execution chamber.

Four guards are in there waiting to
spell the others. At 7:45, in walks John
Byus, the prison medical director.

He works away on the restraints and
stuff, making sure everything is in order in
case they go through with it. He’s got it
down pat. He pulls out a big plastic bag-
like thing and unfolds it. He tucks it around
the pad on the gurney. It’s really a body
bag put in the ready position.

uton this night, anyway, the body
B bag wouldn’t be used. At ap-

proximately 8:20 p.m., word
came to the prison from St. Louis that a
three-judge panel of the 8th Circuit Court
of Appeals had denied the attorney general’s
request for a reversal of Eisele’s ruling.
They said they would hear arguments on
the case in October.

Hawkins was ecstatic. “That is hardly
something that the U.S. Supreme Court
was going to reverse,” he said.

Even so, it would be more than an hour
before Gillean and Tucker in consultation
by phone would make the decision to
“stand down” and cancel the proceedings.

But it was over, at least for the time
being. And for the first time in ten years,
Fairchild’s lawyers felt the prospects
looked good for avoiding an execution.

“We were all so numb and exhausted,”

pointed independentat-
torney, who has the
power to raise these
sorts of issues. That

should be done after the trial and after the

imposition of the sentence.”

Baker, a lawyer who’s never been in-
volved in a death penalty case before, also
said he was mystified by the state’s insis-
tence on procedure, once Fairchild had
changed his mind.

“For the life of me, I can’t understand
the state’s rush to the 8th Circuit Court to
get Eisele’s decision reversed. This was a
new issue being raised. Why can’t the
state take a studied, reflective look at that.
If Eisele’s decision was wrong, well,
Fairchild’s not going anyplace.

“As it is, it seems to me that people are
doing things that are not very clearly
thought through. It’s as though we're say-
ing, ‘This problem has been dragging on
for ten years and we want to get shuck of
it, and the way to do that is to kill him.’ ”

Two days after Fairchild was returned
to his cell, Eisele wrote a follow-up to his
earlier decision, in which he expressed, a
bit more formally, some thoughts similar
to Baker’s.

“When it appears that an execution is
about to take place in violation of our
Constitution,” Eisele wrote, “traditional
laws of standing are not sufficient to pro-
tect the values of our society.

“If Mr. Fairchild had not chosen, at the
last minute, to challenge the imposition of
the death sentence, a man who was not
eligible for the death sentence under the
Constitution, as interpreted by the United
States Supreme Court, would have been
executed by the State of Arkansas on
Wednesday, Sept. 22, 1993. Thatis achill-
ing and sobering thought.” &

Ps)

getaway car and has no other involvement in
the crime, and the accomplice who actually
killed the victim, intended to do so, or at-
tempted to do so. Thus, we must consider
Fairchild’s actions in light of the intermedi-
ate standard enunciated in Tison, and review
the evidence to determine whether it was
sufficient to sustain his death sentence. Spe-
cifically, we must consider whether Fairchild
has proved by clear and convincing evidence
that no reasonable jury could have found that
he was a major participant in the felonies
and he acted with reckless indifference to
human life.’

The evidence before the jury revealed that
Fairchild, like the Tisons, was an active and
major participant in the underlying felonies.
He participated in the kidnapping of Ms.
Mason, climbing into her car with his accom-
plice. He personally took the money from
her purse. And he raped her. See Lesko v.
Lehman, 925 F.2d 1527, 1550-52 (3d Cir.),
cert. denied, — U.S. ——, 112 S.Ct. 273, 116
L.Ed.2d 226 (1991); Duboise v. State, 520
So.2d 260, 266 (Fla.1988); People v. Jimer-
son, 127 Ill.2d 12, 53, 129 Ill.Dec. 124, 142,
035 N.E.2d 889, 907 (1989), cert. denied, 497
U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d 796
(1990). He also was aware that his accom-
plice had a gun, and he was there when his

accomplice first pulled the gun on Ms. Ma-
son.

Moreover, Fairchild’s conviction was based
primarily on direct evidence, his own confes-
sions. Cf Jackson v. State, 575 So.2d 181,
192 (Fla.1991). Most of the evidence pre-
sented to the jury consisted of those confes-
sions and a watch found as a result of the
confessions. He testified at trial that the
confessions were not true and were beaten
out of him, but it was up to the jury to decide
whether to believe his taped confessions or
his testimony at trial. Obviously the jury
believed the confessions, and we do not be-
lieve that it was irrational for it to do so.
See Herrera v, Collins, supra, —— U.S. at
——, 118 S.Ct. at 861. A rational jury could
have concluded that Fairchild was a major

participant in the crimes leading to the death
of Ms. Mason.

3. Arkansas law requires a showing of ‘‘circum-
Stances manifesting extreme indifference to the
value of human life,” before a felony-murder
defendant may be sentenced to death. Ark.Code

804 21 FEDERAL REPORTER, 3d SERIES

Fairchild argues that his actions did not
exhibit reckless indifference to human life.
For example, he argues that he was not
present when his accomplice shot Ms. Mason.
We note, however, that the actual presence
or close proximity of the defendant is but one
factor among many a jury may consider in
sentencing a felony murderer to death. See
State v. Branam, 855 S.W.2d 563, 570 (Tenn.
1993); People v. Jimerson, 127 Ill.2d at 53,
129 Ill.Dec. at 142, 585 N.E.2d at 907. When
his accomplice shot Ms. Mason, Fairchild,
like the Tisons, did not attempt to assist her.
Instead, after hearing the shots and reenter-
ing the house, Fairchild stated that they
“need[ed] to get out of [there] now.” Then,
he left the scene with his accomplice, at-

tempting to evade the police for several days
thereafter.

Fairchild argues that he did not know that
Ms. Mason would be killed, did not expect it
to happen, and was, in fact, surprised when
he heard the gunshots. These assertions
may all be true, but they are not dispositive.
The issue is not actual subjective knowledge
or intent, but reckless indifference to human
life. Fairchild joined an armed accomplice in
the kidnapping, robbery, and rape of Ms.
Mason. Although Fairchild’s confessions re-
fer to the gun’s existence only at the kidnap-
ping stage, once Ms. Mason knew of the
gun’s existence, it represented an implied
threat throughout the entire incident. More-
over, Fairchild told the police that he heard
Ms. Mason beg him and his accomplice not to
hurt her; yet, her pleas did not deter him
from further participation in the crimes.
Then, after the rapes, Fairchild allowed his
accomplice to go back into a deserted house,
with a gun, to the room where Ms. Mason
had been left. It was highly foreseeable that
these events might culminate in death. Fi-
nally, the jury could easily have concluded
that Fairchild had a motive to want Ms.
Mason killed. After all, he had just helped

kidnap her at gunpoint, robbed her, and
raped her. Other than his accomplice, Ms.
Mason was the only witness to these crimes.
On the basis of this evidence, we believe that

Ann. § 5-10-101. The Supreme Court cited this
Statute as one of those falling into the intermedi-
ate Category it examined in Tison. Tison, supra,
481 U.S. at 153, 107 S.ct. at 1685.

2 Ns a tele elke RE ea


amend at

FAIRCHILD:

Continued from page 15

of the case via a telephone conference call.
On the line for Fairchild were: Hall, Baker,
Rule, Hawkins, and Dick Burr, head of the
LDF death penalty office in New York.
Representing the state were Deputy Attor-
neys General Jack Gillean and Olin
“Butch” Reeves.

Eisele expressed his concern about
Fairchild’s apparently sudden change of
mind. He told the lawyers the areas of law
he wanted them to research further and
scheduled another conference call at noon
on Tuesday.

“We worked all night,’ Hawkins re-
called. “I’m sure Gillean and Eisele’s clerk
were working all night too.”

At 12:30 p.m. on Tuesday, they got the
second call from Eisele. The judge said
he’d received the state’s response to
Fairchild’s petition, and that he agreed
with some of its points. But, according to
notes Hall kept of the discussion, Eisele
also said that the state didn’t understand it
had to prove that Fairchild had a “culpable
mental state.”” He asked the lawyers to
keep working.

Hall wrote:

This is not the line of work for procras-
tinators. Eleventh hour hearings are not
good for the system. The risk of error is so
great.

ut for the first time, Hawkins was
optimistic. “Certainly on the
Tuesday phone call, I began to

believe that the state was not going to meet
the requirements of proof. The state just
didn’t have an answer. Gillean kept saying
that Fairchild had intent. Eisele said, ‘Point
to that in the record.’ And they couldn’t do
that.

“What seemed somewhat unconscio-
nable to me was the willingness of the
attorney general’s office to try to force an
execution under those circumstances.”

Wednesday was a whirlwind.

At 9:30 a.m., with the execution less
than 12 hours away, Fairchild’s lawyers
metat the governor’s mansion with Tucker.

“Tucker was well versed in the case,”
Clemons recalled: “He said, ‘Fairchild
hasn’t had poor representation. In fact,
he’s had extraordinary representation.’

“And it was clear he had tremendous
respect for Eisele. He said, ‘You have
gotten probably the fairest fact-finder |
could give you, and if he says no, I’m
strongly inclined to favor that.’ ”

11:05 a.m.: In an unprecedented move,
Fairchild was brought from his cell near
the death chamber into courtin Little Rock.
A magistrate standing in for Eisele wanted
to ascertain whether Fairchild had changed
his mind “intelligently and voluntarily.”
Fairchild answered yes.

12:35 p.m,: The lawyers met again by
phone with Eisele. Eisele told them he was
setting aside Fairchild’s death penalty for


at h ions did not
pren human life.
ues that he was not
tplice shot Ms. Mason.
t the actual presence
e defendant is but one
jury may consider in
rderer to death. See
.W.2d 563, 570 (Tenn.
son, 127 Tll.2d at 53,
.E.2d at 907. When
s. Mason, Fairchild,
ear: to assist her.
e shots and reenter-
ld stated that they
[there] now.” Then,
his accomplice, at-
olice for several days

he did not know that
led, did not expect it
fact, surprised when
These assertions
y are not dispositive.
ubjective knowledge
difference to human
arn ‘complice in
A: ape of Ms.
iild’s confessions re-
only at the kidnap-
fason knew of the
esented an implied
ire incident. More-
lice that he heard
is accomplice not to
did not deter him
on in the crimes.
airchild allowed his
0 a deserted house,
where Ms. Mason
nly foreseeable that
nate in death. Fi-
ily have concluded
tive to want Ms.
ae had just helped
robbed her, and
is accomplice, Ms.
ss to these crimes.
ce, we believe that

‘emé Court cited this
g into the intermedi-
Tison. Tison, supra,
at 1685.

RIPSON v. ALLES 805
Cite as 21 F.3d 805 (8th Cir. 1994)

a reasonable jury could have found that Fair-
child’s actions exhibited reckless indifference
to human life.

We hold that Fairchild has failed to prove
by clear and convincing evidence that, but for
a constitutional error, no reasonable juror
could have found him eligible for the death
penalty. Instead, we conclude that the evi-
dence at trial was sufficient for a reasonable
juror to find that Fairchild was a major
participant in the felonies and that he acted
with reckless indifference to human life,
which culminated in Ms. Mason’s death.

IV.

Fairchild does not qualify for the actual-
innocence exception, for reasons we have giv-
en in this opinion. We therefore are not
allowed to reach the merits of his current
petition. We respectfully disagree with the
District Court’s contrary conclusion. The
judgment is reversed, and the cause remand-
ed with directions to dismiss the petition.

It is so ordered.

O & KEY NUMBER SYSTEM

AMmMs

Michael D. RIPSON, Plaintiff—Appellee,
v.
John K. ALLES, Defendant—Appellant,

Clyde Klave, City of Winterset Police
Department, Defendants.
Michael D. RIPSON, Plaintiff—Appellee,
v.

John K. ALLES, Defendant,
Clyde Klave, Defendant—Appellant,
City of Winterset Police Department,

Defendant.
Nos. 93-1972, 93-1974.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 14, 1993.
Decided April 11, 1994.

Rehearing Denied June 1, 1994
in No. 93-1972.

Father brought § 1983 action against
arresting officer and police chief alleging vio-

lations of constitutional rights resulting from |
alleged unlawful arrest and subsequent im-
prisonment. The United States District
Court for the Southern District of Iowa,
Charles R. Wolle, Chief Judge, denied defen-
dants’ motions for summary judgment on
grounds of qualified immunity. Defendants
appealed. The Court of Appeals, Wollman,

Circuit Judge, held that: (1) arresting officer

was not entitled to defense of qualified immu-
nity; (2) police chief was entitled to defense
of qualified immunity; and (3) police chief
was not liable in his capacity as officer’s
supervisor for alleged illegal arrest.

Affirmed in part, reversed in part and
remanded.

1. Arrest €63.4(1)
Civil Rights <=214(6)

Fourth Amendment requires that officer
have probable cause for ‘arrest; arresting
officer is entitled to qualified immunity, how-
ever, if arrest was objectively reasonable,
such that reasonable officer could have be-
lieved probable cause existed for arrest.
U.S.C.A. Const.Amend. 4.

2. Civil Rights <=214(6)

In determining whether officer’s conduct
in making arrest was objectively reasonable,
if arrestee fails to assert constitutional viola-
tion under law as currently interpreted or if
actions that arrestee alleges officer to have
taken are actions that reasonable officer
could have believed lawful, officer is entitled
to dismissal of civil rights action prior to
discovery. U.S.C.A. Const.Amend. 4.

3. Civil Rights ¢=214(6)

Arresting officer was not entitled to de-
fense of qualified immunity in § 1983 action
alleging unlawful arrest of father for alleged
sexual abuse; reasonable officer could not
have believed probable cause existed for ar-
rest of father given that there was no medi-
cal evidence of abuse, the parents were in-
volved in a dispute over custody of the child,
and the county attorney had recently advised


Clay Ford: What should Barry do tomor-
row?

BLF; I don’t want to talk. I’d prefer that
you guys do it. 3

Steve Hawkins: You should say you’re
innocent, and they’re going to execute an
innocent man.

th Fairchild giving the appear-
ance that he was willing to
shift his. stance, Hawkins,

Rule and Baker.went to work preparing their
petition for Eisele. It was based on a U.S.
Supreme Court ruling known as Enmund v.
Florida, handed down by the court in 1982,
just a few. months before Greta. Mason’s
murder. The Enmund case,:as it’s called,
spells out the circumstances under which an
unwitting accomplice to a crime in which a
murder is committed may not be sentenced
to death.

“T worked all Saturday and Sunday on the
petition to Judge Eisele,’ Hawkins said.
“The requirements under Enmund are very
difficult to meet, but Barry meets them, You
have to have the intent to cause lethal injury
or the knowledge that it was going to hap-
pen, and Barry had neither of those.”

Hollingsworth, Rule and. Baker, mean-
while, served as the team’s strategists. As
Baker later explained, “What you do is, you
sitdown, and you say, ‘We do X, and then A,

B, or C is going to happen. What are’ we -- | -

going to doif A happens? Whatare we going
to do if B happens? And what do we do if C
happens?’ Then you draw up your pleadings
for every contingency. And, of course, the
state is doing the same.” S

As Hawkins raced to file his petition, two
other avenues of hope were rapidly drawing
toaclose. On Monday, three days before the
execution date, the state board authorized to
review clemency requests announced it
would-not recommend clemency for
Fairchild, And the Arkansas Supreme Court

“YOU SHOULD SAY
YOU’RE INNOCENT
_ AND THEY’RE
GOING TO EXECUTE
_ AN INNOCENT
~ MANLY”.
—STEVE HAWKINS

announced it would not postpone the execu-
tion so that the motion on mental retardation
could be heard.

That left Fairchild’s lawyers only two
chances: The writ being filed in federal
court, claiming that under Enmund, Fairchild
was ineligible for a death sentence. And
failing that, a meeting with Gov. Tucker,
which had just been arranged for 10 a.m. on
Wednesday, the day of the execution.

._ At6:35 Monday night, Eisele, who was in
Jonesboro, met, with lawyers for both sides

| FAIRCHILD-Continued on page 16


™

FAIRCHILD, Barry Lee, black, LI ARS

“AIR FORCE OFFICER - - -

HE YOUNG farmer was in a hur-

ry that cold Sunday morning,

February 27, 1983, when he was
checking the backside of the property. It
was already 9:15 a.m. and preaching
started in his church at 11 a.m. It was
several miles back down to the highway,
down a rutted road that was little more
than a lane, from the isolated abandoned
shack where he had stopped. He seldom
visited this part of the property, some-
times going for weeks between checks.

The lovely

28 True Detective
. '

When he pulled up in front of the
shack, papers scattered on the ground
caught his attention. There was a lot of
them, open faced and new looking, not
crumpled and ‘yellowed with age as might
be expected.

The first card he picked up really stir-
red his curiosity. It was a passport, not
the kind of card that would be handled
carelessly. The picture was of a very pret-
ty young brunette. The name on the card
was Marjorie L. Mason. The address was

Mi ek

a community located in Florida.

The young farmer only glanced
around the front yard, and saw nothing
else. He drove back home, trying to de-
cide what to do.

He decided to call the Arkansas State
Police, and Criminal Investigator Dale
Swesey responded. Swesey is the inves-
tigator for Lonoke County where the far-
mer called from. The caller gave direc-
tions to the isolated, barn-like structure.

Swesey found more scattered papers
in the yard, several of them with the
name of Marjorie Mason on them.

Then the careful front yard search
turned up a copy of a newspaper dated
February 26th, the day before. Several
of the ads in the furniture store section
were circled.

Behind a big rock, Swesey found a
blue beret with Air Force insignia on
front and the initials of the Little Rock
Air Force Base.

Nearby lay what looked like a pair of
pantyhose, Swesey lifted the nylon mass
with his fingerprints and shook it out.
The stockings had holes cut in front,

‘making them a very effective mask. It

was knotted at the top.

The investigator searched the front
area thoroughly, but found nothing
else he considered significant.

He entered the shack, walking care-
fully over the rotted boards. Again, he
found nothing. Then he stepped outside
the back door—and froze in his tracks.

The partially nude body of a young,
white, and very attractive female lay
crumpled in the dirt. The bruised and
battered body was twisted, lying three

angel of mercy suffered |
every indignity known to woman
before her killer snuffed her life.
Viewing her remains, probers vowed
to turn over every slimy rock

until they found the guy responsible

pa 2 at ene

quarters
would shoy
raped But
fied with \
had also fire
Inv. Swe
Lonoke Cou
arrived on tt
identificatio:
possession s!
They alsc
Force insig
Little R
which bord
has served !
graveyard


ia.
glanced
nothing

ng to de-

sas State
itor Dale
he inves-
e the far-
e direc-
tructure.
{ papers
with the
em.
d search
ser dated
Several
2 section

found a
ignia on
tle Rock

a pair of
lon mass
k it out.
n front,
nask. It

he front
nothing

1g care-
gain, he
! outside
tracks.

young,

lay

sed and
1g three

quarters face down. Later examination
would show that she had been repeatedly
raped. But the rapist had not beenrsatis-
fied with violating her body sexually. He
had also fired two bullets into her head.

Inv. Swesey immediately notified
Lonoke County authorities. When they

arrived on the scene, they looked at the -

identification papers Swesey had in his
possession showing the Florida address.
They also noted the Little Rock .Air
Force insignia.

Little Rock is in Pulaski County,
which borders Lonoke County, which
has served before as Pulaski County’s
graveyard. Many a homicide committed

in Pulaski County winds up dumped i in
Lonoke County. ,

Since the investigators felt-there was a:

strong possibility that the homicide'could
have occurred in Pulaski County and the
victim transported to and disposed of in
Lonoke County, Sheriff Tommy Robin-
son of Pulaski County was also notified.

Investigators from all areas worked the
crime scéne thoroughly, but found little
to add to the meager clues that Swesey
had uncovered.

* The condition of the body and the
newspaper with the previous day’s date
on it gave officers a narrow time frame in
which to work.

DEATH!

One set of probers took the news-
paper,.to visit the furniture store
that had been circled. .

Two others contacted the air. force
base and gota local address for Marjorie
Mason. There they had the heart-
breaking task of breaking the news of the
victim’s brutal slaying to her relative
who lived there.

The victim was fully identified as
Second Lieutenant Marjorie L. Mason,
22, known to her family and friends as
Greta.

Greta Mason was a nurse stationed at
the Little Rock Air Force Base. She had

(Continued on page 53)

Pad

Smee eee

them, they set up roadblocks on all exits
out of town. They decided to try an area

search, house to house if necessary. |

They made a special request of the Pulas-

‘ki County caniné corps—and they all

responded—four police dogs and their
trainers. One pair was Corporal Sam
Chamberlain and his dog Jubilee.
Chamberlain is a nine-year law en-
forcement veteran who had military

training with dogs. He worked for for-
mer President Jimmy Carter’s security
force, using dogs to sniff luggage. He
joined the Pulaski County force two
years ago.

Jubilee is a 100-pound male German
Shepherd who has spent three of his four
years of life as a police dog. He is a
thoroughly trained, highly sensitive ani-

male who responds instantly and totally.

\ em

For two days, most of it in pouring
rain, officers and dogs hunted the area.
Then came another lead in the frustrating
case.

A man had come to the door of a home
saying that his car had broken down and
he wanted to call a tow truck. The lady of
the house thought she recognized Fair-
child. While her husband talked to the
man she called Russellville police.

New Program Will Trace Missing
Persons, Track “Serial Offenders”

PROJECT designed to lay
the groundwork for a
nationwide system to trace
missing or abducted children and
adults, to track and apprehend
“serial murderers” and to explore
the links between abuse.and delin-
quency has been announced by
the Office of Juvenile Justice and
Delinquency Prevention (OJJDP),
and the National Institute. of Jus-
tice (NIJ), both agencies of the
U.S. Department of Justice.
A grant of $136,000 has been
given to the Sam Houston State

University Criminal Justice Center, ©

Huntsville, Texas, to oversee sever-
al planning sessions around the
country.

The planning process will deal
with child pornography, child
prostitution and the juvenile delin-
quency resulting from sexual
abuse and exploitation of children.
Alfred S. Regnery, OJJDP admi-
nistrator, said that this knowledge

will be integrated into the estab-
lishment of a Violent Criminal:

Apprehension Program (VI-CAP).
It is-envisioned that VI-CAP will use
the 52,000 data input terminals of
the National Crime Information
Center (NCIC) to help track mis-
sing persons—both children and
adults—and to allow the Behavior-

al Science Unit of the FBI to analy-'

84 True Detective
’ oy 4 ‘

ze crimes apparently committed
by serial offenders whether rapists,
murders or child molesters.

In announcing the cooperative
agreement with Sam Houston
State University, Regnery pointed

_out that law enforcement author-

ities estimate that as many as
5,000 people’a year—half of them
juveniles—are murdered without
apparent motive or by sadoma-
sochists, pedophiles, pimps who
live off children, or child abusers.

“There currently is no national
center for analysis and collection
or correlation of patterns of violent
crime,’ Regnery said. “The partici-
pants in the first planning session
believe that a national violent
crime analysis center at the Be-
havioral Science Unit of the FBI

_could use crime data from all of

the nation’s law enforcement
agencies to allow quicker identi-
fication and apprehension of soci-
ety’s most feared violent criminals
by local law‘enforcement officials.

“When police have an unsolved
or apparently motiveless killing in
one state, they could send a sum-
mary of the evidence to be analy-
zed and programmed into a com-

_ puter. Most criminal justice experts
think we may find that there are:
‘many more serial murders, rapes

and molestations than we can now

discern from public records.”

Regnery also said, “The FBI's
Behavioral Science Unit already
has the capability of profiling the:
personality of violent criminals
based on evidence from the crime |
scene and surviving victims. The
Unit currently provides these pro- |
files to local law enforcement offi-
cials upon request.” Regnery be-
lieves that coupling this capability
with the ability to track these cri-
minals will provide powerful new
tools for dealing with a serious
national problem. i

James K. Stewart, Director of |
the National Institute of Justice
which is also supporting this plan-
ning process, said that in known
psychopathic serial killings alone,
30 men have killed from six to 60
people over the last 10 years.

“In the overwhelming majority
of cases,” Stewart, former chief of
the detective division of the Oak- |
land, California, Police Depart- —_
ment, said, ‘‘These killers have not
been arrested as a result of multi-
jurisdiction tracking of their killing |
spree. Rather, they have been ©
arrested for a recent local killing or |
killings. Arresting authorities all
too often were unaware that the
greater number of the killers’ vic-
tims were strewn across state
lines.” ooe

i

Officers
callec
ran o
garba,- .

Two Ru
ing on the j
freeze. But
instead, kn
dashed awa
down wher
but got up
Only Cham!

tween him 2

C h ambe
attack. The
of the head

hold, but of

the back of |}

his canine ¢
man’s skul!

Fairchild
again. Jub:
him by his ¢

the two Russ

The fleein

fed, his hanc
tors were ta}

escape.
Chamber!

to the loca!

room crew

head.

Then the s
sellville jail
were * *
vered
Robin

The date «

Greta Maso:
a.m., Fairch

ment to Sher

he reported]:
Both were \

Fairchild
murder and r
Pulaski and |
was some qu
slaying occ
court-appoin
nied.

Trial was
child’s attor
the entire ju
grounds it c
population. (
only eight \
judge, Cecil
tion. Trial w
after determ
homicide ha
and a half d:
were seated
The state |

of it in pouring
iunted the area.
a the frustrating

» door of ahome

roken down and
ick. The lady of
scognized Fair-
id talked to the
\le police.

rds.”
FBI's
ilready
ainng the
-riminals
‘he crime
ims. The
hese pro-
ment offi-
jnery be-
-apability
hese cri-
erful new
1 serious | 4

rector of
f Justice
this plan-
n known |@
js alone,
six to 60
years.
} majority =
er chief of 7
the Oak- ||
Depart-
s have not
t of multi-
neir killing
ave been
killing or
rrities all
that the
illers’ vie-
ss state
oo¢

Officers. surrounded the house and
called Fairchild to come out. The suspect
ran out, carrying a shower curtain anda
garbage bag.

Two Russellville officers were stand-
ing on the porch. They yelled for him to
freeze. But Fairchild made a break for it
instead, knocking the officers aside as he
dashed away. He tripped and fell face
down when he leaped from the porch,
but got up and was on his way again.
Only Chamberlain and Jubilee stood be-
tween him and freedom.

Chamberlain ordered Jubilee to
attack. The dog bit Fairchild in the back
of the head. Jubilee is trained to bite and
hold, but of course could not hold onto
the back of Fairchild’s head. But one of
his canine teeth severely lacerated the
man’s skull.

Fairchild jumped up and tried to run
again. Jubilee jumped on him and held
him by his clothes until Chamberlain and
the two Russellville officers seized him.

The fleeing felon was double handcuf-
fed, his hands behind his back. His cap-
tors were taking no chances on another
escape. :

Chamberlain and crew took Fairchild
to the local hospital. The emergency
room crew took 15 stitches in Fairchild’s
head.

Then the suspect was taken to the Rus-
sellville jail where several mug shots
were taken of him. Then officers deli-
vered him to Pulaski County Sheriff
Robinson.

The date was March Sth, six days after
Greta Mason’s rape and murder. At 2:30
a.m., Fairchild reportedly made a state-
ment to Sheriff Robinson. At 6:45 a.m.,
he reportedly made a second statement.
Both were videotaped.

Fairchild was charged with capital
murder and rape. He was charged in both
Pulaski and Lonoke Counties, since there
was some question as to where the actual

slaying occurred. He was given two’

court-appointed attorneys. Bond was de-
nied.

Trial was set for mid-August. Fair-
child’s attorneys filed motions to have
the entire jury panel disqualified on the
grounds it did not represent the black
population. Of the 70 prospective jurors,
only eight were black. The presiding
judge, Cecil Tedder, overruled the mo-
tion. Trial was held in Lonoke County
after determination was made that the
homicide had occurred there. After two
and a half days six men and six women
were seated.

The state began its case with a parade

of expert witnesses. One of the first was a
forensic serologist from the state crime
lab. iain

The hair samples found at the scene
and on the victim’s body were ‘‘micros-
copically’’ similar to those taken from
Barry Lee Fairchild, he testified.

Similar, yes, the defense conceded.

* The hairs were Negroid. Fairchild was

black. So were millions of others, the
defense said. Could the expert swear that
these hairs came from Fairchild and not
one of those other millions of blacks?
The expert admitted he could not posi-
tively identify the hairs as Fairchild’s.
The skindiver’s watch made a timely
appearance. On the stand, the relative
held the watch in his hand, turning it
slightly from side to side, the courtroom

ceiling lights glistening on the white |

gold.

“This watch is identical to the one I
gave Greta for her twenty-second birth-
day in December,’’ he said, his voice
quavering.’‘‘The last time I saw her she
was wearing it.’”

Then he identified a picture of Greta
standing next to her Toyota. ‘I went with
her to buy it,’’ he told the jury. ‘‘She was
so proud that she bought it with her own
money,’’ and this time his voice broke
completely.

Another relative stated that Greta vi-
sited her the weekend before she was
killed. She was wearing a watch identical
to the one that Fairchild had allegedly
given his relative.

The defense had filed several motions
to prevent the jury from seeing the
videotapes of Fairchild’s statements. Af-
ter a long and heated debate, Judge Ted-
der ruled that the tapes were admissible.

In the film, Fairchild’s head was co-
vered with a turban-like bandage that co-
vered the top of his head from his eye-
brows up.

On tape, Fairchild said, ‘‘Me and
another guy was watching from across
the street. We seen this girl going in and
out of furniture stores. We figured she
had some money. We slipped over and
when she came to her car we grabbed her
and covered her mouth and shoved her in
her car.”’

‘“We drove her way out in the coun-
try. We both raped her. Then I went
down to the other car and got her purse. I
took the money out. She only had seven-
ty dollars.’’

He continued, ‘‘Then I heard two
shots. I run back to the house and hol-

‘lered, ‘Man, what did you do?’

“‘He said, ‘That’s the only way out.
Forget it.’ We jumped in the car and took
off. It was When we was driving back

that the cop spotted us and started chas-
ing us. We wrecked the car and run off.”’

He ‘gave officers the name of a second
man. A quick check proved the man was
out of the state when Greta was mur-
dered.

In his second story, told at 6:45 a.m.,
Fairchild said the other man was not in-
volved.

Fairchild took the stand in his own
defense, and flatly stated that both con-
fessions were lies.

Fairchild claimed that he told Sheriff
Robinson he knew nothing about the
Mason murder. ‘‘When I said that, he hit
me with the barrel of the shotgun.

‘‘That’s how I got that bandage,’’ he
stated. ‘‘I was bandaged in the Pulaski
County jail.’

This testimony was disputed by three
witnesses.

Corporal Chamberlain testified that
the bandage had been put on Fairchild’s
head compliments of Jubilee, the police
dog, not Robinson, the sheriff.

The doctor in the emergency room at
the Russellville hospital testified that
Fairchild wasn’t wearing a bandage
when he left the hospital. Later, the doc-
tor rechecked ‘hospital records and
changed his testimony. Fairchild had in-
deed worn a bandage from the emergen-
cy room that night.

The jailer at Russellville brought two
mug shots to show to the jury. In both
shots Fairchild was bandaged.

Fairchild changed his story on his next
trip to the stand. He said he didn’t know
when his head was treated and ban-
daged, or even if it was. He said he
couldn’t see the bandage and he couldn’t
reach up and touch it because his hands
were double handcuffed behind his
back.

His story about the watch was that he
bought it from a fellow at a poker game.
“‘He lost all his money and he sold it to
me for fifteen dollars. I got it in De-
cember.’’

The prosecuting attorney, in closing
arguments, asked for the death penalty.

The jury was out for two hours and 45
minutes. The verdict was guilty. They
returned for a second deliberation. After
one hour and 40 minutes, they decided
that Barry Lee Fairchild should pay with
his life.

Execution date was set for a later date
for what Judge Tedder termed one of the
most heinous crimes ever to come be-
fore his court.

Appeal of a death sentence is auto-
matic. ooo

True Detective 85

Err. F-l- 95

Arkansas Killer
Put to Death

er, Ark. — Aman whose at-
pen claimed that he should not
be executed because he was iar
tally retarded was put to ere y
injection last night for the 1 ’
kidnapping, rape and murder 0
an Air Force nurse. .
Barry Lee Fairchild, 41, and his
lawyers claimed that he was inca-
pable of distinguishing right f rom
wrong when he abducted Marjorie
Mason, 22, while she was shopping

Low-IQ law too late
to stop execution

y

Associated Press RQ
VARNER, Ark. — A man who sai
he should not be executed berate ‘he
was mentally retarded was put to
death by injection Thursday night for

the 1983 kidnapping, rape and murder

of an Air Force nurse.

Barry Lee Fairchild, 41, and his law- 8
yers said he was incapable of distin- ,
guishing right from wrong when he 4°
abducted Marjorie Mason, 22, while U
she was shopping for furniture. nN
_ Fairchild had confessed to the abduc-
tion and rape, but not the killing.

A federal judge ruled Aug. 3 that
Fairchild was not the triggerman, al- “
though Arkansas law allows the death WN
penalty for accomplices to murder. A
second suspect has never been named. |

Tests showed that Fairchild’s IQ was ™~.
as low as 60 or as high as 87. Under an
Arkansas law passed last year, the !
state cannot execute anyone with an
IQ under 65. The law did not apply in
Fairchild’s case because the murder
was 12 years ago.

for furniture. Fairchild had con-
fessed to the abduction and rape,
but not the killing.
Tests showed that Fairchild’s
1Q was as low as 60 or as high as 87.
Under an Arkansas law passed last
year, the state cannot execute any-
one with an IQ under 65. The law
did not apply in Fairchild’s case
because the murder was 12 years
ago.

The U.S. Supreme Court yester-
day rejected Fairchild’s 11th-hour
appeal without comment. No dis-
sent was noted in the decision.

Prison spokesman Alan Ables
said Fairchild declined a final
meal and had no final statement.
He said Fairchild’s lawyers provid-
ed him with $50 for incidentals in
his last days, and about half of it
was spent on candy and junk food.

Arkansas executes
retarded convict

VARNER, Ark. — A man
who claimed he should not be
executed because he was
mentally retarded was put to
death by injection Thursday
night for the 1983 kidnapping,
rape and murder of an Air
Force nurse.

Barry Lee Fairchild, 41, and
his lawyers claimed that he was
incapable of distinguishing
right from wrong when he
abducted Marjorie Mason, 22.
while she was shopping for
furniture.

Fairchild had confessed to
the abduction and rape, but
not the killing.

Tests showed that
Fairchild’s IQ was as low as 60
or as high as 87. Under an
Arkansas law passed last year,
the state cannot execute
anyone with an IQ under 65.

G-1-1S Keno WV
GAzete.TRwvl |

.

Air Force Officer—
Raped and Shot!

(continued from page 29)

graduated from college only a year be-
fore and completed her nurse’s training
in- Florida.

She had been in Arkansas only two
weeks, eager to begin her first real nurs-
ing work and furnish the new apartment
she had. just rented. The relative said
Greta had been doing a lot of furniture
shopping.

Investigators had taken the newspaper
to the several stores that had been cir-
cled. Many of the clerks remembered the
pretty, vivacious young lady who was
shopping so eagerly to furnish her very
first home.

Greta had gotten off work about 4:45

' p.m. Her movements were easily fol-

lowed for the next hour. But somewhere
between two of the stores marked on the
newspapers, the trail ended and Greta
had vanished.

The area where she had been shopping
was well lighted, not isolated, not a par-
ticularly high crime area. And it was
only 5 p.m. Yet no one had seen or heard
anything suspicious.

Greta had a little 1981 Toyota Corol-
la. A tracer was put on the car. Then an
alert deputy recalled an incident that he
had heard about the day before.

About 6:35 p.m., a state trooper was
patroling near an interstate when he saw
a car with Florida license plates speed-
ing. He chased it and during the chase
the car was driven off the road. Two

young black males jumped from the car

and ran away.

The pursuing officer did not get close
enough to get a good description of the
two men. He could only say they were
young, male, and black. The wrecked
car was a 1981 Toyota Corolla. A license
check revealed the owner as Marjorie L.
Mason.

The car was thoroughly dusted, and
some prints were found on the door
handle and rear view mirror. Investiga-
tors hoped for enough latents for identi-
fication.

Little progress was made for the next
few days in the solving of the brutal
murder of the brunette nurse. All area
residents were questioned, but none had
heard shots or seen suspicious activity.

Greta’s relative had specifically men-
tioned an expensive skindiver’s watch he
had given to her for Christmas and her
birthday, which were near the same day.

_ Greta had not been wearing the: watch
when she -was found. Pawnshops in the .
area had been furnished with the watch’s ,

description.

The state medical examiner reported
that Greta had been sodomized, raped at
least twice, and shot twice with a .22-
caliber weapon. One bullet entered the
back of her head. Another went through
her right temple.: Either wound would
have been fatal.

There were minute black hairs, Neg-
roid type, on the victim’s clothing, sto-
mach, and in her pubic area.

The fingerprints lifted from the wreck-
ed Toyota gave the first real clue. They
matched those of Barry Lee Fairchild,
28, a black male, well known to author-
ities.

Fairchild’s made a trip to the penitenti-
ary when he was 16. He got one year for
horse stealing. He was paroled one
month after he got there.

He was charged with armed robbery on
August 21, 1974, in connection with
seven robberies. He was also charged
with robbing and beating a man while
holding a sawed off shotgun shotgun on
him. His seven-year sentence started in
December, 1974. Twenty-three months
later he was paroled..

On March 16, 1978, a Pulaski County
deputy sheriff and a city policeman
attempted to arrest Fairchild at his home
on a warrant for theft of property. He
escaped from the officers. Later he was

_ captured and imprisoned. And released

on parole.

On March 16, 1978, 'a Pulaski. County

deputy sheriff and a city policeman
attempted to arrest Fairchild at his home
on a warrant for theft of property. He
escaped from the officers. Later he was
captured and imprisoned. And released
on parole.

In October, 1979, he violated parole
by theft and was sentenced to two more

years. One year later, in October, 1980, -

Fairchild was free again.

Little Rock police were currently look-
ing for Fairchild to charge him with
attempted murder in connection with
shots fired at a Little Rock police officer
in December, 1982.

Officers went to the last known
address of the suspect. The person who
lived there said that she hadn’t seen
Fairchild for a while. She was very coop-
erative, agreeing to let officers put a tap
on the phone.

The strategy paid off. Fairchild did
call, and the call was monitored. He
didn’t say where he was, only that he was

about 100 miles away and near the river.
He hung up before the call could be
traced.

While questioning the person who re-
ceived the call, the officers noticed a dis-
tinctive skindiver’s watch she was wear-
ing. She said that Fairchild had given
her the watch, but she couldn’t remember
when. She thought it might have been
before Christmas, but admitted it could
have been months later, maybe as late as
March. She very reluctantly gave up the
watch to officers.

Greta’s relative identified the watch as
identical to the one he had given Greta.

All of central Arkansas was on the
alert for the missing suspect. His picture
was on the evening news on all television
stations. Dozens of calls.came in.

One of them came from a woman who
lived near the Arkansas River about 100
miles from Little Rock. The site corres-
ponded with the description that Fair-
child had given in his phone call.

A man answering Fairchild’s descrip-
tion had crept into her back yard. When
he saw her looking out the window, the
young black male had fled.

State police, sheriff's deputies and
local police officers surrounded the area,
forming a ring five miles in diameter.
They brought in tracking dogs and
started closing in.

And then the rains came down. A tor-
rential downpour started at noon. It
rained so hard and fast that searchers
couldn’t even identify the man standing
next to them. Winds of near-hurricane
force whipped the trees.

Officers hoped the storm would flush
the suspect out but it didn’t. After two
and a half hours or relentless rain, offic-
ers were forced to abandon their stations.
They drove around and through the area
in patrol cars. But Fairchild—if it had
been him—had once more eluded cap-
ture.

Investigators had contacted bus, train,
and plane depots, asking ticket sellers to
watch for a man fitting the suspect’s de-
scription. An alert bus station attendant
called in.

A man who resembled Fairchild had
bought a ticket for California and was
already leaving town on a bus. Pulaski
County radioed Russellville, the next
town on the route, and asked them to
stop the bus. When the crowd of excited
passengers clambered from the vehicle,
Fairchild slipped away in the confusion
and walked through a nearby car wash.
Once more, the slippery suspect had
escaped capture.

When Russellville officers realized
that Fairchild had somehow bypassed

True Detective 83

5


&

G
aC

5$-t-6

Arkansas Executes a Retarded Man for M: urder

VARNER, Ark., Aug. 31 (AP) —A
prisoner who had contended that he
should not be executed because he
was mentally retarded was put to
death by injection on Thursday night

for the kidnapping, rape and murder —

of an Air Force nurse 12 years ago.

Lawyers for the condemned man,
Barry Lee Fairchild, 41, had main-
tained that Mr. Fairchild was inca-
pable of distinguishing right from
wrong when he abducted the 22-year-
old victim, Marjorie Mason.

Rut a final anneal to the United

States Supreme Court, was rejected
without comment on Thursday, and

no dissent among the Justices was -

noted.

Ms. Mason had been assigned to
Little Rock Air Force Base for just
10 days when she was kidnapped
while shopping for furniture. Her

- body, with two bullet wounds in the

head, was found in a rural area near
Little Rock the next day, and Mr.
Fairchild was convicted half a year

later. .
A Federal iudge found only a

month ago that Mr. Fairchild had
not fired the shots that killed Ms. |
Mason, but Arkansas law allows for
the execution of accomplices to mur-
der. No second suspect has ever been
charged.

Alan Ables, a spokesman at the
prison here, said Mr. Fairchild had
declined a final meal and had made
no final statement. Mr. Ables said
that Mr. Fairchild’s lawyers had
provided him $50 for incidentals in |
his last days and that about half of it |
had been spent on candy and junk —
fond.

oe

——


B12

Execution of R

In 11th Hour, Arkansas Lawyer Calls Client ’s Sentencing Flawed

By The New York Times

LITTLE ROCK, Ark., Aug. 30 —
The best reason that Barry Lee Fair-
child should not be executed on
Thursday occurred at his clemency
hearing two weeks ago, Mr. Fair-
child’s lawyer said today.

“I’m sitting there arguing my guts
out, trying to save his life,’’ the law-
yer, Charles Baker, said in an inter-
view. ‘“‘We’re in a room crowded
with people and television cameras
at 10 o’clock in the morning, and he
falls asleep!”’

While Mr. Baker argues that his

client, a convicted killer, is not guilty —

of murder, it is the second part of his
appeal that he now emphasizes: that
Mr. Fairchild is retarded.

What further proof is needed, he
contends, when ‘‘my client, who’s
scheduled to be executed in days,
can’t stay awake’’?

A jury sentenced Mr. Fairchild, 41,
to death for the 1983 murder of an
Air Force nurse, Marjorie Mason,
who was abducted, robbed, raped

_ and shot twice in the head in a rural
area near Little Rock.

Before his trial, Mr. Fairchild
gave a statement to the police in
which he acknowledged participat-
ing in the kidnapping and rape but
denied involvement in Ms. Mason’s
death. He said he had not known that
those with him would kill her.

At his trial, Mr. Fairchild recanted
and insisted he had no connection to
the crimes.

Prosecutors and defense lawyers
agree that the only evidence tying
Mr. Fairchild to Ms. Mason’s death
is his statement to the police, which
was the subject of controversy at his
trial. The videotaped interrogation
shows Mr. Fairchild continually
looking away from the camera and
appearing to respond to prompting
from voices elsewhere in the room.

Mr. Fairchild has refused to say
whom he was with the day of Ms.
Mason’s killing.

On Monday, a former prison chap-
lain who said he had counseled both
Mr. Fairchild and his brother, Rob-
ert, said in a letter to Gov. Jim Guy
Tucker that he had been told that
Robert Fairchild fired the fatal
shots. But the chaplain, Dennis Pig-
man, did not say how he had ob-
tained that information. Robert
Fairchild is serving a sentence in an
Arkansas penitentiary for an unre-
lated crime.

For a decade, Barry Fairchild has
appealed his case, basing his peti-
tions on his claim of innocence. He
has been aided by the NAACP Legal
Defense and Educational Fund Inc.,

Associated Press

‘Barry Lee Fairchild

and the National Coalition to Abolish
the Death Penalty, which enlisted
Mr. Baker, who has practiced corpo-
rate law here for 30 years.

Only when the Supreme Court re-
fused to rehear Mr. Fairchild’s argu-
ments again did he challenge the
propriety of his sentence. In 1993,
Judge G. Thomas Eisele of Federal
District Court here, who had reject-
ed Mr. Fairchild’s earlier argu-
ments, blocked his execution hours
before it was to take place and void-
ed the death sentence, effectively
commuting it to life imprisonment.

Although Arkansas law provides
that accomplices to a capital offense
may be executed, Judge Eisele ruled
that the state’s model jury instruc-
tions were constitutionally flawed in
that they did not specify that a de-
fendant’s intentions should be con-

sidered in deciding sentence.

_ The state appealed Judge Eisele’s
decision. The United States Court of
Appeals for the Eighth Circuit, in St.
‘Louis, reversed Judge Eisele’s rul-
ing, and the Supreme Court refused
to hear the case. On Aug. 11, the
Arkansas clemency board declined

- to recommend a reduction in Mr.

Fairchild’s sentence to Governor
Tucker, although its vote — 4 to 3
against clemency — was its closest
on record.

Mr. Tucker has said he sees no
legal basis for commuting Mr. Fair-
child’s sentence, which is to be car-
ried out on Thursday at 10 P.M.

Mr. Baker said his client had an
1.Q. of 60 to 80, ‘‘depending on who
gives the test and when.” A 1993
Arkansas statute bars the execution
of defendants with an I.Q. of 65 or
lower.

Earlier this month, Judge Eisele
held there was insufficient evidence
that Mr. Fairchild had such a low
1.Q. and denied a request for a jury
determination of his mental capaci-
ty. Again, the appeals court declined
to hear an appeal.

Today, Mr. Baker was busy pre-
paring a petition to the Supreme

Court on the issue. That appeal, he

said, will be Mr. Fairchild’s last hope
of avoiding execution.

Mr. Fairchild has chosen lethal
injection over electrocution. For his
last meal, he has asked for the same
menu that will be served other in-
mates. He has been moved to an
isolation cell near the death cham-
ber.

“He knows why he’s there,” Mr.
Baker said. ‘‘He knows they’re get-
ting ready to kill him.”’

THE NEW YORK TIMES NATIONAL ‘HuRSDay, AUGUST 31,

‘etarded Man Is Fought


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Latte Set 2-3, /992

THE WASHINGTON ode

~ By Lynne Duke ~~
Washington Post Staff Writer

“An allegedly mentally retarded black ‘man ~

convicted of murder narrowly avoided the

_ Arkansas death chamber late last night after a> 3
federal appeals panel. let:stand’a: ‘lower court, §
ruling that the convict should never: have 4

_ been sentenced to die in the first place.’

_ While eleventh-hour stays of esccition are
routine in death penalty cases, U.S. District
Judge G. Thomas Eisele’s ruling, which was
allowed to stand by the 8th Circuit Court of
Appeals, went further. Eisele vacated the
death sentence of Barry Lee Fairchild, saying
‘it. was unconstitutional because the state
court failed to prove that Fairchild was liable

- for the death. Eisele changed Fairchild’s sen- |

tence to life without parole. Fairchild, 39, was
convicted of capital murder for the 1983 kid-

napping, rape and killing of a young Air Force ©

nurse, Marjorie Mason, who was white.

Fairchild’s case became a rallying point for |

lawmakers, led by Rep. John Conyers Jr. (D-
Mich.), as well as civil rights lawyers and ad-
vocates for the mentally ill. The case,‘ Fair-
child’s advocates said, fits a pattern of Judicial
bias based on race.

Fairchild was not the triggerman and his
attorney, Richard H. Burr, maintains his cli-

ent did not participate in the crime.

A jury, however, found him guilty of capital
murder on the basis of “accomplice liability,
and what the [U.S.] Supreme Court has said
is accomplice liability is not enough for a

‘death sentence,” said Burr of the NAACP Le-
gal Defense and Educational Fund. To receive

a death penalty, “You have to have either

been the killer or intended the killing or at

least known that one might occur,” he said.
But Arkansas Attorney General Winston

- Bryant said that the test of accomplice liabil-
_ ity is whether a defendant acts with “extreme

indifference to the value of human life.”
“By the mere fact that Mr. Fairchild, num-

-. BARRY LEE FAIRCHILD Pca

eke tudge vacates death sentence:

i 3

ber one, kidnapped the victim 4 t eunoint
robbed the victim, raped the viétim

while someone: else apparently

Bryant said. The appeals panel still could al-:e<
low Fairchild to die. It set oral arguments in *

the case for next month. Whether Bryant will s«:<
appeal to the U.S. Supreme Court before then ro
was not clear last night.

Burr maintains Fairchild was subjected to.
racially inspired physical abuse by Pulaski}
County, Ark., sheriff's deputies who coerced. .
a confession with physical abuse. Burr and. °
others say Fairchild was susceptible to the.
coercion because he is mentally retarded. De-’
spite a series of tests and expert testimony,
showing Fairchild to be mentally retarded,
Eisele in a previous hearing ruled he is not.

CADNNnandtnata

5

Te ae tn


Newspaper reports have given the result of one mental evaluation of
Fairchild as an IQ level of 60-63 (average intelligence =100) while
another specialist found him to have an IQ of 75-78. Appeals to the
Federal Courts that Fairchild is mentally incompetent have consistently

been denied.

BACKGROUND INFORMATION

As of 20 July 1993 there were 37 people under sentence of death in
Arkansas. The most recently executed was Steven Hill on 7 May 1992.

Amnesty International is concerned that the death penalty in the USA is
imposed in a racially discriminatory manner. Racial disparities in
death sentencing are borne out by many research studies, and confirmed
by the findings of the Generali Accounting Office (GAO), an independent
agency of the federal government, in February 1990. The GAO review
found that persons convicted of the murder of white victims are far
more likely to be sentenced to death than those convicted of black-

victim homicides.

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

Amnesty International opposes the death penalty in all cases as a
violation of the right to life and the right not to be subjected to
cruel, inhuman or degrading punishment, as proclaimed in the Universal

Declaration of Human Rights.

RECOMMENDED ACTION: Please telephone/send telegrams/faxes/express and

airmail letters:

- urging that Governor Tucker grant clemency to Barry Fairchild and

commute his sentence of death;

- expressing concern that evidence relating to Barry Fairchild’s
mental retardation was not presented to the jury responsible for

sentencing Barry Fairchild to death;

- noting that Barry Fairchild was probably not the actual killer and
that there are doubts about his role in the murder;

- citing the ECOSOC resolution;

- expressing concern that the death penalty in the USA continues to be
applied in a racial discriminatory manner, borne out by the findings of
many research studies, including those of the GAO;

APPEALS TO:

The Honorable Jim Guy Tucker
Governor of Arkansas

Office of the Governor

State Capitol

Little Rock, AR 72201

USA

Telephone: 1 501 682 2345
Faxes: 1 501 682 1382

COPIES TO:

The Letters Editor

Arkansas Democrat

Capitol Ave and Scott Street
Box 2221

Little Rock, AR 77203

USA

[suggested salutation]
{Dear Governor ]

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

after September 20, 1993.

OC Please take action as soon as you receive this Urgent Action appeal.
Carefully read the recommended action.

© Telegrams and other letters should be brief and courteous. Stress
that your concern for human rights is not in any way politically
partisan.

O Postage costs: airmail letters cost 50 cents a page (1/2 0z.) to most

countries; aerogrammes are 45 cents each; airmail postcards cost.
40 cents to most countries. Mail with colorful stamps may no!
reach its destination.

The name of Amnesty International may be used. Although let-
ters written in a private or professional capacity are often more
effective.


Hard to count cost
of seeking death
in Fairchild case

BY GLEN CHASE
AND RAY PIERCE
Democrat-Gazette State Reporters

Thousands of pages of depo-
sitions, investigative reports,
motions, briefs and transcripts
from 10 years of wrangling over
the murder conviction of Barry
Lee Fairchild fill two four-draw-
er file cabinets at the Arkansas
attorney general’s office.

While the amount of paper-
work can easily be tallied, legal
experts are less certain about
the cost of trying to impose the
death penalty on Fairchild in
the 1983 slaying of an Air Force
nurse.

As a ballpark figure, though,
Attorney General Winston
Bryant estimates that the case
has cost taxpayers “hundreds of
thousands of dollars” in man-
hours, legal fees and court costs.

The latest appeal in the case
will be heard today by the 8th
U.S. Circuit Court of Appeals in
St. Paul, Minn.

Fairchild has been held in
Arkansas prisons since his
Lonoke County capital murder
coigviction in the death of Mar-

@ A look back at the trials of Barry
Lee Fairchild 10A

({O=-(~ary
jorie “Greta” Mason, 22.

At an average daily cost that
has grown from $19.09 in 1983 to
$46.15 in 1993, the state has
spent $127,451 to house, feed,
clothe and guard Fairchild un-
der maximum security. If
Fairchild avoids execution and

_ lives behind bars until he’s 75,

the state could spend another
$604,000 in 1993 dollars.

But no one has been able to
calculate an accurate total of
the money spent to prosecute
Fairchild. That includes the
original trial, appeals to the
state Supreme Court and four
appeals filed in federal court.

“It’s expensive, I’ll tell you
that,” said Prosecuting Attorney
Chris Raff of Searcy, who origi-
nally prosecuted Fairchild.

Expenses go beyond attor-
neys’ fees and court costs, Raff
said, saying travel, medical re-
ports on Fairchild, long-dis-
tance conference calls and oth-

See FAIRCHILD, Page 10A

nl

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_ THE Wisner Post

te er ee A ae ee ene

By Lynne Duke

Washington Post Staff Writer

- As Arkansas death row inmate Barry ilige

Fairchild awaits death by injection tonight, some -
‘lawmakers, advocates for the mentally retarded’

and civil rights lawyers have taken up his cause

Wee

“as an example of what they call “gross injustice”:

perpetrated against a retarded black man.
At issue is whether the federal courts have

given enough credence to Fairchild’s presumed ~
“mental retardation and allegations that his mur-
der confession was coerced by physical abuse. -

and threats by Pulaski County, Ark., sheriff’s
deputies. Civil rights advocates say Fairchild’s

case fits a pattern of bias against blacks in'the ju-
dicial system.

Fairchild, 39, was, sentenced to death for the
1983.rape and murder of an Air Force nurse,
Marjorie Mason, who was white. He is scheduled ~

to die at 9o ’clock tonight (CDT).

Rep. John Conyers Jr. (D-Mich.) is leading an » ! |
“ruled that Fairchild was not retarded. He based

effort on Capitol Hill to urge Arkansas Gov. Jim

Guy Tucker (D) to grant clemency. A Tucker
spokeswoman said he is reviewing the case.
“While the courts have thus far declined to
provide Mr. Fairchild’ relief for this reason, we
do not believe that their review has been exhaus-
tive,” Conyers wrote ina letter seeking Presi-

dent Clinton’s help in getting Attorney General

Janet Reno to investigate ‘whether Fairchild’s

~ civil rights have been violated. Fifteen other law-

makers signed the letter.

The Arkansas Supreme Court Monday denied
Fairchild’s appeal for a stay of execution, saying
that the issue of Fairchild’s mental retardation
was rejected by a federal court. In a 1989 hear-
ing, five experts testified that Fairchild, who

‘could not read or write when he left school in the

seventh grade, was mentally retarded. Fair-
child’s IQ had’ tested at below 70—the general

measure of retardation, according to one of his
‘attorneys, Richard H. Burr of the NAACP Legal

Defense and Educational Fund.
But: U.S. District: Judge. G. Thomas’ Eisele

es Cries sof ‘Gross Injustice”

his ruling on the testimony of one expert who
disputed Fairchild’s retardation.

Eisele also presided over 1990 hearings when
new evidence was introduced that suggested
Fairchild had been physically abused and threat-

ened into making his confession. That evidence |
emerged from an FBI civil rights probe, which |
revealed that 13 other men, including Fairchild’s. |.

brother, had been picked up in 1983 and sub-
jected to harsh interrogation in an effort to gain
confessions in the Mason murder. Fairchild’s
1990 execution date was stayed while the alle-
gations of abuse were heard.

But Eisele ruled there was insufficient evi-.

dence to show Fairchild was abused.

Assistant Attorney General Jack Gillean, who —

is representing Arkansas in the case, said, “The
issues were fully aired. The evidence was put
forth . . . Judge Eisele is as fair a judge as I’ve
experienced i in my legal career.”

Fairchild is to appear before Eisele again to-

day, when his lawyers will argue that the death

penalty in this case violates the Constitution.


sess

WweEnin
Victim’s

LITTLE ROCK (AP) — The
family of an Air Force nurse
killed more than 10 years ago
wants to see the man convicted
in her death executed without
further delay. , :

Barry Lee Fairchild, 39, is
scheduled to be executed

Times

Wednesday for killing Marjorie.

L. “Greta” Mason in February
1983. Ms. Mason, 22, of
Gainesville, Fla., was sta-

tioned at Little Rock Air Force _

Base. |
Fairchild was scheduled to
meet with the board today to
request a conditional pardon,
clearing the way for a new

trial. The board was expected:

to make a recommendation to-
day and pass it along to Gov.
Jim Guy Tucker. Only the gov-
ernor can decide on a pardon.
Dr. John Mason, father of

4-11-42

amily asks quick execution

the victim, told the Post Prison
Transfer Board Thursday that
the family did not want ven-
geance, but wanted to put their

grief to rest.


ARK. DEHORAT bf we.

BY LARRY AULT

Democrat Stat! Writer

A federal judge ruled Tues-
day some allegations that Pu-
laski County sheriffs deputies
abused suspects during a 1983
rape and murder investigation
were credible but had no bear-
ing on the confession of death-
row inmate Barry Lee Fair-
child,

U.S. District Judge G.
Thomas Eisele said he found
that the greatest number of
allegations by suspects
brought in for questioning dur-
ing the 1983 investigation
weren't believable.

© End of case may be In sight 13A

Eisele’s findings will be
sent to the 8th U.S. Circuit
Court of Appeals at St. Louis,
which last year directed Eisele
to hold hearings on claims by
Fairchild’s attorneys that Fairs
child was coerced into confess,
ing as part of a pattern of
abuse in the Pulaski County!
sheriff's office.

Eisele said Tuesday he re-‘
mains convinced Fairchild’s |
two videotaped confessions to

the murder were accurate and Hy

weren't coerced.

Fairchild’s confession validated

por Judge Eisele rules death-row inmate wasn’t'Coerced) 1"

+

He also said race wasn't a

factor in the investigation of
the Mason murder and Fair-
child’s lawyers failed to prove
the sheriff's deputies routinely
rounded up black suspects and
coerced them to confess to
crimes.

Fairchild, 36, was sentenced
to death for the Feb. 26, 1983,
rape and murder of Marjorie
“Greta” Mason, a Little Rock
Air Force Base nurse.

Eisele said in a 428-page
document that the latest chal-
lenge by Fairchild of his con-
viction and death sentence —

See FAIRCHILD, Page 13A

Fairchild |

® Continued from Page One

which is his third — is an
abuse of the appeals process.

Eisele suggested Fairchild’s
brother, Robert, was the trig-
ger man who actually shot the
nurse afler she was raped at
an abandoned farmhouse in
Lonoke County.

“The court is now more cer-
tain than ever that Mr. Barry
Lee Fairchild was involved in
the crimes against Ms. Mason.
And more and more the evi-
dence indicates that Barry
Fairchild’s partner in this
‘crime was probably his
rbrother, Robert Fairchild,”

| Eisele said.

: Robert Fairchild now is
tserving a 40-year prison term
xfor the February 1990 kidnap-
tping and sodomy of a 17-year-
rold Pine Bluff boy.

:. Eisele said other evidence
vimplicating Robert Fairchild
sincludes a serology test per-
»formed on Mason's panties and
svaginal swabs that indicated
«semen consistent with a blood
stype O secretor. Robert Fair-
rchild’s is a “blood type O
asecretor,” Eisele said.

* Eisele said of Barry Fair-
«child, “It is clear Mr. Fairchild
edoesn't look upon himself as
»the ‘murderer,’ and the court
eis convinced on the evidence
+ before it that he was not the
;One who shot and killed Ms.
' Mason.

' “The court is inclined to
' credit Mr. Fairchild’s own con-
fessions wherein he expressed
‘both great surprise and disap-
; proval immediately after hear-
: ing the shots fired on the other
, Side of the old house — the two
‘shots that fatally struck down
, Ms. Mason as she was walking
: from the house in the belief -
so the court concludes — that
oShe was finally going to be free
+from the horrors of that eve-
~hing,” Eisele said.

7 It is this court’s view that
‘Mr. Barry Lee Fairchild in-
“tended, and believed his ac-
rcomplice also intended, to
“wait until it was a little darker
vand then depart the scene
t without further abuse of Ms.

Mason,” Eisele said.

“Mr. Barry Lee Fairchiid’s
confessions were voluntary,”
Eisele ruled. “He was not
coerced into giving them. The
content of his confessions
came from his recollection of
the events of the late evening
of Feb. 26, 1983, and not from
suggestions made to him by
law enforcement officers,”
Eisele ruled.

“These remand hearings
have essentially been a ‘trial’
of the Pulaski County sheriffs
office conduct of the Mason in-
vestigation,” Fisele said.

Although the judge found
there was some evidence of
abuse in the sheriff's office by
deputies whom the suspects
couldn’t identify, he said he
didn’t believe suspects who al-
leged they were abused by
then-Sheriff Tommy Robinson
or Maj. Larry Dill.

‘The court is now more
certain than ever that Mr.
Barry Lee Fairchild was
involved in the crimes against
Ms. Mason. And more and
more the evidence indicates
that Barry Fairchild’s partner
in this crime was probably his
brother, Robert Fairchild.’

Dill and Robinson, a former
Republican congressman and
unsuccessful gubernatorial
candidate, have both denied
the allegations. Robinson
couldn’t be reached for com-
ment and did not return a tele-
phone message left on his an-
swering machine.

“It has resulted in a ‘mixed

‘bag’ of findings,” Eisele said.

“On the one hand, the total
record reflects an energetic,
effective, comprehensive and
professional investigation
which has led to the conviction
of one of the two persons in-
volved in the crimes against
Ms. Mason.

“On the other hand, there
are blemishes on this other-
wise impressive record which
cast a shadow over the process
and tend unfairly to taint the
work of honest professional
law enforcement officers ... ,”

Eisele said. .

Eisele said these blemishes
haunt not only those people
who were and are employed by
the Pulaski County sheriffs
office, but law enforcement of-
ficers everywhere.

John Wesley Hall Jr., one of
Fairchild’s attorneys, said he
didn’t feel Eisele’s ruling
cleared the sheriffs office of
allegations of abuse, and cited
passages in the 428-page docu-
ment discussing complaints of
abuse by Randy Mitchell.

Mitchell was one of the wit-
nesses at the remand hearing
who didn’t have a criminal his-
tory. Eisele said he found him
to be honest, but'unreliable.

However, Eisele said Mitch-
ell’s testimony revealed “at
least some officers of the Pu-
laski County sheriffs depart-
ment were prepared to, and
did use, violence and coercion
in an effort to obtain a state-
ment.” .

Eisele said Mitchell was not
abused by or in the presence
of Robinson or Dill.

In another instance, Eisele
said Frank King Jr. was a
credible witness. He said he
found “it is more likely true
than not true that an unidenti-
fied officer slapped Mr. King
so hard that he fell to the
floor.”

Eisele said Dill didn’t put a
gun to King’s mouth, as King
alleged. Although he said ra-
cial slurs were used during
King’s questioning, race wasn't
a motivating factor in the
Mason investigation.

Hall said Eisele found that
in certain instances suspects
weren't read their Miranda
rights.

“It did not clear
wrongdoing,” Hall said of
Eisele’s conclusions. “He did
not find a pattern of abuse.
There was no pattern of racial
motivation of arrests,” Hall
said. '

Hall said the Eisele’s docu-
ment was “pretty much what I
expected.” But, he said, “I ex-
pected him to find more claims
of abuse were credible than he
did find.”

Hall predicted Fairchild
will probably lose. “There’s al-
ways a chance. I don’t put
much hope on it.”

them of


JUSTICE

Unfriendly
Persuasion

A death-row coercion?

ry Lee Fairchild was hours away from

execution by the State of Arkansas.
This week a federal judge in Little Rock is
scheduled to decide if the 36-year-old mild-
ly retarded inmate was illegally convicted
and should get a new trial.

In the death-belt states of the South—
where capital cases have become so routine
they can rate no more than a police-page
paragraph—the Fairchild case has become
a cause célébre, Not just because there are
new allegations that Fairchild was coerced
into confessing involvement in the murder
ofan Air Force nurse in 1983, but because of
whoallegedly didthe coercing: Sheriff Tom-
my Robinson, now the local congressman.

Fairchild had long contended that he was
beaten by officials, but not until last July
was there sufficient evidence for a court to
intervene. Then, a former Pulaski County
sheriff’s deputy stepped forward andswore
that he had seen Robinson and other depu-
ties abuse various Suspects, trying to get
them to confess to the murder. A federal
appeals court blocked Fairchild’s death by
injection and ordered this week’s hearing.
According to Fairchild’s lawyers, as many
as a dozen people will testify about alleged
coercion in the case. Fairchild’s attorneys
say they will offer new evidence purporting
to show that deputies needed to make more
than one videotape of Fairchild’s confes-
sion because the first one was not convinc-
ing enough; the police deny that there was
more than one confession. Meanwhile, the
FBI continues to investigate the sheriff’s
department for possible civil-rights viola-
tions. Fairchild, as well as the other sus-
pects alleging coercion, are black.

Robinson did not return calls last week
but has previously denied charges of abuse,
including his former deputy’s sworn state-
ment alleging that during one interroga-
tion Robinson was found with his gun stuck
in a suspect’s mouth. Robinson criticizes
the appeals process: “I am tired of attor-
neys who waste a court’s time and waste
our tax money,” he said in a statement.

Robinson was defeated earlier this year
in the Republican primary for governor
and did not run for re-election to Congress.
His term expires next year. So may Fair-
child’s, depending on what the federal
Judge does this week.

Te months ago convicted killer Bar-

PETER ANNIN


Justice COMING’, - riser

ice wa mer Iva ait. usb sid needle “sh] a “ye ad hare re A
A three Nudge panel of the 8th’ U' 8. Circilit Court’

of Appeals has upheld a ruling that death row inmate’

Barry: Lee Fairchild isn’t retarded now and wasn’t in
1983 -when:his victim; Air Force nurse Marjorie

rates Mason, was abducted, raped and murdered. :;,|

‘!The: ruling all: but shuts the revolving appeals —

(door for Fairchild: His attorney, John Wesley Hall
‘Jr., says Fairchild now clings to two thin threads of

hope ~' the ever-so-remote possibility of the full 8th
Circuit granting a'Yehearing, | or the Supreme, Court.
‘pereeing | to consider an appeal. .
That’s a grim 6utlobk but probably accurate, for Te:
‘eltfier or both attenipts fail, Fairchild’s stay of execu-:;
‘tidn.. Would’ “Automatically - dissolve; and the. state :

‘would then be freé to carry out his execution... sts 4

Hall says “it cottld be over with by June,” and if
that’s to be the case, Fairchild will become Arkansas’ |
first death-row inmate to be executed since Charles :
Franklin Fields, 32, was electrocuted on Jan. 24, 1964. |

" We'd say the prime date is likely, for the chances

of Fairchild’s casé being reheard look all the more:

rémote considering the Supreme Court’s refusal Mon-'
da ‘to lift 4'stay of execution that cleared the way for’
biigidhi' teen- aget, who’s mental retardation had

era tiblished in court, to be executed... Wey
. “isiwe

mental fétardation wasn’t everi a bonafide
isiw of in Faitchild’s case, as the 8th Circuit panel ob-:
served. In ‘Judge Richard Arnold’s 15- -page order, he
wrote,-that-}‘having considered the jury’s verdict in
light of ajliithe-new evidence of Fairchild’s mental
vonditien-ae are unpersuaded that there is a reason-
able'probability of a different result at trial.”
‘dt sMUreovér} Arnold wrote, “There is no reasonable '
probability the: evidence of his retardation could ex-
plain away the circumstances corroborating his confes-
sions,’ In fact; the panel went so far as to say that Fair-
chi d/sikurrent appeal had abused the appeais process. *
“No doubt that miffed Hall, who said that Fair-:
chile wants to go ahead and petition for a rehearing,
oN ee the chances of getting one or of the Supreme
\irt' considering an appeal were “slim to none.”
ion a low note, Hall was quoted as saying that he
iy barter the high court to reject Fairchild’s ap-
ayse the Supreme Court is dominated by
PRT te are trying to reduce their workload.
That’s an untrue and highly intemperate remark.
Evétyond kriows that Fairchild’s case has had a most
thirotigh’ airing.’ It’s been going back and forth
through: othe'court system since 1983, and even Fair-
child: Seehis ‘to have had enough of justice being de-
Iaved? ‘He''asked Judge Eisele four years ago to
agate ‘his dppeal so that his execution could be car- |
ough he later changed his mind.
nia has had every possible break. All that

aati How is for justice to be served.

seoislie

ARKANSAS DEMoCeAT
FRI. 4-23-%@


SIs
Tucker sets ©
execution date

for Fairchild

Democrat-Gazette Capitol Bureau

_ A Sept. 22 execution date
for Barry Lee Fairchild was
set Friday by Gov. Jim Guy
Tucker.

Fairchild, 39, was sen-
tenced to death in August
1983. He was convicted in
Lonoke County Circuit Court
for the February 1983 rape
and murder of Little Rock
Air Force Base nurse Mar-
jorie “Greta” Mason, 22, of
Panama City, Fla.

Fairchild admitted the
crime in two videotaped con-
fessions.

Fairchild, mildly mentally
retarded, has had four ap-
peals before the nation’s
highest court. The Fairchild
case has received wide-
spread national media at-
tention ranging from a story
in The New Yorker to a seg-
ment on the ABC News pro-.

See FAIRCHILD, Page 5B

Fairchild ~

ah 20/20.”
uring the 1992 presidenti
campaign, then-Gov. Bill Che.
ton was criticized by some De-
ettnaa primary opponents for
n executi
Fairchild cution date for
airchild was within h
of being executed in 1990 Shien
former county jail inmates al-
iced they were abused by Pu-
Jaski County deputies investi-
a pie espn murder. Those
alnts led t j
execution 0 a Stay in the
_US. District Judge G. Tho
ri dia in June 1991 that
Jlegations of abu
bearing on the case. pond'ne


nce (hetween the
ue,” Tumey, 273
144. Jones, as a
1d a pecuniary in-
ha from the State
. 796. There was
record that Jones
n adjudicator and
before him. See
"Ss something that
not lawyers, that’s
he court to decide
- accord supra p.
ility that the con-
mended. We don’t
ike that judgment
a court of law.”).

erests. For exam-
ycle Center obtain
eeded to suggest to
hen Bilheimer, that
is a potential client.
in the meeting in
alers discussed the
sput> ond he acted
ent gal funds.
tS vancx. together.
ypetent to have ren-
oted on the Cycle
Hicks, 942 F.2d at

ot receive a hearing
nal in the state pro-
amaha lacked Youn-
1ity to raise constitu-
tate proceeding. As
rt lacked the discre-
s action.

ILLUSION

ed when it abstained
sdiction over this ac-
administrative pro-
sssary predicate for
Accardingly, we re-

further proceedings.

ing constituted an ongo-
plici mportant state
797

ss
7

FAIRCHILD v. NORRIS 799

Cite as 21 F.3d 799 (8th Cir. 1994)

Barry Lee FAIRCHILD, Appellee,
v.

Larry NORRIS, Acting Director,
Arkansas Department of
Correction, Appellant.

No. 93-3325.

United States Court of Appeals,
Highth Circuit.

Submitted Oct. 14, 1993.
Decided April 8, 1994.

Rehearing and Suggestion for Rehearing
En Bane Denied May 13, 1994.

After capital murder conviction was af-
firmed on appeal, 284 Ark. 289, 681 S.W.2d
380, successive petitions for writs of habeas
corpus were filed and denied. The United
States District Court for the Eastern District
of Arkansas, Garnett Thomas Hisele, J., on
the fourth petition of writ of habeas corpus,
directed that death sentence be changed to
life in prison without parole. Acting director
of Arkansas Department of Corrections ap-
pealed. The Court of Appeals, Richard S.
Arnold, Chief Judge, held that petitioner,
who raised for first time in fourth successive
petition a claim that evidence presented
against him at trial was legally insufficient to
justify death penalty, did not qualify for actu-
al innocence exception to general bar against
successive writs of habeas corpus.

Reversed and remanded with directions
to dismiss petition.

1. Habeas Corpus <899

Although government bears burden of
pleading abuse of writ of habeas corpus, once
government does so, petitioner bears burden
of proving that his petition is not an abuse of
the writ, and unless petitioner meets this
burden, a court cannot proceed to merits of
claim. Rules Governing § 2254 Cases, Rule
9(b), 28 U.S.C.A. foll. § 2254.

2. Habeas Corpus ¢897, 898(1)

General bar against abusive or succes-
sive habeas corpus claims extends to new

by yr & 3 FF

claims which could have been raised or devel-
oped in earlier petition and to successive
claims which raise grounds identical to those
heard and decided on merits in previous peti-
tion. - Rules Governing § 2254 Cases, Rule
9(b), 28 U.S.C.A. foll. § 2254.

3, Habeas Corpus ¢898(2)

Under cause and prejudice exception to
general bar against successive habeas corpus
writs, petitioner is required to show cause for
failing to raise claim in earlier petition and
prejudice resulting from that failure. Rules
Governing § 2254 Cases, Rule 9(b), 28
U.S.C.A. foll. § 2254.

4. Habeas Corpus <898(2)

Under actual innocence exception to
general bar against successive writs of habe-
as corpus, court may decide claim on merits
if petitioner is actually innocent of crime
itself or of death penalty sentence; petitioner
can be actually innocent of death penalty if
evidence at trial failed to establish existence
of aggravating circumstance or another con-
dition of eligibility. Rules Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254.

5. Habeas Corpus <898(2)

To qualify for actual innocence exception
to general bar against successive writs of
habeas corpus, petitioner must show by clear
and convincing evidence that but for constitu-
tional error, no reasonable juror would have
found him eligible for death penalty, and
inquiry is not whether trier of fact made
correct guilt or innocence determination but,
rather, whether it made a rational decision to
convict or acquit. Rules Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254.

6. Criminal Law ¢1213.8(8)

Before defendant can be sentenced to
death, Eighth Amendment requires that he
be guilty of a certain degree of culpable
conduct. U.S.C.A. Const.Amend. 8.

7. Habeas Corpus <=899

Habeas corpus petitioner failed to prove
by clear and convincing evidence that, but for
a constitutional error, no reasonable juror
could have found him eligible for death pen-
alty under Arkansas law and, thus, petition-
er, who was filing fourth successive habeas

Jak.
All appobe faileh.


40A e THURSDAY, OCTOBER 14, 1993 ¢ @

Arkansas Democrat i Gazette

The legal journey of Barry Lee Fairchild, 1983-93 | KEY DATES: dD

1983

Vere ae ee

—faicH4

1984

1985

first habeas corpus
petition in U.S. District
Court.

JUNE 14: Judge G.
Thomas Eisele orders

1986

conviction on several
grounds.

1987

1988

1989

APRIL 18: 8th Circuit
grants stay for appeal.

1990

claim confession was
coerced.

stay pending petition. a
M
~ Feb. 4, June 14 arch 3, April 18 Sept. 4
Nov. 8 E
Fase Boke Feb. 8, June 20 PR ag rose * pay eehs a
—{siH4 , pt.

1991

1992

: FEB. 24: Body of DEC. 21: Arkansas JAN. 9: Gov. Bill Clinton | AUG. 26: Defense SEPT. 11: Eisele SEPT. 26: 8th U.S. JAN. 23: Supreme APRIL 17: 8th Circuit FEB. 6: Evidentiary NOV. 10: 8th Circuit
' Marjorie "Greta" Mason | Supreme Court “affirms | sets execution for Feb. 8. | attorney Joseph dismisses petition, but Circuit Court of Appeals | Court denies petition. affirms Eisele's order. hearing concludes. denies appeal, upholds
is found. » | the conviction andthe © | FEB. 4: Arkansas O'Bryan steps down. stays execution pending | affirms Eisele's ruling. FEB. 6: Eisele dissolves | JULY 19: Clinton sets Eisele rules confession | death sentence; later
‘MARCH 5: Barry Lee sentence imposed." Supreme Court grants John Wesley Hall Jr. of "| appeal. NOV. 16: Fairchild stay of execution. Sept. 5 execution date. | was not coerced. denies rehearing.
Fairchild arrested for stay pending U.S. veiha taht nes Micron appeals to U.S. FEB. 14: Clinton sets | AUG. 27: Fairchild JUNE 18: Fairchild
~ murder. : tn sens a spl a 1 : —— files Supreme Court. March 8 execution date. | files third habeas wea | mare for new trial.
é F . 16: ion for wi motion to withdraw - + Fairchi petition, citing coer : ies’
RE neass at bapkel ‘ of certiorari filed, habeas petition; wants See confession. y er cenapdhr fey
murder'sentenced to naghit cekenng selection | to be retried or petition, citing mental AUG. 29: Eisele JULY 3: Fairchild
“die Nov. 10. The changing face _ | process and Arkansas" | executed. retardation. dismisses petition, appeals,for new trial to
NOV. 8: Arkansas f Barry Lee Fairchild death penalty statutes. OCT. 21: Eisele MARCH 3: Eisele grants | denies stay of Bth Circuit
Supreme ne Court stays Of Barry Lee alFCNiid | MAY 13: Supreme Court | dismisses habeas stay of execution. execution. Fairchild ;
execution pending y : 2 denies petition. petition. APRIL 4: Eisele appeals to 8th Circuit.
appeal. MAY 21: Clinton sets DEC. 1: Fairchild files dismisses petition. SEPT. 4: 8th Circuit
June 20 execution date. | amended nebess APRIL 14: Clinton sets | stays execution
JUNE 12: Fairchild files | Petition to challenge May 10 execution date. | pending appeal on

1993

JULY 27: Fairchild files,
first habeas petition in —° -
Arkansas circuit court
over law prohibiti:
execution of retarded
felons. Petition is denied. .
AUG. 26: Gov. Jim Guy
‘Tucker sets Sept. 22
execution date.

SEPT. 20: State Supreme
Court denies appeal of
circuit court ruling, affirms
death sentence.

SEPT. 20: Fairchild files.
fourth habeas petition,
claiming state of mind at .
time of crime did not
warrant death penalty.
SEPT. 22: Eisele reduces
sentence to life without
parole. State appeals. 8th
Circuit sets hearing.

Sept. 22

r

— |

Sept. 22

; SOURCE: Arkansas attorney general's office.

MICHAEL STOREY / Arkansas Democrat-Gazette


fay

~ whether to limit-death row ap-

Eo BY PATRICIA MANSON

» Democrat-Gazette Staff Writer
“be Greta Mason’s relatives wait-
ed more than a decade for the
icted in her

“taxpayer money and add to the
tpain of crime victims and their
«families.

ts. Dr. John Mason of Panama
City, Fla., said the law offers
-more comfort to the man con-
tvicted of killing his daughter
‘than to her relatives.

+. “Inthe 10 years since the tri-
al, we have been held hostage
‘by a judicial system which pro-
‘tects the rights of the truly evil
‘ while denying any relief to the

iit.

urder would

~ckill'so 0
state unless they were ‘certain

pereaved,” Mason said two days

before Fairchild’s execution

was called off.

But those who oppose re-
stricting access to the federal
rts argue that habeas corpus

red to pay the ultimate pr
‘theircrime.
that isa judicial proce
esn’t sort out
cent?”:said

a

mebody in the nal

everything was all right.”

US. District Judge G. Thomas -

Eisele waded into the debate

over habeas corpus Sept. 22 in.

‘his ruling in Fairchild’s case.

Eisele threw out Fairchild’s
death sentence and replaced it
with a sentence of life in prison
without parole. The judge ruled
Fairchild was ineligible for the
death penalty because he didn’t
kill Mason and wasn’t aware
that his accomplice intended to
kill her.

Eisele also criticized a U.S.
Supreme Court decision that
cleared the way for inmates to
pick which issues the federal
courts will consider.

The high court’s decision pre-
vented any judge from examin-
ing Fairchild’s sentence while
the inmate unsuccessfully

procedures protect both the.
rongly eonvicted and those or- ~
ice “

airchild taking fourth trip through

_-Jowed to rule on the penalty im-.
posed on Fairchild only when

the inmate — who for years had
said he would not challenge his
sentence because he would
rather die than live behind bars
__ decided at the last minute to
fight his execution. ;

- Because of the “unique and
awful nature of the execution of
another human being,” Eisele
said, federal courts should be
allowed to review any relevant
issue in a death-penalty case
even if the defendant doesn’t
want that issue examined.

“Tf a state court sentenced a
defendant to be boiled in oil
and the defendant, for whatever
reason, declined to object,
would a horrified nation be
forced to stand by while the sen-
tence was carried out?” Eisele

John Wesley Hall Jr."

said, quoting from a ruling he
made in another death-penalty

se. ‘

“Tf a defendant is innocent,
may the state be allowed to con-
vict and execute him because
he wishes to be executed?”

Advocates of changing the
habeas corpus procedures have
had some victories in recent
years.

In a line of cases beginning
in 1989, the U.S. Supreme Court
limited federal challenges by
prisoners who claim their rights
were violated in state prosecu-
tions. The high court has or-
dered federal judges to defer
more to state court decisions
and has ruled that an inmate
must prove that an alleged er-
ror at his trial had a “substan-
tial and injurious” effect on the
jury’s decision.

Congress is considering leg-
islation that would further curb
federal court challenges.

Bills proposed in the House
and Senate, including one co-
sponsored by Rep. Jay Dickey,
R-Ark., would require death-row
inmates to file their habeas pe-
titions within six months of fin-
ishing their appeals in state
court. The bills also would re-
strict most inmates to one trip
through the federal court sys-
tem.

Some of the proposed legis-
lation would limit the issues
federal courts could consider in
habeas actions or would require
that competent lawyers be ap-
pointed to represent death-row
inmates. |

-» Those ‘who want to change
habeas corpus procedures ar-
gue that prisoners often are
wasting the courts’ time with
their cases. But others contend
that federal court rulings prove
death-row inmates aren’t pur-
suing frivolous claims or clog-
ging court dockets.

Rosenzweig said the feder-
al judiciary — whose ranks are
crowded with conservative Re-
publican appointees — is now
ruling in favor of the inmate in
at least 35 percent of death row
cases. He said the courts are
throwing out the death sen-
tences or ordering a new trial
or a resentencing in those cas-

es.

And statistics from the Ad-
ministrative Office of the U.S.
Courts back up the claim that
habeas cases are only a small
part of federal judges’ work-
loads.

Defendants challenging their
state convictions filed 4.9 per-
cent of all civil cases in federal
court in the year beginning June
1, 1991, according to the office.

U.S. Circuit Judge Donald P.
Lay objected to claims that large

federal courts

numbers of death row prisoners
are manipulating the system to
put off their executions.

States often cause delays in
death row cases by failing to ap-
point competent attorneys to
represent defendants, said Lay,
an 8th Circuit judge based in St.
Paul.

And he said the judiciary has
contributed to the problem by
frequently bouncing cases back
and forth between state and fed-
eral court.

Death-row inmates in
Arkansas spend an average of
8% to nine years challenging
their convictions in state and
federal court, said Senior As-
sistant Attorney General Olan
Reeves. Four men have been
put to death in Arkansas since
the state resumed executions
in 1990 following a 26-year hia-
tus. - ;

Lay said a more important is-
sue is at stake in death-row cas-
es than the desire to move liti-
gation through the courts quick-
ly.

“J strongly believe that be-
fore the state takes the life of
someone, that person should
have every right to attempt to
show that the law was not ap-
plied in the proper way,” Lay
said.

But Prosecuting Attorney
Chris Raff in Searcy said the
system is inflicting pain on Gre-
ta Mason’s relatives more than a
decade after Fairchild’s con-
viction. :

“This appellate process and
its dragging on for over 10 years
is a second assault on the fami-
ly,” said Raff, who prosecuted
Fairchild. “They should never
have to endure this after en-
during the loss of their daugh-
ter.”

oorated on the prin-
1 felony-murder sen-
ona, supra. In Ti-
that two types of
ends of the felony-
ne end of the spec-
] in an armed rob-
rho neither intended
i to have had any
hile at the other are
actually killed, at-
2d to kill.” 481 U.S.
, 1684. Tison ad-
1ich the felony-mur-
n intermediate role
rt defined that role
n the crimes com-
of reckless indiffer-
at 158, 107 S.Ct. at
. Tison, two broth-
er and another con-
scape from prison.
id one of the broth-
ing car which con-
The ***napped the
$s rc them, and,
c0-escapee decided
the family at gun-
yrothers were occu-
pees shot and killed
ther attempted to
during, or after the
helped the killers
ape. Id. at 151-52,

ner specifically in-
ns, nor did either
nots, the Supreme
ch penalty could be
them. In reaching
t noted that “the
man life implicit in
criminal activities
isk of death repre-
ental state, a men-
en into account in
ng judgment when
atural, though also
it.” Id. at 157-58,
ipreme Court held
in the felony com-
ckk difference
ant atisfy the

RUT si ae eae eH

patty a ae RAN GREY oes

FAIRCHILD v. NORRIS . 803
Cite as 21 F.3d 799 (8th Cir. 1994)

Enmund culpability requirement.” Id. at

158, 107 S.Ct. at 1688.

Il.

A.

[7] From the transcript, we know that
the evidence before the jury included Fair-
child’s videotaped confessions, his testimony
at trial, and a watch similar to one owned by
the victim. In his confession, Fairchild stat-
ed that he and his accomplice! kidnapped
Ms. Mason. He told the police that they
followed her to her car and that, after she
got into her car, they walked up to the car
and got in on the other side. Moreover, he
stated that his accomplice had a gun and
pulled it on Ms. Mason. He also described
the gun for the police, telling them that it
was a short-barrelled, nickel-plated gun.

After they got into Ms. Mason’s car, they
drove to Scott, Arkansas, where Fairchild’s
accomplice got out of the car with the victim
and went into a deserted house. Fairchild
said that his accomplice raped Ms. Mason,
and that he raped her as well. At this point,
Fairchild’s confession is somewhat inconsis-
tent; however, he did state that after raping
Ms. Mason he returned to her car and went
through her purse, removing cash.

Fairchild stated in his confession that he
did not expect his accomplice to murder Ms.
Mason. Instead, on the basis of his accom-
plice’s remarks, Fairchild said that he be-
lieved that they were going to leave when it
became dark. He returned to the car, and
while he was waiting, he heard two gunshots.
Then, he ran into the house, saw Ms. Mason
lying on the floor, and questioned his accom-
plice as to what he had done. His accomplice
responded that shooting Ms. Mason was the
only way out. Fairchild told his accomplice
that it had not been necessary to shoot Ms.
Mason, and his accomplice told him to forget
it. Fairchild then said, “Well, we need to get
out of here now” (Tr. 854). They left the
house and drove away in Ms. Mason’s car.

1. To this day, Fairchild’s accomplice remains
unidentified. In his confession, Fairchild said
that his accomplice was a man named Harold
Green. However, at trial, Fairchild stipulated to
the fact that Harold Green was in Colorado at
the time the crimes took place.

While driving away, Fairchild and his ac-
complice were followed by a state trooper.
They increased their speed, abandoned Ms.
Mason’s car, ran across a field, and escaped.
Eventually, the police focused their investiga-
tion on Fairchild and attempted to find him.
Several days later, they caught him trying to
take a bus to California.

Fairchild’s trial testimony differed consid-
erably from his videotaped confessions. At
trial he testified that he did not participate in
the kidnapping, rape, or robbery of Ms. Ma-
son. Instead, he testified that he made both
confessions only after the police beat him
severely and forced him to recite the confes-
sions, which they had made up for him, on
tape.

The physical evidence at trial included a
watch which Ms. Mason’s family members
said was identical to one she had owned.
The police found the watch after Fairchild
told them in his confession that his accom-
plice had stolen it and given it to Fairchild,
who, in turn, had sold it to his sister. The
police retrieved the watch from Fairchild’s
sister, who told them that her brother had
sold it to her. At trial, Fairchild testified
that he bought the watch from someone at a
pool hall, and sold it to his sister.

B.

To determine whether the evidence pre-
sented to the jury at the trial was sufficient
to sustain Fairchild’s sentence of death, we
must determine where on the felony-murder
spectrum this case lies. For the purposes of
our analysis, we assume, on the basis of his
confession, that Fairchild, unlike Enmund,
actually participated in the kidnapping, rob-
bery, and rape of Ms. Mason. The jury was
entitled to believe the confessions. However,
we also assume that Fairchild was not actual-
ly present when his accomplice. pulled the
trigger and, like the Tisons, did not fire the
gun himself. On the basis of that evidence,
Fairchild’s actions fall somewhere in between
the accomplice who remains outside in the

2. In one of Fairchild’s previous proceedings, the
District Court found as a fact that Fairchild had
not been coerced, and that his confessions were
voluntary. We affirmed. Fairchild v. Lockhart,
675 F.Supp. 469, 490-91 (E.D.Ark.1987), affd.,
Fairchild v. Lockhart, 857 F.2d 1204, 1207 (8th
Cir. 1988).

802 21 FEDERAL REPORTER, 3d SERIES

state to be sentenced to death. The District
Court agreed, finding that the evidence at
trial was insufficient to support the jury’s
sentence of the death penalty. Therefore,
we must review the evidence to determine
whether Fairchild has proved by clear and
convincing evidence that no reasonable juror
could have found him eligible for the death

penalty under accepted Eighth Amendment
principles.

B.

Fairchild argues that his conviction violat-
ed the Eighth Amendment prohibition
against cruel and unusual punishment, be-
cause the evidence on which the jury based
its conviction was insufficient to support a
finding, under Enmund v. Florida, 458 U.S.
782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982),
and Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987), that the death
penalty was an appropriate sentence. The
District Court held that Fairchild’s Eighth
Amendment rights were violated because the
trial court’s instructions to the jury did not
specify that the jury had to find that Fair-
child had the mental intent required when
imposing a death sentence. More important-
ly, the District Court specifically held that no
reasonable jury could have so found.

[6] Before a defendant can be sentenced
to death, our Constitution requires that he be
guilty of a certain degree of culpable conduct.
In Enmund v. Florida, supra, and Tison v.
Arizona, supra, the Supreme Court elaborat-
ed on the necessary mental state in the
felony-murder context. In Hnmund, the
Court held that states could not impose the
death penalty on an accomplice to a felony
murder who “[did] not himself kill, attempt
to kill, or intend that a killing take place or
that lethal force [would] be employed.” En-
mund v. Florida, supra, 458 U.S. at 797, 102
S.Ct. at 3377. The defendant in Enmund
was the driver of a getaway car whose code-
fendants had entered a house to commit an
armed robbery. Those codefendants shot
and killed several people after one of the
residents fired on them. Jd. at 784, 102 S.Ct.
at 3370. Because Enmund was not present
when the shots were fired, and the evidence
did not show that he had any intent to kill or
use lethal force, the Court held that En-
mund’s death sentence was unconstitutional.

The Court further elaborated on the prin-
ciple of proportionality in felony-murder sen-
tencing in Tison v. Arizona, supra. In Ti-
son, the Court stressed that two types of
cases occur at opposite ends of the felony-
murder spectrum. At one end of the spec-
trum are “minor actor[s] in an armed rob-
bery, not on the scene, who neither intended
to kill nor [were] found to have had any
culpable mental state,” while at the other are
felony murderers “who actually killed, at-
tempted to kill, or intended to kill.” 481 U.S.
at 149-50, 107 S.Ct. at 1684. Tison ad-
dressed those cases in which the felony-mur-
der defendants played an intermediate role
in the murder. The Court defined that role
as major participation in the crimes com-
bined with a mental state of reckless indiffer-
ence to human life. Jd. at 158, 107 S.Ct. at
1688. The petitioners in Tison, two broth-
ers, had armed their father and another con-
vict and helped them escape from prison.
Their car broke down, and one of the broth-
ers flagged down a passing car which con-
tained a family of four. They kidnapped the
family, one of the brothers robbed them, and,
while their father and the co-escapee decided
what to do next, guarded the family at gun-
point. Later, while the brothers were occu-
pied nearby, the two escapees shot and killed
the family. Neither brother attempted to
assist the victims before, during, or after the
shooting; instead, they helped the killers
continue their planned escape. /d. at 151-52,
107 S.Ct. at 1685.

Although neither brother specifically in-
tended to kill the victims, nor did either
actually fire the fatal shots, the Supreme
Court found that the death penalty could be
constitutionally applied to them. In reaching
its conclusion, the Court noted that “the
reckless disregard for human life implicit in
knowingly engaging in criminal activities
known to carry a grave risk of death repre-
sents a highly culpable mental state, a men-
tal state that may be taken into account in
making a capital sentencing judgment when
that conduct causes its natural, though also
not inevitable, lethal result.” Jd. at 157-58,
107 S.Ct. at 1688. The Supreme Court held
that “major participation in the felony com-
mitted, combined with reckless indifference
to human life, is sufficient to satisfy the

Ln
158


tee ke

sits

4 RAK. ‘aa
.

Fairchild

® ‘® Continued from Page 1A

: er items add up. He blames
¢ Fairchild for making the case
+ expensive.
*- “Fairchild has been control-
‘ding the issue — not the courts
»=-with his single-issue appeals,”
‘Raff said. ‘Appeals include chal-
‘lenges on issues ranging from
* + jury selection to Arkansas’ death
‘penalty statutes.
Ee Jeff Rosenzweig, a Little Rock
*Jawyer who is handling five
rat ‘death penalty cases, agrees that
git’s difficult to estimate how
=much is spent trying such cases.

Se

ee “There are a number of fac-

Estors that go in a habeas case,” he ©
said. A habeas corpus petition _

fis used in capital cases to ask
sthigher courts to review the le-
egality of some aspect of a con-
= viction.

F+ “Do you fractionalize the fed- ‘
Zeral judges’ salaries for the time ..
#-spent on the case, or the clerk’s

Ssalary or the secretary’ s? How
Szabout the deputy prosecutor?”
te Rosenzweig added that the

(Fairchild case was “aberra-

F tionally long” and not represen-
E-tative of many death penalty ap-
«<peals.
o Lonoke County and state tax-
es “payers were not alone in footing
ethe bill for prosecuting
=*Fairchild. Federal revenue also
geaid for Fairchild’s defense
-since a circuit judge declared
<*him indigent at his original 1983
“trial.
¥. And attorneys from the Amer-
s.ican Civil Liberties Union of
¥-Northern California and the Na-
“tional Association for the Ad-
‘vancement of Colored People’s
“Legal Defense Fund have spent
‘time and money defending
*-Fairchild.
Former Deputy Attorney Gen-
‘eral Jack Gillean estimates he
worked 2,100 hours on the
-Fairchild case from 1984 until
‘he resigned in September to
take a job with the governor’s of-

‘

“fice e

Greta Mason

‘If Gillean were paid a typical
“hourly fee charged by attorneys
for such cases — $125 an hour —

«his time would be worth an es-

timated $262,500.

- ‘But Gillean never received
that amount. As a state employ-
ee, his salary peaked at nearly
$59, 000 a year. But Gillean and
other state attorneys and staff
could have applied the hun-
dreds of hours spent on the
Fairchild case to other cases.

“My first involvement in the
case was on the direct appeal in
1984,” Gillean said. “I was prob-
ably a little bit slower back then
than I would have been today.”

Here’s how much time Gillean
estimated he spent on just a few
aspects of the case:

e 80 hours writing the state’s
initial appeal filing, including
reviewing the trial transcript
and researching the issues.

e 200 hours preparing and ar-
guing the first habeas petition
in 1985-86.

e 400 hours preparing for the
second habeas petition.

e 800 hours for 18 days of
hearings from December 1990 to
February 1991, including fact-
finding time, interviewing wit-
nesses and other work when the
8th Circuit Court sent the case

Jack Gillean

back to district court.

Gillean cautioned that those
figures did not include copy
costs, which can range from 50
to 75 cents a page.

John Wesley Hall Jr. of Little

‘Rock, who has represented.

Fairchild since 1986, has billed
the federal government nearly
$115,000 for his work on
Fairchild’s appeals.

“But I’m not going to bill any
more for Fairchild,” Hall said.
“I’ve been adequately compen-
sated for that.”

The attorney who will repre-
sent Fairchild in today’s appeal,
Steven Hawkins of the NAACP
Legal Defense Fund, is one of
two other attorneys eligible to
be paid on Fairchild’s behalf.

“Our office has paid for this
out of its own pocket since 1989,”
Hawkins said. In September, the
court recognized Hawkins and
Herbert C. Rule of the Rose Law
Firm as Fairchild’s attorneys for
the appeal, allowing them to be
paid with federal funds.

Hawkins said the NAACP has
spent “thousands of dollars” on
behalf of Fairchild. He expects
the bill for the latest appeal to
total a few thousand dollars.

Hall complained that attor-
neys who represent indigent in-

Chris Raff

mates in death penalty appeals
are not paid enough for their
time or to cover their overhead.
However, in a brief filed in an-
other case, he wrote that the

courts gives police, prosecutors,

courts and prison systems a
“blank check” to prosecute cap-
ital murder cases.

“Tt ... denies the accused the
equal protection of the law guar-
anteed by the Fourteenth
Amendment to have a lawyer un-
derpaid,” he wrote.

Hall cited a 1987 study done
for the American Bar Associa-
tion that showed it cost Florida
three to four times more money
to execute a condemned prison-
er than to imprison him for life.

“A lone prosecuting attor-
ney’s decision to seek the death
penalty and then actually get it
commits the state, police agen-
cies and even the federal gov-
ernment to spend over $1 mil-
lion on that case,” he said.

In 1991, the Arkansas
Supreme Court threw out a
$1,000 fee cap for attorneys rep-
resenting indigent clients in cap-
ital murder cases.

The court ruled fee limits vi-
olate an attorney’s rights to ad-
equate pay. The ruling gave tri-
al judges the discretion to set

wo

14 & &
2% aa
sols 5 alee ie
s 81s chs
£ 6) & ae
Fe 4], @& ot

2 A

i)

epee a first 287 days of 1993.
E: Arkansas Department of Correction.

Cost of holding Barry Lee Fairchild

bias eee iia the gyn Pre epee cost |” mimi
of imprisoning wt § ee Fairchild since his TOTAL cost: qT
aeniahed on Au 1983: i
casa mms 9127,497.05 7,
$50 Held at | Held at new _
od Cummins Unit | Maximum Security Unit
35 g
srs 4: S
212 8 &
ef

'83 '84 '85 '86 '87 '88 '89 ‘90 '91 ‘92 ‘93*

$15,209.55
$15,749.75

$13,691.15
$14,629.20
$13,210.61

$11,844.25

MICHAEL STOREY / Arkansas Democrat-Gazette

fees.
The Legislature earlier this

.year created a commission to co-

ordinate and fund public de-
fenders — including a special of-
fice to help handle capital cases.

From its outset; the Fairchild
case demanded a major time
commitment from both the pros-
ecution and the defense.

Fairchild’s original defense
attorney, Joseph O’Bryan of
Cabot (Lonoke County), worked
part time as a public defender
in Lonoke, White and Prairie
counties when the circuit judge
tapped him and Margaret Kes]
of Fayetteville as defense attor-
neys.

The counties in the district
paid O’Bryan about $1,500 a
month to represent indigent
clients. When the Fairchild case
came up, he set aside his private
practice.

“For five months until the tri-
al began I was applying myself
pretty much to the case,”
O’Bryan said. He couldn't esti-
mate how much the extra time
would have cost had the county

not paid for it.

The hours needed on the case
eventually dropped as it moved
into the federal courts.

“After the verdict was in and
the trial over, I didn’t have too
much else to do until the spring
of 1984,” when the first of many
appeals was heard, O’Bryan said.

Every few months, until re-
lieved as defense attorney in the
summer of 1986, O’Bryan had to
prepare motions, briefs or peti-
tions to take the appeal process
to its next stage.

Raff said he and a deputy
prosecutor spent “literally
weeks” putting the case together
in 1983.

But Raff said his staff mem
bers weren’t the only public of-
ficials who devoted time to the
case. Attorneys for both sides in-
terviewed Pulaski County sher-
iff's investigators and then-Sher
iff Tommy Robinson several
times before the trial. Testimo
ny also kept those officials from
their jobs, Raff said.

petition, did not qualify the actual innocence
exception to general bar against successive
writs; petitioner joined armed accomplice in
kidnapping, robbery, and rape of a woman,
although petitioner’s confessions referred to
gun’s existence only at kidnapping stage,
once victim knew of gun’s existence, it repre-
sented implied threat throughout entire inci-
dent, and petitioner told police he heard vic-
tim beg them not to hurt her but her pleas
did not deter him from further participation
in the crimes. Rules Governing § 2254
Cases. Rule 9(b), 28 U.S.C.A. foll. § 2254.

Olan Reeves, Little Rock, AR, argued, for
appellant.

Steven Hawkins, New York City, argued
(Elaine R. Jones, Theodore M. Shaw and
Richard H. Burr, New York City, Herbert C.
Rull, III, Charles W. Baker and P.A. Holl-
ingsworth, Little Rock, AR, on brief), for
appellee.

Before RICHARD S. ARNOLD, Chief
Judge, ROSS, Senior Circuit Judge, and
MAGILL, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

This petition is Barry Lee Fairchild’s
fourth for federal habeas corpus relief. The
murder of which he was convicted occurred
ten years ago, on February 26, 1988, in Ar-
kansas. The police arrested Fairchild on
March 4, 1983, and early on the morning of
March 5, he made two videotaped confes-
sions. Between the two confessions, he took
the police on a tour, showing them where he
and his accomplice kidnapped, raped, and
killed the victim, Marjorie Mason. An Ar-
kansas jury convicted him of felony murder
and sentenced him to death on August 2,
1983. The issue in this petition is whether
the evidence before the jury was sufficient
for it to sentence Fairchild to death. The
District Court held that the evidence at trial
was insufficient for a reasonable jury to find
that Fairchild possessed the requisite mental
state, extreme indifference to human life, to
justify the imposition of the death penalty.
The District Court directed that Fairchild’s
sentence of death be reduced to life impris-
onment without parole. The State of Arkan-

800 21 FEDERAL REPORTER, 3d SERIES

sas, acting through the Interim Director of
its Department of Correction, appeals and
argues that Fairchild has not met the actual-
innocence standard. We agree, and now re-
verse.

i

Fairchild’s case has a ten-year history in
the state and federal courts. After a jury
convicted him in 1983, the Arkansas Supreme
Court affirmed Fairchild’s conviction and
sentence on direct appeal, Fairchild v. State,
284 Ark. 289, 681 S.W.2d 380 (1984), cert.
denied, 471 U.S. 1111, 105 S.Ct. 2346, 85
L.Ed.2d 862 (1985), and denied postconvic-
tion relief. Fairchild v. State, 286 Ark. 191,
690 S.W.2d 355 (1985). Fairchild then filed
his first petition for writ of habeas corpus in
federal district court. The District Court
denied that petition, Fairchild v. Lockhart,
675 F.Supp. 469 (E.D.Ark.1987), and we af-
firmed. Fairchild v. Lockhart, 857 F.2d
1204 (8th Cir.1988), cert. denied, 488 U.S.
1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989).
The District Court also denied Fairchild’s
second petition for a writ of habeas corpus.
Fairchild v. Lockhart, 744 F.Supp. 1429
(E.D.Ark.1989). We affirmed that decision
as well. Fairchild v. Lockhart, 900 F.2d
1292 (8th Cir.), cert. denied, 497 U.S. 1052,
111 S.Ct. 21, 111 L.Ed.2d 833 (1990). The
District Court dismissed Fairchild’s third pe-
tition for habeas corpus, and we remanded
for an evidentiary hearing. Fairchild v.
Lockhart, 912 F.2d 269 (8th Cir.1990). The
District Court then concluded that Fairchild
was not entitled to relief, and Fairchild ap-
pealed that decision. Fairchild v. Lockhart,
No. PB-C-85-282 (E.D.Ark., June 4, 1991).
We affirmed the District Court’s order, Fair-
child v. Lockhart, 979 F.2d 636 (8th Cir.
1992), cert denied, —- U.S. ——, 113 S.Ct.
3051, 125 L.Ed.2d 735 (1993). Finally, Fair-
child filed the petition at issue in this case.
The District Court directed that his death
sentence be changed to life in prison without
parole, Fairchild v. Norris, No. PB-C-85-
282, mem. op. (E.D.Ark. Sept. 22, 1993).
This Court denied summary reversal and
ordered an expedited appeal. Fairchild v.
Norris, 5 F.3d 1124 (8th Cir.1993). The
District Court entered a later order further

Ra Sets a


Inti Director of
ecti . ppeals and
; not met the actual-
agree, and now re-

ten-year history in
murts. After a jury
Arkansas Supreme
d’s conviction and
|, Fairchild v. State,
2d 380 (1984), cert.
105 S.Ct. 2346, 85
_ denied postconvic-
State, 286 Ark. 191,
Fairchild then filed
of habeas corpus in
The District Court
irchild v. Lockhart,
*k.1987), and we af-
sockhart, 857 F.2d
t. denied, 488 U.S.
4.Ed.2d 1007 (1989).
denied Fairchild’s
it of hoheas corpus.
74: Supp. 1429
uMcu wat decision
Lockhart, 900 F.2d
ved, 497 U.S. 1052,
d 833 (1990). The
Fairchild’s third pe-
. and we remanded
ring. Fairchild v.
8th Cir.1990). The
uded that Fairchild
, and Fairchild ap-
trchild v. Lockhart,
Ark., June 4, 1991).
Court’s order, Fair-
F.2d 636 (8th Cir.
iS. ——, 113 S.Ct.
993). Finally, Fair-
. issue in this case.
ted that his death
fe in, prison without
is, No. PB-C-85-
«. Sept. 22, 1993).
ary reversal and
peal. Fairchild v.
th Cir.1993). The
later order further

si aes SU Riel a 5

sitet RP SR ES tis EIR nye US SSE SEIS SES e

a ae yeas BONERS Son poe

explaining its reasoning. Fairchild v. Lock-
hart, No. PB-C-85-282, Addendum to mem.
op. (E.D.Ark. Sept. 24, 1993). We now ad-
dress the State’s appeal.

We forego a complete recitation of the
facts in this opinion, because our prior opin-
ions provide them in detail. Instead, in our
analysis, we focus only on those facts rele-
vant to the issue on appeal.

II.

A.

[1,2] The rules governing writs of habe-
as corpus bar most successive petitions. 28
U.S.C. § 2254, Rule 9(b). Therefore, be-
cause this petition is Fairchild’s fourth, we
must address whether the petition should be
barred as an abuse of the writ, before reach-
ing the merits of his argument. Although
the government bears the burden of pleading
an abuse of the writ, once it does so, the
petitioner bears the burden of proving that
his petition is not an abuse of the writ.
Sanders v. United States, 373 U.S. 1, 10-11,
83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963).
Unless the petitioner meets this burden, a
court cannot proceed to the merits of his
claim. See McCleskey v. Zant, 499 U.S. 467,
477, 111 S.Ct. 1454, 1461, 118 L.Ed.2d 517
(1991). The general bar against abusive or
successive claims extends to new claims
which could have been raised or developed in
an earlier petition, Sawyer v. Whitley, —
U.S. ——, 112 S.Ct. 2514, 120 L.Ed.2d 269
(1992), and to successive claims which raise
grounds identical to those heard and decided
on the merits in a previous petition, Kuhl-
mann v. Wilson, 477 U.S. 4386, 106 S.Ct.
2616, 91 L.Ed.2d 364 (1986).

Fairchild argues in his present petition
that the evidence presented against him at
trial was legally insufficient to justify the
death penalty. This argument was not
raised in any of his previous petitions, though
it clearly could have been. We cannot reach
the merits of Fairchild’s contention unless he
qualifies for some exception to normal abuse-
of-the-writ principles.

[3-5] The Supreme Court has carved out
two types of exceptions to the general bar

FAIRCHILD v. NORRIS 801
Cite as 21 F.3d 799 (8th Cir. 1994)

against successive writs. To qualify for the
first exception, a petitioner must show cause
and prejudice. Wainwright v. Sykes, 433
USS. 72, 97 S.Ct. 2497, 58 L.Ed.2d 594 (1977);
McCleskey v. Zant, supra, 499 U.S. at 493,
111 S.Ct. at 1469-70. Simply put, this stan-
dard requires the petitioner to show cause
for failing to raise the claim in an earlier
petition and prejudice resulting from that
failure. Fairchild cannot qualify for the
cause-and-prejudice exception, and he does
not argue that he can. Under the second
exception, a court may decide the claim on
the-merits if the defendant is actually inno-
cent of the crime itself or of the death-
penalty sentence. Herrera v. Collins, —

US. —, —, 118 S.Ct. 853, 862, 122
L.Ed.2d 203 (1993); Sawyer v. Whitley, —
U.S. ——, 112 S.Ct. 2514, 120 L.Ed.2d 269

(1992). A defendant can be actually innocent
of the death penalty if the evidence at trial
failed to establish the existence of an aggra-
vating circumstance or another condition of
eligibility. Sawyer v. Whitley, supra, —
US. at ——, 112 S.Ct. at 2522. To qualify
for this “actual innocence” exception, the de-
fendant must show “by clear and convincing
evidence that but for the constitutional error,
no reasonable juror” would have found him
eligible for the death penalty. Jd. at ——,
112 S.Ct. at 2524. The inquiry is not “wheth-
er the trier of fact made the correct guilt or
innocence determination, but rather whether
it made a rational decision to convict or
acquit.” Herrera v. Collins, supra, — U.S.
at ——, 113 S.Ct. at 861.

The Supreme Court has considered and
rejected several proposed applications of the
actual-innocence exception, repeatedly em-
phasizing the narrowness of its scope. See
Dugger v. Adams, 489 U.S. 401, 109 S.Ct.
1211, 108 L.Ed.2d 435 (1989), and McCleskey
v. Zant, supra. Moreover, the Court has
“refused to hold that the fact that a death
sentence has been imposed requires a differ-
ent standard of review on federal habeas
corpus.” Herrera v. Collins, supra, — U.S.
at ——, 113 S.Ct. at 863, citing Murray v.
Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765,
2770, 106 L.Ed.2d 1 (1989) (plurality opinion).

We consider Fairchild’s claim under the
actual-innocence exception, because Fairchild
argues that he lacked the required mental


157 SW 1156
GAYLORD, Hugh Alvin ("Boss"), alias Alvin HUDSON, black, hanged at Morrillton, Conway
County, Arkansas, on July 28, 1913,

"While the wife and the 3 children of his victim looked on, Alvin Hudson, alias Boss
Gaylord, negro preacher, bravely went to his death on the gallows here (at Morrillton)
this afternoon. Gaylord's neck was unbroken by the fall and he died from strangula=
tion, Twenty-three minutes after the trap fell, physicians pronounced him dead,
Mrs, Herbert Williams, wife of Gaylord's victim, with her grown daughters and young
son witnessed the execution, Mrs, Williams sat in a chair just beneath the scaffold
while her son and daughters stood in a window that overlooked the scene of the execu-
tion, When the man's body shot through the trap with convulsive shudders running
through his frame, the mother looked up at her children and smiles wreathed the

faces of all four, The scaffold had been erected on the north side of the courthouse
with a high board fence surrounding it. On top of these were curtains, A crowd es-
timated at l,000 people containing many women surrounded the enclosure, filling the
courthouse yard and the adjoinging streets, The curtains were not drawn until the
noose was put around the negro's neck and the crowd witnessed the negro's walk

to the scaffold and heard his last talk, Gaylord was brought here from Little Rock
Friday afternoon, He had been kept in the Pulaski county jail ever since his con-
viction, He arrived here apparently in good spirits and greeted his many visitors in
the jail in a cheerful manner, Sunday was a big day for Boss, The members of the
negro churches of Morrillton held services with him in his cell for the greater part
of the afternoon, Sheriff Gordon allowed Gaylord to choose his own menu for his
Sunday dinner and the condemned man ate as though he enjoyed the meal, Last night

he was restless and slept very little, although he was ready to talk and laughed con-
stantly. He mentioned the crime only when someone else referred to it, He admitted
killing Mr, Williams, but said that he did not intend to do its; that he only wanted
to rob the mail carrier, At one o'clock this afternoon Gaylord began to dress for
his execution, He did so unassisted and seemingly as carefree as though preparing

to go to a picnic, When told that the time had come to start the death march, he

s tepped from his cell and calmly extended his arms to be handcuffed, He walked
steadily to the gallows, Arrived on the gallows, he was asked if he had anything

to says He walked to the front and in a calm voice SH@@4 and without a tremor,

made a short speech to the big crowd, He advised them all to keep out of such
trouble as he had gotten into, ‘Live so that when your time comes, you can thank

God that it is well with your souls,' were Gaylord's concluding words, He did

not mention his crime, When he had concluded, he stepped firmly to the middle of

the trap and stood there without a quiver while his negro minister commended his

soul to the keeping of God, After the puayer, the doomed man joined with a strong
voice in singing the verses of a hymn, The straps were then adjusted by Deputies
Hall Morrill, J. G. Earl, Landor Gordon and Britt Jones; the black cap placed on

his head, the noose adjusted and the negro's body shot through the trap, The crime
for which Gaylord today paid the penalty was committed on November 16, 1912, when

he waylaid Herbert Williams, a white mail carrier, and curshed his skull with a
single-barreled shotgun while Williams was making his regular rounds delivering

mail, Gaylord robbed the dead man of $10 but overlooked $125 in the mail bag which
Williams had just collected from the sale of a piece of property."

ARKANSAS GAZETTE, Little Rock, Arkansas, July 19, 1913.6

: a oe
e

BE

("Boss")

- . A PLACE — CITY OR COUNTY DOE & MEANS
“e"€ hugh Alvin Gaylord, alias Alvin '
Hudson Morrillton, Conway Co,, Ark, lL, (ys 2) 03 Rena

OCCUPATION RESIOENCE GEN

008 OR AGE RACE

Black | Preacher

CRIME

Murder Le b<1912

VICTIM

terbert Williams, mail carrier

MOTIVE

Motive was robbery
synorsis while the wife and the 3 children of his victim looked on, Alvin Hudson, alias Boss Gaylord,
negro preacher, bravely went to his death on the gallows here this afternoon, Gaylord's neck
Was unbroken by the fall and he died from strangulation, Twenty-three minutes after ap
fell, physicians Ett taels- him dead. Mrs, Herbert i wife of Gaylord's victim, with her

neath the pepe while her son and daughters stood in a window that over looked the scene of
: hudders running thru

his frame, the aobtier looked up at her children and smiles weeathed the faces of all fours
"The scaffold had been erected on the north side of the court house with a high board fence
surrounding it. On top of this were curtains, A crowd estimated at ),000 people containing
many women surrounded the enclosure, filling the court house yard and the adjoinging streets.
The curtains were not drawn until the noose was put around the negro's neck and the crowd wit-
nessed the negro's walk to the scaffold and heard his last talk, Gaylord was brought here from
Tittle Rock Friday afternoon, He had been kept in the Pulaski county jail ever since his con=
viction, He arrived here apparently in good spirits and greeted his many visitors in the jail
——~4n a cheerful manner. Sunday was-a-bir-day-for-Boss, i he-members of the nesro chunches of —— }
abheetgieet held services pei hin in his cach for the greater part of us: saponlevtans Snerttt

as + eed he enjoyed the ane oe night he was vaneones and slept very Little, ‘although he wad
ready to talk and lauchted E 1 s

to it, He admitted killing Mr. Vllians, but said that he did not intend to do it; that he only
wanted to rob the mail carrier, At one o'clock this afternoon Gaylord began to dress for his
execution, e did so unassisted and seemingly as carefree as though preparing to go to a pic-
nic, When told that the time had come to start the death aren he stepped from his cell and

is a é cuffed, he walked stadily € gallows,
"Arrived on 1 the ipsafi - was asked he had anything: s to Says He walked to the front and ina

ali to eee sire of iach urbibis as he had gotten into, ‘Live so that wes tite bine comes, you

can thank God that it is well with your soulc! were Gaylord's concluding words, He did not mene &

tion his crime, ‘When he had concluded, he stepped firmly to the middle of the trap and stood
there without a quiver while his negro minister commended his souls# to the keeping of God,
After the prayer, the doomed man joined with a strong voice in singing the verses of a hymn,
The strays were then adjusted by Deptties “all Morrill, J. G. Earl, Landor Gordon and Britt
Jones; the black cap placed on his head, the noose adjusted and the negro's body shot throuch
the trap,

~—_ "fhe crime for whith Gaylord today paid the penalty was committed on Nov, 16, 1912, when he

waylaid Herbert ea a white mail carrier, and curshed his skull with a single-barreled

t Weerkpaked $125 in the mail bag which Williams jad just collected from the sale

u
ff » OFOPErLY « I ARKANSAS SAFETTE, 7 19 41913,

VPEUP CY, VUY

b

APPEALS

157 SOUTHWESTERN 1156

LAST wORDS

EXECUTION


GRAY, Arthur Nox,bBl, elec ARS (Mississippi) =="

=e

hy Pesbaaeg. os

pina

et nt

i
a
}

Ws Se Sisko ses

Nowember 23, 1951

‘CLUES—
Homer Tucker’s social security card and
the switch-blade knife that killed him.

BLOOD '

THAT WOULD NOT &

WASH

By
FRANK WELCKER :

The stain of the gory
crime clung to the killer’s soul
— and to his hands!

HEADQUARTERS DETECTIVE,

October, 1951

HE DARK OF THE MOON, in the Mississippi delta,
is the time for planting root crops, for secret love-making,
and, sometimes, for murder. It was just such a moon-
less night, March 4, 1951, when Kenneth Lawson locked

the front door of the Silver Slipper Night Club, at Blytheville,

Arkansas, and made sure that his flashlight was in the car.

He had driven scarcely four miles on Highway 18 when
he suddenly threw on the brakes.

_ “Accident over there,” he muttered to himself.

The headlights fingered a long, flat shape in the middle
of the road—a still shape with a white face.turned toward the
light beam. \ ;

Grabbing his flashlight, Lawson hurried to the prone man.

The victim’s' throat, arched in final agony, had been stabbed
twice. Blood that covered his face and clothing and the road
was still moist enough to reflect the beams of the flashlight.

Lawson followed the stains to the car at the side of the

‘road. Both doors sagged open. The flashlight picked out a

puddle of blood near the back seat. In it lay a pair of dark
goggles and the flat cap of a'taxicab driver. © -;
- Night Désk Sergeant Dick Burns took Lawson’s call and
rélayed it to Mississippi County Sheriff William Berryman.

Within a few minutes three cars manned with investigators
stopped at the scene of the killing. From the.county car
issued Sheriff’s Deputies ‘Charles ‘Short and Holland Aiken.
The police car brought Coroner E. M. Holt and W. C. Barber,
Blytheville jailer, who assisted night patrolmen on Saturday,
the busy night. In a State Highway Patrol car came Trooper
Clyde Parker.

Several of the officers knew‘the slain man. He was Homer
Tucker, an independent taxicab owner who .worked out of
the°981 Taxi Service in Blytheville. are

ata af Bees ae

The coro
right and k
fierce fight
face is bad)

“How lo:

“Less th:
clothing. T
: ' The depu
| __ hight spots

picked up :

The coro

be “Pockets
*. announced.
' After a t
“The fight :
“ into the ba
* si running to
. inch smear
Besides t!
& found ‘a dir
“Look at

least two th
* . on the door
q “The kill
— mented. “If

— _. “Bloodho
reminded hi

ise ess

WBJHILE wz
4 their se
_ ‘and process
Be The two «
_ of the high
"sat the spot
covered wit!
? “It doesn’

fpaid.

a

No appeal
GLAUBITZ, Ferdinand, white, hanged at Ozark, Arkansas, on November l, 1912,

"Fort Smith, Ark., Auge 27, 1912-Fernando Glaubitz, a Slavich miner, living at Alles, a
mining town in Franklin County, Ark., killed his wife last night because of jealousy of
his young son, the woman's stepchild, Neighbors say Glaubit, exacted a promise from the
woman before they married that she would give the same loving care to his young son as
she would had the child been her own, Her faithfulness to her word probably cost her
-life, The boy, unharmed, fled when his father attacked his stepmother,

"Glaubitz first shot his wife through the left breast with a pistol, Next he opened

a pocket knife and stabbed her repeatedly in the region of the heart. Not satisfied that
she was dead as the result of these wounds, the frenzied man seized a miner's pick from a
corner of the room and huried its point several times in her body as she lay face down=
ward and unconscious on the floor, Mrs, Glaubitz died in less than an hour, The husband
was taken to jail at Oaark, the A@M4H}¥X#HH Franklin County seat, after having narrowly
escaped mob violence at the hands of his neighbors." JOURNAL, Atlanta, Ga., Nugust 27,

1912 (4/3)

"tT AM GUILTY; I AM READY FOR THE ROPE.! - Fort Smith, Ark., Sept.
27. - At Ozark, this State, last midnight, Ferdinand Glaubitz, who a
few weeks ago brutally murdered his wife because he was jealous of
his own son by an earlier marriage, interrupvted the prosecuting
attorney and said: 'I am tired of this; I am guilty; I am ready for
the rope; I believe in the doctrine of an eye for an eye, a tooth
for a tooth and a life for a life, I am ready to go to God's court
and He will know all about my case.' After deliberating an hour and
a half the jury convicted Glaubitz with the death penalty attached,"
Columbia (SC) RECORD, September 27, 1912,

the Mississippi delta,
for secret love-making,
was just such a moon-
<enneth Lawson locked
tht Club, at Blytheville,
shlight was in the car.
on Highway 18 when

d to himself.
it shape in the middle
face.turned toward the

cried to the prone man.
igony, had been stabbed
d clothing and the road
sams of the flashlight.
car at the side of the
flashlight picked out a
In it lay a pair of dark
driver.
took Lawson’s call and
sriff. William Berryman.
anned with investigators
From the.county car
ort and Holland Aiken.
. Holt and W. C. Barber,
patrolmen on Saturday,
Patrol car came Trooper

iin man. He was Homer
ner who worked out of

bp!

a

right and left jugular veins slashed,” he said.

The coroner made a fast preliminary’ examination. “Both
“He put up a
fierce fight for his life. Hands cut in several places, and his
face is badly scratched.”

“How long has he been dead?” Deputy Short asked.
“Less than an hour. The body is still warm. under the

:. clothing. The blood is fresh and wet.”

- The deputy glanced at his watch. “One-thirty. Blytheville’s
night spots close at midnight on Saturday. Tucker must have
picked up a murderous fare just after closing time.”

The coroner was going through the dead man’s pockets.

“Pockets empty. No wallet. Coin rex 7 stapes, ” he

“announced.

After a. hasty. examination, Aiken called out his findings.

““The fight started in here. Looks like he was dragged over
‘into. the back seat, judging by the blood. The electric wire
_ funning to the taxi sign on top is cut. Here’s an eighteen-
* inch smear of blood on the wire.’

Besides the goggles and cap on -the bloody cab floor, he

found 'a dime. Short joined him in the check.

“Look at those bloody door handles,” he pointed out, “At
least two thugs attacked Tucker. Here’s a bloody fingerprint
on the door, clear as crystal.”

“The killer has only a thirty-minute start,” Aiken com-
mented. “If he’s left a trail, he can’t fool bloodhounds.”
“Bloodhounds need something to go on,” Trooper Parker

a reminded him. “I'll call the Mississippi County Penal Farm.”

HILE waiting for the bloodhounds, the officers continued
their search for clues, and the cab was photographed
‘and processed for fingerprints.
The two deputies searched the cotton fields. on both sides
of the highway for footprints. The only prints found were

at the spot where Tucker lay—and they were completely

covered with blood.
» “It doesn’t look too promising for the dogs,” the Sepp ti

eo

| teak. SEAT :
: ea:

“Here’s an ‘empty wine bottle,”
and fresh inside.”
Short stooped and picked up something. “Here’s a two-
bit piece close to the bottle. It seems to tie the bottle to
the killers. Maybe the dogs can take the trail from here."

“Here they come,” Trooper “Parker said.

The dog truck, driven by the penal farm manager, Clarence
Lucas, stopped. Jack Lucas, his son, started to unload the
eager hounds.

“Wait,” the elder man cautioned. “Let’s see what we have.”

-After Lucas had looked at the meager clues, he shook
his head. “No use setting the hounds to trailing just anything.
They'll do it, of course, but it won’t be worth a darn.”

“We need to know who we’re trailing, don’t we, Lucas?”
the trooper put in.

“That’s right. It’s useless to unload the dogs.”

“Then that ends our work here for a while,” Aiken said,
disappointed.

Work for the night was far: from ended. Sheriff Berryman,
at’ headquarters, instructed his deputies to check all cab
stands near the one where Tucker operated.

“Tucker must have picked up his fare or fares on the
street,” Berryman said. “He didn’t get a midnight call through
the cab stand. But cabbies keep tab on each other, especially

Aiken reported. “It’s damp

‘in a highly competitive part of town. One of them might

give us something to go on.”

Deputy Aiken had talked with several cab drivers before
he finally contacted J. W. Farris, driver for a company located
actoss the street from Tucker’s stand.

“I saw Tucker alive at twelve-fifteen,” Ferris said. “He
was picking up a load of passengers at the One Minute Cafe.
They just about filled the. cab. Tucker drove east on Ash
Street.”

“Right toward the murder aia the deputy finished.

"HE next morning, when he reported to Sheriff Berryman,
his chief considered this a valuable lead.

25


SLEUTHS—
Berryman (left) and Aiken hold
killer's bloodstained clothes,

'g —

“Twa of thosé passengers remained in the cab to kill
Tucker,” he reasoned. :

With nothing more to start on than four or five cab fares
that had disappeared into the moonless night, the investigators
asked countless questions in Blytheville and the Srvapprous
little hamlets dotting the cotton fields.

Everywhere people were eager to help. The murder of
a cab driver had incensed them almost as though a peace
officer had been slain. The taxicabs furnished a valued trans-
portation service to the county, and so diligent had been
county and city officers in punishing those who had assaulted
or robbed ¢ab drivers that Tucker’s murder was the first
among cabbies of the county for 25 years.

Deputy Short called on the slain man’s widow.

Anne Tucker told him that her husband had feared stickup
thugs. “He never would have more than tweny-five dollars
on him.” Her quiet voice controlled a sob., “When he’d
collect more than that, he’d bring it home or eave it at the
cab stand.”

She concluded that her husband had about that sum on
him when he was attacked.

“Did he deliberately pass out the information that he never
had more than twenty-five dollars with him?” the deputy
asked.

“Yes. He kind of advertised the fact—for self-protection.”

Short went over that point with Aiken. “Murder has been:

committed for less than twenty-five bucks,” he said.

Many cab-stand loungers were questioned, and some were
picked up and brought to headquarters. The usual false
leads began coming to sheriff and police headquarters.

Before noon on Sunday morning, Deputy Short had a, clue
that seemed promising. John Bolin, a driver, showed him
a bloodstained $5 bill.

“A fare gave that to me last night, ” he said.” “He was pretty

‘ginned-up when he hailed me in the rear ef, ibe Copeland

- ROADSIDE REST_
_ Investigator points. to spot in
_ toad where the body was found.

Billiard Parlor a little after midnight. He said he’d been in
a fight. I drove him to Huffman. He got out in front of his
house and handed me this.”

Short exchanged the bloody bill for a clean one, and took
it to headquarters.

“Could. be a real clue,” the sheriff agreed. “The time
element clicks. Today being Sunday, it ought to be easy to
pick up“the guy:at his house. Have Bolin go with you and
point out the address where he left his fare.”

The deputy and the cab driver went immediately to the
little settlement a few miles from the murder scene, where

they found Bolin’s fare at home.

He turned out to be a large, sandy-haired mechanic, who
said his name was Clem Patrick.

“I guess I got blood on the bill,” he admitted. “I was in
a fight last night.”

He scratched nervously at a hairy forearm. The deputy ”
- stared sharply. at the golden hairs fuzzing over the freckled

skin.’

“Is that blood on your arm?” he demanded.

Patrick winced. “Blood sure is hard to wash off. The
guy in the pool hall hit me in the face with a cue stick. Here.”
He pointed to the bruised wound. “I threw up my arm and
got blood on it. My blood.”

“T’ll have to take you to headquarters,” the deputy said.

T HEADQUARTERS, when Patrick was searched, his
pockets yielded another bloody $5 bill.

“Didn’t this come out of Tucker’s wallet?” the sheriff asked..

“No!” Patrick’s face was white under the freckles. “That’s

. my money, with my blood on it.”

“We'll check that fight story,” Berryman said. “But we'll
have.to hold you.”

Before checking the poolfoom where Patrick said he had
had the fight, the sheriff decided to (Continued on page 45)

WASHINGTO!
marijuana tc

and a half r:
in the upho!
* owned by Jot

who brought
country from
the largest h
» ever recover:


very was made in the
he ashpit of the fur-
the metal frame of
ve burnt remnant of
‘tially consumed high
s slipper.

going to have a lot
to do.

2d his best. But the
nating evidence piled
vas too much to over-
locket was the final
as established that it
Idred McCabe’s most,
and that the picture
photo of Mrs. Scan-
he broke down and

2d to murder, he pro-
t wanted: to have a
had the two women
driven recklessly to
bring about the very
en. When Mrs. Scan-
t of the car and he
r sister, Mildred had
l.

then to make her. let
ave cracked up,” he
kept on fighting me.
zain—hard. Her nose
1 she passed out. I
rer. I just. wanted to

my place and carried
1 the sofa, and then
irted fighting me all
ted to scream, and I
again.”

it her with?” asked

up his fists. “With
/ fists. I used to do
he Marines.”
-pressed Fogarty.
uncomfortably. “You
vered in a low voice.
over she came to
ghting me like she’d
iave hit her a dozen
to quiet her down.
v it, she was dead.”
then added brokenly:°
from there.”

imly. Yes, he knew
However, he wasn’t
is’ confession alone.
, had been repudiated
insure his case, he
n’s sister brought to
nd once again threw

ed little time. Swiftly
wn the line of men
er fingeg on Thomas
d tricked her to get-
as the man who had
with the murdered
the second degree.
nt. He felt sure his
court. He was right.
Thomas was indicted
‘st’ degree. However,
chair by pleading
the second degree.
1 serving a 20-years-
ig Sing.
lan Karl was ‘cleared
with the murder of

he name Allan Karl

aR:

BLOOD THAT WOULD NOT WASH:
Continued from poge 26

send his deputies to the scene of the crime.

“The poolroom will be closed,” Berry:
man sald, “Daylight might turn up a good
clue in the vicinity of the killing.”

Half an hour

later the county car drew

. Close to the dried bloodspot on the road,
and the two deputies who were leading
the investigation got out.

Even in daylight the scene was lonely.
The tenant house near the blood mark was

vacafit. Empty

fields stretched flatly to the

horizon on both sides of the highway.

“You take on
Short suggested.

ie side, I’ll get the other,”

few minutes later Aiken shouted tri-
umphantly: “Here’s the murder knife!”

In the field,

within tossing distance of

the highway, lay a pocket knife with a

long blade. Aiken’ picked it up carefully

by the tjp of the blade, which was. coated
blood. ‘

with

“It opens with a push button,” Short
pointed out. “A fancy knife’ like that

“That’s right.

_ Should be easy to trace.”

We shouldn’t have much

trouble finding out if Patrick owns a knife

like this.”

_ At the county jail, Patrick denied’ own-

ing the knife.

“Check with my wife and the neighbors,”

‘he challenged.

“If any of them saw me

with that crab-apple switch, they’ll tell
ot.” }

‘ One of the deputies took the knife to

Huffman, where

neither Mrs. Patrick nor

neighbors who knew Patrick well identi-

fied it.
Shortly after

gators found the man with whom Pafrick .

this the sheriff’s investi-

said he had fought at the pool hall. He

was a six-footer

with a tremendous reach

and blue, blood-shot eyes.
“Yes, I learned Patrick some sense with

the business end
mitted, adding

of my cue stick,” he ‘ad-
that the night manager

at the pool hall had ordered' both of them

to leave.

Sheriff Berryman released ‘Patrick im-
mediately but warned him, to stand by for
more questioning.

Short and Aiken looked downhearted

when they met

in the. office.

“Right back where we started,” Short

groaned.

The sheriff reached into a ‘basket and

‘selected a report.

“The time element is important in this

case,” he said.

“Here’s a notation con-

cerning a man named Waddell. He lives
at Armorel. Said that he drove past the
spot where Tucker’s body was found at

twelve-thirty and
last seen alive at
his load of fares
and then driving
- The number

reminded, “which of the four or

saw nothing. Tucker was
twelve-fifteen, picking up
at the One Minute Cafe
east toward Armorel.” A
One question is,” Aikén
e fares

owned the fancy knife that cut Tucker’s

throat?”

The~ sheriff nodded. “Let’s -Z0 out to
that bloodspot just: once more. We need

a break.”

At the murder scene, he instructed his

deputies to start
highway and go

with the shoulders of the
over every foot, on both

sides, for several hundred feet.

The investigators didn’t have to go far.’
Within a few yards of the blood spot they
came upon footprints that started suddenly

- on the soft shou

Ider.

“Looks like four men walked together,”
the sheriff pointed out, “two in front, two
in. back.” Melee a fc pias

4

4

The officers tried to trace the footprints
west of where they appeared to Start, but
found no signs, The men, they decided,
had been riding until they reached ‘the
vicinity. ;

“Farris saw Tucker pick up that load
of. fares and head in this direction,” the
sheriff emphasized. “We've got to con-
centrate on these footprints.”

Aiken leaned over one that was clearly
pressed into the dark earth.

“They’ve been here just long enough
for the wind to blur them slightly. Now
let’s see where they go.” : :

In a ‘clearly defined path that turned
into a side dirt road, the footprints marched
toward,a house and turned in toward the
entrance. 2

“Too good to be true,” muttered the
sheriff. :

FEW moments later he knocked on

the door. A tall young man with a

surly face and heavy brows answered
the knock. When the sheriff identified
himself, the youth looked startled.

“Do you live here?” Berryman asked.

“No, sir. I’m just visiting. I'm Sam
Barker.” ;

Over the tall youth’s shoulder the sheriff
saw another young man peering furtively
from an inside doorway.

“How many other guys are here with
you?” Hf

“Three. We're all visiting kinfolks here
over the weekend.”

“You walked here from_the highway
about midnight last “night?” ‘the sheriff
asked, ;

Barker's shoulders twitched almost im-
perceptibly. “No, We didn’t come that
way last night. We came over from the
Huffman Forty-and-Eight road. Been to a
night ‘club over there.”.

The sheriff told him to-call out his com-
Panions, : f

“There was a murder on the highway
last’ night,” he told the four men. “I’ve
traced footprints that led almost from the
bloodspot in the road to your door here.
Now let’s see if your feet match them.”

“They'll. match,” Barker said in a
strained voice. “We did walk over from
the highway last week, right after the
rain. But not last night.” ;

“We'll check your alibi, and if it clicks,

_you won't be held long.

He radioed for another county car, and
the men were taken to headquarters,

Here Sheriff Berryman showed each man
the open murder knife and shot the ques-
tion: .“Is this yours?” ;
wine times the answer came eagerly:
“ 0.”

The fourth man looked at the knife with
a puzzled frown. “It isn’t my knife, but
I saw'a- guy with a knife just like that
over at the ffight club on Forty-and Eight
Road.” \

He said he knew the young man only as
Bernie and described him _as being very tall
and thin, j

“Likes to wear red ties,” he added. “I’ve
seen him three times, and’ each time he
wore a loud tie with red in dt.”

The sheriff. and his deputies discussed
this latest finding, which had produced an-
eet tough job—finding Bernie of the red
ies. ;

“Til run out and see the ‘manager of
the night spot on Forty-and-Eight,” Short
said. “It’s Sunday, and I probably won’t
have mueh luck.” is per:

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The sheriff frowned. “The night club
is only about a mile from the murder
scene. You might run into our first piece
of genuine luck.”

By the time Short reported to his chief,
ery many hours of that hectic Sunday were
le

“The alibi of the four men came clean,”
be said. “They were at the night spot on
Forty-and-Eight until after midnight _last
night. Then they made a beeline for the
hee where they spent the rest of the

t »

“Find out anything about Bernie of

the red necktie who owned the fancy

| knife?”

* “Didn't: get his whole name, but I did
learn that he lives at Hickman.”

“What a case!” Berryman shuddeféd.
“We ought :to have legs like a centipede
to run down every lead.”.

“Tl hop out to Hickman first thing in
the morning,” Short said. “Maybe this
is it.”

“But we're not leaning on it too ‘heavily.
Tomorrow morning we're doing more
checking at the cab stands.”

The 981 Taxi Service, which furnished
the telephone and call service for several
cabbies who owned their cabs, was a mag-
net for loungers. Close to several hotels,
night clubs and restaurants, close also to
back streets where the lively little city’s
skid row residents lurked, it attracted those
who were out of. work or hopeful of a
furtive handout.

T WAS before eight o’clock on Monday
morning when Sheriff Berryman ap-
on the lone cabbie ‘sitting on the

curb.

“Hello, Sheriff,” the man greeted him.
“Hoped you were a fare, but I’m still glad
to see you.” -

“Good. I wanted to ask you.something.
You already know how many regular cab-
stand bums we’ve questioned in the Tucker
murder. -Now tell me—do you know of
anyone hanging around here last week who
didn’t show up yesterday?”

The cabbie pushed back his cap and
scratched his head.

“Yeah. There’s a young guy, name of
Arthur Gray, who failed to show up yes-
terday for the first time in a long stretch
of days.”

“He’s been coming here ave day until
yesterday?”

“Every day. He’s soft on a girl who

works in an Ash Street cafe. Uses the-

stand here as headquarters while he throws
the woo.”

“Know where he lives?”

The cabbie got-up quickly as a fare ap-
proached. “Can’t answer that one. Ask the
girl. Girl called Dimple. Guess it’s just
a. nickname.”

Dimple turned out to be a night club
girl with a deep dimple in her cheek and
an aloof manner.

“Arthur Gray?” she repeated almost
scornfully. “He lives at Hickman.” .

“Hickman!” Berryman was almost talk-

ing to himself. .Bernie of the red tie also

lived at Hickman, he was thinking

you?” he asked.

She ‘tossed her: head, and the dimple
disappeared. “He’s trying to get me to
know him: But I don’t have much tithe for

| a bum like that,”

“Do you know if he had a long-bladed

. knife that opens with a push button?”

The dimple flashed briefly. “A guy
doesn’t exhibit a crab-apple switch when
he wants to. impress a girl, does he? I’ve
never seen his knife.”

Back at headquarters, Sheriff Berryman
found. that Short hadn't returned from

Hickman’ to report, on a Besnig of the red tie.

He called Aiken into his office and in-

structed him to join Short at Hickman and

to pick up Arthur Gray for questioning.
“Hickman seems to be the hot spot in

’ the case,” Aiken commented.

Berryman nodded. “Yeah. Two leads
point there, now.”
_ “But this one concerning Arthur Gray
is the only one linked up with a girl. Looks
like Gray needed money badly to get into

_the running with this Dimple gal.”

Aiken met Short headed west just out
of Hickman. The two-cars swung close
together.

“Whadda you say?” Aiken asked.

Short grinned happily. “Found the guy
with the red tie. He identified the .knife
as one another guy had pawned~to him.”

“Another side track!”

“Maybe not. This fellow Gray came
back’ Friday to redeem the knife.”

“Gray! Did you say Gray? Arthur
Gray?”

“Arthur Nox Gray. I traced hie to his
mother’s house here at Hickman. I ran a

. quiet investigation on him among the

neighbors. Boy, I found plenty!”

The woman living next door to Gray,
he said, had seen him come home at about
two o'clock Sunday morning. He turned on
the porch light, took off his jacket- and
folded it before entering the house.

“I'd like to see that jacket,” he con-
cluded. “I’ve just talked to the chief over
the two-way. He wants me and you to
pick up Gray.”

a what I came here to do,” Aiken
sai

He briefed Short on what had been
learned about Gray. “Let’s go. ‘Gray is
at home.” : ‘

;

RAY, a thickset, muscular man in his

early twenties, looked sullen when the

officers identified themselves.

“Whadda you want with me?” he de-
manded.

“The sheriff wants to talk with you
about a knife you pawned to a fellow
named Bernie—a knife used to kill Homer
Tucker.”

“I lost my knife, ” Gray said. “And I
don’t know anything about that killing.”

Short stared ‘at a wet spot on the man’s
clothing. Soap suds bubbled on his thick
forearm.

“Been doing some washing?” the deputy
asked. ; ;

y Gray ee “It’s Monday—wash-
ay.”

“Washing is woman's work, Let’s see
what you're: washing.”

Gray, with evident reluctance, led the
investigators to the rear of the house. In
a tubful of suds lays a khaki jacket. Short
pulled it, out. “Scrubbing hadn’t removed
all of the dark-red stains. Several large
sports, ‘clearly outlined with a persistent
red edges, clung to the fabric.

“That’s lipstick,” Gray explained hastily.

““Dimple did that to you? Put up your
hands, Gray. I want to search you.”

Short,passed his hands over the suspect’s

_ body, feeling for the shape of a weapon.
. There was none.
“Know Arthur Gray pretty emis don’t °

No detailed search was made of the
man’s pockets until after they reached
headquarters. There Gray’s hip pocket
disgorged another damaging piece of evi-
dence—a leather billfold containing a social
security card.

The card was made out to Homer
Tucker.

Gray admitted that it was Tucker’s card.
hy Ae I didn’t kill him. The guy with me

it.”

He named Ollie Williams of Jackson,

Mississippi. He said that he and Williams-

first had planned to rob one of aver

cafes on Ash Street. nie

“We hired
he said. “I wz
in the front.
Williams aske:
I gave it to bh
to-stop the ca
Williams stab
Tucker tried tc
over the back
me.

“I opened 1
and Tucker c)
Williams follc
and finished tt

Gray said h
emptied his co
then divided |
and went thei:

Gray persis!
no part in the

said she didn
Peters fantily,
was widowed.

“I didn’t get
was alive,” s)
ways a lot of
liked me to
my own veget

EN the \
nothing e!
for Tacor

There he {
pathologist, sti
stretcher. It !
earlier.

“The bones
right,”* said the
from the widtl
bones.”

“How old?”

“TI can’t say
of those teeth
forties.”

“I need a «
teeth and tha
pathologist. “I
throughout the

“Tl have
promise.

Gregg turne
big thing, of c
he was buried.
those bones hz

Larson look

“There are
and fire tests,”
those later. I
buried at least

“Is there an
death?”

The patholo
the skull in al:

“It’s easy t
pointed to the
brain case wit!
And this one
went through

“Was it fir
Captain Gregg

“I can’t tell
Earlier we cou
entry would h;
But time has
holes so they

“Then that’s
learn when—ar
remarked the

The patholog
theories:

“The fact tl
six feet in the


702. ~—s Ark. 242 SOUTH WESTERN
murder for the killing of Homer Tucker
on the 4th day of the same month. Tucker
was a taxi driver operating out of Blythe-
ville and the killing occurred about eight
miles east of there near a place called
Amorel. The trial, held on the 7th day
of the following May, resulted ina con-
viction for murder in the first degree with
the death penalty attached. Motion for
a new trial was filed and overruled and
on May 9th the court sentenced appellant
to be electrocuted on the 15th day of Au-
gust, 1951. From the above sentence and
judgment of the court this appeal has been
properly executed.

The deceased left Blytheville in his taxi-
cab some time during the night of Satur-
day, March 3, 1951, with appellant in the
back seat and another colored man, called
“Albert”, who is charged with the same
offense and to be tried later, in the front
seat with the deceased. Later that night
about one o’clock the deceased was found
dead on the road near his own car. There
was blood on both seats of the car and on
all the door handles. Deceased had been
stabbed in several places about the throat
with a knife or other sharp instrument.
Appellant, when apprehended the next
morning, first claimed that three boys had
committed the murder after they had
forced him to take off his clothes and give
to them, but later changed his story. Ap-
pellant admitted that “Albert” asked him
for his knife and after he had given it to
him, “Albert” inflicted the mortal wounds.
When appellant was arrested at his home
the officers found his clothes were spotted
with blood and he had in his possession a
pocket book which belonged to the deceased
and which contained deceased’s social se-
curity card. A knife with blood on it, found
in a field near the scene of the murder, was
identified as belonging to appellant and ap-
peared to be the same knife he admitted
getting from a neighbor some time prev-
iously.

In the defendant’s statement which was
admitted in evidence, he admitted, among
other things, that he and a “dark boy”,
whose name he did not know, talked about

REPORTER, 2d SERIES

robbing Mr. Tucker a few hours before
the killing; that they got in the taxi with
Tucker and started out; that he let the
other boy, who was in the front seat, have
his knife with which he stabbed Tucker;
that he got blood on his trousers, shirt, and
jacket; that the knife he threw in the
cotton ‘field was his and that he handled it
after it had blood on it; and that he took
Tucker’s pocket book while he (Tucker)
was scuffling in the front seat.

No testimony was introduced on behalf
of the defendant (appellant):

[1] During the course of the trial the
defendant objected to the introduction of
the pocket book or billfold in evidence on
the ground that the proof did not show that
it was in the same condition as when
taken from him. We find no error in this
connection. The pocket book was identified
by the widow of the deceased as being his
and, though some of the money had been
taken out, the pocket book had been in no
way altered. It was competent to show a
connection between the defendant and the
murder. In the case of Cross v. State, 200
Ark, 1165, 143 S.W.2d 530, 531, the court
used this language: “Where the changed
condition of clothing worn by deceased
when killed does not prevent them from
tending to prove or disprove an issue in the
case, then it is proper to admit the clothes
to be introduced in evidence.”

[2-4] The only other objection made
by the defendant related to the introduction
of pictures of the deceased’s taxicab. After
both sides had rested, the court, over the
objection of the defendant, allowed the
pictures to be introduced by the State.
Again we find no error prejudicial to ap-
pellant. The pictures were shown to have
been properly taken soon after the murder
and they accurately showed the condition
of the car with reference to blood stains
about which testimony had been given.
In fact no contention was made that the
pictures were not accurate or, properly
made. This court has many times held
photographs to be admissible in evidence.
In the case of Simmons v. State, 184 Ark.
373, 42 S.W.2d 549, 551, it was said: “The

aay apa ia

Slit, Spi Weipa

GRAYS v. STATE .

Cite as 242 S.W.2d 701

objection to the photographs was that they
were immaterial and do not shed any light
on the case as to defendant’s guilt or in-
nocence, and that they were introduced
for the purpose of inflaming the minds of
the jury. The photographs introduced in
this case were shown to have been accurate-
ly taken, and to correctly represent what
they intended to show. This court stated
the rule, with reference to the introduction
of the photographs, as follows: ‘As a gen-
eral rule photographs are admissible in evi-
dence when they are shown to have been
accurately taken, and to be correct repre-
sentations of the subject in controversy
and are of such a nature-as to throw light
upon it’ Sellers v. State, 91 Ark. 175,
120 S.W. 840, 842; Washington v. State,
181 Ark. 1011, 28 S.W.2d 1055; Nicholas
v. State, 182 Ark. 309, 31 S.W.2d 52t:.
Appellant, however, contends that it was
improper to allow them to be introduced
after both sides had rested. This was a
matter that addressed itself to the sound
discretion of the court and under the cir-
cumstances we think the court did not abuse
its discretion. Our court sustains this view
in Levells v. State, 32 Ark. 585, where it
was said: “The testimony of Whitlow
would have been more properly offered
before the evidence of the defendant was
adduced, but its admission at the time when
offered was within the sound discretion of
the court, which, without some showing
to the contrary, we must presume was prop-
erly and judiciously exercised.” Also, to
the same effect in Walker v. State, 100 Ark.
180, 139 S.W. 1139, 1140: “Error of the
court is assigned in permitting the state to
introduce testimony, not properly in re-
buttal, after defendant had rested his case.
The statute (Kirby’s Digest, § 2378) au-
thorizes the presentation of testimony in
chief after the defendant has closed his
case when it appears to be necessary ‘in
furtherance of justice,’ and of that the
trial court must be the judge. It rests
within the sound discretion of trial courts
to permit testimony to be adduced out of
time, and the exercise of that discretion
will not be disturbed by this court, unless
an abuse is shown.” The same rule was

likewise announced in Whittaker v. State,
173 Ark. 1172, 294 S.W. 397, 399, in this
language: “The reopening of a case for the
re-examination of a witness, or the taking
of further testimony after the testimony on
both sides has been concluded and the cause
has been submitted to the jury, is a matter,
under our statutes and. decisions, within
the sound discretion of the trial court, and
this court will not reverse the ruling of
the trial court unless it appears that the
court, in making such ruling, has abused
its discretion.”

[5,6]. In addition to the above, appellant
sets out in the motion for a new trial three
additional grounds for a reversal, viz: The
verdict and judgment are (a) contrary to
the law; (b) contrary to the evidence;
and (c) contrary to the law and the evi-
dence. These three contentions, with the
exception mentioned below, merely chal-
lenge the sufficiency of the evidence. This
is true because it is not insisted that there
is any error contained in the instructions,
‘and after a careful scrutiny we find none.
In our opinion the evidence is sufficient
to support the verdict of the jury and the
judgment of the court. The testimony must
be viewed in the light most favorable to
the State as announced many times by this
court and recently in Coffer v. State, 211
Ark. 1010, 204 S.W.2d 376, 378: “On ap-
peal, we are required to view the testimony
in the light most favorable to the State,
and the jury’s verdict, when supported by
substantial evidence, as here, is binding on
us. Brown v. State,.208 Ark. 180, 185
S.W.2d 274.”

[7,8] As intimated above, this leaves
for consideration the principal contention
of appellant that there is no evidence to
show malice, premeditation and delibera-
tion. It is argued that if the information
had charged (as it did not) the defendant
with killing the deceased while in the perpe-
tration of robbery, it would not have been
necessary to prove malice, premeditation
and deliberation. It is true that these are
necessary elements of first degree murder,
but it is also true that these clements may
be inferred from other facts and circum-


ito his office and in-
Short at Hickman and
jray for questioning.

to be the hot spot in
»mmented.

i, “Yeah. Two leads

meerning Arthur Gray
d up with a girl. Looks
ioney badly to get into
s Dimple gal.”

headed west just out
two-cars swung close

y?” Aiken asked.

ppily. “Found the guy
He identified the .knife
: had pawned-to him.”
ack!”

his fellow Gray came
leem the knife.”

uu say Gray? Arthur

ay. I traced him to his
‘e at Hickman. I ran a
on him among. the
found plenty!”
ng next door to Gray,
im come home at about
morning. He turned on
ook off his jacket- and
itering the house.
that jacket,” he con-
talked to the chief over
wants me and you to

ne here to do,” Aiken

xt on what had been
iy. “Let’s go. Gray is

t, muscular man in his
looked sullen when the
-d themselves.

vant with me?” he de-

ants to talk with PSs
u pawned to a fe
<nife used to kill Homer

” Gray said. “And I
ie about that killing.’ tie
a wet spot on the man’s
ds bubbled on his thick

ne washing?” the deputy

“It’s Monday—wash-

oman’s work. Let’s see
ng.”

dent reluctance, led the
ie rear of the house. In
vys a khaki jacket. Short
rubbing hadn’t removed
ed stains. Several large
itlined with a persistent
o the fabric.

” Gray explained hastily.
at to you? Put up your
want to search you.”

; hands over the suspect’s
the shape of a weapon.

zarch was made of the
ntil after they reached
‘ere Gray’s hip pocket
- damaging piece of evi-
rillfold containing a social

made out to Homer

that it was Tucker’s card. ~

him. The guy with me

ie Williams of Jackson,
aid that he and Williams
| to rob one of several
‘eet.

oat ee

“We hired Tucker to drive us home,” *

he said. “I was in the back seat, Williams
in the front. A few miles out, of town
Williams asked me to lend him my knife.
I gave it to him. Then he asked Tucker
to-stop the cab. Just as the cab stopped,
Williams stabbed Tucker in the neck.
Tucker tried to fight back, but I pulled himr
over the back seat and got that blood on
me.

“I opened the back door and got out,
and Tucker crawled out on his stomach.
Williams followed him, rolled him over
and finished the job.”

Gray said he took Tucker’s billfold and
emptied his coin changer, He and Williams
then divided the contents of the billfold
and went their separate ways. .

Gray persisted in declaring that he had
no part in the actual slaying. Throughout

*

Court, before Circuit. Judge Charles W.

_ Light, he continued; to deny. the actual

slaying The jury, after weighing the ‘evi-
dence, did not believe -him. On May 3,
1951, he was found- guilty of first-degree

murder, and his punishment was’ fixed: as.

death by electrocution... -

Ollie Williams, of Jackson, Mississippi,
after being “hunted for many days, was
arrested. At this writing he, was being
held at the Arkansas State’ Hospital for a
mental observation. If he-is found sane,
he will be tried for first-degree murder
in the same court that aay Arthur Gray
guilty as charged.

Eprror’s Nore: The. names of Clem
Patrick, Sam Barker, Bernie, and Dimple
are fictitious.

SKELETON IN

THE CELLAR»

Continued from ‘poe 235

said she didn’t remember much of the
Peters fanfily, since that was before she
was widowed.

“I didn’t get out much while Mr. Cooke
was alive,’ she related. There was al-
ways a lot of housework to do, and he
liked me to keep. a garden and raise
my own vegetables.”

EN the widow said she could offer
nothing else, Captain Gregg headed
for Tacoma General Hospital.

There he found Doctor Larson, the
pathologist, studying the skeleton on the
stretcher. It had arrived a few minutes
earlier.

“The bones are those of a man, all ”

right,” said the doctor. “You can tell that
from the width and structure of the pelvis
bones.”

“How old?” the captain asked .

“IT can’t say for sure, but from the look
of those teeth, I'd judge he was in his
forties.”

“I need a dental description of those
teeth and that bridge,” Gregg told the
pathologist. “I’ll spread it among dentists
throughout the West.”

“Tll have it by morning,” was the
promise.

Gregg turned to another point: “The
big thing, of course, is to learn just when
he was buried. Can’ you tell me how long
those bones have been underground?”

Larson looked at the skull.

“There are various tests of brittleness,
and fire tests,” he said slowly. “We'll do
those later. I can tell you this body was
buried at least five years.”

“Is there any way to tell the cause of
death?”

The pathologist smiled. He picked up
the skull in alas-poor-Yorick fashion.

“It’s easy to see. Look here.” Jle
pointed to the back of the dirt-encrusted
brain case with a pencil. “See this hole?
And this one on the other side? A bullet
went through our friend’s noggin.”

“Was it fired from front or back?”
Captain Gregg asked. [
“I can’t tell you that at this late date.
Earlier we could have told. The point of
entry would have been the smaller hole.
But time has blurred the_ edges of both
holes so they are about the same size.”

“Then that’s. something we’ll have: to
learn when—and if—we catch the killer, i!
remarked the captain.

The pathologist shattered one of Gregg’s
theories:

“The fact that the skeleton measure

six feet in the grave doesn’t tell the: vic-

tim’s height,” he explained. “The bones
could easily move and spread as the earth
settled on them and. connecting tissues
gave way. Also, different inidividuals have
different width of. tissue between- their
bones, and some stand _ straighter bari
others.”

Captain Giess was disappointed. “You
can’t tell how tall he was?”

“J didn’t say that,” retorted Larson. |

“Til be able to give you’a pretty good
estimate after measuring the length of
various bones and comparing them with
height charts. I'll give you my estimate
tomorrow.”

Captain Gregg went to. bed at two |.

o’clock Monday: morning. At eight he
reported at the office of ,Chief Anthony
M. Zatkovich.

“Today our men will start digging in the
records to find out who has owned the

house,” Gregg told the chief. “Then, by”

comparing the dates with what Doc Lar-

son finds for us, we may learn who lived

oer during the killing and get our first

Chief Zatkovich shifted a little in ‘his
chair and remiarked;. “Unless you find
there was a time when the house was
vacant for a long period.”

“That’s what I hope we don’t find,
Tony,” Captain Gregg said frankly. “In
that case, anybody could have brought
in the body and buried it.”

The ‘chief nodded. “I know you and
the boys will do your best.” -

REGG drove out to the Ash Street

murder. house. Detectives had- spent

the night in digging and sifting. Lieu-
tenant Hager wiped his brow ‘and re-
ported.

“We didn’t find snathine else, Perce,”
he said. “But everybody on this job is
going to have a back ache. Wow!”

Neighbors stood at a distance, watching. ;

Once in a while, when they saw some
activity,; one would whisper “The. police
know there is. another skeleton!” -

Actually detectives sought only. some-
thing- to identify. the victim or his killer.

Mrs. Cooke stepped from the crowd
and greeted Captain Gregg.

“I remember now that several years ago
I used to ‘see-lights down here in the cel-
lar when the rest of the house was dark,”
she told him.

“Who was living here then?”

“I can’t remember,” the widow replied.
“It’s been at least eight or ten years ago.’

“Was it before or after your husband
was killed in an hail

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Name.

Address

e

43
3
na
5

See

ey

i
|
:
{
f

i
-

pene

ee ene ee eee


700. Ark.

“Q. When was. that? A, 1945.
- “Q. Have you been arrested since then?
A. No.

“Q, Have’ you been arrested by any
County officers, local officers or State
Troopers since you have been in West

Memphis? A. No, sir.”

On cross examination of appellant, ap-

_pellant says in his bricf:

“The prosecuting attorney asked the De-
fendant (appellant) this question. ‘In
Little Rock were you arrested for dis-
posing of mortgaged property?’ Appel-
lant’s attorney objected to this question then
(Tr. p. 121) and again (Tr. p. 122) and

asked that the question be stricken from’

the record, Appellant was never required
to answer the question, but the mere fact
that the question had been asked was
certainly prejudicial to him. BE Re

“The same is truc of the question asked
by the prosecuting attorney on page 122 of
the transcript. He asked, ‘I will ask you
whether or not you were arrested on a
traffic violation in Forrest City about a
month before this wreck happened.’ ”

[7] The general rule is well established
that where an accused takes the stand
in his own behalf, he subjects himself to
the same rules of cross examination as any
other witness. McGuire v. State, 189 Ark.
503, 74 S.W.2d 235; Peterson v. Jackson,
193 Ark. 880, 103 S.W.2d 640.

Counsel for the state had a right to
question appellant on cross-examination as
to prior arrests, in the circumstances, in an
effort to show that he had not truthfully
answered the above questions propounded
by his own counsel on direct examination.
The Court, therefore, properly admitted
this testimony as affecting appellant’s cred-
ibility and the weight to be given his testi-
mony.

4.

[8] Appellant also assigns as alleged
error, the refusal of the court to give one
of his instructions (No. 5) to which he
specifically referred in his motion for a new
trial. This requested instruction does not
appear in the bill of exceptions nor do the

242 SOUTH WESTERN REPORTER, 2d SERIES

facts upon which the. assignments were
based. No ‘objection was made: or excep-
tions saved to the action of the court, in.
refusing this instruction.

In McFadden v. A. B. Richards Medicine
Company, 170 Ark. 1011, 282 S.W. 353, we
said: “It is well settled in this state that
exceptions to the action of the trial court
in giving or refusing instructions must be
made during the trial and brought into the
record by bill of exceptions. It is not suf-
ficient to merely assign the giving or re-
fusing of instructions as grounds for a mo-
tion for a new trial. De Queen & Eastern
Rd. Co. v. Pigue, 135 Ark. 499, 205 S.W.
888; and Martin v. Duke, 156 Ark. 54, 245
S.W. 173,” and in Thompson v. State, 130
Ark. 217, 197 S.W. 21, 22, we said: “The
facts upon which the assignments of error
are based must be set forth in a bill of ex-
ceptions, as the motion for new trial oper-
ates only as assignment of error, and not as
an authoritative narrative of the incidents
of the trial.”

[9] Appellant next contends that there
was error in the court’s refusal to give the
following requested instruction: “You are
instructed in order to find the defendant
guilty of involuntary manslaughter you
will have to find that he was guilty of a
greater degree of negligence than would
cause him to be civilly liable.”

This instruction appears to have been
fully covered by the court in the following
instruction which was given without objec-
tion. “The phrase ‘reckless, willfui, or
wanton disregard for the safety of others,’
as used in the statute read to you in these
instructions requires that the actions of
the defendant constitute criminal negli-
gence rather than ordinary negligence,
which is characterized by a failure
to use that degree of care exercised by
ordinary prudent persons, and the phrase
implies somcthing more than mere inad-
vertence or misadventure. Criminal negli-
gence indicates a reckless disregard of
consequences, or a needless indifference to
the rights and safety of others with a rea-
sonable foresight that injury would prob-
ably result. It is a recklessness or in-

sa re

‘GRAYS v. STATE! TIC? cis Ark 704
Cite as 242 8.W.2d 701

difference incompatible with a’ proper. T¢-
gard for human life.”

The court was not required to multiply
its instructions on a particular issue.
Wallin v. State, 210 Ark: 616, 197'S.W.2d
26. ;

Other alleged errors have been con-
sidered and found to be without merit.’

Affirmed.

KEY NUMBER SySTEM> F ' lt 40

¢

GRAYS v. STATE. |: |
No. 4669. i MN

Supreme Court of Arkansas.
Oct. 8, 1951.

Arthur Nox Grays was convicted in the
Chickasawba District Circuit Court, Charles
W. Light, J., of first degree murder with
death penalty attached. Motion for new trial
was denied and he appealed. The Supreme,
Court, Paul Ward, A. J., held that the cir-
cumstances and facts of the case supported
all necessary elements of first degree’ mur-
der and that trial procedure was not preju-
dicial to defendant. .

Affirmed.

1. Criminal Law €=404(4)

In prosecution for murder, a pocket
book, identified by widow ‘as deceased’s,
which had not been altered after having
been taken from defendant when arrested
morning following the homicide was com-
petent to show connection’ between” de-
fendant and murder. ,

2. Criminal Law 438, 687(!)
In prosecution for murder, photographs

of deceased’s taxicab which were shown to.
be accurate with reference to blood stains

and condition of the automobile and prop-
erly made were admissible in evidence and
it was not abuse of trial court’s discretion
to admit them after both sides had rested.

3. Criminal Law C>438

As general rule, photographs are ad-
missible in evidence when: they are shown
to have been accurately taken, to be correct

representation of the subject in controversy
and are of'such a nature as to throw light
upon itl 3) am errib teh
4. Criminal Law €>687(1) |
It is within the sound discretion of the
trial court’ whether or not to admit photo-
graphs in evidence after both sides have
rested. rath é aie

5., Homlelde €>253(!)

Evidence was sufficient to support find-
ing, of all necessary elements of, and sus-
tained conviction for, first degree murder.

6. Criminal Law €=1144(13)

On appeal from judgment of convic-
tion, reviewing court, -is required to. view
testimony, in. light » most favorable to. the
state. peat

7. Homicide €=146, 147

Malice, premeditation and deliberation
as necessary elements of first degree mur
der, ‘though inferable from miotive of rob-
bery, may also be inferred from other facts
and circumstances. ,

8. Homicide €=233 '

In prosecution for first degree murder,
the state is not bound to prove motive for
killing and absence thereof is only a cir-
cumstance to be considered in determining
guilt or innocence. :

9, Criminal Law €=> 1 168(2) }
In prosecution for murder, where de-
fendant’s signed statement was admitted in
evidence, before defendant’s counsel: had
opportunity to cross-examine witness,, on
condition that it would be withdrawn later
if not admissible and it.was later admitted
as an exhibit after full cross-examination
and without objection by defendant, such

_ procedure was not prejudicial to defend-

ant.
pS ae

Elbert S. Johnson and Gene Bradley,
Blytheville, for appellant.

Ike Murry, Atty. Gen., George E. Lusk,
Jr., Asst. Atty. Gen., for appellee. Bal

- WARD, Justice.
On March 12, 1951, appellant, Arthur
Nox Grays, was charged with first degree

‘sry
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TOL Ark. 242 SOUTH WESTERN
stances, as has been consistently held ‘by
this court. In the case of Ezell v. State,
217 Ark. 94, 229 S.W.2d 32, 36, we find:
“The state is not bound to prove a motive
for the killing and the absence thereof is
only a circumstance to be considered with
other facts and circumstances in determin-
ing guilt or innocence. Hogue v. State,

- 93 Ark. 316, 124 S.W. 783, 130 S.W. 167.”
Also see Craig v, State, 205 Ark. 1100, 172 S.
W.2d 256, 257, where it was said:

“While the intent to kill cannot be im-
plied as a matter of law, it may be inferred
from facts and circumstances of the as-
sault, such as the use of a deadly weapon
in a manner indicating an intention to kill,
or an act of violence which ordinarily
would be calculated to produce death, or
great bodily harm. * * *

* * * * * *

“Under the express provisions of our
statute ‘malice shall be implied »when no
considerable provocation appears, or when
all the circumstances of the killing mani-
fest an abandoned and wicked disposition.’
Pope’s Digest, § 2967.”

In our opinion the facts and circum-
stances surrounding this case as set forth
above are such as to support the finding of
the jury on all the necessary elements
constituting first degree murder.

[9] During the trial of the case below
the prosccution sought to introduce in evi-
dence a question-and-answer statement
signed and sworn to by the defendant, in
the presence of witnesses, and the defend-
ant’s counsel stated to the court that he
would like to cross-examine the witness
before the statement was admitted. In
reply, the court stated that it would be ad-
mitted temporarily with the understanding
that after later cross-examination, if it
appeared the statement was not admissible,
it would be withdrawn. This procedure
was followed without any further objec-
tions by the defense. Later, after full
examination and cross-examination, the
court, without any objections on the part
of the defense, admitted the statement as
exhibit number four. In our opinion this
procedure was in no way prejudicial to the
defendant. It further appears to us that

REPORTER, 2d SERIES

the facts and circumstances’ surrounding
the taking of defendant’s statement, as dis-
closed by the evidence and the statement
itself, clearly shows that it was properly ad-
missible in evidence.

The judgment of the lower court is af-

firmed.

JACKS v. STATE.
No. 4668.

Supreme Court of Arkansas.
Oct. 8, 1951.

Dissenting Opinion Oct. 29, 1951.

Jimmy Jacks was convicted in the First
Division, Circuit Court, Pulaski County, Guy
Amsler, J., of permitting his cattle to run at
large upon a public highway and he ap-
pealed. The Supreme Court, George Rose
Smith, A. J., held that the amendment to
the statute creating the offense was a local
law and invalid.

Affirmed.

Robinson, J., dissented.

1. Statutes C71

General laws often apply uniformly
throughout the state, but absolute uniform-
ity is not essential in every instance.

2. Statutes €=71

Classification in general laws is per-
mitted, but the differences in the impact
of the statute must be reasonably related to
the purpose of the law.

3. Statutes ©>77(1)

A statute is local when only a single
county or other small area is arbitrarily
excluded from its purview.

4. Statutes ©=77(5)

Where statute, which made it a misde-
meanor for owners of cattle, horses, mules,
hogs, sheep, or goats to allow them to run
at large on any public highway, was amend-
ed. to exempt from its operation any coun-
ty or district having a stock law, exemp-

hee eae yeh,

SNe a iii

“JACKS v. STATE § o'i 22 fhe Ark. [05
Cite as 242 S.W.2d 704

tion of areas having” stock laws was in-
yalid as a local law and arbitrary, in view
of fact that substitution of stock laws was
not reasonably calculated to promote stat-
utory purpose of traffic safety and classi-
fication in amending act had no fair rela-
tionship to purpose of statute. Initiated
Act No. 1, Acts 1951, p. 1031; Acts 1950,
Act No. 120.

§. Statutes €=64(2)

Where provision of act, which spe-
cifically excluded stock law areas from op-
eration of a general law, was invalid, act
failed in its entirety. Initiated Act No. 1,
Acts 1951, p. 1031; Acts 1950, Act No.
120.

——_—————-

J. Fred Jones, Little Rock, ' George
Holmes, Rison, H. A, Tucker, Hot Springs,
for appellant.

Ike Murry, Atty. Gen., Francis W, Wil-
son, Asst. Atty. Gen., for appellee.

GEORGE ROSE SMITH, Justice.

Appellant was convicted below of hav-
ing violated Initiated Act No. 1 of 1950,
Acts of 1951, p. 1013, which made it a mis-
demeanor for the owners of cattle, horses,
mules, hogs, sheep, or goats to allow them
to run at large on any public highway in
the State. Appellant admits that he permit-
ted his cattle to run at large upon a public
highway, but he contends that because
the asserted offense occurred within a
stock law district his conduct was lawful
under Act 120 of 1951, which purported to
amend the 1950 initiated act. The trial
court held the amending act to be un-
constitutional and imposed a fine of $10,
from which this appeal is taken. Our de-
cision turns upon the validity of Act 120.

Act No. 1 contained no exception to its
broad prohibition against the running at
large of the animals we have enumerated.
But by Act 120 the General Assembly un-
dertook to limit the operation of the initi-
ated act in two respects. (The State does
not question the legislature’s power to
amend an initiated act, as Aniendment 7
to our constitution clearly permits such an

242 S.W.2d—45

amendment by a two-thirds vote of all the
niembers in each house, Act 120 received
the required vote.)

First, Act 120 provides that the initiated
act shall apply not to all public highways
but only to United States highways, hard-
surfaced highways, and highways within the
corporate limits of any city or town.
The State insists that this provision in-
fringes the guaranties of Article 2, § 18, of
the Arkansas constitution; but we find it
unnecessary to pass upon this question.

Second, Act 120 exempts from its op-
eration any county or district having a
stock law enacted prior to January 1, 1951.
The State contends that this exemption
marks Act 120 as a local law of the type
forbidden by Amendment 14 to the State
constitution. We think this issue to be
decisive.

[1,2] The distinction between a gen-
eral law and a local or special law is so
well established in Arkansas that a detailed
review of the decisions is unnecessary.
General laws often apply uniformly
throughout the State, but absolute uniformi-
ty is not essential in every instance. Clas-
sification is permitted, but the differences
in the impact of the statute must be rea-
sonably related to the purpose of the law.
Webb v. Adams, 180 Ark, 713, 23 S.W.2d
617; Simpson v. Matthews, 184 Ark, 213, 40
S.W.2d 991. Thus the legislature may re-
strict the city manager form of govern-
ment to the larger cities, as there is less
need for the system in small communities.
Knowlton v. Walton, 189 Ark. 901, 75 S.
W 2d 811. But a statute which applies only
to counties of a certain population is local
if relative population has nothing to do with
the subject matter of the law. State ex rel.
Burrow v. Jolly, 207 Ark. 515, 181 S.W.2d
479,

[3]. Both Act No. 1 and Act 120 are
manifestly intended to promote public safe-
ty upon the highways. Act No. 1 applied to
the entire State, but Act 120 exempts areas
having a stock law. The question, then,
is whether the exemption is reasonably con-
sistent with the goal of uniform traffic safe-
ty throughout the State. If local stock


GREENE and RUFFIN, Star citYs Ark. - Continued (1903, Mare 20.)

ing him, At 9:8 Greene was pronounced dead, Relatives took charge of the bodies. A
great crowd stood around the enclosure in which the execution took place, but only the
legal numer of spectators was admitted. It is the general belief here that Ruffin was
innocent, After the hanging had taken place, Sheriff Meroney said he believed Ruffin an
innocent man, Up to the time of the first confession of Jay Greene, which occurred 2 days
beSére the first date set by the governor for the execution, after the affirmation of the
decree of death by the suprenmecourt, Ruffin was believed generally to have bem the guilty
party, and public opinion exonerated Greene, who was under 20 years of age and considered
of unsound mind. Greene's confession seemincly exonerated Ruffin, but the Lincoln County
grand jury, after a stay of execution of the prisoners for thirty days after Feb, 13, the
day set for thehanging, could find no evidence to substantiateGreene's statement and the |
“tennis woman, who he implicated by his confession, was released." GAZEITE, Little Rock,
Arkey Mar. 2ly 1903 (1/5.)

may have to be ph&ephoned here, Star City is highly excited over the affair. Public
sentiment leans towards Greene, who is but 17 years of age and is considered halfwitted,
Ruffin is mich colder, ‘Ruffin is thé one who has heretofore been considered the .uilty
party, and Greene's confession has amazed every one." ARKANSAS GAZETTE, Little Rock,
Ark., Feb. 12, 1903 (1/52)

"Star City, 2-12-1903-The preparations for the hanging tomorrow of Jay Greene and James
Ruffin were t oday suspended upon receipt of a message from Sheriff B, A. Meroney at Little
Rock, stating that the governor had granted a SXa% thirty day reprieve, The prisoners re-
ceived the news without comment, This morning Jennie Stinnett, alias Jennie Brock, who was
implicated in the mrder by Greene in his confession, made Wednesday, was arrested and commi-
tted to jail without bond, «at her preliminary hearing this afternoon, to await the action

of the grand jury. The woman says that Greene was simply lying when he stated in his confes-
sion that she was implicated in the killing of McGhee; that she did not tell him that McGhee
was carrying a pistol for him, The-sentiment is divided here as to the truth of Greene's
confession, as heretofore it has been considered that he was a tool and that Ruffin was the
real murderer, The two kegroes were to hang tomorrows." GAZEITE, -2=13-1903 (1/5.)

"Pine Bluff, Feb. 1 - H, D, Palmer, cireuit and county clerk of the Lincoln County court,
with office at Star City, was in Pine Bluff yesterday and talked interestingly relative to
the eonfession of Jay Greene, one of the two negroes....4uffin was the larger and older of
the two, Greene being only 17-years-old, The sympathies of the community.were with Greene
and th citizens expected Ruffin to make a confession admitting the entire guilt to be on
him, But the reverse happened, Ruffin from the first stoutly denied his guilt and plead
with Greene to tell the truth and set him free.,..Ruffin.had prayed incessantly sine his
arrest and said if it-was his fate to die for another's deed he was ready to do so, as he
had made his peace with God and feared nothine, Always at these times Greene would give
him-the 'hoss laugh' and in a smooth manner tell of the scene enaced when Don McGhee was
killed, always making Ruffin appear the star villain in the act. Severd nights ago Ruffin,
whose cell adjoins Greene's, sat on his bunk and related a frightful story to Greene, He
said he was innocent as Greene knew, that he would go to heaven from the scaffold, but as
soon:as the trap door was closed Greene's soul was going straight to hell, He mde a final
plea with Greene to tell the truth and promised if he would do so he would pray for him

and bring about his peace with God, The next morning Greene.confessed to his attorney..."
GAZEITE, 2=15-'03 (2=1.)

"Sar City, 3+7-1903-The case of Jennie Stennis has beendismissed by the Lincoln County grand
jury. Se n GAZEI'! li, 3-8-'03 {i.. 5.)

"Star City, March 20, 1903-Jay Greene and James Ruffin were hanged here at 9:38 this _
morning for the mrder from ambush of Don McUhee early in 1902. After the execution the
sheriff said that he believed he had hanged an innocent man in’Ruffin. A Gazette repree
sentative saw the two condemned nezroes in their cell at the jail this morning, They said
they were all right and prepared to go. Greene said he had found peace with his God this
morning, He declared that he had done the killing at the request of the negro woman named
Jennie Stennis, as he has heretofore stated, and that Ruffin had nothine to dowith it,
Ruffin said:'They are going to hang an innocent man,' As the condemned men left the cell
for the march tothe gallows, they began singing 'I am on My Way to Glory,' Just after
Passing outside the gate of thejail yard, Ruffin asked to stoped a moment. It seemd as
though he wanted to say something, but after pausinz a moment, he began singing again and
resumed the march, Both the negroes sang until the platform was reached, 'I am on My Way
to Ganman,.' They sang with full and strong voices, but they had a wild expression in
their faces, At 9:30 a.m, they ascended the steps of the platform neither one offered a
prayer. After being strapped and before the black cap had been adjusted Greene made the
following statement: 'Jennie Stennis is the cause of this rope being put around my neck, I
‘did the killing but this woman was the cause of it, ¢Ruffin was innocent and had nothing
to do with it. tf I had known that they were going to hang Ruffin I would have made this
statement sooner and Ruffin would never have been hanged,' Ruffin said he was innocent,
He turned to the spectators and said that he had been prosecuted wrongfully for something
he had never done and knew nothing about, the black caps were then adjusted and the trap

was sprung by Sheriff D, A. Meroney at 9:30 a.m At 9:ll Ruffin was pronounced dead by Dr,
B. F. Barker, the attending physician, and Dr, 0. G. Blackwell of Varner, who was assist-

i

aave Weesy ee eeew nw

RE PEM OCKG-T @CAAGFE

anes

Court turns. deaf'ear to Fairchild

Justices turn death’ TOW inmate. down for fourth time

The Associated Press;

The U.S. Supreme Court on
Monday declined without com-
‘ment:to hear an appeal from
Arkansas death row inmate Bar-
ry Lee Fairchild.

Fairchild was sentenced to
die by injection for the 1983 rape
‘and slaying of Air Force nurse
Marjorie “Greta” Mason:

‘Fairchild’s case has come be- .

fore nation’s highest court four
times: Arkansas Deputy Attor-
ney General Jack Gillean said
Fairchild will have 30 days ig
seek a rehearing. - gigs. $y

‘Fairchild’s attorney, pre
Wesley Hall of Little Rock, didn’t
immediately return a message
left at his office.

aa

is “The rehearing modi be: at

’ the U.S. Supreme Court level.

-You,try to convince the justices

they: were wrong in‘not accept-
ing the case for discretionary re-

view, ”’Gillean said. a3
"Gillean: Said it’s’ cihirsuad for

the high.court.to hear appeals
like Fairchild’s more than once.

“It’s impossible. :to- say
whether he could file another

‘one’and’ one'that the courts
| would entertain,” he’ Said.

Fairchild, 39, is said to. be

mildly. retarded, with. an IQ test-
ing in the range: from the vee
60s to the 80s.) 07 2:0:

Fairchild’s’ appeals hove re-
volved around his confession.
His attorney argued that the con-

‘fession: ‘was coerced.

‘In a'second appeal,‘he later
-argued that Fairchild “didn't
‘have the mental skill to properly
‘waive his Miranda rights and the

‘confession was not voluntary.”

‘The third time, Fairchild’s at-
torney argued that blacks were
“systematically rounded up and
beaten during investigation of

»the case and:that the confession

Was not voluntary.
‘= A’spokesman for Gov. Jim Guy

“Tucker said another execution

‘date won't be set until the gov-
..emor.receives a.written decision
from the Supreme Court. In 1990,
Fairchild came within hours of
being executed, but received a
Stay from the high court.

Ove R)

e ARKANSAS DEMOCRAT e TUESDAY. JUNE 25. 1991

Crime/Courts

Fairchild rejected in bid for new tri

BY LARRY AULT -
Democrat Staff Wnter

A federal judge Monday
refused to grant a new trial in
the Barry Lee Fairchild case
to explore alléged new evi-
dence indicating a Pulaski
County sheriffs deputy physi-
cally abused Fairchild to ob-
tain a false murder confession.

« U.S. District Judge G.
Thomas Eisele had ruled June
the was convinced Fairchild’s
‘wo videotaped 1983 confes-

sions to the rape and muraer
of Marjorie “Greta” Mason
were accurate, despite some
evidence that investigating
Sheriffs officers abused’ or
coerced suspects to obtain
confessions.

Fairchild. 36. was sentenced
to death for the Feb. 26, 1983,
shooting and rape of the Air
Force nurse near an aban-
doned farmhouse in Lonoke
County.

He was within hours of

being executed last vear when
former county jail inmates al-
leged they were abused by Pu-
laski County deputies investi-
gating the Mason murder.

Eisele spent several weeks
in December and January
hearing testimony from a
group of black men who al-
leged they had been coerced
by sheriff's deputies into con-
fessing. The 8th U.S. Circuit
Court of Appeals at St. Louis

directed him to hear the testi-
mony.

John Welsey Hall Jr., a Lit-
tle Rock attorney representing
Fairchild, recently filed a
motion for a new hearing that
was sealed and wasn’t re-
leased to the media because of
the nature of the alleged new
evidence it contained.

Deputy Attorney General
Jack Gillean said Hall's allega-
tion that Maj. Larry Dill physi-
cally abused Fairchild to ob-

tain a false confession wasn’t
confirmed during Gillean’s in-
terview of a witness.

Gillean said Hal!'s allega-
tion didn’t constitute rew evi-
dence.

Comments by a person Hall
identified in a statement sub-
mitted to Eisele to justify hold-
ing a new trial were “hearsay
based on alleged conversa-
tions betwe en her and another
person,” Gillean said. “The

al on alleged evidence

first person is totally lacking
in credibility.”

Eisele ruled that he doesn’t
have jurisdiction to reopen the
Fairchild hearings because
the case is on appeal to the 8th
Circuit.

Even if he did have jurisdic-
tion. Eisele said, Hall waited
too long to ask for a new trial.
Hall had 10 days to file the re-
quest but the motion was filed
11 days after Eisele issued his
opinion, the judge said.

Wore

BARRY LEE FAIRCHILD
Death sentence overturned

Killer’s |
execution
overturned

Associated Press

VARNER, Ark. — A federal
judge changed a convicted killer’s
death sentence to life without pa-
role, saying he should never have
been sentenced to die because the
state’s evidence was so weak.

U.S. District Judge G. Thomas
Kisele overturned the sentence
less than eight hours before Bar-
ry Lee Fairchild was to be execut-
ed by injection Wednesday.

Fairchild spent 10 years on
death row insisting he would
rather die than spend years in
prison. But he finally relented

this week and his attorneys chal-

‘Court of Appeals, but the three-

. triggerman, and no murder weap-

lenged the sentence.

Fairchild, 39, was convicted of
capital murder in the 1983 kid-
napping, rape and shooting death
of Air Force nurse Marjorie Ma-
son. Hisele ruled the sentence
was unconstitutional, saying the
state presented. no evidence that
Fairchild had shot Mason, aided
in her death or intended to kill
her.

.“No reasonable jury could have
sentenced Fairchild to death on
that evidence,” the judge said.

The state appealed Eisele’s de-
cision to the 8th U.S. Circuit

judge panel declined to reinstate
the death sentence. The appeals
judges said the case would be ar-
gued on its merits at a hearing
the week of Oct. 11-15.

The state did not appeal to the
U.S. Supreme Court.

Fairchild said he was not the

on was found. He also said police
coerced a confession. seat

Defense lawyefs: have claimed’
Fairchild was vulnerable to coer:

cion because he is mentally re-

tarded, but Eisele ruled in a pre- 4.

vious hearing that he is nof.
Various intelligence tests have
placed Fairchild’s IQ at between
60 and 87. The average IQ is be-
tween 90 and 110.

State Attorney General Win-
ston Bryant said he will try to
overturn Eisele’s ruling. Arkan-
sas law allows the death penalty
for people who show “extreme in-
difference to human life.”

Pao, s | ]

ate


Arkansas Gazette
2/26/89

Se a oP. an, |

| When accomplice merits:

death penalty depends _
on where crime occurred.

By Michael Arbanas
GAZETTE STAFF

When does being an accomplice
to murder merit the death penalty?

‘It all depends on where the crime
occurs,
_ Arkansas {3s preparing to execute
Barry Lee Fair-
child March 8
for a murder
that prosecu-
tors never said Inson, Falrchild ;
he committed. case, 3C. :

Tanya Coke, is
director of research for the capital
punishment project of the NAACP

Legal Defense Fund, sald last week,
that there were “dozens of death’
row inmates across the nation in
similar situations.

Arkansas law allows a jury to
sentence a defendant to death as
an accomplice in a murder that he
did not actually commit.

Coke said most states in the na-°
tion have laws allowing accom-
plices to be sentenced to death,
even though they entered into the
crime without the intent to kill.

Four states — Connecticut, Mis-

M Gazette Editor

Walker Lundy‘: '"
comments on -
Rep. Tommy a

tort

‘sissippi, New Jersey and Texas —!

hat the.
kill or

all require the jury to find t
defendant had intended to

at least to have contemplated that |

| correctional officers. '

tiethat force would be used,. Coke

said,

‘that Nevada and Oregon h:

‘| A 1987 U. S. Supreme Court dect- :
: Sion that addressed the issue says ;

a

ave simi- |

lar requirements, and that Ver- |
: mont authorizes capital !punish- |
I ment only ‘in the’ Murders | of,

oat? 3

The 1987 decision, "Tigon v. Ari-

‘zona, says that “major participa-

tion in the felony’ committed, com-
, bined with reckless indifference to
human life,"" was enough for a jury

: to deliver a death sentence, unless

‘state law required more, {
} In Fairchild’s case, his phrticipa.

‘tion in the abduction and rape was |

“enough to garner the sentence,

“This goes a lot farther-that one |

Buy saying to another, ‘You've got
the gun, shoot him,’"’ said Henry
Schwarzschild, director. of the
‘American Civil Liberty ‘Union's
capital punishment project. “This
means that a person who partici-
, pates in a felony that results in a
‘death, whether he planned that
death or not, can be sentenced ag
- long as he showed Ineliffcpence to
“human life.”

Tison v. Arizona superceded a
‘1982 decision, Enmund tv lorida,

eer . “ee

(Gee PENALTY on Page 5B.)


Fairchild loses
appeal to stay
off death row

a .
BY PATRICIA MANSON 4 TT ice allegedly committed.

Democrat-Gazette Stall Writer

A federal appeals court Fri-
day cleared the way for Barry
Lee Fairchild to be executed
more than a decade after his
conviction in
the brutal
murder of an
Air Force
nurse.

The 8th U.S.
Circuit Court
of Appeals re-
jected a lower-
court ruiing
last fall that :
Fairchild Was Fairchild
ineligible for
the death penalty.

Arkansas officials applaud-
ed the decision but cautioned
that it would be several months
at least before a new execution
date is set.

A three-judge panel of the 8th
Circuit said Fairchild's consti-
tutional rights were not violat-
ed when he was sentenced to
death for a murder an accom-

ARKawSes

Fairchild’s participation in
the kidnapping and rape dis-
played the state of the defen-
dant’s mind that allows a judge
to accept a jury recommendation
to impose the death penalty on
a defendant, the panel said.

“We believe thai a reason-
able jury could have found that
Fairchild's actions exhibited
reckless indifference to human
life,” Chief Judge Richard S.
Arnold of Little Rock wrote in
a 12-page opinion.

Joining in the opinion were
U.S. Circuit Judges Donald R.
Ross of Omaha, Neb., and Frank
J. Magill of Fargo, N.D.

The panel sent Fairchild’s
case back to U.S. District Judge
G. Thomas Eisele, who threw out
the inmate's death sentence last
fall just hours before he was to
be executed.

The panel directed Hisele to
dismiss Fairchild’s petition, an
action that in effect: would put
the inmate back on death row.

See FAIRCHILD, Page 13A

® Continued from Page 1A

Herbert C. Rule III, a Little
Rock attorney representing
Fairchild, said defense lawyers
would review the opinion before
deciding their next move. They

.could ask the 8th Circuit for a

rehearing or petilion the U.S.
Supreme Court to consider the
case, he said.

vit We keep working on it,”

Rule told The Associated Press.

“I's not over.”

‘Arkansas officials described
the 8th Circuil's decision as a
boon for justice in the Fairchild
case as well as a judicial
thumbs-up for the state's death
penalty statute.

“It is a great victory for our
state,” said Arkansas Attorney
General Winston Bryant.

He added: “Had Judge Eisele
not been overruled by the 8th
Circuit, it would have cast a
shadow over the legality of what
has happened to some of our in-
mates on death row.”

Prosecuting Attorney Chris
Raff in Searcy also was pleased
With the 8th Circuit's decision.
' “TI believe it’s a correct deci-
sion based on thy facts of the
case,” said Raff, who originally
prosecuted Fairchild. “I feel
now, as I did in 1983, that Barry
Lee Fairchild deserves to die
for his actions.”,

_ Fairchild was convicted that
year of murdering Marjorie
“Greta” Mason, an Air Force
hurse who was kidnapped,
raped and sodomized before be-
ing shot to death. Fairchild was
sentenced to death.

: But last fall, Eisele ruled that
Fairchild was ineligible for the
death penalty. The judge threw
out the inmate's death sentence
and replaced it with a term of
life in prison without parole.

| Hisele issued his ruling Sept.
22, the day Fairchild was to be
executed by injection. ——__

Elsele said the U.S, Constitu-
tion allows the execution only
of those who kill or help kill
their victim or who exhibit an
“extreme Indiffzrence to the
value of human life” in conduct
that leads to the victim's death.
| Eisele accept2d Fairchild’s

assertion that an accomplice’

fired the shots that killed Ma-
son and that Fairchild didn’t
know his accomplice intended
to kill the woman.

'™ Fairchild’s claim was con-
tained in videotaped confes-
sions that prosecutors had
urged the trial jury to believe.
Fairchild has refused to identi-
fy his accomplice. ~

; The judge apparently was
‘disturbed by the 10-year gap be-
tween the imposition of the
ideath sentence and Fairchild’s
‘appeal.

In his ruling, Eisele criticized
an appeals process that allows
inmates to pick which issues the
federal courts will consider.

This process prevented any
judge from examining
Fairchild’s sentence while the
inmate unsuccessfully fought
his conviction in three previous
itrips through the federal judi-
‘cial system, Eisele said.
| He said he was allowed to
‘rule on Fairchild’s sentence
‘only when the inmate — who for
years had said he would rather
die than live behind bars —de-
‘cided at the last minute to fight
*his execution.

The 8th Circuit panel echoed
Eisele’s irritation at delays in
: the Fairchild Case. Tne panei
} refused to consider Fairchild's

claim that there was insufficient
‘evidence for him to be sen
tenced to death, Saying the in-
mate should have raised the is-
Sue In @ previous tri ;
the court system. ee ranoligh

The panel looked only at
‘Fairchild’s claim that his con-
stitutional tights were violated
when he was sentenced to death
for a murder committed by an
accomplice.

The — paff€l~ “rejected
Fairchild’s argunient, pointing
to the Inmate’s statement that
he kidnapped and raped Mason
and was going through her purse
when his accomplice shot her.

This conduct showed that
Fairchild “was un active and
major participant in the under-
lying felonies,” the Panel wrote.

6veR)


Continued from Page 1B.

that the’ driver of a
should ‘not be sentenced to die
after his partners shot an elderly
couple inside their home while he
waited outside.

In the process of making the
1982 decision, the.Supreme Court
Surveyed death rows around the
country and found that only 16 of
739 death row inmates had not

a

Penalty ©

In which the Supreme Court ruled :
Setaway car.

been present at the murder scene, »

Of those, only three were sen-
tenced without the jury finding
that they had collaborated in a
scheme designed to kill.

The 1982 Survey represents the
most recent national figures on
sentencing of accomplices, but
Coke said there were at least 100
inmates sentenced to death as ac-

ome ee

: Legal Defense

= . re
j . | Ae Yrye-:

VY meee 1

complices, " . . |

“We still see a g00d number of
non-trigger people being sentenced
to die,” she said. “What Tison does
is to loosen the interpretation con;
siderably as'to who 'can be seny

tenced.”” + it
Fairchild is the only one of Ar:

* kansas's 31' death row inmates té

be sentenced as an accomplice who
didn't witness the murder. |

Fairchild, 34, was sentenced to
die for the 1983 rape and murder
of Marjorie “Greta” Mason, a 22,
year-old nurse stationed at Little
Rock Air Force Base. oy
' Fairchild’s conviction was based
largely ona videotaped confession
in which he admitted to participat:
ing in the rape, but said he was
sitting in Mason's car while she
was killed behind a house by aj
accomplice, “ey wen A

Although Fairchild later disa-
vowed the confession, contending.
that U.S. Rep. Tommy Robinson of
Jacksonville, then the Pulask}
County sheriff, and Maj. Larry Dill
had beaten him Into making it,-a
Lonoke County jury found him
Builty and federal appeals courtg
have upheld the conviction, a

'' The NAACP has become’ ine

volved in the case. Richard Burr, a
Fund attorney, ha:
been assisting Fairchild’s lawyer
John Wesley Hall Jr., in the case.


eee
Arkansas Democrat . E ;

TUESDAY, FEBRUARY 7, 1989

Last obstacle |
to F airchild ©
execution lifted

- BY LARRY AULT

. Democrat Staff Writer

A federal judge lifted a

court order Monday that had
blocked the execution of Barry
Lee Fairchild, 34, sentenced to
die for the 1983 murder of a
nurse. 5

Fairchild will be the first
person on Arkansas’ death row
to be executed since Charles
Franklin Fields, 32, was elec-
trocuted Jan. 24, 1964. Since
1913, 169 men have died in Ar-
kansas’ electric chair.

U.S. District Judge G.
Thomas Eisele signed the stay
of execution Sept. 11, 1987,
while Fairchild pursued fur-
ther appeals.

On Jan. 23, the U.S. Su-
preme Court refused to hear
an appeal of Fairchild’s con-
viction, which had raised ques-
tions about his confession and
arrest. That decision ended
Fairchild’s fight to avoid exe-
cution.

“We’ve alerted the gover-
nor’s office and we've alerted
the Department of Correc-
tion,’ said James Lee, a
spokesman for Attorney Gen-
eral Steve Clark. “Now, we'll
begin preparations for the exe-
cution.”

Fairchild, in 1986, tried to
withdraw his federal appeal
and asked Eisele to allow the
state to execute him.

| Monday,,.

ne

wal ‘Sy plac’

rok ouvkcononnee cede ce

20 F

%, a,

However, Fairchild:

changed his mind and pro-:. .].
ceeded with his appeal after; -*..|
Little Rock attorney John -Wes~ _
ley Hall Jr. reviewed the trial:
record and convinced Fair-

child he could get a new trial.
When asked for his reselten’

Hall said, “That’s:

what we asked for.” That was a:

‘reference to Hall’s request:

that Eisele lift the stay of exe-:
cution after the Supreme:
Court refused to review Fair--
child’s appeal. :

Hall predicted any opposi--
tion to the execution of Fair-!
child probably would not sur-:
face until.just before the exe-*
cution. wo

Mike Gauldin, a 4 spokesman:

for Gov. Bill Clinton, said he-
expects Clinton to set an exe--
cution date within 10 days of
receiving official notification
of Eisele’s order.

Gauldin said it would Men
ably be “a couple of days” be-
fore the governor receives the
paper work necessary to set
the execution date.

Once that occurs, Gauldin
said Clinton will set an execu-

tion date for about 30 days

later.

That could place Fairchild’s
execution late in February or
sometime in early March, ac-

See EXECUTE, Page 3B

ene Re ee mene Oe «ae emeee eee

ee rs es ern ee ee eee ew ee eee

Execute

‘e Continued from Arkansas Page

 elieding to Gauldin’s predic-
_ tion.

id “Prison officials have said
Fairchild will follow his nor-
mal prison routine until the
- last week before his execution.

.«- Fairchild was sentenced to

~ die for the March 1983 death of

¢2nd Lt. Majorie L. . “Greta”

+ Mason, 22, an Air Force nurse
: stationed at the Little Rock
Air Force Base.

Eisele lifted the stay after
cielo an order from the
+ 8th U.S. Circuit Court of
; Appeals at St. Louis that was
; signed Thursday. The 8th Cir-
" cuit order lifted its stay of exe-
? eution -imposed while Fair-
- child’s case was on appeal to
: the U.S. Supreme Court. —

Shortly after the Supreme

’ Court announced it had
’ refused to review Fairchild’s
* case, Clark told a press confer-

: ence in Little Rock that Fair-

‘ child had exhausted his

- appeals. Clark predicted Fair-

_ child would be executed by

_ the end of February.

Authorities have said Fair-
child and an accomplice
raped, robbed, and killed

Mason on Feb. 26, 1983. Fair-
child has refused to name his
accomplice.


AOA AG MEIMIUUNAL | 9 “MUINVAT,; AUIUS! ZU, 1990 © BA

with the NAACP, filed a sec “Eyidence of Fairchild’s
ond appeal in district court. ---’ mental condition was avail.

The appeal foctsed on two © * able at trial (and after) from
issues: whether Fairchild was,; , Dis school records, and there
mentally retarded and there-!.4.18 no reason. why the same evi-
fore did not knowingly waive fe OOS now pieed en his favor
his right not to. incriminate «, ther ” a line ts offered
himself with the confession,'’*. “€", the ruling reads.

aii: The court found there. was
a tae ay Pronnes'sfehot. sufficient error to show
the Arkansas State Hospitaji¢ Fairchild’s.. attorneys were
failed to discover’his mental'': Ineffective to the extent they
retardation, which might have !v¥idiated his due process rights.
cast doubt on the validity of: :°: joved aturtye aoa esac
his confession. “74°... 43a@ Heved a jury would have foun
In his April 1989 decision, ip Palrchild guilty even with the
Eisele said he ‘had reviewed.xs KMOWledge he had a low IQ but

the taped confessions and re-":' Neer ope ing is ovideeee

i ‘i AL - ‘ A

"re-enforced (ale) the’ Court ai Fesptentions tt waist active
INA, 1 -~

confidence in those findings,"\.;." bility. We have viewed the

he said. : ‘s:ghVideo-taped confessions. They

wae reveal rather than undermine
.; Fairchild’s competence,” the

ng and view the videotaped/™* competence during the confes.
confession and'still have any. sion, the court cited his knowl-
doubt about the involvement “2°” edge of which side of the road

of Mr. Fairchild in the rapeit.s)the farmhouse i despit
and murder of Ms. Mason.” x ee OF aaht Hom

not only capable of but did, in® to contradict his questioner’s

fact, volu wed _ knowingly, ’-'" suggested answers when incor-
and _ intelligently

Miranda rights before confess-':,. “We also agree with the Dis-
ing.” Shi _ . “)r trict Court’s observations that
The federal judge also © ithe congruence between what
found on the second issue that’. Fairchild was saying and his
Fairchild’s attorneys did not’: body language further under-
show that “the State failed to’. mines his claim of suggestion.”
provide him with a profession-. | “Neither we nor the District
ally adequate evaluation of his »: Court believe that Fairchild’s
mental condition before his ‘ confessions are entirely accu-
1983 state court tria].” ‘ ' pate... But ghd does not
'. require complete accuracy,
Not mentally retarded - an enough truth emerges
Eisele said Fairchild was © from Fairchild’s statements to
not mentally retarded and . . establish them asa reliable re-
therefore the state hospital ‘‘. port,” the 8th Circuit said.
did not err in its 1983 evalua- .!
tion of Fairchild. Since it did “
provide an adequate evalua- ©
tion, Fairchild received due .
process, the judge ruled. :
Hall appealed to the 8th Cir- |
cuit only the issue of Fair- 4
ed due process being de- }
nied. :
The 8th Circuit ruled April |
17 that Fairchild’s attorneys .s
should have introduced any.
evidence about his retardation },,
at the jury trial or during the ‘e
first federal appeal.

. MONDAY, —— 20, 1993.

‘Fairchild in ‘quiet cell’
near death chamber

LITTLE ROCK (AP) — Barry
Lee Fairchild was moved to a
‘quiet cell’’ Sunday in preparation
for his execution Wednesday in the
1983 slaying of an Air Force nurse.

Fairchild, 39, is to be executed at
9 p.m.

He was given the death sentence
for the fatal shooting of Marjorie L.
‘*Greta’’ Mason on Feb. 26, 1983.
Ms. Mason, 22, of Gainesville, Fla.,
was stationed at Little Rock Air
Force Base.

In 1990, Fairchild was within
hours of his execution when a feder-
al judge agreed to review allega-
tions that Fairchild’s confessions

were coerced. U.S. District Judge:

G. Thomas Eisele later found the
confessions were voluntary.

Alan Ables, a spokesman for the
state Correction Department, said
in a telephone interview that Fair-
child was solemn and cooperative
as he was moved at 6:07 a.m. from
the maximum security unit at
Cummins Prison toa cell near what
is called the death house.

The cell is in a one-story building
connected by a short hallway to the
facility where prison executions
take place. The buildings are on the
prison grounds near Varner in
southeast Arkansas. .

The cell looks like an ordinary
prison cell, Ables said. ‘‘It’s all
been freshly painted. There’s a
television, and he can watch televi-
sion. Of course, it’s gota toilet anda
sink and one bunk.”’

Fairchild can have the visitors he
normally sees, Ables said.

Monday, the state Supreme
Court is expected to make a deci-
sion on whether to stay Fairchild's
execution.

The state Post Prison Transfer
Board recommended Friday that
Gov. Jim Guv Tucker deny a con-

ditional pardon for Fairchiid,
which would clear the way for a
new trial. A spokeswoman for the
governor said Tucker would allow
the state Supreme Court to rule be-
fore deciding on the clemency re-
quest.

Fairchild’s lawyers told the
parole board that evidence unco-
vered since Fairchild’s conviction
should be considered. They said the
evidence included allegations that
the Pulaski County sheriff's office
had rounded up several other black
men as suspects in the abduction,
rape and murder of Ms. Mason, and
that then-Sheriff Tommy Robinson
or Maj. Larry Dill abused some of |
the suspects.

His lawyers also told the state
Supreme Court that Fairchild was
not eligible to be executed under a
law that prohibits executions of
mentally retarded people — those
with an IQ below 65.

Various I.Q. tests have placed
Fairchild’s IQ at 60, 63, 65 and 87.
The average IQ is between 90 and
110.

Also Friday, Rep. John Conyers, .
D-Mich., a senior member of the
Congressional Black Caucus,
urged President Clinton to inter-
vene and get the execution post-
poned. Conyers wants the U.S. Jus-
tice Department to review the case.

Ables said Sunday that Acting
Prison Director Larry Norris and
the prison warden will select wit-

_ nesses to the execution, including

two members of the news media
who will be selected Wednesday
evening. Prison officials expect to
have about 19 witnesses.

The death chamber is about 20-
by-12 feet. Witnesses will be in a
larger room that has a one-way
mirror to allow them to see into the
death chamber but not be seen.


fAIRC AH I>

¢

/Eatry Ler.

nove eee aeue: | Tnat it was aborting its takeuis arcs

Death Row Inmate Rebuffed
On Plea of Forced Confession

S44- 2-G-G]

LITTLE ROCK, Ark., Feb. 8 — A
Federal district judge has rejected ac-
cusations that law-enforcement offj-
cers, including one who went on to
serve in Congress, forced a man now on
death-row here to confess to a 1983
murder.

The inmate, Barry Lee Fairchild, 36
years old, who was scheduled to be exe-
cuted by lethal injection on Sept:- 5:
1990, has long contended that he was
beaten by officers to confess to the kid-
napping, rape and murder of Second
Lieut. Marjorie (Greta) Mason, an Air
Force nurse stationed near Little Rock,
in February 1983.

The judge, Garnett Thomas Eisele,
ruled Wednesday after a 17-day hear-
ing in which new evidence was offered
alleging that the officers, includin
Tommy F. Robinson, a former sheriff
and United States Representative, beat
and threatened six Suspects in at-
tempts to obtain confessions. Mr.
Robinson has denied the allegations.
Judge Eisele said the new evidence did
not change his earlier decisions in the
case.

‘Nothing has been brought forth in
evidence to weaken the court’s confi-
dence in its conclusion,’’ Judge Eisele
Said.

In two 1983 videotaped confessions,
Mr. Fairchild, who is black, is shown
with a bandage around his head and
Swollen eyes. Law-enforcement offi-
cers said he was injured by a police at-
tack dog at the time of his arrest. No
other witness has corroborated his as-
sertion that he was beaten.

Judge Eisele has twice ruled that Mr.
Fairchild’s confessions were. volun-

Gh Caf (-2
er 7)
Special to The New York Times NV MMe S$

£&/ men.”’

tary, but the United States Court of Ap-
peals for the Eighth Circuit in St. Louis
ordered the latest hearing after the in-
mate’s lawyers contended they had
new evidence that black men had been
Systematically rounded up and abused
in attempts to obtain confessions.

In testimony at the hearing, Mr.
Robinson, who was Sheriff of Pulaski
County, which includes Little Rock, |
from 1980 to 1984, and a Congressman
until January, denied allegations of
brutality.

‘No one’s civil rights were violated,”’
he said. ‘‘There were no mass round-
ups as has been testified to in this
court. The information we had was two
blacks kidnapped Greta Mason. It
would be ridiculous to round up white

During the hearing, a former sher-
iff’s deputy testified that he heard an
officer beating someone shortly after
Mr. Fairchild was arrested. A state
prison inmate jailed on drug charges
also testified that while a sheriff’s
deputy held a gun to his forehead, Mr.
Robinson threatened him if he did not
confess to the murder.

Jack Gillean, an assistant state At-
torney General, told the hearing: ‘‘The
coercion of the others has no bearing
directly on whether Barry Lee Fair-
child was coerced or not. You have to
make too great a jump.”’

Judge Eisele’s findings will go the
appeals court, along with Mr. Fair-
child’s request for a new trial and sen-
tencing. The judge is to make a subse-
quent finding about whether there was
a pattern of abuse by the sheriff’s of-
fice in its investigation.

> Je. ae | ¥e

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