Slave WATT Executed 7-{2- /b
nockbridge Co., Va., Court of Oyer & Perminer,
May 30, 1816, watt a slave of Henry salling,
ffurdered Mike, also a slave of Salding. sSen-
tenced to be han_ed and valued at $400. kExecu-
tlon certified by J. Ww. & Cyrus Hyde, deputies,
but no date provided. Undoubtedly June, 1816.
1816 env.; Box 6; Item 153; archives of Va.,
a uditor's Kecords.
Murder Weapon was an axe. Box 241, Exteutive /ypers of bov.
WATSON, Randall, black, hanged Hicksford, Greensville Co., July 10, 1891
Watson, a Hicksford farm laborer, was involved in a running feud with another black man,
Joe Robinson, the caretaker at Mrs. Reese’s School for Young Girls. Robinson spread rumors
in the black community that Watson had to flee North Carolina because he was a mule thief;
that he had impregnated his own daughter, and that Mrs. Watson had been having sexual
relations with a white man. Watson had previously warned Robinson to keep his mouth shut
or he would kill him. On December 26, 1886, he confronted and threatened Robinson again and
when the latter laughed in his face, Watson shot and killed him. The first conviction was
overturned on appeal, and he was again tried and condemned. The second conviction was
affirmed and he was hanged.-Greensville County Circuit Court Common Law Order Book, Vol.
3, pp 317-226, 400-403, 435-436 & 440-441; Original papers of inquest and trial, Criminal
Cases, 1885-1895, Greensville County Circuit Court office, Emporia, VA; /3 Southeastern 22.
WA YE 49
ALTON
while strapped
_ into an oak chair
Alton Waye >
isexecuted |
for °77 killing -
By Brian Kelley and Frank Green
- Times-Dispatch staff writers 39
Alton Waye died in the state’s
electric chair last night for the 1977
rape and murder of a Lunenbur 8
County woman.
Waye, 34, was}.
pronounced dead ff
at 11:05 p.m. after |;
receiving two :
2,500-volt jolts of f
electricity, each :
approximately 55 |
seconds long, |
in the basement
of the State Peni-
tentiary. - .Waye
He made a brief statement from
the chair before a mask and hood
were placed over his head. “I would -
express that what is about to take
place is a murdersI want everyone
Continued on page 12, col.1. °°”
elec. VA (Mecklenburg) BXRaXXKK 8/30/1989,
EA-12° Richmond Times-Dispatch, Thursday, August 31, 1989.
Waye executed for 197 7 slaying
Continued from first page »
‘| to know I forgive the people involved
~ Fin this’ murder, I don’t hate nobody,*.
and that I love you.”
“He was very passive, he kept:
looking at the ceiling, tapping his
hands on the side of the electric
chair, almost as if he was biding
time,” said Kevin McGraw, an an-
chorman with WXEX-TV, Channel 8.
He -witnessed the execution with
three other reporters. and 10 official
witnesses."
Reporter - Gary L. Marshall yo
the execution occurred quickly.
“Two. jolts, one clench, one relax,
clenched again, and then gone, just
gone,” said Marshall of United Press
International.
A death row resident for a decade,
Waye was the eighth person to die in
the chair since Virginia resumed ex-
ecutions in 1982 and the 117th person
executed nationally since the death
penalty was sanctioned by the US.
Supreme Court in 1976.
Outside the penitentiary, death
penalty opponents clustered near the
Spring Street entrance singing
hymns and holding hands as candles
burned. Across Belvidere Street,
about 80 people counted down the
five seconds before 11, then cheered.
Some yelled, “Burn, baby, burn!” ©
Last-minute appeals were. turned
-down yesterday by’ the Supreme
Court and a three-judge panel of the»
4th US. Circuit Court of Appeals.
Gov. Gerald L. Baliles also declined
clemency requests made by Waye’s
attorneys.
Late Tuesday, U.S. District Judge
Robert R. Merhige Jr. denied law- -
yers’ arguments on two main points:
that Waye’s jury was given improper
instructions ‘and that. new evidence
showed he was much more mentally
impaired: than had been previously
known. “>.
Waye was: ‘sentenced to death by a
12-member jury on April 8, 1978, in
Mecklenburg County Circuit Court.
The trial had.been moved there from
the notoriety of the murder of La-
Vergne B, Marshall, 61, on Oct. 14,
19772 54 AMR etpiiccie. 35
Mrs. Marshall, a widow who lived
alone, was raped, beaten to the point
her face was unrecognizable and
stabbed 42 times. Her body was
placed in a bathtub and bleach was
poured on it.
Waye led county sheriff’s deputies
to the body and two days later gave a
19-page confession.’ At - trial, his
&
_ court-appointed lawyer tried only to
lessen the degree of murder to which
Waye. had ‘confessed.
In the 2% hours before the execu-
tion, a crowd of some 60.death penal-.
ty opponents heard a 20-minute serv-
ice at St. Peter’s Catholic Church,
held a candlelight vigil on the edge of
the Capitol grounds and then
marched 1% miles through down-
town to the penitentiary.
At the vigil, Bishop Walter. F. Sul-
livan led prayers with the Rev. Hen-
ry C. Garrard. “By our presence here
today we affirm once again our op-
position to the death penalty,” Sulli-
van said.‘“If violence is wrong, then
the state should not be the perpetra-
tor of violence.”
Waye, an Army veteran and for-
mer dress factory worker, was bap-
" tized Tuesday night by the prison -
chaplain. He met with eight mem-
bers of his
told a prison official to “tell people
that I am blessed.”
with the motions before Merhige.
Richard H. Burr III, one of Waye’s
lawyers, said recent examinations of
Waye showed he had brain damage,
a brain condition that could lead to
delirium and psychosis and that his
IQ was lower than had been thought.
ice - Concurrent with the federal court «
~ appeals, the governor’s office con-
tacted Waye lawyers Gerald T. Zer-
kin and J. Lloyd Snook III. Baliles
‘complimented the lawyers on their
efforts but said, “Based upon my
careful review of this case, however,
Ido not believe the governor’s power
of executive clemency should be ex-
Ssercised eg h © Abies 18kK.
a three-judge panel of the 4th US.
Circuit Court of Appeals that heard
arguments yesterday in a telephone
conference call.
The issue of improper jury in-
struction, said Judge J. Harvie Wil-
kinson III, “should have been raised
in trial and it wasn’t.” . <
.Wilkinson said that even if the is-
sue had been raised then, “it’s such a
slender reed because evidence of the
intent to commit the crime is so
overwhelming that it is inconceiv-
able that a jury could have found
otherwise under any set of cir-
cumstances.”
“Alton Waye is simply a poor
black man... who sits on death row
wholly dependent upon the lawyers
who represent him,” Burr told the
panel, explaining arguments that
question the competence of various
other lawyers who have represented
Waye in the past.
“You can’t continue [to argue] for-
ever, just to the end of the world, that
every lawyer was incompetent,” one
judge told Burr.
wire o :
After the “denials in Merhige’ s-
. court, both motions were appealed to
Linwood T. Wells, of the attorney
general’s office, said that Waye
“comes:in -and wants .to start.this
case all over again. There has to bea.
time when litigation comes to an
end. The time in this case is now.”
The 4th Circuit agreed, denying
both requests for stays after study-
ing the matter.
“As is the present way with most
capital cases, at least in this circuit,
this case has been litigated line by
line and letter by letter for about 12
years,” began Lpomdage A appeals -
court ruling.
It continued, “The ovetwhainning
evidence at trial indicated that on
October 14, 1977, Waye drove to the
residence of a 61-year-old widow in
Lunenburg County and... raped and
beat her. He then retrieved a knife
from the kitchen downstairs and re-
turned upstairs where he stabbed her
42 times, killing her.”
At 7:30, Chief Justice William H.
Rehnquist issued an order stating
that the Supreme Court had denied
two applications for stays of execu-
tion and two motions asking the
court to review the case. Justices
Thurgood Marshall and William J.
_Brennan Jr. dissented.
< : Staff ees by orate Parker
“STOP THE KILLING” — Opponents of the death penalty kept a
vigil last night before the execution of Alton Waye.
; immediate family fora’
final ° time} yesterday morning and -
His last appeals began Monday —
Bc att Lunenburg because of
—
4 ai ; : ‘
yeh ae: “id WEATHERMAN, John CoRRECT DaTE 2-/'4-96
yvortide» Came | 7
SF
drunk one night rh Oot. Rlouncna, “Yass PSE eden, Lage Ee Ok.
189) and Killed his wits Undated 1897 Chicsgo TRIBUNE, sent by Massey &
with an axe after carefully contsining 1896 sxecubien list. Kn
sharpening it first. (she had previously Adee bis pistel and bowie Knits).
tive trials. First connection overturned by State ne Court bu =
conviction affirmed by that court: Unsuccessteully Fergned very | in thtart
Jo wheedlle a Commutation. Also’ Feassign location Fo Carro// aunty. Va.
WEBB, General M., white, hanged
PREREGTE Gp oarsmen ey
4 Soldier’s Ignominions Death. ~
Sadia
Hillsville, Virginia, 1/9/1880...
HILiaviter, Va., Jan. 9.—To-day Geu, 71. Webb was
his father-in-law.
order. Webb h
A]
terday Webb professed religion. He had nothing to
say on the scaffold. At 1 o'clock the drop fell. He
died bp-strangulation.
- ‘The offense for which General Webb (white) was
B hung to-day was the murder of John Granville, his
rado that the peéple in all this section of the country
were afraid of him, and no one durst show anything
like gratification at his fate. He did not sleep much
lsat night, and was in a horrible state of mind. Yer-
| terday be made a full confession of his crime.
‘Webb was convicted entirely on circumstantial evi-
| dence.
His father-in-law was ehot ‘while planting 4
field, and the first thing that led to Webb’s detection
was the ball with which the man was murdered. It
was of a peculiar oblong shape, and. was after the
pattern made in 3 mold known: to. belong to Webb.
The next Jink waa. the discovery of the tree upon
which the assassin had taken: his: best aim. It was
shown that the gun, to have been fired from the posi
tion, must have been tired by a left-handed man.
Webb waa left-handed. The third link was, the
munierer had used a walking cane. and the print there-
of.in the ground was the waine as Webb's stick. The
sboc-tracke were the same size ar those of Webb, and
lastly, the tracks and stick” prints were traced to
Webb's bourse.
All this wae circumstantial, aud Webb might have
got off by getting & commutation to the penitentiary:
but a few days #incesib consideration of the fact that
it was the holiday search, hin wife was allowed to give
bin some whisky, and he pot: ywloriously erunk and |
told how be,committed the murder, substantiating
the circunistantial evidence ip every respect, except
so faras the ball was concerned.
He said that was a
damned guod joke abort that ball, for he had. ber-
rowed that ball from the old inap, and had therefore |
kiled him with his own vall,
He described. with
| porrible wiuuteness the way. Le kidled the man. Yeo-
|
father-in-law, The murder was committed near the
house of the accused, in the county of Carroll, ‘June,
1878. . The object of General Webb in trying to get
Granville out of the way was to gtt possession of a
small sum of money the murdered map ws known
to carry on his person. Fora long time the son-in-
law and father-in-law had not been on good terns.
When, however, the old man came into. possession of
a few hundred dollars by the sale of some land, Webb
at once set to work to make up with him. He feat.
many friendly meesages to the old man, who took no
parconllereh of them. Webb sent him word that
he desired to make friends with him, but still the old”
man took no.hotice of him. This went on for a weelt
or: two, and the old. man resisted every overture.
Finally one day the two men met in a bar-room, and
became good friends. After: thie-Webb viaiged —his-
| father-in-law frequently, and during these ‘visits
| often made suggestions: to Granville as to how he
could best invest the small amount of cash. He told
him to give it to him (Webb) and he would invest it
in a paying way. To this proposition the old mau
would not listen. ; ; ae
- Finally Webb determined to get bold of the money
rege
th another way. On the morning of the 20th of June,
\| 1878, the dead body of Granville was found ina path
1a few hundred yards from his house with a rifle ball.
| wound through bis breast. Nothing on the person of
the dead man had been disturbed save the right veat-
pocket, in which he was known to have kept: his
mouey. This was empty, Webb was at once sus-
pected, but it wan some time before the evidence
could be got strong enough to justify hia arrest. The.
evidence, which was mainly circumstantial, cou-
nected him with the’murder. He denied the crime,
but made so many: contradictory statements about it.
and exhibited ro much contusion, that his guilt: was
evident. He was about forty-eight years of . ce.
20 871 FEDERAL REPORTER, 2d SERIES
federal court to forgo the exercise of its
habeas corpus power.” Francis 2.
Henderson, 425 U.S. 536, 539, 96. S.Ct.
1708, 1710, 48 L.Ed.2d 149 (1976).
Waye contends that the cause for his
failure to raise the issue at trial and on
direct appeal was the ineffectiveness of his
trial counsel. In order to show that the
ineffectiveness of his counsel constituted
cause for the procedural default under
Wainwright v. Sykes, Waye must meet the
two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). See Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639,
- 2645, 91 L.Ed.2d 397 (1986). First, Waye
must demonstrate that counsel’s perform-
ance was so deficient that he was not func-
tioning as. “counsel” as guaranteed by the
sixth amendment of the Constitution. Sec-
ond, he must prove that the deficient per-
formance “deprive[d] [him] of a fair trial, a
trial whose result is reliable.” Strickland,
466 U.S. at 687, 104 S.Ct. at 2064.
For a court to reach Waye’s Sandstrom
issue on the merits, he must show, in addi-
tion to satisfying the cause for his proce-
dural default, that actual prejudice resulted
from his attorney’s failure to raise the con-
stitutional violation. Finally, even if Waye
could overcome the procedural default by
demonstrating cause and prejudice under
Wainwright v. Sykes, the Sandstrom vio-
lation would still. be subject to harmless
error analysis pursuant to the Supreme
Court directive in Rose v. Clark, 478 U.S.
570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
III.
The parties consented to have this case
heard initially by a magistrate, with appeal
to the district court and the right to peti-
tion this court for review. 28 U.S.C.A.
§ 636(c) (West Supp.1988). On original
consideration of cross motions for summa-
ry judgment, the magistrate granted the
writ, finding that Waye’s counsel was inad-
vertent or ignorant in failing to object to
the burden-shifting jury instruction. See
Carrier v. Hutto, 724 F.2d 396 (4th Cir.
1983), adopted, 754 F.2d 520 (4th Cir.1985)
(en banc). The magistrate concluded that
despite the failure to object, the Sand-
strom error was reviewable since Waye
had demonstrated cause and prejudice for
the procedural default under the test of
Wainwright v. Sykes. The magistrate fur-
ther held that the error was prejudicial to
Waye and ordered that he be retried. On
appeal to the district court, the issuance of
the writ was reversed and remanded in
light of the intervening United States Su-
preme Court decision in Murray v. Carri-
er, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), rev’ing sub nom. Carrier v.
Hutto, 754 F.2d 520 (4th Cir.1985). There,
the Court held that attorney ignorance or
inadvertence, relied on by the magistrate
here, was an insufficient ground for the
showing of cause under the procedural de-
fault test articulated in Wainwright v.
Sykes. Instead, the Court ruled that a
petitioner attempting to demonstrate cause
under the Wainwright v. Sykes test must
show that he was provided ineffective as-
sistance of counsel under the standards set
forth in Strickland.
On remand, the magistrate held that al-
though counsel was deficient in failing to
object to the improper instruction, Waye
was not entitled to issuance of a writ since
the deficiency was not prejudicial under
Strickland. Alternatively, the magistrate
concluded that, assuming both prongs of
the Strickland test could be met, Waye
failed to show actual prejudice as required
by Wainwright'v. Sykes. Finally, the
magistrate held that even if the procedural
default could be cured, the Sandstrom er-
ror was harmless beyond a reasonable
doubt under Rose v. Clark. The district
court affirmed the magistrate’s conclusion
that Waye was not prejudiced by the al-
leged deficiency on the part of his counsel.
This court subsequently granted Waye’s
petition for leave to appeal.
IV.
Assuming for purposes of this appeal
that Waye satisfies the first prong of the
Strickland test that counsel was deficient
WAYE v. TOWNLEY 21
Cite as 871 F.2d 18 (4th Cir. 1989)
for failing to object to the instruction,®
Waye nonetheless fails to show cause un-
der Wainwright v. Sykes since he does not
meet the second prong of the Strickland
analysis. In light of the overwhelming evi-
dence introduced at trial concerning
Waye’s intent, he cannot show that “there
is a reasonable probability that, but for
counsel’s unprofessional [error], the result
of the proceeding would have been differ-
ent.” Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.
Both the magistrate and the district
judge thoroughly reviewed all of the evi-
dence on the issue: of intent. Included in
this examination was the brutality of the
murder, the fact that Waye left the up-
stairs area of the victim’s home where he
had beaten her, returned with a knife, and
stabbed her 42 times. The magistrate and
district judge also noted that Waye at-
tempted to conceal his presence and guilt
by taking the telephone off the hook,
switching on the television, and wiping the
knife clean. Although Waye challenges
the conclusion that several of these factors
demonstrate intent, the Virginia Supreme
Court has articulated the factors which
may establish intent to kill, stating:
The intention to kill need not exist for
any specified length of time prior to. the
actual killing. ‘A design to kill may be
formed only a moment before the fatal
act is committed provided the accused
had time to think and did intend to kill.’
In deciding the question, the jury proper-
ly may consider the brutality of the at-
tack, whether more than one blow was
struck, the disparity in size and strength
between the accused and the victim, the
3. The State filed a cross appeal challenging the
magistrate’s conclusion that counsel's perform-
ance was deficient by his failure to object to the
instruction. This contention is based on the
fact that Sandstrom was not decided until one
year after Waye was tried. We agree with the
district court that it is unnecessary to address
this issue since we conclude that Waye suffered
no prejudice.
4. In Murray v. Carrier, the Supreme Court pro-
vided one additional method by which a peti-
tioner technically barred by procedural default
may have his claim decided on the merits. The
Court stated that “in an extraordinary case,
concealment of the victim’s body, and the
defendant’s efforts to avoid detection.
Clozza v. Commonwealth, 228 Va. 124,
134, 321 S.E.2d 278, 279 (1984) (citations
omitted). The evidence is overwhelming
that Waye possessed the requisite intent to -
kill as defined by Virginia law and we
affirm the conclusion that Waye received
effective assistance of counsel since he was
not prejudiced by the alleged deficiency of
his attorney. Since Waye fails to demon-
strate ineffective assistance of counsel, he
has not shown cause pursuant to Wain-
wright v. Sykes and the procedural bar
forecloses review of the Sandstrom viola-
tion.
V.
[2] Even assuming that Waye could
show prejudice under Strickland, he could
not demonstrate prejudice pursuant to
Wainwright v. Sykes in order to lift the
procedural bar. Under a Wainwright v.
Sykes analysis, in order to overcome a
waiver a petitioner must show actual preju-
dice in addition to showing cause. Again,
the overwhelming evidence of guilt
presented by the prosecution negated any
reasonable possibility of actual prejudice.‘
Moreover, even if Waye could demonstrate
cause and prejudice under Wainwright v.
Sykes, it is clear that the presumption in-
struction charged here was harmless be-
yond a reasonable doubt under Rose v.
Clark.
AFFIRMED...
© EKEY NUMBER SYSTEM
ayms
where a constitutional violation has probably
resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause
for the procedural default.” 477 U.S. at 496, 106
S.Ct. at 2650.
Waye does not contend that he fits within the
category of actually innocent petitioners, nor
would such an assertion be valid. In light of
the overwhelming evidence of intent to kill and
in consideration of Waye’s valid confession to
the murder, it is clear that Waye is not entitled
to relief under the exception outlined by the
Court in Murray v. Carrier.
Wath
18 871 FEDERAL REPORTER, 2d SERIES
district court’s grant of summary judgment
for defendants on this claim as well.
IV.
For the foregoing reasons, the district
court’s grant of summary judgment for
defendants on plaintiff's § 1983 claim will
be reversed, and the district court’s grant
of summary judgment for defendants on
the remaining claims will be affirmed.
Alton WAYE, Phtitioner-Appellant,
erman L. TOWNLEY, Warden,
Respondent-Appellee.
Alton WAYE, Petitioner-Appellee,
v.
Sherman L. TOWNLEY, Warden,
Respondent-Appellant.
Nos. 88-4004, 88-4005.
United States Court of Appeals,
Fourth Circuit.
Argued Feb. 10, 1989.
Decided March 28, 1989,
~ Rehearing and Rehearing In Banc
Denied April 11, 1989.
Following defendant’s conviction for
capital murder and exhaustion of state law
remedies, defendant filed for habeas relief.
The United States District Court of the
Eastern District of Virginia, Robert R.
Merhige, Jr., Senior District Judge, dis-
missed the petition. On appeal, Court of
Appeals, Wilkins, Circuit Judge, held that:
(1) trial counsel’s failure to contemporane-
ously object to burden shifting instruction
was not ineffective in light of overwhelm-
ing evidence of intent, and (2) defendant
failed to demonstrate cause for or prejudice
resulting from such failure sufficient to
overcome procedural bar to habeas relief.
Affirmed.
1. Criminal Law ¢641.13(2)
Trial counsel’s failure to contempora-
neously object to burden-shifting intent
jury instruction during capital murder trial
did not deprive defendant of effective as-
sistance of counsel where brutality of mur-
der and overwhelming evidence of guilt
demonstrated defendant’s intent; after
having raped and beaten 61-year-old vic-
tim, defendant left, and then returned,
stabbing victim 42 times. U.S.C.A. Const.
Amend. 6.
2. Habeas Corpus ¢45.3(1.50)
Habeas petitioner failed to demon-
strate prejudice resulting from trial coun-
sel’s failure to contemporaneously object,
as required by Virginia law, to burden-
shifting instruction .on defendant’s intent
during capital murder trial precluded habe-
as petitioner from overcoming procedural
bar precluding habeas relief, particularly
where evidence, including fact that defen-
dant returned to 61-year-old victim after
having raped and beaten her and then
stabbed her 42 times, was overwhelming to
demonstrate defendant had requisite intent
to kill. U.S.C.A. Const.Amend. 14, § 1;
Va.Sup.Ct.Rules, Rules 5:25, 5:27(c).
J. Lloyd Snook, III, Charlottesville, for
petitioner-appellant.
Linwood Theodore Wells, Asst. Atty.
Gen. (Mary Sue Terry, Atty. Gen., Rich-
mond, Va., on brief) for respondent-appel-
lee.
Before WIDENER, WILKINSON, and
WILKINS, Circuit Judges.
WILKINS, Circuit Judge:
Alton. Waye appeals the district court
affirmance of the dismissal of his petition
for a writ of habeas corpus under 28 U.S.C.
A. § 2254 (West 1977). We affirm.
WAYE v. TOWNLEY 19
Cite as 871 F.2d 18 (4th Cir. 1989)
I.
In 1978 Waye was convicted of capital
murder in Virginia. At trial, the evidence
showed that Waye drove to the residence
of a 61-year-old widow and requested per-
mission to use her telephone. After gain-
ing entry into her home, Waye forced the
victim upstairs where he raped and beat
her. He then retrieved a knife from the
kitchen downstairs and returned upstairs
where he stabbed her 42 times, killing her.
After placing her body in a bathtub and
pouring Clorox over her, Waye ransacked
the house, took the telephone off the hook
and switched on the television. Upon re-
turning to his own residence, Waye in-
formed his father that he had killed the
victim. He then telephoned the authorities
and led them to the victim’s house. The
police found the victim beaten beyond rec-
ognition, with bite marks on her body.
Also discovered at the Scene was the mur-
der weapon which had been wiped clean.
Waye provided the authorities with both
oral and written statements detailing his
involvement in the homicide.
At the conclusion of the presentation of
the evidence at trial, the jury was instruct-
ed as follows:
The court instructs the jury that a man is
_ presumed to intend that which he does,
or which is the immediate or necessary
consequences [sic] of his act.
Defense counsel did not object to this in-
Struction at trial, and the issue was not
raised on Waye’s direct appeal to the Virgi-
nia Supreme Court. When Waye raised
the issue for the first time in his state
petition for a writ of habeas corpus, the
state court specifically held that Waye was
not entitled to be heard on the issue be-
cause he failed to make a contemporaneous
objection at trial or to raise the issue on
direct appeal. See Harris v, Reed, — US.
— 109 S.Ct. 1038, 103 L.Ed24 308
1. The State concedes that the instruction vio-
lates Sandstrom.
2. The contemporaneous objection rule in effect
at the time of Waye's trial provided in pertinent
Part:
Error will not be sustained to any ruling be-
low unless the objection was stated with rea-
sonable certainty at the time of the ruling,
(1989). After exhausting his state post-
conviction remedies, Waye filed this peti-
tion in federal court arguing that the in-
struction violated the rule enunciated in
Sandstrom v. Montana, 442 US. 510, 99 ©
S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sanda-
strom, which was decided after Waye’s
jury trial, the Supreme Court held that a
burden-shifting instruction such as the one
given at Waye’s trial violated the due pro-
cess clause.’ U.S. Const. amend. XIV, § 1.
II.
(1] Virginia procedure requires that a
contemporaneous objection be lodged by a
defendant at trial in order to preserve an
issue for review by the state supreme
court, absent a showing of good cause.
Va.Sup.Ct. R. 5:25 (1950 & Repl.Vol.1988).
Also, the Virginia Supreme Court will de-
cline to address alleged errors unless they
are clearly indicated on appeal. See Va.
Sup.Ct. R. 5:27(c) (1950 & Repl. Vol.1988);
Law v. Commonwealth, 171 Va. 449, 199
S.E. 516 (1938). Here, Waye failed to ob-
ject to the unconstitutional instruction at
trial and also failed to raise the issue on
direct appeal to the Virginia Supreme
Court.?
The United States Supreme Court in
Wainwright v, Sykes, 433 U.S. 72, 97 S.Ct.
2497, 58 L.Ed.2d 594 (1977), held that the
failure to timely object at trial to an alleged
: €rror as required by a state contemporane-
ous objection rule forecloses federal habeas
corpus review of the alleged error “absent
a showing of cause for the noncompliance
and some showing of actual prejudice re-
sulting from the alleged constitutional vio-
lation.” Jd. at 84, 97 S.Ct. at 2505. This
rule of procedural default extends from the
Supreme Court’s well-settled recognition
“that in some circumstances considerations
of comity and concerns for the orderly ad-
ministration of criminal justice require a
except for good cause shown or to enable this
Court to attain the ends of justice. Only er-
rors assigned in the petition for appeal will be
noticed by this Court and no error not so
assigned will be admitted as a ground for
reversal of a decision below.
Va.Sup.Ct. R. 5:21 (1950 & Repl.Vol.1977).
“il
Richard Whitley Dies
In Va. Electrie Chair
By Donald P. Baker
Washington Post Staff Wrner
RICHMOND, July 6—Richard
Lee Whitley, a part-time house
painter and handyman, was exe-
cuted tonight for the brutal sex
murder of his 63-year-old next-door
neighbor, Phoebe Parsons, seven
years ago in the Pimmit Hills area
of Fairfax County.
Whitley, 41, was believed to be
the first Fairfax County resident to
die in Virginia’s electric chair.
He was pronounced dead at
11:07 p.m., according to Wayne
Farrar, a state Department of Cor-
rections spokesman.
Whitley’s appeals ran out at 7:10
p.m. when the Supreme Court re-
fused to block the execution, but
Gov. Gerald L. Baliles, who rejected
a clemency bid Friday, remained in
his office at the Statehouse and
kept a telephone line open to the
penitentiary in the event of unex-
pected developments. Whitley was
the second person executed in Vir-
ginia since Baliles became governor
a year and a half ago.
The only dissenters to the Su-
preme Court decision, according to
a court spokesman, were Justices
Wiliam Brennan and Thurgood
Marshall.
Last week, the Virginia Supreme
Court and the 4th U.S. Circuit
Court of Appeals denied Whitley's
appeals for a stay.
Whitley attorney Timothy Kaine
based his appeals on arguments that
his chent, who had an IQ of 75, was
“msane” or “feebleminded” and
should have been commited to a
state hospital.
Whitley was convicted May 13,
1981, of what Fairfax Common-
wealth's Attorney Robert F. Horan
Jr. described as the “unbelievably
brutal” slaying of the Pimmit Hills
widow.
At the trial, a signed statement
“RI LEE WHITLEY
.. killed Fairfax County neighbor
was introduced in which Whitley
admitted to strangling Parsons, cut-
ting her throat and sexually assault-
ing her with two umbrellas.
Although expert witnesses tes-
tified on appeal that Whitley had
“organic brain dysfunction,” Circuit
Court F. Bruce Bach, who presided
at the trial, ruled that there were
no legal grounds for finding Whitley
to be feebleminded.
Whitley offered no reason for the
attack other than that he went on a
two-week drug and alcohol binge
after his wife left him.
Pimmit Hills is off Rte. 7 just in-
side the Capital Beltway. Many res-
idents interviewed there today said
they were unaware of the murder,
which occurred July 25, 1980.
But one longtime resident, Mar-
garet Brazas, recalled Parsons as
“really a good woman, a church wo-
man and a mother. This was a very
brutal murder. She didn’t deserve
this.”
In a telephone interview with a
Richmond television station, Whit-
ley said he was “ready to die. I
know they’re going to kill me.”
He said he would have liked to
have had the execution televised
and to be put to death without a
hood over his head to “let the peo-
ple see exactly what facial.expres-
sions you have when they’put the
juice to you,” -
gurt lided the death penalty ban in
8.
As in past executions here, rival
Crowds of protesters showed up
outside the brick-walled prison. On
one side were about 100 antideath-
penalty demonstrators who held a
candlelight vigil. On the other was a
like number from the surrounding
blue-collar neighborhood who
jeered at the death penalty oppo-
nents.
Staff writer Liz Lazarus contributed
to this report.
--+ Tuespay, Jury 7, 1987 BS-
az ff w r
The Washington Post
VIRGINIA -
@ Richard Leé Whitley died
last night in the electric
chair at the State Peniten-
tiary in Richmond for the
brutal 1980 murder of a
Fairfax widow. Page B5
Whitley Eecuted Ps
Virginia killer executed
RICHMOND, Va. — A man
convicted of strangting and slashing
the throat of an el neighbor and
sexually assaulting ber corpse was
electrocuted Monday. the first
execution in Virginia in almost a year.
\ “Richard Lee Whitley was
pronounced dead at 11:07 p.m., five
|} minutes after the first jolt current was
(\ sent pulsing through his body in the
, downtown prison’s electric chair, said
; Wayne Farrar, a state Department of
Corrections spokesman.
: _ _ Whitley, his head shaved and
\ dressed in prison-issue dungarees and
rubber sandals, was }ed into the death
~.) Chamber at 10:58 p.m.
\)._He had no last words and was
q stra into the chair by seven
G , witnesses said. A priest
yed over him, at ames pressing his
d against Whitley's, they said.
Earlier Monday night, the U.S.
> Supreme voted 6-2 to deny a stay of
Gv execution, Whitley’s last appeal. Gov.
Gerald L. Baliles on Friday refused a
plea for clemency.
=F
Virginia execution
,*RICHMOND, Va. — A man con-
victed of strangling and slashigg the
throat of an elderiy neighbor and
spxually assaulting her corpse was
electrocuted Monday, the first exe-
Cution in Virginia in almost a year.
-,Richard Lee Whidey, 41, was pro-
gounced dead at 11:07 p.m., five
minutes after the first jolt of current
was sent pulsing through his body in
the downtown prison’s electric
chair, said Wayne Farrar, a state De-
partment of Correcuons spokesman.
Earlier Monday might, the U.S. Su-
preme Court voted 5-2 to deny a stay
of execution, Whitlev’s last appeal.
Gov. Gerald L. Baliles on Friday re-
fused a plea for clemency.
2861 ‘2 Aint ‘Aepsen, - eeg owuewesses oy, & &
6v
i &
8A Tuesday. July 7, 1987 @ San Jose Mercury News
i National News
in
brief
VIRGINIA EXECUTION: Richard
ee Whitley, convicted of stran-
+<<g)inig and slashing the throat of an
elderly neighbor and sexually as-
saulting her corpse, was electro-
.“auted . Monday in Richmond, Va.,
the first execution in Virginia in
almdst a year. Whitley was pro-
nounced dead at 11:07 p.m., five
minutes after the current to the
electric chair was switched on.
San Francisco Examiner
\
%* Tuesda 7, 1987 A-S
ee
@ Murderer executed: Richard
Lee Whitley, convicted of strangling
and slasting the throat of an elderly
neighbor and sexually assaulting her
corpse in 1960, was electrocuted in
Richmond Moy -night, the first
execution in -Yirginia in almost a
year. Whitley, Al, ;was pronounced
dead at 11:07 p.m.
Executed
f
d
her
chair yesterday after the
United States Supreme
Court denied him a stay of
execution. Whitley was
and slashing the throat 0
died in Virginia’s electric
convicted of strangling
ap elderly neighber an
sexually assaulting
corpse in 1980.
Richard Lee Whitley, 41,
THE TRIBUNE, Oakland, California
In BRIEF
Toe Shay 7 uky D ec
Ng
a}
~
USA TODAY « TUESDAY, JULY 7, 1987+ 3A
neem
Virginia executes
+1-year-old inmate
gw oe ae
let? ~- qmsecmwe rress- RICHMOND, ova — 5 ree ,
; killer, Ric : , Was
vi 4 execution = ' elect ited Wat night for the
RICHM Va. — Richard murder of a neighbor.“#,
Whiteley, of strangling : ‘The Supreme Court earlier re-
slashing the of an elderly | fused a stay of execution, with
neighbor and assaulting her Justices William Brennan aid
corpse, was electrocuted last night, Thurgood Marshall dissenting.
the first execufjon in Virginia in ab Whitley said he was sorry for.
’ the 1980 sexual assault and mur-
Associated der of his 63-year-old victim,
" “"S whom he said he did not know
very well. Whitley. who worked oe
at odd jobs, strangied his victim ©
Tuesday ' with a rope, cut her throat and
Joly 1987 BX San Picge Linon A-7 fled with her wallet and car.
: ; In his appeal, attorneys argued
that procedural errors prevented
some constitutional questions in
the case from being litigated.
The Honolulu Advertiser
Tuesday, July 7, 1987
2 SS —————E—
pag ne Whitlentia ste
£ Whitley was the 242nd t person to rdies
the electric chair since 1908 when °
* electrocution’ became the: method of.
“capital punishment i in the state. The ~ .
|g death penalty was reinstated in 1977,
A with the first execution. soccurring. in A
a side t the ‘penitentiary. About 125 death ©
in the crowd clapped hands and sang, :-
.:“Na-na-na-na, hey, hey, hey, kiss him‘
_ goodbye.”
Lynda Peacock, a member of Peo- :
3 penalty. opponents: held a candlelight ©
+ vigil and prayer in front of the prison,
¥ while, about 75. proponents ‘gathered
across. Belvidere Street from them.
Oe ny
‘ple for the Abolishment of the Death
Penalty, said she expected.a less ve-.-
hement:¢ demonstration, by, the ¢ death
Pag eM Ser ge
" holding up well.”
~ the Virginia’ Supreme Court. had be
~ lack of a court-appointed psychiatrist
‘sented in-his. Jun “1981: tria a
é ~ Stays of execution had been Bra
Judge granted. one, , several,,d a s
at the time, Kaine had argued that:
Whitley: was not given adequate legal .
. representation | in a his capita <murder..
- She said the lack of | protestors’ ‘and’
_news coverage: indicated that, execu-'
- tions were becoming too: routine. in
Virginia. gE res fi aetebsa :
- Whitley’s attorney, Timothy, Kaine®.
of Richmond, had petitioned the U.S.:
Supreme Court on-‘Thursday’after the
US. 4th Circuit Court of Appeals and ~
“tence ‘plus’ 12 years from 3 ‘a Fairfax
-Ms. Parsons.”
nied the appeal...) 05. :
On Friday, Baliles- False’ denied a”
home was ‘ransacked and her’ credit
_In his appeals, Kaine had. d
ppeals, Kaine had argue ards ‘stolen: Whitley “also took her.
‘that procedural errors were made:
- during Whitley’s trial. He cited: the
and an‘allegedly illegal confession.”
_» Kaine has said that ath isp is men
= ~ ginia, Coalition: of ‘Jails and Prisons, most receiit. occurring’ in: Rak te i OH a
ysis Whitley about 8 p.m. She said: 1985--when: a: federal’ appeals. court .
emed:to be-
ie dae 2 >: a
i ke jeuonen “oinog_ |
we Scat
- County Circuit j jury for the murder of:
Ms. Parson, wae strangled, her
throat was cut: and she was sexually
; 5 clemency: request for. Whitley. said assaulted. with an: umbrella. Her
smaller. ‘thar the five previous execu-*) et
tions that. have occurred since. 1982, ;
“AS the opponents held hands in si- —
“Tent prayer, some. proponents sat ine”
e - lawn chairs or on‘a brick wall and *
jeered’ them: Others shouted, “Fry *
him!” Shortly before:11 p.m;; several
“car and drove to Florida, where he:
was arrested about a week later with
4y
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«from: Gov. Gerald’ L- Baliles,
| py nits ing and sexually assaul )
te ring: xually assaulting a. The final round of appeals was de-
:Fairfax County. woman in-1980,:was -
“ put to death shortly. after 11 ‘o'clock
im last night ‘in, Virginia’s. electric chair ©
<a
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bcd pitas
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reinstated the death per Sesto: aay 2,500-volt hale was’
"He was convicted ‘in: AS81 of capital /edministered at 11:02 ‘and the second
¢ {murder in the death of his next-door x 2m spine : later. He was: pronounced -
i g Ss the. pean 8.
deadiat? 11:07 p.m. by:
ad iat,
“nied. ‘yesterday on a 6-2 vote by the —
‘Dwight perry: operations officer: at’
the penitentiary, said that: ‘Whitley, : f
said nothing before the jolts of elec- .
_ tricity were administered and that he”
~ offered no resistance.
. . There were no last minute sopeais
, for clemency made to Baliles after
_ word was received earlier in the eve- ©
- ning that the Supreme Court had de-
~~ nied a stay of execution, said Chris.
a . Bridge,” the: BoNerner. Ss. press. ‘
" Becretary..
» *-Charles * Murphy, a reporter - for”
= WXEX-TV and one ‘of 11 witnesses,
said a prison .chaplin was praying :
; with whitey. as ‘he. was ‘prought ff from “A
this cell about 60 feet’ away" to the?
seemed to trip as he entered the death 2 ey
_ ity,” ‘Murphy said: i. ie
“conditioning unit in the chamber was |
© turned off. moments before the execu-. ” Bath
electric, .chair.. He said ‘Whitley ©
chamber | “accompanied. Dy. seven:
, Guards.
The chaplin then left ‘the room and
the jolts of electricity began, he said. ;
: “Every muscle’ in his body jolted ett
from the impact ‘of all that electric-- |
)
|
-He ‘said ‘the: “alewly installed air- ‘
tion atthe request of the witnesses. >
The witnesses said the 2 air condition.
*
(udreey Baked IF
we Bi haat vo
48° VE YY ee we
_ fg M187.
ler is executed in diectie chair
in Virginia as last appeal is denied
Assoclated Press
RICHMOND, Va. — A man
convicted of strangling and slashing
the throat of an elderly neighbor
and sexually assaulting her corpse
was electrocuted Monday, the first
execution in Virginia in almost a.
year.
Richard Lee Whitley was pro-
nounced dead at 11:07 p.m., five
minutes after the first jolt current
was sent pulsing through his body
in the downtown prison’s electric
chair, said Wayne Farrar, a state
Department of Corrections spokes-
‘man.
Earlier Monday night, the U.S.
Supreme Court voted 6-2 to deny a
stay of execution, Whitley’s last
appeal. Gov. Gerald Baliles on
Friday refused a plea for clemency.
The execution was the 81st in the
United States since the U.S. Su-
preme Court restored capital pun-
ishment in 1976 and was Virginia’s
first since last July 31.
In a telephone interview earlier
Monday with Richmond television
station WTVR, Whitley said he
could hear testing of the electric
: chair just 35 feet from his cell.
“It kind of makes you feel a little
funny, you know,” he said.
Whitley’s lawyer, Thomas Kaine,
filed the request for a stay from the
Supreme Court Thursday after the
xA6
Richard Lee
Whitley’s
execution was
the 81st in the
United States
since the U.S.
Supreme
Court restored
capital
punishment In
1976.
Virginia Supreme Court and the
4th US, Circuit Court of Appeals
refused to step in.
About 30 opponents of the death
penalty waited outside the down-
town Richmond prison as the hour
of Whitley’s execution approached.
They carried candles and occasion-
ally sang songs.
“We are outraged at the resump-
tion of the death penalty,” said the
Rev. Joe Ingle of Nashville, Tenn.,
representing the Southern Coalition
on Jails and Prisons, one of several
groups on hand.
Unlike previous executions, there
were no demonstrators supporting
the death penalty.
Whitley, 41, was codivicied of |
was strangled, her throat. was
slashed and her corpse was sexually
wo ~ — = ~
‘deauled, authorities said.
Whitley was transferred to the
-Richmond penitentiary June 17
from death row at Mecklenburg
Correctional Center. Condemned
prisoners must spend their last 15
‘’ days in a basement cell adjacent to
the room housing the electric chair,
where five others have been exe-
cuted since Virginia reinstated the
death penalty in 1982.
Appeals during the six years
since Whitley’s conviction depicted
him as mentally and emotionally
disturbed, and the product of a
troubled childhood. .
Kaine argued last week before
‘the state Supreme Court that his
client was “feeble-minded,” “bor-
derline retarded” and had a verbal
IQ of 75. An IQ of 100 is considered
average.
The only explanation’ Whitley
offered for the slaying of Parsons
was that his wife had left him and
he had gone on a two-week binge of
drugs and alcohol.
TINY OFFSPRING
HOLLY SPRINGS, Miss. (AP)
— In just 13 days after conception,
af
capital murder for the July 25, 1980 « a ferpale poemam beats ak many es
. 20 tiny offspring. Each is so small
slaying of Phebe Parsons, 63. She »
the heartbeat can be seen through
the skin. The whole grublike litter
can fit into a spoon.
THE ARIZONA REPUBLIC TUESDAY, JULY 7, 1987
-
lated Press
SHMOND, Va. — A man
oted of strangling and slashing
hroat of an elderly neighbor
exually assaulting her corpse
lectrocuted Monday, the first
tion in Virginia in almost a
hard Lee Whitley was pro-
ed dead at 11:07 p.m., five
es after the first jolt current
ant pulsing through his body
> downtown prison’s electric
said Wayne Farrar, a state
tment of Corrections spokes-
lier Monday night, the U.S.
me Court voted 6-2 to deny a
of execution, Whitley’s last
|. Gov. Gerald Baliles on
y refused a plea for clemency.
execution was the 81st in the
1 States since the U.S. Su-
Court restored capital pun-
nt in 1976 and was Virginia’s
nce last July 31.
2 telephone interview earlier
ay with Richmond television
1 WTVR, Whitley said he
hear testing of the electric
ust 35 feet from his cell.
kind of makes you feel a little
you know,” he said.
itley’s lawyer, Thomas Kaine,
he request for a stay from the
ne Court Thursday after the
AG
——— “We POm 4unu 7
Virginia as
x aUrTwWwvs VT YY wesw ee
L~ 4
lier is executed in electric chair
last appeal is denied
Richard Lee
Whitley’s
execution was
the 81st in the
United States
since the U.S.
Supreme
Court restored
capital
punishment in
1976.
Virginia Suprerne Court and the
4th U.S, Circuit Court of Appeals
refused to step in.
‘About 30 opponents of the death
penalty waited outside the down-
town Richmond prison as the hour
of Whitley’s execution approached.
They carried candles and occasion-
ally sang songs.
“We are outraged at tye resump-
tion of the death penalty,” said the
Rev. Joe Ingle of Nashville, Tenn.,
representing the Southern Coalition
on Jails and Prisons, one of several
groups on hand.
Unlike previous executions, there
were no demonstrators supporting
the death penalty.
Whitley, 41, was convicted of -
capital murder for the July 25, 1980 -
slaying of Phebe Parsons, 63. She «
was strangled, her throat was”
slashed and her corpse was sexually
THE ARIZONA REPUBLIC
sauteed: authorities said.
Whitley was transferred to the
-Richmond penitentiary June 17
from death row at Mecklenburg
Correctional Center. Condemned
prisoners must spend their last 15
days in a basement cell adjacent to
the room housing the electric chair,
where five others have been exe-
cuted since Virginia reinstated the
death penalty in 1982.
Appeals during the six years
since Whitley’s conviction depicted
him as mentally and emotionally
disturbed, and the product of a
troubled childhood. .
Kaine argued last week before
the state Supreme Court that his
client was “feeble-minded,” “bor-
derline retarded” and had a verbal
IQ of 75. An IQ of 100 is considered
average.
The only explanation’ Whitley
offered for the slaying of Parsons
was that his wife had left him and
he had gone on a two-week binge of
drugs and alcohol.
TINY OFFSPRING
HOLLY SPRINGS, Miss. (AP)
— In just 13 days after conception,
a female possum bears as many as
20 tiny offspring. Each is so small
the heartbeat can be seen through
the skin. The whole grublike litter
can fit into a spoon.
TUESDAY, JULY 7, 1987
om
¢
met
Se
death penalty laws on the books but nev-
er carry them out, the state of Virginia,
_ with its cherished tradition of no-non-
- sense treatment of the criminal, has actu-
ally carried out a number of executions
- Since the Supreme Court legalized them
“under certain guidelines in 1977.
_ However, like every state, Virginia has
_ those who are opposed to the death pen-
_alty as a matter of principle. As a result,
_ the next seven years were to see Richard
Whitley’s case become a focal point for
these opposing views.
’ Appeals on Whitley’s behalf were tak-
en through the court system all the way to.
the U.S. Supreme Court. These por-
trayed Whitley as a mentally and emo-
tionally disturbed individual who had
problems that started in childhood. He
had an unhappy childhood and dropped
_,out of school in the eighth grade.
A psychiatric report done when Whit-
ley was in an Illinois prison at age 19
indicated his academic performance was
- SO poor that he had to repeat the sixth and
seventh grades.
_ According to a family member, he had
beet struck by a train at the age of 16 and
- was never. the same-after that. It ‘was
further believed that he was homosexual-
_ ly raped in prison and had relationships
‘with both men and women since then.
~The Illinois psychiatric report con-
cluded that Whitley’s ‘‘judgment is nil
_and._he is Lonleaneneed and emotionally
crippled. re
In 1984, a pavahslovict and a psychia-.
trist who examined Whitley for the pur-
- pose of his appeal suspected he was
_brain-damaged from liquor or blows to
the head or both. They concluded that he
also had an antisocial personality.. The
combination of brain damage and per-
‘sonality disorder left him dangerous to
society and in need of institutionalization
_ because he would be: unable to control
his behavior, they advised.
_As Whitley’s case made its tortuous
way through the court system, appellate
judges repeatedly held that while Whit- -
ley’s background was indeed unfortu-
nate, it did not constitute a legal defense -
to murder or-affect the legality of the
death sentence against him.
Richard Whitley would have to keep
his date with the electric chair.
On July 7, 1987, at 7:10 p.m., Whit-
levis final appeal was laid to rest when
the U.S. Supreme Court refused to block
his execution. But Governor Gerald
Baliles, who had rejected a clemency bid
on July 4th, remained in his office at the
- for the jury of eight women and four men
_ to vote the death penalty for Whitley.
Unlike some states, which may have -
_ statehouse and kept a telephone line open :
to the penitentiary” in the event of an.
unexpected development. =.’
Prisoners scheduled to die must spend
their last.15 days in a basement cell next
to the room housing the electric chair.
Whitley had been there twice before, but
appeals had stayed those executions. -
But how would he leave this, the third
time?
For his part, Whitley aenicd calmin
the. face of impending doom, telling a
. Richmond television station: ‘‘I’m ready
to die! I know they’re going to kill me.’”
This was buttressed by a death penalty
protester who told a: Washington Times
reporter: ‘“The one thing I can tell you is
that he (Whitley) is with God, and he
_ believes that, and that’s very helpful and
strengthens hima lot.’
However, despite the brave face
shown by the prisoner, Virginia Peniten-
tiary officials were wondering, based on
statements to the media, whether Whit-
ley might not present problems with the
execution that could only be resolved by
the use of force.
In an interview with the Alexandria
Journal he had said: ‘‘It’s not going to be
easy for them to get me in there (the
chair). I’m not just going to walk to it and
say, ‘Yeah, here 1am. It’s me.’ "Course,
(laughs) it depends on how big they are
when they come in.. The only way I’d
- walk to it is if they blindfolded me. Other
than that, I ain’t going to walk to it.”’ -
Whitley also had repeatedly said he
did: not want to wear the. helmet-like
mask placed over the face of a prisoner
being executed. The mask is designed in
part to keep the witnesses to the execu-
tion from becoming uncomfortable.
Wearing the mask is mandatory, howev-
er.
Finally, with all appeals. exhausted
and the governor having made it clear he.
would not intervene by granting
last-minute clemency, the awesome
-_death-work began. |
Whitley was given a last meal of
steak, salad, pie ala mode and coffee. At
‘11 p:m., he was led to the electric chair
without incident and without making a
final statement. The current was applied
and he was pronounced dead at 1: mee
p.m.
tion was relieved he had gone to his death
without making a fuss. And, as in past.
executions, rival crowds of protesters
showed up outside the brick-walled pris-
on. On one side were about 100 an-
ti-death penalty demonstrators. On the
other was a like number who jeered at the '
death penalty opponents. Ki
A Public Service of
& The Adve
‘Everyone connected with the execu-
a OCA 90064. Copyright 1987 Mat
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acute tt
“Richard: a WHITLEY, Appellant,
Toni: v. guts gest Rrasiclonbure:
Correctional Center, Benellg’
No, 85-4005.
United: States Court of Appeals,
Fourth. Circuit.
Argued April 8, 1986.
Decided Oct. 6, 1986.
US Stenreme Corer? afer (Cal cert
On 3+ 30;> PTs
ex Set- for 7-&
State prisoner under sentence of ae
for murder petitioned for writ of habeas
corpus. The United States District Court
for the Eastern District of Virginia, Rich-
ard L. Williams, J., denied the writ, and he
appealed. The Court of Appeals, Widener,
Circuit Judge, held that: (1) there was no
prejudice to prisoner’as a result of his trial
counsel’s alleged failure to adequately in-
vestigate mitigating circumstances to
present to.jury: during sentence phase. of
trial, and (2) prisoner’s failure to appeal
claims disposed ‘of by state habeas court
constituted a procedural bar. to further. fed-
eral review. of such acai
Affirmed. °
1. Criminal Law e641. 131)
Test. for ineffective assistance of coun-
sel requires defendant to show that counsel
was deficient by identifying acts or omis-
sions that were not the result of reasonable
professional: judgment; indulging a strong
presumption‘ that counsel’s conduct falls
within wide range of reasonable profession-
al assistance, district court must. then de-
termine whether, in light of all circum-—
stances, viewed as‘ of time ‘of counsel’s
conduct and not through hindsight, defend-
ant carried his. burden. of ,showing that
counsel’s acts. or omissions: fell ‘outside
range of reasonably competent assistance..
*Due to ‘the’ plethora. of claims that Whitley
‘ raised‘ in the’ various’ proceedings: here in-
~ volved, our rulings with regard to the procedur-
“WHITLEY v. BAIR ©
Cite as 802 F.2d 1487 (4th Cir. 1986)
- 2. Criminal Law ¢641.13(1)
Wal
1487
If counsel’s performance was outside
range of competence demanded of attor-
neys in criminal cases, defendant must then
establish that any deficiencies in counsel’s
performance were actually prejudicial to
the defense; such a showing requires de-
fendant to establish that there is a reason-
able probability that, but for counsel’s un-
professional errors, result of proceeding
would have been different.
3. Criminal Law €641.13(7)
If defendant challenges a death sen-
-7 tence on ground of ineffective assistance of
geese defendant must show that there is
a reasonable probability that absent coun-
sel’s errors, the sentencer, including an ap-
pellate court to extent. that it may weigh
evidence, would have concluded that bal-
ance of aggravating and mitigating circum-
stances did not warrant earpqaition of death
sentence.” i
4. Criminal Law ¢641.13(7)
There was no prejudice to defendant as
result of his attorneys’ allegedly deficient
performance in presentation of mitigating
testimony. during sentencing phase of his
capital murder: trial; negative aspects of
_ testimony that defendant contended his tri-
al counsel failed to present far outweighed
any possible mitigating effect.
5. Habeas Corpus €>45.3(4)
Habeas. corpus petitioner’s failure. to
appeal claims disposed of by state habeas
court constituted procedural bar to further
federal review of such claims.
Timothy M. Kaine (Little, Parsley & Clu-
verius, on brief) and Thomas M. Wolf (Mez-
zullo, McCandlish*& Framme, Richmond,
Va., on brief) for appellant.
‘Richard B. Smith, Asst. Atty. Gen. (Mary
Sue Terry,’ Atty. Gen. of Va., Richmond,
Va., on:brief), for appellee.
Before WINTER, Chief Judge, and WID-
ENER and SPROUSE, Circuit Judges.*
al default issue raised in this appeal are neces-
_ sarily complicated. Consequently, for eas-
ier reading, the reader is advised first to
1488 802 FEDERAL REPORTER, 2d SERIES
WIDENER, Circuit Judge:
Richard Lee Whitley, under sentence of
death for the murder of Phoebe Parsons on
July 25, 1980, appeals from the dismissal of
his petition for a writ of habeas corpus by
the United States District Court for the
Kastern District of Virginia. We find no
pag in Whitley’s contentions, and we af-
irm.
In its opinion denying Whitley’s direct
appeal, the Virginia Supreme Court fully
summarized the facts, as they were proved
at trial, concerning the brutal murder with
which Whitley was charged and convicted.
See Whitley v. Commonwealth, 223 Va.
66, 70-71, 286 S.E.2d 162, 164-65 (1982).
Consequently, we need not recount those
facts in great detail here. Suffice it to say
that Whitley brutally attacked his neigh-
bor, Phoebe Parsons, age 63, in her home
read footnote 17, in which we set forth
our rulings with regard to that issue item
by item.
1. Whitley raised the following claims in his ap-
peal to the Virginia Supreme Court:
1. That the trial court erred in denying Whit-
ley’s motion to strike the evidence at the close
of the Commonwealth's case-in-chief;
2. That the evidence, viewed in totality,
was insufficient to support the jury’s find-
ing that an intent to steal preceded the murder;
3. That the Commonwealth failed to
prove beyond a reasonable doubt that the kill-
ing was premeditated;
4. That the trial court’s denial of Whit-
ley's motion to strike the capital murder
count was arbitrary and capricious;
5. That the trial court erred in permitting
the Commonwealth to introduce and com-
ment on a photograph of the victim;
6. That the Commonwealth's Attorney
made improper and prejudicial closing re-
marks to the jury during the guilt phase
of Whitley's trial;
7. That the Commonwealth's attempted in-
troduction into evidence of Whitley's al-
leged misconduct with his stepdaughter de-
prived him of his state and federal rights to
a fair trial and due process of law;
8. That the Virginia capital murder statute
is unconstitutional on its face, denies Whit-
ley due process of law and a fair trial,
and subjects him to cruel and unusual punish-
ment; ‘
9. That the Virginia capital murder statute
is unconstitutional as applied to Whitley, de-
nies him due process of law, and subjects him
to cruel and unusual punishment;
in Fairfax County, Virginia. He first
strangled Mrs. Parsons with his hands, and
then with a rope; he next cut her throat
with his pocket knife; and then, while the
victim was near death, or immediately
thereafter, Whitley sexually abused her
with two umbrellas. The evidence also
showed that Whitley on that occasion
robbed Mrs. Parsons of various items.
In a bifurcated trial in the Circuit Court
of Fairfax County, a jury convicted Whitley
of capital murder in the commission of a
robbery, while armed with a deadly weap-
on. See VA.CODE § 18.2-31(d) (1982).
The jury fixed Whitley’s punishment at
- death. The Virginia Supreme Court af-
firmed both the conviction and the sentence
in Whitley v. Commonwealth, 223 Va. 66,
286 S.E.2d 162 (1982).!. The Supreme Court
subsequently denied Whitley’s petition for
10. That the trial judge erred in affirm-
ing Whitley's death sentence;
11. That the jury imposed the death sen-
tence under the influence of passion, preju-
dice, and other arbitrary factors;
12. That the death sentence in Whitley's
case was excessive and disproportionate to
the penalties imposed in other, similar
cases; and,
13. That the jury was not instructed that
the term “aggravated battery,” as used in
the Virginia capital murder statute, is a bat-
tery which, qualitatively and quantitatively,
is more culpable than the minimum neces-
sary to accomplish an act of murder. (Whit-
ley raised this issue for the first time in
his reply brief).
The Virginia Supreme Court disposed of each
of these claims on their merits, except for Whit-
ley’s claim that the Commonwealth's Attor-
ney made improper and prejudicial closing re-
marks to the jury during the guilt phase
of Whitley's trial and his claim that the jury
was not completely instructed on the defini-
tion of aggravated battery. See Whitley v. Com-
monwealth, 223 Va. at 72-82, 286 S.E.2d
162. Although the Virginia Supreme Court not-
ed its inclination to rule against Whitley on
the merits of his prejudicial closing re-
marks claim, the court concluded that due
to Whitley's failure to object to the alleg-
edly prejudicial remarks at the time they oc-
curred, Virginia's contemporaneous objec-
_ tion rule precluded a ruling on the merits
on that issue. Jd. at 76, 286 S.E.2d 162.
With regard to Whitley's claim concerning
the aggravated battery instruction, the
court held that it would not notice a non-juris-
dictional question raised for the first time in
Ca 4
WHITLEY v. BAIR 1489
Cite as 802 F.2d 1487 (4th Cir. 1986)
a writ of certiorari. Whitley v. Virginia,
459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148
(1982).
a reply brief filed in that court. Id. at 79 n.
2, 286 S.E.2d 162 (citing VA.S.CT.R. 5:21).
2. Whitley's petition for state habeas corpus in-
corporated many of the claims that he had pre-
viously raised in his direct appeal to the Virgin-
ia Supreme Court, including the following:
1. That the Virginia capital murder statute
is unconstitutional on its face;
2. That the Virginia capital murder statute
is unconstitutional as applied to Whitley;
3. That the trial court committed preju-
dicial error that deprived Whitley of due pro-
cess of law by permitting the introduction
of and comment upon a photograph of the vic-
tim; :
4. That the Commonwealth's attempted in-
troduction of evidence concerning Whitley's al-
leged sexual improprieties with his stepdaugh-
ter deprived Whitley of due process of law;
.5. That the Commonwealth’s Attorney
made improper’ and prejudicial remarks to
the jury during closing argument in the
guilt phase of Whitley's trial;
6. That the trial court arbitrarily and capri-
ciously denied Whitley's motion to strike
the evidence by prejudging the merits of
the motion;
7. That the trial court committed preju-
dicial error in denying Whitley's motion
to strike the evidence;
8 That the trial court erred in submit-
ting the case to the jury on the issue of capi-
tal murder because there was insufficient evi-
dence to indicate that the killing was premedi-
tated; and,
9. That the trial court erred in submit-
ting the case to the jury on the issue of capi-
tal murder because there was insufficient evi-
dence to indicate that Whitley formed an in-
tent to steal prior to the murder.
Whitley also included in his state habeas cor-
pus petition numerous claims that he had
not previously raised either at trial or on di-
rect appeal, including the following:
10. That Whitley was denied the assist-
ance of counsel without a valid waiver of
same both when he was custodially interroga-
ted in. Florida and Virginia and when he
waived his right to an extradition hearing
from Florida to Virginia;
11. That Whitley was not afforded reason-
ably effective representation by his trial coun-
sel at the guilt phase of his trial;
12. That Whitley was not afforded reason-
ably effective representation by his trial coun- .
sel at the sentencing phase of Whitley's trial;
13. That the trial court committed preju-
dicial error, thereby depriving Whitley of
due process of law, by permitting several ju-
On May 27, 1983, Whitley filed a petition
for a writ of habeas corpus in the Circuit
Court of Fairfax County.? The circuit
rors to serve despite their alleged bias
against Whitley or for the Commonwealth;
14. That the trial court committed preju-
dicial error, thereby depriving Whitley of
due process of law, by prematurely exclud-
ing for cause several jurors who gave equivo-
cal answers concerning their readiness to im-
pose the death penalty;
15. That the trial court committed preju-
dicial error, thereby depriving Whitley of
due process of law, by admitting into evi-
dence in the guilt phase of Whitley's trial Whit-
ley's allegedly involuntary custodial statements;
16. That the trial court committed preju-
dicial _ error,’ thereby» depriving Whitley of
due process of law, by permitting the Common-
wealth in the guilt phase of Whitley's trial
to reopen its direct examination of Officer Jack-
son without first seeking leave of the court;
17. That the trial court committed preju-
dicial error, thereby depriving Whitley of
due process of law, by permitting the Common-
wealth in: the guilt phase of Whitley's trial
to exceed the scope of cross-examination of In-
vestigator Sutherland;
18. That the trial court committed preju-
dicial error, thereby depriving Whitley of
due process of law, by permitting the introduc-
tion of Whitley's allegedly involuntary custodi-
al statements during the sentencing phase
of Whitley's trial;
19. That the Commonwealth's ’ Attor-
ney made. improper and prejudicial re-
marks during the sentencing phase of Whit-
ley’s trial;
20. That the trial court erred in submit-
ting the case to the jury on the issue of capi-
tal murder, thereby depriving Whitley of
due process of law, because there was insuffi-
cient evidence to indicate that Whitley act-
ed with malice in killing Mrs. Parsons;
21. That the trial court deprived Whitley
of due process of law ‘by failing to instruct
the jury during the guilt phase of Whitley's tri-
al that in order to find Whitley guilty of mur-
der in the course of a robbery, they would
have to find that Whitley formed the intent
to steal prior to the killing;
22. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury at the guilt phase of Whitley's trial
that the Commonwealth had to prove Whit-
ley’s guilt of murder during the commission of
a robbery, to the exclusion of every reason-
able hypothesis inconsistent with guilt, be-
yond a reasonable doubt on every element
of the offense charged;
23. That the trial court deprived Whitley
of due process of law by instructing the jury
on the issue. of “capital murder” at the
guilt phase of Whitley's trial, without fur-
1490 802 FEDERAL REPORTER, 2d SERIES
court dismissed the majority of Whitley’s
claims due to his failure to raise them at
trial or on direct appeal.? On August 27,
1984, following an evidentiary hearing on
ther explanation that the jury was not to
pass judgment on the issue of punishment;
24. That the trial court deprived. Whitley
of due process of law by failing to instruct
the jury during the guilt phase of Whitley’s tri-
al that the term “aggravated battery” as used
in the Virginia capital murder statute
- Means severe physical abuse of the victim be-
fore death;
25. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury during the guilt phase of Whitley's tri-
al that the term “aggravated battery” as used
in the Virginia capital murder statute is a “bat-
tery” which, qualitatively ‘and quantitatively,
is more culpable than the minimum neces-
_ Sary to accomplish the act of murder (Whit-
ley raised this issue in his reply brief on di-
rect appeal and the Virginia Supreme
Court refused to consider it);
26. That the trial court deprived Whitley
of due process of law by sustaining the Com-
monwealth’s objection to Whitley's proposed in-
struction on grand larceny as a lesser includ-
ed offense of capital murder during the com-
mission of a robbery (Whitley raised this
claim at trial, but not on direct appeal);
27. That the trial court deprived Whitley
of due process of law by erroneously instruct-
ing the jury during the guilt phase of Whit-
ley’s trial as to the malice component of
the Virginia capital murder Statute;
28. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury during the sentencing phase of Whit-
ley’s trial concerning the torture component
of the Virginia capital murder Statute;
29. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury during the sentencing phase of Whit-
ley’s trial on the factors that it should consid-
€r as circumstances in mitigation of the
death penalty;
30. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury during the sentencing phase of Whit-
ley’s trial that they could sentence Whitley
to life imprisonment rather than death for
any reason or for no reason;
31. That the trial court deprived Whitley
of due process of law by failing to instruct
the jury during the sentencing phase of Whit-
ley's trial that they could find the battery to
be aggravated for purposes of the Virginia capi-
tal murder statute only if they found that
the victim was still alive when the alleged bat-
tery occurred;
32. That the trial court deprived Whitley
of due process of law by permitting the
State psychologist to testify during the sentenc-
certain of the issues,‘ the circuit court dis-
missed in its entirety Whitley’s petition for
a writ of habeas corpus. :
ing phase of Whitley's trial despite the fact
that the psychologist's testimony was based
in large part on Whitley's own statements;
33. That the trial court deprived Whitley
of due process of law by permitting the Com-
monwealth’s Attorney to exceed the scope
of direct examination during his cross-examina-
tion of the state psychologist during the sentenc-
ing phase of Whitley’s trial;
34. That the trial court deprived Whitley
of due process of law by failing to deter-
mine adequately Whitley's competency, legal ca-
pacity, or mental abnormality;
35. That the trial court deprived Whitley
of due process of law by failing to pro-
vide Whitley with state-paid expert witnesses,
an investigator to aid in the preparation of tri-
al, or a mental examination on the question
of Whitley's sexual psychopathy;
36. That the trial court deprived Whitley
of his constitutional rights by subjecting Whit-
ley to an involuntary mental competency exami-
nation and permitting use of the results of
that examination against. Whitley during
the sentencing phase of Whitley’s trial; and,
37. That execution by electrocution is cru.
el and unusual punishment.
For a discussion of the circuit court’s disposi-
tion of these claims, see note 3, infra.
For purposes of clarity, this opinion will re-
fer to Whitley's claims by the numbers as-
signed to them in this footnote.
3. Of the thirty-seven claims that Whitley
raised in his state habeas corpus petition,
the circuit court considered only eight on
their merits. Those claims that the circuit
court considered on their merits includ-
ed claims 1, 2, 3, 6, 7, 11, 12 & 37. See note
2, supra. The circuit court considered the
rest of Whitley’s claims to be barred under
the Virginia procedural default doctrine
set forth in Slayton. v. Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974), cert. denied, 419
U.S. 1108, 95-S.Ct. 780, 42 L.Ed.2d 804 (1975).
4. The circuit court granted an evidentiary hear-
ing on four of Whitley’s allegations relating
to Whitley's claim that he did not receive rea.
sonably effective assistance of counsel.
These four allegations included the claims
that Whitley’s trial counsel: (1) failed to inter-
view Whitley adequately; (2) failed to make
an independent investigation into mitigat-
ing factors and psychiatric evidence during
the sentencing phase of Whitley's trial;
(3) failed to investigate and pursue mitigat-
ing evidence for the sentencing phase of Whit-
ley’s trial; and, (4) was ineffective at Whit-
ley's sentencing hearing.
WHITLEY v. BAIR 1491
Cite as 802 F.2d 1487 (4th Cir. 1986)
On appeal from this dismissal of his state
habeas corpus petition, Whitley raised only
two issues in the Virginia Supreme Court;
(1) whether the circuit court erred in dis-
missing Whitley’s claim that his trial coun-
sel had failed to conduct adequate voir dire
of the jury; and, (2) whether the ‘circuit
court erred in finding that Whitley’s trial
counsel was not ineffective during the sen-
tencing phase of Whitley’s trial in failing to
investigate and present available evienie
in mitigation of the death penalty. On
April 16, 1985, the Virginia Supreme Court,
in a-brief opinion, refused Whitley’s peti-
- tion for -appeal, finding that the circuit
court had committed no reversible error.
See Whitley v. Bass, No. 84-1767 (V: a. Apr.
16, 1985) (citing Wainwright v. Witt, 469
U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841
(U.S. Jan. 21, 1985), and Strickland v.
Washington, 466 U.S. 668, 691, 104 S.Ct.
2052, 2066-67, 80 L.Ed. 674 (1984)); see
also note 24 infra. The US. Supreme
Court subsequently denied Whitley’s peti-
tion for a writ of certiorari on November
12, 1985. Whitley v. Bair, — US. —,
106 S.Ct. 398, 88 L.Ed.2d 350 (U.S. Nov. 12,
1985).
On November 27, 1985, Whitley filed a
petition for a writ of habeas corpus in the
USS. District Court for the Eastern District
of Virginia. In this petition, Whitley rer-
aised nineteen of the claims that he had
previously raised in his state habeas corpus
petition. The district court concluded that
the majority of Whitley’s claims were not
5. The circuit court had disposed of each of
these claims on their merits.
6. The claims that Whitley raised in his feder-
al habeas corpus petition included claims 1, 2,
3, 5, 10, 11, 12, 14, 15, 18, 24, 25, 27, 28, 29,
30, 31, 32 & 35 from Whitley's state habe-
as corpus petition. See note 2, supra.
7. The district court considered Whitley to
have defaulted on fourteen of his _nine-
teen claims. Those claims on which the _
trict court considered Whitley to have default-
ed included claims 5, 10, 14, 15, 18, 24,
25, 27-32 & 35 from Whitley's state habeas _
pus petition. See note 2, supra. The dis-
trict court also considered Whitley to have 4
cedurally defaulted, in part, on claim
from his state habeas petition.
cognizable in federal court because Whitley
had procedurally defaulted on the claims
either at the trial level, on direct appeal, or
in his state habeas corpus action... The
district court held, therefore, that under
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977), Whitley’s pro-
cedural defaults in the state proceedings
were a procedural bar to consideration, in
the subsequent federal habeas corpus pro-
ceeding, of those claims on which he had
defaulted.”
The district court considered five of
itley’s claims on the merits, primary
Meee thas being Whitley’s claim that his
court-appointed trial counsel violated Whit-
ley’s right to reasonably effective assist-
ance of counsel by failing es atid to
investigate, prepare, present, an argue ev-
idence st he sentencing phase of Whitley’s
trial. On this claim, the district court, on
the same record as was in the state circuit
court and without another evidentiary hear-
ing, did not accept the state court finding
and ruled that Whitley’s trial attorney’s
performance during the sentencing phase
of Whitley’s trial was outside the range of
competence required of attorneys in capital
cases. Nevertheless, applying the two-part
test that the Supreme Court enunciated in
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the
district court held that his attorneys’ errors
in the case were not sufficiently prejudicial
to Whitley’s defense to warrant granting
8 The other four claims that the ye
court considered on the merits includ
claims that: (1) Whitley’s trial counsel failed
to conduct adequate voir dire with regard
to certain jurors’ hesitancy to apply vi
death penalty (claim 11); (2) the tri
court erred in permitting the poplin
of photographs showing the physical abuse
of the victim (claim 3); (3) Virginia's capi-
tal murder statute is unconstitutional on its
face (claim 1); and, (4) Virginia's capital ow
der statute is unconstitutional as _ applies
to Whitley because there was insufficient evi-
dence to establish that Mrs. Parsons | was
the victim of an “aggravated battery,” or
that Whitley had an intent to steal when
he killed Mrs. Parsons (claim 2). :
WILCHER, (WILSHIRE), William’ E.j haneed at Lexington, Va., on August 3, 1906.
"The execution of William E. Wilcher for the murder of Henry J. Smith took place in‘ the rear
yard of the Lexington jail early last Friday morning, August 8rd. Twenty-five or thirty
witnesses were present, including officers of the court, a minister, newspaper represen-
tatives and others. This was the first hanging of a white man ever to occur in Rockbridge,
and the execution was impressive and awful beyond the power of description, Brave men stood
with bated breath and witnessed the tragic ending of a young life in expiation of crimes
The most self-possessed and least affected person in the entire group was the victim himself,
who met his doom with a smile on his face and with a composure that challenged imagination,
Sheriff R. L. Morrison adnitted several’ newspapermento the prisoner's cell at 6 d'€lok, Wile
cher greeted his visitors witha pleasant ‘salutation and appeared cheerful and hopeful, He
spoke without emotion of his impending doom and expressed his uhmost confidence in the pros-
pect of happiness of the life beyond. Sheriff Morrison and Jailor Jackson soon entered and
the former at once read the death warrant to theprisoner, who listened without visible emo-
tion to the stern words of his awful fate, The steel cage was at once unlocked, the priso-
ner's Hands bound to his side, and he was led to the gallows, Rev. Dr. Charles Manly,, pas-
tor of the Lexington Baptist Church, Wilcher's spiritual advisor, joined them at thejail
door and together they ascended the scaffold at 6:10 o'clock, Wilcher walked with a steady
tread, appeared calm and unafraid, Dr. Manly read several selections from the Scripture ‘and
offered an earnest and sympathetic prayer in behalf of the condemned man. While this service
was being held Wilcher stood facting the northeast and within the range of his vision there
lay spread out a landscape of surpassing beauty, hill and valley clothed in the rich verdure
of midsummer, and encircled in the distance by the blue mountairis. Several times the unfor-
tunate man raised his eyes and his attitide impliedthat he was praying, The four men stande
ing on the platform which wasteen feet square and fifteen feet high, presented a tableau that
will not soon be forghtten by those who witnessed it. Wilcher was the central figure. He was
a very young man, just entered his 23rd year, about five feet seven inches tall, and weighed
about 175 pounds. He appeared stpong, muscular and full of vitality. He wore a new suit of
black cloth, which was the gift of sympathetic friends, ‘hen Sheriff Morrison asked the pri-«
soner if he had any statement he wished to make, he replied in a steady and distinct voice
that he had not. Dr. Manly then mid that Wilcher had made a statement to him the previous
afternoon, in the pres&nce of Jailor Jackson, which Dr. Manly then read. Following this, Mr.
Morrison placed the black cap on the prisoner's head and the rope around hisneck, The trap
was sprung by Deputy Sheriff J, L. Barker, “As the heavy body shot throuzh the trap door at
6:22 o'clock, Wilcher's neck was broken, and not a muscle moved, not a tremor of the body.
Drs. Reid White and J. H, Laird examined the body, and pronounced life extinct at 1) mins.
after the drop, but the body was left hanging until 7 o'clock, when it was taken down and
removed to the undertaking establishment of Varner, ‘Pole & Co., where it was prepared for
burial, which took place at the old Methodist Church at Rockbridge Baths, Saturday ffternoon, ©
A song service was held at the grave by the ladies of that community, followed by prayer by
Rev. We E Miller, pastor of the methodist church, Wilcher rested well the nicht previous
to his execution, A number of his friends‘and relatives visited the cell and bade him goode-
bye, and a sone service was held‘for his benefit, He went to bed shortly after 11 o'chaok
and got up Friday mornins about 5 o'clotk,* Just before his execution he ate breakfast with
a relish, and afterwards indulged in his accustomed smoke, During his incarceration, both
before and after his conviction, but especially subsequent to his sentence of death, ‘Wilcher
was visited by a number of Christian men*’and women of the community, who were interested in
his spiritual welfare. As a result of théseministrations Wilcher made a profession of reli-
gion, and those who were in close touch with him said they were satisfied of the soundness of
his conversion, He lost no opportunity to stating to visitors to his cell that he was a
changed man, and that he had confidence in his ultimate salvation « Se repeatedly said he
longed for the time to come when his exedution would take place, The place of execution was
an enclosure in the rear jail yard, about 25 feet square, and covered with white cotton cloth,
The court officials present besides t e sheriffs were Commonwealth's Attorney D, E, Moore,
Clerk A. T. Shields, and Deputy R, C. Walker. A number of‘guards were ple ced in the: enclos-
ure and in the jail yard in order to prevent any disturbance, There was no indication of any
trouble, ho@ever. The rope used was borrowed from Amherst County and had seen service twice
nce HISTORY OF THE CRIME
"HIS TO} F THE Ct °
"The shooting of Henry J, Smith at his home on Walker's Creck, Saturday night, Febe 2hy 1900,
by Wilcher, his trial and conviction, are matters of recent happening and are familiar to
all our readers. It will be recalled that Wilcher had a grievance against Smith, on account
[Lanes enemsen heen te,
of what he considered Smith's interference with his love affairs. /\hile in jail here he said
that Smith had come between him and‘’several women, At any rat® he coficeived that Smith was
his enemy, and his subsequent actions led one to believe that he attempted to get rid of this
enemy, On the night of the mrder Wilcher went to the home offSmith and tried to induce Smith
to go hunting with him, On Smith's refusal, after sharp words.about a young woman, Wilcher
fired the fatal shot that killed Smith, He then went to a nearby store and boasted of his
crime, saying that he had several balls left for somebody else, and if anyone inthe store
wanted to M&KMAXKA ‘shuffle off this mortal coil,’ he would gladly help then start on that
journey from whose bourne no traveller returns. It wasevident thatvilcher was drinking.
He afterwards said that he had taken several drinks of 'moonshine' and other drinks of win8,
The only 3 witnesses to the tragedy were Wilcher, Mrs, Smith, wife of the mardered man, and
Harrison Hall, aged 1 years, brother of Mrs, Smith, After a preliminary hearing before
Magistrate Bolen, Wilcher was brought to jail in Lexington, He was indicted for murder by
the grand jury, and his trial set for the pril term of the Circuit Court. At the opening
of the April Court, on the day set for ilcher's trial, there was a large crowd of men and
women from the vicinity of Walker's ‘Creek, attracted to Lexington by their interest in this
casée On account of a technicality, the case was postponed to the June term of court, The
Walker's Creck people and othersthroughout the county were greatly disappointed at the
postponement, and many thought it was only a subterfuge in order to gain time for thepriso-=
ner, At the opening of the June Court, interest in the trial ran high, and a larger crowd
was attracted to lexington from Walker's Creek than in April, the number being estimated at
fully three hundred, A rumor was current at the time that serious trouble méght be expected
should Wilcher not be found guilty of the murder, The trial extended through the week, and
many witnesses were examined, An able defense was put up for theprisoner, but the jury
on Thursday, June lth, brought in a verdict in 22 minutes after retiring of murder in the
lst degree, Judge Letcher on the following Satruday pronounced sentence of death upon Wil-
cher and fixed Friday, August 3rd, between 6 o'clock aem, and 6 o'clock pem, for execution,
The prisoner received the death sentence without any unusual expression of fear or dread,
but presented the same stolidity and indifference that characterized him during the trial.
After the sentene, Sheriff Morrison and Jailor Jackson ‘escorted theprisoner ‘back to the
jail, and he was confined in one of the steel cages. Ke never left his cell until the
morning of his execution, Wilcher was born and srew to manhood on Kerr's Creek, ut for
bhe past three years he mde his home on Walker's Creek, He was a son ‘of the late Thomas
Wilcher. He had few advantages in early life, and in consequence he grew up without re=-
straint, with a bent for idle and vicious habits, He coveted the distinction of being
recognized as a bully in his community, and when urider influerice of liquor, which wasfre-
quent, he wasregarded as a dangerousman, He is survived by his widowedmother and three
bpothers and threesisters, During the closing weeks of his imprisoriment his cell was never
without flowers and religious Titerature, and often delicacies to cat, whtth were furnished
by sympathetic women of the community, who desired toe xpress in this way their interest in
his spiritual welfare.
"WILCHER'S SI ATEMENT
"In addition to the written confession of “filcher, made shortly after he was convicted of
murder, the followine statement was made [hursday afternoon, the day previous to the execution,
in the presence of Dr. Charles Manly and Yailor J, Ae Jackson: 'I heartily acknowledze that
I am cuilty of the crime for which I am condemred to death and that the penalty is just.
I beg all my friends and my people that they will let all sorbsof licuor alone; it had a great
deal to do in bringing me to my crime and to my end, I have‘earnestly repented of all my sins
and sought salvation through the Lord Jesus Christ, the Saviour of sinners, I commit my soul
to him, and I have found peace in believing in hin, I have no unkind feelings for anybody.
I pray for everybody. I beg forgiveneess of any ahd all that 1 have wronged, as I am sure that
I have forgiven everybody, I pray that all will love and serve God and turn’ from all sin;
that all may be saved through Christ. JI am very thankful to any and all who have been kind
to me, 1 will pray for everyone of them to the last, I am thankful to the Lord that he sent
so many kind frends to me, God bléss and bet with them all to the last,'" LEXINGTON
GAZEITE, Lexington, Va, August 8, 1906, .
T/MES~ DISPATCH, Kehuercl, (6, $5 ¢-/906 (G2
the, A
g * e
“
\
Slave WHITT
Whitt, a negro slave, convicted Brunswick Co,
Va. Court on January 22, 1787, property of
Hinchin Mabry. Valued at 160 pounds. "Slave
execution" noted on certificate of general
fund payment, ESESBESGERSSE5 Nov, 13, 17__
(left blank, ) Item
State Archives, Box 1, BREE 153, Env. 5.
Case not Found
56 ‘" | g93 FEDERAL REPORTER, 2d SERIES
No. 85-0655-R (E.D.Va.1986), the perform-
ance of Whitley’s attorneys in his state
habeas petition should be judged by the
constitutional standard of ineffectiveness
of counsel. Giarratano, which is now on
appeal and not yet argued, held that, in
order to provide prisoners under a death
sentence with equal access to the ‘courts,
the Commonwealth had to see to the ap-
pointment of an attorney before a habeas
corpus petition was filed for such a prison-
er rather than after the filing of a petition
as was the practice. The argument goes
that since there is a constitutional right to
have an attorney appointed in a state habe-
as corpus proceeding, then that attorney’s
performance must be judged by constitu-
tional standards. Giarratano was decided
December 18, 1986. On May 18, 1987, the
Supreme Court decided Pennsylvania v.
Finley, — U.S. —, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987). In that case, the Su-
preme Court decided that an attorney who
was appointed in Finley’s state collateral
review case did not have to meet the stan-
dards of Anders v. California, 386 U.S.
738, 87 S.Ct. 1896, 18 L.Ed.2d 493 (1967), a
constitutional standard, because the prison-
er had no constitutional right to an appoint-
ed attorney in the state collateral review
proceeding. Finley forecloses Whitley’s
contention on appeal.
The district court dismissed the instant
habeas petition under Finley and correctly
noted that Smith v. Murray had held that
the standards for procedural default are
not different in capital and non-capital
eases. Smith v. Murray, — US. —,
—, 106 S.Ct. 2661, 2667-69, 91 L.Ed.2d
434 (1986).
We also note that the real question in
this case is the effectiveness of Whitley’s
trial counsel at the sentencing hearing.
This question has been examined on the
merits in the state habeas proceeding as
well as in the previous federal proceeding
reported in our court at 802 F.2d 1487.
Counsel’s performance was held to be not
ineffective.
We add that we are of opinion that any
constitutional violation which may have
been procedurally defaulted has not result-
ed “in the conviction of one who is actually
innocent,” Murray v. Carrier, — US.
—, —, 106 S.Ct. 2639, 2650, 91 L.Ed.2d
427 (1986), and are further of opinion that
any refusal to consider Whitley’s defaulted
claims on their merits does not carry with
it the risk of a manifest miscarriage of
justice. Smith v. Murray, — U.S. —,
——, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434
(1986). |
A certificate of probable cause is
GRANTED.
The application for a stay of execution is
DENIED.
The judgment of the district court is
AFFIRMED.
Let the mandate issue forthwith.
O EKEY NUMBER SYSTEM
sqyms
Joseph R. HOLMAN; Dottie Holman, on
their own behalf and on behalf of all
others similarly situated, Plaintiffs-Ap-
pellants,
V.
John R. BLOCK, individually and in his
official capacity, Secretary of the Unit-
ed States Department of Agriculture;
Phillip J. Kirk, Jr., individually and in
his official capacity, Secretary of the
North Carolina Department of Human
Resources, Defendants-Appellees,
Andrea Lambertson, Director, Depart-
ment of Division of Social Services,
Ashe Co., Defendant.
No. 86-2615.
United States Court of Appeals,
Fourth Circuit.
Argued March 38, 1987.
Decided July 18, 1987.
Food stamp recipients brought action
alleging that three-week interruption of
ONE SLAVE
Meat ea
A slave was KAKAER in Noffolk Co., Vasey 3-17-17h4, for
unspecified felony, Ltr, Dtd, 3-27-1985 from PRiLip
Schwartz, Vs. Com. Un. His sources: Noffolk County_
Minute Book, 17)3-L76, at date, and Sept. 1, 17h, at
dates
According to ltr. dtd, 9-23-1985, from Shwartz, he was
owned by Richard Randolph and his name was William.
uation X30. felony unspecttied but it must have
8 an aggravated id SLES his execution was icibi ,
to fake place within 24 hours of sentence. His rig n
Tom, itkewise romptly executed, was condemned tor rape.
So William was probably an accomplice .
Slave W ILLIAM
Frederick County, Va., Court of Oyer & Terminer,
August 3, 1796, William a negro boy slave of
Rawleigh Cokston, between 13 and 14 years of
age, was convicted of arson and sentenced to be
hanged on September 16, 1796. Valued at 70 lbs,
Dep. Sh. Griffin Tay@ar certified hanging.
Archives of Va., Auditor's Records, Item 153,
Box 1, 1797 envelope.
Box 16, Exec. fapers of Gov.
Bred ls master’s Fouse. 13 yours old.
WILLIAM, Slave, hanged Gloucester CH, VA, 9-16-18),8,,,
lets = ee
8-/2-1848 AA Virginia; The negro Bill, whe wurdered far.
Catlett tn Gloucester Co. has been apprehended.
He wiede a voluntary Confession of the murder tnd bf all the details connected
witts 17: He Says he Was sa 79 tt by & Contd ential revelations fo bier by his
boaster to the hrect that hs wiother hid rrade her will béguesthing rer s/aves
bred ober ty hit and thathe Too had prac a will 1 which Fre stf all fhe
Slhves tree, he Bi arnorig the rest. HE SAYS That wher he heard that he was
tobe free athi's your wmaster$ deaths, bi mind became tirfert ar tahtong his
Nfe. He intended to have killed bin fast Xuvs when be had a far gppor tunity
hut his heart failed hin. faster Janes fad trea}ed bins 80 Hiisdly phat bre Could
hot hill but. But the helish esto wes stl chtr/shed in tts hist ard So
bihile he wes tinyployed ashe had Wrtady Stated tn a Stauestered spot, clearing
away brush with Wis Ax, hts master Mtmes Come fo the place where he hits
bt work and after Sone conversation, btisg renucts fretted by bis /tg ttl
tod the warnrty Of the weather, he Trak off his Straw hat and begarr Fo
fan hint! with tt Sener fig ashe Yitrmtd bis bath opr fi07 ps V
waren: At that wamcel a blow fram the aXe cals by the ungpatetal gon-
ster shattered the back of his SMM arid felled bin fo the carth. Two ttt/s
bn the htad bead the Severanet of one of the aru Completed the horrid
butchtry. He had /tid bs plans. it Stid, fo turder bis old mistress 70,
but they héppily failed.
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WILBIAMS, Henry, black, hanged Roanoke, Va., 3-18-190),.
SHIELDS ASSAULT
George Sheilds and family were living in a fram house at 305 on the
west side of lst St. S.W., two doors south of Kirk Avenue (one of the
original Engleby homes).
On Saturday morning, January 30, 1904, Mrs. Shields was at home
alone with her baby girl. Having occasion to visit the kitchen, a negro by
name of Henry Williams, who was hiding in an alcove or pantry, pvounced
upon her, grabbed her throat and threatened that if she made an outcry
he would kill her. shoving Mrs. Shiélds into her dining room, he hit her
over the head with a hatchet. Hearing the child cry, he hit her too-.an the
head. Throwing Mrs. Shields, now in a dazed condition, to the floor he
savegely assaulte@ her. Still holding his victim he repeated the offense,
meanwhile, keeping’ his foot on the child's throat, later she regan conscious-—
ness and cry.
At his demand where valuabes were hidden, Mrs. Shields was too dis-
tressed to answer. ~ Thereupon, William grabbed a poker from the stove,
lifted the child's dress and seared her hips. Shocked by the inhumane
act, Mrs. Shields led Williams to where valuables were kept. He stole an
Old English gold watch, a small lady's hunting case, gold watch and chain,
and a black coat and vest. He repeated an assault on Mrs. Sheilds, cut
her throat and left her in a closet. (Fortunately he did not cut a jugular
vein but injured her voice box). Mr. Shields found his unconscious wife
and child when he returned home. Mrs. Shields was able to give an ac-
count of the affair and a good descrixtion cf her assailant, which was broad-
cast to the public. The search was on.
Respectable negroes of Roanoke met in Barnetts Hall on the Gainesboro
Road, headed by C.A. Brown, Joseph W. Nowlin, Elias Hackley, Albert F.
5rooks, and P.M. Armstrong to deplére the Shields assault and to offer a
reward for the arrest and conviction of the criminal.
The Rev. R.R. Jones of the First Baptist Church, colored, was less
gifted. Making decidedly indiscrett, intemperant, cowardly remarls in
connection with the Shields affair, word leaked out as to his diatribe.
A crowd of around 1,200 white people collected at Henry (lst) Street Bridge.
Ominous murmurs were heard. The hip pockets of many had a suspicious
bulge.
Otficer Patsel recognized the danger in time. Hastening to the church,
he entered to warn Jones, "I am only one man and cannot defend you
even if I did.” Jones then recognized his danger and left forthwin. Patsel
met the mob on the church steps. He appointed a committee of three men
to ascertain Jones was not there. The crowd moved on to Jones' house
on leth St. N.E. to find he had fled. A few shots were fired and a few
palings torn from fences. A delegation visited the jail and armory before
the crowd disversed to go home. It was a trying moment for law and order
in Roanoke.
(An aftermath of this incident was Jones writing to Mayor Cutchin
asking if was safe to return. To this the Mayor replied he would do
+}
wnet he could to protect Jones. The Reverend wanted a "Guarantee" of
4n
Lt nea
z ede}
aah a8
“WILLLAMS , Henry, black, hanged Roanoke, Va., on March 18, 190),
(The following from the book A HISTORY OF THE CITY OF ROANOKE, by Raymond P, Barnes, p 395).
Cat 3? {9 13g, ea | AR OVOVATIT OM
SHIELDS ASSAULT
George JUheilds and family were living in a fram house at 505° on the
weet. side of. 1st 8¢.:5.%.,; two doors south of Kirk Avenue (one of the
original iEngleby homes).
On Saturday morning, January 70, 1904, Mrs. Shields was at home
alune with her baby girl. Havi occasion to visit the kitchen, a negro by
name of Henry Williams, who was hiaing in an alcove or pantry, pounced
upon her, grabbed her throat and threatened that if she made: an outcry
he would kill her. Shoving Mrs. Shielda into her dining room, he hit her
over the head with a hatchet. Hearing the child cry, he hit her too on the
head. . Throwing Mrs. Shields, now in a dazed condition, to the floor he
savegely assaulted her. still holding his victim he repeated the offense,
meanwhile, keeping his foot on the child's throat, later she regan conscious:
ness and cry.
At his demand where valuabes were hidden, Mrs. Shields was too .dis-
tressed to answer. Thereupon, william grabbed a poker from the stove,
lifted the child's dress and seared her hips. shocked by the inhumane
act, Mrs. Shields led Williams to where valuables were kept. He stole an
old Znglish gold watch, a small lady's hunting case, gold watch and chain,
and a black coat and vest. He repeated an assault on Mrs. Sheilds, cut
her throat and left her in a closet. (Fortunately he did not cut 4@ jugular
vein but injured her voice box). Mr. Shields found his unconscious wife
and child when he returned home. Mrs. Shields was able to give an 2c-
count of the affair and a good description of her assailant, which was broad
cast to the public. The search was on.
Respectable negroes of Koanoke inet in 3arnetts Hall on the Gainesborc
Road, headed by C.A. brown, Joseph W. Niowlin, Elias Hackley, Albert fF.
Brooks, and P.M. Armstrong to deplore the Shields assault and to offer a
reward tor the arrest and conviction of the criminal.
The Rev. K.R. Jones of the First Baptist Church, colored, was less
gifted. Making decidedly indiscrett, intemperant, cowardly remaris i
connection with the Shields affair, word leaked out as to his diatribe.
A crowd of around 1,200 white people collected at Henry (lst) Street sridge.
Ominous murmurs were heard. The hip vockets of many had a suspicious
bulge.
Otticer Patsel recognized the @danger in time. Hastening to the church,
he entered to warn Jones, "I am only one man and cannot defend you
even if I did." Jones then recognized his danger and left forthwin. fatsel
met the mob on the church steps. He appointed a committee of three men
to ascertain Jones wus not there. The crowd moved on to Jones' house
on 12th St. N.E. to find he had fled. A few shots were fired and a few
palings torn from fences. 4A delegation visited the jail and armory before
the crowd disversed to go home. It was a trying moment for law and orcer
in hoanoke.
(An aftermath of this inciaent was Jones writing to Mayor Cutchin
asking if wa3 safe to return. To this the Mayor replied ne would do
whet he could to protect Jones. The Reverend wanted a "Guarantee" of
hts
safety. This the Muyor could:not promise for how could an armed
Y
L
escort be provided for one ian, particularly one whose incendinry remarks
Were dangerous. dones sued the Muyor and City sergeant in the Federal
Court with no success.
Judge J. Randolph 3ryan sought to discourage sorry whites
and negroes by threatening to have every loafer in town up on a vagrancy
charge in- hopes that 60 days on the rock pile misht encourage them to
work or leave town).
jgaldwin-felts Detective Agency was alerted that a negro who answered
the descrinction of williams had been trying to sell two gold watches in
Gilliam, west Virginia, e@ small coal town. hele Baldwin and J.D. Copen-
haver took up the trail and found it hot. This pair followed Williams, took
him in tow back to Gilliam. He confessed he had been staying with his
Sister and did have the two watches which were buried. The coat he had
sold to a man in iiorth Fork, West Virginia.
The incriminating evidence uncovered and in their possession, slong
with a written confession by williams that he had hit Mrs. Shields with
the flat of a hatchet and stolen the property, was sufficient. (Williams ad-
mitted he was in the crowd which gathered about the chields house
after the crime was discovered. He then left Roanoke on train No. 3 for
Bluefield).
A special train was chartered which conveyed the criminal and his
armed escort to kichmond where he wes placed in jail overnight. wW.%.
Baldwin, AH. Baldwin, D.O.. Baldwin, T.L.. Felts, L.C. Felts, John D,
Copenhaver, and James O'Conner, detectives heavily armed, accomranied
the prisoner.
The Farmville, Danville, Charlottesville, Alexandria, Ly
were called out vy the Governor (800 men) to sscort Wad uns +
when the train arrived at 8 a.m., 800 glittering oayonets in +
determined men signified that decnite the righteous wrate of Ke
no cne, including self-confessed Henry williams, was to be pun
Out.@ fhoY trial «
A file of eight militamen escorted Williams into Court. Judge Woods
ordered these to retire in the rear of the court room. The trial vroceeded.
To the charge of robvery by violence, in a steady voice williams pleade
not guilty. hot only was the crime proven by cleaver unmisteka» c evidence
but, in addition, it was shown that williams served a two-year sentence
beginning in 1894 for assaulting a man with 2 baseball pst in koanoke.
Found guilty «nd sentenced to hang Friday, March 18, 1904, the fatal
day arrived. sergeant Tillett, having never hanced a man, sought the ad-
vice of other officials in the state whe had. A 5/8 inch rope with a four
foot drop was recommended. On this day about 10 a.n., escorted by Father
Lynch, Williums ascended the scaffold. The trap door was sprung and at
10:28 a.m. he was pronounced dead. Sefore his death he confessed to having
mucdered two women and asszulted several. (Williams was the first of
two criminals lawfully executed in Roanoke).
Mrs. osnields lived on for many years. Her voice was a bit indistinct
due to her injury. Her daughter, the little girl abused by the criminal,
died later of her injuries.
shburg militia
Roancke.
hands of
anokers
ished with-
“O08
>
his safety. This the Mayor could not promise for how could an armed
escort be provided for one man, varticularly one whose incendiary remarks
were dangerous. Jones sued the Mayor and City Sergeant in the Federal
Court with no success.
Judge J. Randolph Bryan sought to discourage sorry whites
and negroes by threatening to have every loafer in town up on a vagrancy
cherge in hopes that 60 days on the rock pile might encourege them to
work or leave town).
sSaldwin-Felts Detective Agency was alerted that a negro who answered
the description of Williams had been trying to sell two gold watches in
Gilliam, West Virginia, a small coal town. W.G. Baldwin and J.D. Coven-
haver took uv the trail and found it hot. This pair followed Williams, took
im in tow back to Gilliam. He confessed he had been staying with his
sister and did have the two watches which were buried. The coat he had
sold to a man in North Fork, West Virginia,
The incriminating evidence uncovered and in their possession, along
with a written confession by Williams that he had hit Mrs. Shields with |
the flat of a hatchet and stolen the property, was sufficient. (Williams ad-
mitted he was in the crowd which gathered about the Shields house
after the crime was discovered. He then left Roanoke on train No. 3 for
3luefield).
A special train was chartered which conveyed the criminal and his
armed cscort to Richmond where he wes placed in jail overnight. W.G.
Baldwin, AvH.: Baldwin, D.O. Baldwin,:7T.b.Pelts; L.¢. relts, John D.
Covenhaver, and James O'Conner, detectives heavily armed, accompanied
the prisoner.
The Farmville, Danville, Charlottesville, Alexandria, Lynchburg militia
were called out by the Governor (800 men) to escort Williams to Roanoke.
when the train arrived at 8 a.m., 800 glittering oayonets in the hands of
determined men signified that desvite the righteous wrate of Roanokers
no one, including self-confessed Henry Williams, was to be punished with-
out a fair trial.
A file of eight militamen escorted Williams into Court. Judge Woods
ordered these to retire in the rear of the court room. The trial vroceeded.
To the charge of roboery by violence, in a steady voice williams pleade
not guilty. Not only was the crime proven by cleaver unmistakable evidence
out, in addition, it was shown that Williams served a two-year sentence
beginning in 1894 for assaulting a man with a baseball bat in Roanoke.
Found guilty and sentenced to hang Friday, March 18, 1904, the fatal
day arrived. Sergeant Tillett, having never hanged a man, sought the ad-
“Vice of other officials in the state who had. A 5/8 inch rope with a four
foot drop was recommended. On this day about 10 a.m., escorted by Father
synch, Williams ascended the scaffold. The trap door was sprung and at
10:28 a.m. he was pronounced dead. Before his death he confessed to having
murdered two women and asseulted several. (williams was the first of
two criminals lawfully executed in Roanoke).
Mrs. Shields lived on for many years. Her voice was a bit indistinct
due to her injury. Her daughter, the little girl abused by the criminal,
died later of her injuries.
Pe3¢ F327. Middlesex. County Order book
Slave Willis VTES S786
Francis Ross - Middlesex County, compensated 15
lbs. for slave executed in 1786 (condemned on
10-14-1786). Compensated on 9-7-1787.
State Archives, Box 1, Item 153, Envelope 4.
Tried for felony Val
° ued at 15 po
State A rchives, Box 1, Item 153, Envy. 5
(Hanged on 10/31/§b. deraits of me ot
ae SOUTH CAROLINA 58,000 R ae
221-1971 Ptl William F. Chasteen, domestic shooti
eee. committed suicide. coving, handgun, .380 auto, -
History file shows that Tucker was shot and killed
1904- J.P. Tucker in 1902 in a shootout at the Vardry Street Depot
with a drunken night watchman.
e
ry
Pen if, [ol Off. O.S. Gunnels . pur
glar, handgun eae d
. Gunnels also shot & killed at the Vardry’st Depot "~*~ fled not caught
L915- J.F. Holcombe Shot in the leg by an insane man and died as a result
; of gangrene or blood poisoning.
ee ae -M. :
ore Ae leeBieie Blair & Kitchens were both killed in a gun battle
at the notorious Vardry Street Depot. The killer
later shot and killed two more officers in a Richmond, Va
2 1. age e e j
219 J.L. Kitchen gun battle. -He was apprehended and electrocuted
for that offense in the State of Virginia.
1921- Go. Burroughs Burroughs was shot and killed by a burglar on Martin
Street in G'ville. Officer was killed by his own weapon. Killer
was sentenced to die by electrocution but that was later computed to
2925= A.F. Lackey life imprisonment.
19352- A.B. Hunt
& Lackey was killed while investigating a robbery at the Vardry St Depot.
Suspect chased to a nearby house and was killed while attempting to
escape.
Hunt was killed at Triangle Drug Store by Ray Bailey, a declared outlaw
from the State of No. Carolina. Bailey not apprehended/arrested til five
years later and sentenced to life in SC penal system. Was denied parole
repeatedly and in the late 1960's, he quietly walked away from a minimum
security camp leaving behind $18,000. As of 1976 he was still one of the
most wanted men in the State of SC. :
oo 3 917-39 a
Rachie eres ae, )2 -% 2<.
@ = seer 12-622
Bey ay ek ;
| I- i CapT. DAYS tee a
ne ON ed 4
The City of Lynchburg, Virginia
a
~ POST OFFICE BOX 199, LYNCHBURG, VIRGINIA 24505 |
|
November 2, 1990 A PaT chic
RS PY
Mr. Ronald C. Van Raalte //- 2f-F 7)
Post Office Box 72835
Roselle, IL 60172-0835
POLICE DEPARTMENT
Dear Ronald:
According to your letter dated October 12, 1990, your project
needed some additional information on the deaths of Officers
Athur L. Mann and George M. Ware. Through their obituaries the
following information was obtained:
Officer Arthur L. Mann
Date of Death: March 26, 1920
Age at Death: 38 years
Type of Weapon: Handgun (N.F.D.)
Time of Occurrence: Thursday night - March 25, 1920
Race: White -
Survivors: Wife: Mrs. Willie Lee Mann
Children: Bernard Mann - Age 14
Arthur L. Mann, Jr. - Age 1l
Organizations: Woodmen of the World
Knights of Pythias
Employment Date: October 10, 1911
Officer George M.Ware—__
Fate
Date of Death:\_October 10, 1933\
fie i
Age at Death: 55 years
en
Type of Weapon: Handgun (N.F.D.)
International
Association
rouce of
Chiefs of Police
A}
The City of Lynchburg, Virginia
PUBLIC SAFETY BUILDING
THE CITY OF SEVEN HILLS
DEPARTMENT
OF POLICE
August 11, 1981
Sergeant Ronald C. Van Raalte
P.O. Box S64
Arlington Heights, Illinois 60006
Dear Sergeant Van Raalte:
In response to your inquiry apout police deatis, this depart-
ment has had no deaths of police officers as the result of
criminal homicide for approximately fifty years.
The last officer killed in Lynchburg was in 1933 when he was
. . * ea
answering a_disorderly cali in the downtown area. As he
approached the suspect in the police vehicle, he opened the
door and the suspect shot_him without warning. Prior to that
homicide, limited records indicate 1920 as being the next most
recent criminal homicide of a police officer in Lynchburg.
Due to the lack of documentation, very little more can be pro-
vided about this matter.
Even less has been documented about death benefits for police
officers. I am sure this is partially due to the virtual ab-
sence of officers being slain while on duty. If an officer is
slain in the line of duty, his or her beneficiary would be eli-
gible to collect:
(a) $50,000 through the Public Safety Officer's
Benefits Act.
(b) $10,000 through the Commonwealth of Virginia's
Line of Duty Act
(c) Four time the officer's annual salary rounded to
the next highest thousand as part of the retire-
ment system's life insurance clause
I hope this information will be of some help to you in your en-
deavor. If I can be of additional assistance, please do not
hesitate to contact me.
Very truly yours,
FEL
a ee John K. Swan
S Association Chief of Police
+
of
Chiefs of Police
JKS:fbd
©
te
InmMa
91 (0(4%
by
‘
alifax attorneys blast ploy
4 x
inadequate
aid defense
prisoner s
Epos
Death row
. They
,
“They weren’t out helping Mr.
Claiborne then and that’s what
makes this so disgusting. .
“The opponents of the death pen-
alty and other do-gooder groups will
stop at nothing to attempt to secure a
PLEASE SEE INMATE, PAGE B3 >
Greenbacker wrote a letter to a
local newspaper supporting Clai-
borne that thus far has been signed
by 22 lawyers, including past and
current bar officials and state legisla-
county to defend” Wise, Greenback-:
er said.
ter and a Boydton resident.
couldn’t get a guy over there in that
g
tors.
experts
-year-old Wil-
an employee of
in the sentencin
orrectional Cen-
phase of his trial.
death threats for taking a job
years ago?” Halifax Common-
s Attorney John Greenbacker
_ wealth’
that lawyers in Mecklenburg would
not.
' Wise was convicted of capital mur-
der in the death of 43
when they tried Joe Louis Wise 10
liam H. Ricketson,
the Mecklenburg C
_ “Where were all these
representation
Jr. asked yesterday. Claiborne
earned
"84 was
m
mned prisoners’ sentences often
attack the work of lawyers who pre- |
A clemency petition for Wise now
is in the hands of Gov. L. Douglas
Wilder. It includes an affidavit from
borne in representing Wise in his
In Virginia, lawyers appealing con-
cede them. The original lawyers of-
ten do not defend themselves, be- -
cause that might jeopardize the de-
fendant’s chance to live.
capital punishment expert Richard J.
Bonnie that, in effect, Wise had no
1984 Mecklenburg County trial.
k of Hali-
. BYFRANK GREEN
* *TIMES-DISPATCH STAFF WRITER
A‘ group of prominent Halifax de
County bar members has blasted ef-
forts by condemned killer Joe Louis
Wise to paint his trial lawyer as inex-
Wise’s current lawyers and sup-
porters held a news conference last
week and attacked the wor
he
fax.attorney William Bryant Clai-
tent to the point that Wise did not
receive a fair trial.
perienced, frightened and incompe-
Attorneys —
vy,
in Halifax
blast inmate
Death row prisoner
said defense flawed
-{. borne had no murder. or jury trial
. defend Wise.
V INMATE FROM PAGE B1
gubernatorial pardon as evidenced by'..
the charges being leveled by these
groups against Mr. Claiborne,” wrote
Del. Franklin M. Slayton, D-South
Boston... a
Don Lee, one of Wise’s current
lawyers, responded that an objective
review shows Claiborne’s perform-
ance “clearly was deficient.’ Clai-
experience when he was appointed to |.
Anyone who does not agree Clai-
borne did an inadequate job need
only read his 22-sentence plea to the
jury to spare Wise’s life, Lee said. -
Claiborne did not present any miti-
gating evidence, such as Wise’s
abused childhood, in the sentencin
phase of the trial: 5
Last week, Linda Byrd-Harden,
executive secretary for the Virginia
conference of the NAACP, com-
A Sept. 7 letter written to the
Richmond Times-Dispatch by Rich-
mond lawyer Robert E. Walker Jr.
criticized the newspaper for report-
ing Claiborne’s race in an article this
month.
“The mentioning of his race and
‘the fact that he graduated from the
University of Virginia was totally un-
necessary and contributed nothing to
your article except to perpetuate
your newspapers affinity to demean
African Americans,” wrote Walker.
Greenbacker’s and Slayton’s let-
ters were written in response to a
similar story that appeared in the
Gazette-Virginian newspaper of
South Boston. _
Meanwhile, Wilder told reporters
he hopes to rule on the petition soon.
“T’m trying to do it before this week
is over,” he said Wednesday.
The governor did not seem im-
pressed by claims that intimidation
swayed the court proceedings.
“There were two African-Ameri-
cans on the jury,” he noted,: adding
that in his career as a lawyer he faced
the same kind of community pres-
sures in defending’ a client.
In an emotionally charged case in
‘the 1970s, Wilder said he ‘‘was es-
-corted back and forth to court” when
he represented a man charged with
killing a judge in Louisa County. -
The trial ended in a hung jury. “I
didn’t do so bad with that kind jof
pressure,” he said. .
He emphasized he had no doubts
about Wise’s guilt.
|
Staff writers Michael Hardy and Wes
Allison contributed to this story. *
plained that “no one has publicized | [-—— ay
the condition in which a young Afri- | G /} of: 73 b |
can-[American] male, 21 years of
_ age, in Mecklenburg County in 1984
was tried and convicted without‘ a
proper defense.” 3
Claiborne, who is a black, is a 1981
graduate of the University of Virginia
Law School, where Bonnie is on the
~ | faculty.
Wilder Rejects Va. Inmate’s Clemency Bid
_p Virginia Gov. L. Douglas Wilder rejected_a clem-
ency petition yesterday by death row inmate Joe
Louis Wise, who claimed he was denied a fair trial.
Wilder said the petition didn’t contain any evidence
favorable to Wise that would warrant clemency.
In the petition, Wise’s current lawyers criticized
Halifax lawyer William B. Claiborne, who defended
1 Wise at his 1984 Mecklenburg County trial. The pe-
tition included an affidavit from capital punishment
~ specialist Richard J. Bonnie that, in effect, said Wise
; had no representation in the sentencing phase of his
| N trial.
Wise’s court appeals have been exhausted, and he,
is scheduled to be executed Tuesday.
A jury convicted Wise of capital murder, armed
robbery, grand larceny and using a firearm in a fel-
ony in the 1983 slaying of William H. Ricketson.
Wilder said earlier that he had no doubts about
Wise’s guilt. Wise has not based his appeal on guilt or
innocence but centered it on the sentencing phase of
the trial. Ay/4shiag7em fost pPS
es aa
a ane
Stalin
- |
Virginia executes killer.
“JARRATT, Va. _ An inmate was
' executed in Virginia’ s electric chair, |<
‘Tuesday night for robbing and Kill: |
_ing+a;man.
tgtJoe Louis Wise Jr., 31, was
prohounced dead at 11:12 p.m., said
', Wayne Brown, operations officer at |.
the-Greensville Correctional Center. || .
| “Wise was executed for robbing |’
and killing, a. Heading and erounds My
employee in 1983... mile
ifAé bere Srimstoa?: Se
AIO ieee Sepfenbe 15, 1993. ie Ba ¥: Ct . Fam ‘|
‘ pie Ma ABR
frets? 7
\
/O, /F 92 ~THE WASHINGTON POST
FRIDAY, SEPTEMBER 10, 1993
Scrambling to Save Va. Man
Lawyers Petition Wilder, Argue Inmate Was Victim 0
_ By Donald P. Baker
Washington Post Staff Writer
RICHMOND, Sept. 10—It.was a slaying
that heightened racial tension in. rural:
~ Southside Virginia, and now Joe Louis Wise,
- 21, a black, borderline mentally -retarded
* ninth-grade dropout, sat before a jury about
~ to decide whether he should be executed for
-: killing “a well-known, white Mecklenburg
~ Wise’s court-appointed. attorney, William
Bryant Claiborne, who- had never. before
. faced a civil or crim
life into. 22 sentences. ‘Claiborne, then 28,
=» essentially told jurors that they, knew the
"evidence they'd considered to convict Wise.
"borne, who Wise later said was nervous
_ throughout the 1984 trial and had implored
Wise not to take the stand. “You know the
. facts.”, ae ae
Forty-two minutes later, jurors returned
_gecommending that Wise be executed. . -
* *. It was the climax to what observers called
~ “a gourtroom. mismatch between a veteran
- after Claiborne, who like Wise is black, re-
ceived death threats and had to be escorted
tuties. _ OO
Po “Tn 15 years of capital litigation, I have
- never seen: such poor representation” of a
--one-of the lawyers now petitioning Gov. L.
who is scheduled to die Tuesday. in "Vir-
ginia’s electric chair. - weet yes
Claiborne, who Wise says visited him.only
} “case this week, On. Wednesday he met with
'Wilder’s legal counsel, Walter A...McFar-
“ane, but neither would comment.
inal jury, spoke just two -
minutes, compressing the case for Wise's
, |: ”.“L ask that you spare this man,” said Clai-
. grounds at |
Center and former chief of the Boydton Vol-
‘unteer Fire De
PS _ prosecutor and. an inexperienced defense -
=” Tawyer, a case that stirred racial emotions.
to:and from the courtroom by sheriff's dep-
: ~ murder defendant, said: Barry A. Weinstein,
Douglas Wilder’ to grant clemency to Wise, -
*. “orice before the trial, declined to discuss the
The trial wasn’t the end of Wise’s legal
frustrations.’ When it came time to appeal
his case, the petition says, two more court-
appointed: attorneys ‘did not conduct an in-»
dependent investigation. of the- case..and
missed a deadline to file an appeal in federal
court by 2% months...
- “Because Joe has been abandoned at ev- |
ery step by his appointed lawyers, Joe’s' case.
constitutes a complete failure of our system
of justice,” according to the petition filed by -
“Weinstein. and other lawyers with the Vir-_
‘nia Capital Representation Resource Cen--. . dd
ginia Capi hee i “~~. mother: was beaten by his father while she
ter.”
tences twice before. 2 ewes
In an interview this week, Wise, now 31,
refused to acknowledge killing William Ri-
cketson, the superintendent of buildings and
the Mecklenburg Correction
ent. But, Wise said, “I
was irivolved: I’m sorry that it happened, but
I can’t change it. I’ve been praying for [Ri- .
cketson’s] soul for years.” “
Wise killed Ricketson on Dec. 1, 1983, in :
what prosecutor Frank Harris called a.“very.
sordid, horrible crime.” Ricketson had left -
his house shortly before dark to get a hair- -
cut and do some hunting; he had a rifle and
shotgun in the cab of his truck. = °.
_ It’s unclear why or how, but about 8:30
-
- that night, an intoxicated Ricketson wound »
up at Wise’s house. Wise: shot him. with a.
.25-caliber pistol,” beat him, over the. head :
with a rifle, put him into a hole ‘filled. with.
water and: shot. him a second time’ in the
chest with a shotgun. The official cause of. _
death was drowning.
“Aise drove Ricketsi’s truck to, Wise’s
father’s house in nearby North Carolina,
Wilder said Wednesday that he will decide
“before the week is over” whether to spare
Wise’s life. Wilder has commuted death sen-
on Death Row
‘Poor Legal Representation
where he was: arrested the next day. After
Wise was returned to Mecklenburg, Judge
Robert T. Vaughn appointed Claiborne, of.
nearby Halifax County, to defend him.
As outlined in the: petition, the primary
complaint against Claiborne says he failed to*
tell jurors about Wise’s difficult youth during
the sentencing phase of the trial.
"° William H: Wright Jr., another lawyer:
from the resource. center, said Claiborne: ©
should have told the jurors about Wise’s
family history.. Wright . said that. Wise’s
was pregnant with Wise; that Wise suffered
head injuries as a child, mostly at the hands -—
of his parents; and that Wise’s father was a
. ¢onvicted murderer who introduced Joe’ to
drugs when he was 12.
* Claiborne’s defenders include Harris, who
prosecuted Wise and says that. although
Claiborne was then an inexperienced lawyer
two.years out of law school, “he worked dil-
igently on the case. Had I been in his shoes, .
_ » State Sen. Benjamin J., Lambert Il (D-
~ Richmond), who sponsored the. change in
the law, said Wise “suffered gross injustices”.
under the old system. and noted that Wise .
twice wrote to the judge complaining about
I.would have done what he did” in defending
Wise. — .
Circuit Court Judge Charles L. McCor-
‘mick III, who presided at the trial and later
rejected an appeal based on claims of poor
representation by Claiborne, would not dis- |
cuss the case. =
When it came time to appeal Wise’s dea
‘sentence, two other court-appointed law-
yers, Bruce E. Robinson, of South Hill, and
Robert Hawthorne, of Kenbridge, “simply
defaulted,” the petition says. Robinson said
‘the two “went meticulously through the rec-
turn Wise’s death penalty.
Asked this week why the filing deadline’ ’
for an appeal was missed, Hawthorne said: “I:
think Joe ‘Wise got inexperienced counsel all .
-
"= JOE LOUIS WISE
wee “I’m sorry that it happened” os
end Po ovetetpntes
¢ Cyt Gael
along the wayfii 1
Te views tral were to be held today, he
could not have only one attorney. Beginning
last year, defendants in Virginia death-pen-:
N
alty cases, defendants must have two attor-"
neys, one: with at least five ‘years’ experi- © ~
ence in criminal law and some ‘specialized
training in capital cases.
his lawyer.
From behind a glass -partition at the ©
- Greensville Correction Center—and about
30 feet from Virginia’s electric chair—Wise..
. said that he did not know Ricketson, who:he .
said was “very intoxicated” the night of the. |
slaying. Pausing and holding: his: head in his *.
; rea oe ise, peter 1Q is.78, added that “talk-
ords” before asking the trial j "ing about it makes me feel sadit’happened. "*
ng the trial judge to over- "tq wishMr. Claiborne- would be man. |
erfough to admit that he didn’t know what he.:
was doing,” Wise ‘said, adding that in any
event, “I forgive him.: Everyone. makes mis-
takes. I made a great, big mistake.”
nn |
| V WISE FROM PAGE Al
threats. He had to be escorted by armed law
officers daily from the Halifax-Mecklenburg coun-
ty line to the courthouse in Boydton and back each
day of the trial.
‘That, in part, Wise’s current lawyers suggest,
earned Wise what they are calling the sorriest case
of ‘capital murder representation they have ever
seen. Claiborne declined to comment Thursday.
““He wasn’t doing a good job. He was more afraid
forhis life than mine,” Wise said last week, recall-
ing Claiborne’s performance. The jury, which in-
cluded two blacks, returned the death sentence in
42 minutes.
_To make matters worse, when the judge later
denied a claim that Claiborne’s performance was
so‘bad it violated Wise’s rights, his new lawyers
did not appeal the ruling in time — so no appeals
court has heard the claim.
Richard J. Bonnie, a nationally recognized ex-
pert on capital punishment, said in an affidavit for
Wilder that “there was a complete default of repre-
sentation on behalf of Joe Wise in . . . the sentenc-
ing phase of his trial.” .
: ‘“Joe Wise has not had a fair opportunity to
defend his life... only the governor can intervene
7 aN and rectify a miscarriage of justice,” said Bonnie, a
nD ~~ pees at the University of Virginia School of
: \ W. .
“In 15 years of capital litigation, I have never
seen such poor representation. And I’ve seen
them all. Or I thought I’d seen them all,” said
Barry Weinstein of the Virginia Capital Represen-
tation Resource Center.
“Joe wants to live. He turned to his lawyers.
They failed him. He turned to the courts. The
aa
°.
~ court said we can’t [help you]. Joe has nowhere
mmon-
y and is in private practice in ,
’s legal
young black lawyer, William
y Halifax County — with excel-
Ws /a7
Harris, who
It was a very,
tion ,
er can block execu
, and the last time his
, he was on his way out for a
ed Claiborne death
go hunting.
tantial citizen. ...
t no experience in murder cases
-PLEASE SEE WISE, PAGE AS >
ginia’s death row.
He was an outdoorsman
wife, Barbara, saw him
_ haircut and then to
£3 ye
It wasn’t a popular case in the area
community. So a
The thankless task earn
“He was a subs
very brutal crime,” recalled Frank.
Mecklenburg Correctional Center, which is the
home of Vir
prosecuted Wise and has since retired as co
wealth’s attorne
South Hill.
or even jury trials — was appointed.
Claiborne, of nearb
lent credentials bu
K
[FV AL
‘
y.
|
, was the former chief
outhside communit
dton Volunteer Fire Department and a
y
g Wise
Tests showed he drowned in
picked up |
. The .25-caliber |,
handgun used in the attack, a
else to turn but the governor of the commonwealth
of Virginia,” Weinstein said.
From his cell-near the electric chair at the
Greensville Correctional Center, Wise admitted
last week that he was involved in the slaying and
did not claim innocence. ;
Electric chair called unjust
-But guilty or not, his case was so poorly handled,
supporters say, that the electric chair is unjust.
“Whether you believe in the death penalty or not,
it just shocks the conscience,”’ said Don Lee, also
of the resource center.
The resource center is financed by the state and
federal governments and serves as a consultant to
lawyers representing indigent death row inmates.
In this case, one of its lawyers, William H. Wright
Jr., is Wise’s lawyer.
“Joe deserves to be punished. There’s no ques-
tion about that,” Wright said. “But the punishment
deserves to be arrived at by a system that gave
him a chance and in which he was fairly represent-
ed.”
Claiborne, a 1981 graduate of the University of
Virginia Law School, said Thursday that “I’m not
going to comment until the whole process is over.”
“It’s expected, I guess,” he said of the charges
that he and others with clients on death row
inadequately represented their clients.
Wise, a 21-year-old, border-
line-retarded: black man from |#
-North Carolina was
the next day
Sentiment over the killin
ran high in the conservative S
. Ricketson, the father of two
superintendent of grounds and buildings at the
shotgun with a broken stock
and_ Ricketson’s: driver’s _li-
cense were in his possession.
water, mud and -feces at the
was, Ricketson wasn’t dead.
bottom of the shallow hole.
of the Boy
gin-
sion, °
der has been asked to
d
painted in
] injustice
y, in'a black and white
priate for a sadistic killer.
His is a story that ma
s electric chair
a handgun.
y was thrown into a privy with
next week in Virgi
a popular white Boydton
ten and wounded by buck-
s cracked with a shotgun butt,
y end
. Or have a different conclu
Dispete, :
(INE S—
y
prejudice and racia
. Or, boldl
BYFRANKGREEN
TIMES-DISPATCH STAFF WRITER
A portrait of Joe Louis Wise could be
the moldy shades of
of the Old South
nw
. Ricketson was bea
“his skull wa
.
3
+ It began Dec. 1, 1983, with the robbery of
William H. Ricketson,;
man
hot
$§
cinder blocks and brush tossed in on top. Problem
and he was shot in the face with
one that Gov. L. Douglas Wil
i The broken bod
style more appro
ia’
write.
j
|
'
i
;
t
iW
a
By. John Hoke | |
. Luger ae state staff
BOYDTON | — Joe Lewis Wise is.
“expected to take the stand today’as:
“his capital murder trial enters its.
fifth day in Mecklenburg County ( Cir-
‘cuit Court. © . .
_ .Mecklenburg County Common-
wealth’s Attorney Frank Harris rest- .
ed his case yesterday morning. -De-
- fense attorney William Bryant
MPZEQRNOOG
Claiborne opened his.case by again
calling three North Carolina women
who had testified that Wise had-told :
them he had shot a man,on Dec. 1.
. Wise, 22, of Spring Hope, N.C... is
charged. in the ‘death of William H.
Ricketson of ‘Boydton. He is also
larceny and felonious use of a fire-
arm: Harris is Seeking the death
penalty. =
- Ricketson, 43, the buildings and
grounds superintendent at the Meck-
lenburg Correctjonal .Center, was
found drowned: in an unused privy
hole near an old excelsior plant out-
side Chase City on Dec. 2. He had been
shot through the eye with a bullet
fired from a small-caliber gun, beat-
en severely and shot in the side with a
shotgun.
When Wise was arrested along In-
terstate 95 near Dunn, N.C., on Dec. 2,
he was pouring oil into Ricketson’s |
pickup truck and was carrying the
pistol with which Ricketson had been
shot.
The three women, Shirley Whitta-
_ker-and Mary Booth, both of Middle-
sex, N.C., and Clarice Bowser of
Spring Hope, N.C., gave virtually
identical testimony last week that
Wise had arrived in the pickup truck
we. ce “Os
@ case defined attemy
mgs Tet tre on marten
wf .
NG ichartey =
at! Ms. Whittaker’s home between 1_
a.m. and:2 a.m. :Dec. 2 and told them
~ he had shot a man at the old excelsior -
‘plant earlier that evening.
When the. women did.not show: up
_ for court Monday morning, the trial -
was continued until yesterday. —
Claiborne sought yesterday to dis-
-credit their testimony to support —
* Wise’s contention that Ms. Whittaker
fired the: first shot at Ricketson and
. that several other persons, including
Wise’s father, Ray Booth, were in- .
volved in the slaying. 7
Booth, whose whereabouts is un-
‘known, is separated from Mrs. Booth
and has fathered children by all three
of the women, they said.
charged with armed robbery, grand -
Ms. Bowser testified yesterday that
she also has a 6-month-old child fa-—
thered by Wise. She also said that
Wise first arrived at her ‘home as
early as 10 p.m. on Dec. 1 in an appar-
ent contradiction of earlier.
testimony.
Ms. Whittaker coduned ‘a poor-
quality recording of a telephone con-
versation she had with Wise from jail
in mid-December. Although most of
the conversation on the tape was in-
audible, Wise can be heard in parts
describing how he shot the man, beat
him, threw him in the hole and then
shot him again.
Wise has given police nine state-
ments about the slaying. In several of
the earlier statements, he admitted -
killing Ricketson. But in the last two ©
statements, Wise claimed Ms. Whitta-
ker had fired the iritial shot at Ricket-
son, who had stopped his pickup truck
in front of the remote excelsior plant,
and that Booth had shot him with a
shotgun after he was dumped into the
'- and stolen merchandise..
privy hole. .
Wise said he lied: in the: ‘aarti
"statements because ‘Ms. Whittakpt —
'~ had told him to and to Protect
‘father... 7
: “IPs what she told r me to say,” Wise
shouted before the tape was playa
Claiborne .contended the. ta
- corded conversation was an effort:
Ms. Whittaker to help Wise reheafsé
his story of the sequence of events:
She said she taped Wise’s alleged
confession to protect: two other mien
Wise ‘intended - to implicate in thé
slaying.
The old éxcélstor ‘plant was being
used as a flea market and, according
to testimony, a base for selling. drugs
wy or 4
sd
~Ms.. Whittaker denied going there
during the week of the murder, which
occurred on a Thursday night. - >*
The three women said Wise, Booth,
Mrs. Booth and Ms. Bowser went'td
the old plant’ on Tuesday night and
returned to North Carolina Wednes-
day morning, leaving Wise at the old
- plant alone.
‘But Juanita Hairston of Eden, N. C:
a friend of Wise’s who has a 9-month-
old child by him, testified yesterday
afternoon that she saw Ms. Whittaker.
arrive at the old excelsior plant at,
_ about 6:30 p.m. on Wednesday, the day
before the slaying.
She later received phone calls from
Booth and a woman she believed was
Ms. Whittaker threatening her and
telling her not talk with police about
the slaying. .
' “She bragged that she killed a man
at one time and buried him down in
the. woods,” Ms. Hairston testified
about Ms. Whittaker. “They called me
on the phone and threatened me.”
OTT Nn DY) a pod
//~— f-
IF EK
:
ae ee a Ne tt pleane On irae a tn ah arr yy ®ve domenica . ne
pAASHATAAATE:
DERDENRYEE
“By John Hoke ‘+
’ “vaccording to nine statements
‘
.
e
e
- -BOYDTON.— Joe Lewis W
tate “*
Times-Dispatch state staff _
people, including himself, in the slaying of a Boydton man,
_: Wise, 22, of Spring Hope,
robbery, grand larceny and felonious use of a firearm.
body.was found submerged in an- unused
"City on Dec. 2. An autopsy showed that Ricketson had died
from drowning, but had also been shot with a small-
caliber gun through his right eye, beaten severely and shot —
in his right side with a shotgun. .
The nine statements made by Wise from Dec: 2 to May 7
were read to the 12-person jury by Mecklenburg County
Chief Deputy Howard Morris.
In the first several statements, Wise admitted partici-
pating in the slaying by himself or with another man,
Frank Craddock of Chase City. In his later statements,
Wise alleged that Ricketson had been initially shot by his
father’s girlfriend, Shirley Whittaker of Middlesex, N.C.,
and others at the excelsior plant had beaten and thrown
Ricketson into the privy hole.
Wise was willing to take “the rap” and had been ordered
by Ms. Whittaker to lie in the earlier statements to protect
the others because he was scared of retribution from his
- father, Massie Ray Booth, Wise said in a deposition May 7,
*_ A common thread running through most of the state-
ments was Wise’s assertion that Ricketson had parked-his
white pickup truck along the road in front of the excelsior
_.--plant and had gotten out before he was shot.
In Wise’s earlier statements, he contends he asked
_Ricketson what he was doing and they then got into a ©
fight. When Ricketson appeared to be reaching for a gun, -
_ Wise shot him in the eye, he said. Ricketson staggered
” ““"back’ toward ‘his truck. before collapsing. |.”
. 4 7) s In two statements, Wise
ise. implicated at least six. _ m
«then threw: the body ‘into the hole,-: -- oe aT «
~. " But in a statement taken by Morrison Dec. 12, Wise said :
he was alone at the plant when he shot Ricketson, hit him |
a - “on the-head; ‘threw him into ‘the hole ‘and then
N.C., is charged in the Dec. 1° BP a eR Fe ae
slaying of William H. Ricketson, 43, who was the buildings **
and grounds superintendent for the state’s Mecklenburg ~
. Correctional Center. Wise. is also charged with armed
‘ made to police by. Wise that“
- were presented yesterday in Mecklenburg County Circuit
_ Shotgun, it ‘was the same one I
’ Wise had arrived at their homes in Middlesex,
-Said in a statement that
. 8 3
& Se ee -.*
+
~, In two staten said that Craddock then began.
beating“Ricketson on the head with a shotgun stock and
Yt “
Shot him
“““T coiildn’t see the main in the hole and he wasn't dead
when I shot him,” Wise said in that statement. “I had the
hit him over the head with
“again.” LF 506
twice and the shotgun I shot
In statements to Morris in-January and May that were
presented, Wise said his father was the head of an-opera-
! "a market,
He said Ms. Whittaker shot Ricketson initially, someone
else beat him over the head and Booth shot him when he
was in the hole. .
“] began running toward the road. My dad said, ‘You
better come back, boy, or you’ll end up in the ‘hole, too,’”
‘Wise said. “I knew these people would: do anything to
protect my dad. I love my dad, but I can’t take the rap for
him.” . Se
- Ms. Whittaker, Booth’s wife and a third woman, all of °
whom had children by Booth, testified Wednesday that
N.C., early.
in the morning of Dec. 2 in Ricketson’s truck and said he
had just.shot’'a man at the excelsior plant.
Wise was arrested with Craddock later that day while
he was near Ricketson’s truck on Interstate 95 near Dunn,
N.C. Police said the .25-caliber automatic gun that Wise
carried had fired the bullet that went through Ricketson’s
eye, -
Critical to Commonwealth’s Attorney Frank Harris’
case for capital murder’ is proving armed robbery. Wise.
Ricketson’s wallet was on the
truck’s dashboard and that he didn’t know who had taken
it. : .
_ twi him with while he was.in the.
_ The ‘capital murder trial’s third day was completed « hole.” ~ - ce HR EE A ee
“+ yesterday. . tee < Ct
~ “Ricketson’s
privy hole next to an old excelsior plant south of Chase .
4
|
tion that sold'drugs and stolen goods out of the excelsior
“plant, which was set up as a flea .
4
PHRANAAOAIQAQE
ee ta
ONE
URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 « 303-440-0913 « FAX: 303-258-7881
EXTRA 75/93 Death Penalty 3 September 1993
USA (Virginia): Joe Louis WISE, Sr
Joe Louis Wise Sr is scheduled to be executed in Virginia, USA, on 14
September 1993.
Joe Wise, black, was sentenced to death in December 1984 for the murder
during a robbery of William Rickestson, white, in December 1983.
According to newspaper reports, Wise gave several conflicting
statements to police about the crime. In some he confessed to the
murder, in others he indicated that someone else had committed the
crime. a,
According to information received by Amnesty International, Wise was
sentenced to death in a region of Virginia which shows a long history
of racism in capital trials. Since 1908 all defendants convicted of
capital murder in this region have been black defendants convicted of
killing or raping white victins. (Rape is no longer a capital crime).
According to his present lawyer, Wise was represented at trial by an
inexperienced state-appointed lawyer who had never before represented a
defendant in a capital murder case and whose ignorance of the law in
such cases was tantamount to inviting the jury to vote for the death
penalty. Wise’s present lawyer contends that one of the most damaging
errors the trial lawyer made was his failure to provide evidence
relating to Wise’s deprived childhood and depraved family background at
the sentencing phase of the trial which, if presented, may have
resulted in a sentence less than death.
According to his lawyer, Joe Wise was born into a poor, unstable family
and exposed to violence from an early age. His mother suffered from
frequent nervous breakdowns, and his father was a convicted murderer
and thief who was involved in drug and alcohol related criminal
activities. Joe was frequently beaten by his parents throughout his
childhood, resulting in serious head injuries. His mother beat him
with electric cords and other implements, and on one occasion, when
Wise was four, his father held him by the feet and beat his head on the
floor. He also suffered beatings at the hands of his Older brothers
and their friends. At age 3, Wise’s brother was shot by his father, and
on one occasion Wise was given a gun by his father who told him to
Shoot his brother, which he did not do. Wise was introduced to drugs
by his father at the age of 12 and under his father’s dominance, became
involved in his criminal activities. According to Wise’s lawyer, Wise
is "borderline mentally retarded".
An appeal to the Federal Courts which claimed, among other things, that
Wise had not had a fair trial because of his trial lawyer’s inadequate
representation was dismissed in March 1992. A petition for clemency
was presented to Governor Wilder on 1 September 1993.
This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretariat in London. United
Kingdom. Amnesty International is an independent worldwide movement working for the international Protection of human rights. It seeks the
release of men and women detained anywhere because of their beliefs, color. sex, ethnic origin. language or religious creed. provided they have not
used nor advocated violence. These are termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on
behalf of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisoners without reservation.
.
ee
~
BACKGROUND INFORMATION *
As of 30 July 1993 there were 48 prisoners under sentence of death in
Virginia. Twenty prisoners have been executed in the state Since 1982,
the most recent being Andrew Chabrol on 17 May 1993. The method of
execution is electrocution. In Virginia the authority to grant
executive clemency lies with Governor L Douglas Wilder.
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.
Amnesty International continues to be concerned that the death penalty
is imposed in a racially discriminatory manner. Racial disparities in
death sentencing are borne out by the findings of many research
Studies, and confirmed by the findings of the General 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. These racial disparities remained
atter ali other legally relevant factors nad been taken into account.
RECOMMENDED ACTION: Please telephone / send telegrams/faxes/express and
airmail letters:
- urging Governor Wilder to give careful consideration to Joe Wise’s
appalling family background and to grant clemency to Joe Wise by
commuting his death sentence;
- expressing concern that Joe Wise was represented at trial by an
_ inexperienced attorney;
- expressing concern that important evidence relating to Joe Wise’s
deprived childhood and depraved family background was not presented to
the jury responsible for sentencing Joe Wise to death;
- 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;
- citing the example of Joe Wise who was sentenced to death ina
region known for its long history of racism in capital trials.
APPEALS TO [Salutation]
The Honorable L Douglas Wilder [Dear Governor ]
Governor of Virginia
_ State Capitol
Richmond, VA 23219 (Telegrams: Governor Wilder, Richmond, VA 23219)
(Telephone: 1 804 786 2211)
(Faxes: 1 804 786 3985)
COPIES TO:
The Letters Editor
News Leader
Box C32333
Richmond, VA 23293-0001
(Faxes: 1 804 775 8019)
PLEASE SEND APPEALS IMMEDIATELY, TO ARRIVE BY 13 September 1993.
Virginia Executes a Ma
|. Who Robbed and Killed
JARRATT, Va., Sept. 15 (AP) — An
inmate was executed in Virginia’s elec-
tric chair on Tuesday night for bludg-
eoning, shooting and drowning a rob-
bery victim in 1983.
The inmate, Joe Louis Wise Sr., 31,
was pronounced dead at 11:12 P.M.,
said officials at the Greensville Correc-
tional Center.
Mr. Wise was sentenced to death for
robbing and killing William H. Ricket-
son, a maintenance worker at the
Mecklenburg Correctional Center, in
1983. Mr. Ricketson, 43, was found cov-
shallow privy hole in Mecklenburg
County. An autopsy showed he had
drowned after being beaten and shot in
the eye and chest.
Mr. Wise was arrested that day as he
was putting oil in Mr. Ricketson’s pick-
up. He admitted involvement in the
crime.
After exhausting his appeals, Mr.
‘Wise sought clemency from Gov. L.
Douglas Wilder, saying his trial lawyer
and two other lawyers appointed to
represent him on appeal had failed to
Wilder rejected Mr. Wise’s request last
prison, some carrying
praying. Others, like David and Patri-
had come in search of a sense of finali-
ty. Mrs. Gregory was Mr. Ricketson’s
sister-in-law.
said. ‘You start getting over it and
then there’s another appeal or another
article. We’re not here to celebrate.
cia Gregory of Richmond, said they |.
“It’s like you get on with life,’’ she |.
handle his case properly. Governor
ered with dirt and cinder blocks ina
Nd
NeW Virhs VE
i}
We're just here to see justice.”
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THE WASHINCTON Post
Scrambling to Save Va. Man on Death Row
Lawyers Petition Wilder, Argue Inmate Was Victim of Poor Legal Representation
By Donald P. Baker
Washington Post Staff Writer
RICHMOND, Sept. 10—lIt was a slaying
that heightened racial tension in rural
Southside Virginia, and now Joe Louis Wise,
21, a black, borderline mentally retarded
ninth-grade dropout, sat before a jury about
to decide whether he should be executed for
killing a well-known, white Mecklenburg
County man.
Wise’s court-appointed attorney, William
Bryant Claiborne, who had never before
faced a civil or criminal jury, spoke just two
minutes, compressing the case for Wise’s
life into 22 sentences. Claiborne, then 28,
essentially told jurors that they knew the
evidence they'd considered to convict Wise.
“I ask that you spare this man,” said Clai-
borne, who Wise later said was nervous
throughout the 1984 trial and had implored
Wise not to take the stand. “You know the
facts.”
Forty-two minutes later, jurors returned
recommending that Wise be executed.
It was the climax to what observers called
a courtroom mismatch between a veteran
prosecutor and an inexperienced defense
lawyer, a case that stirred racial emotions
after Claiborne, who like Wise is black, re-
ceived death threats and had to be escorted
to and from the courtroom by sheriff's dep-
uties.
“In 15 years of capital litigation, I have
never seen such poor representation” of a
murder defendant, said Barry A. Weinstein,
one of the lawyers now petitioning Gov. L.
Douglas Wilder to grant clemency to Wise,
who is scheduled to die Tuesday in Vir-
ginia’s electric chair.
Claiborne, who Wise says visited him only
once before the trial, declined to discuss the
case this week. On Wednesday he met with
Wilder’s legal counsel, Walter A. McFar-
lane, but neither would comment.
The trial wasn’t the end of Wise’s legal
frustrations. When it came time to appeal
his case, the petition says, two more court-
appointed attorneys did not conduct an in-
dependent investigation of the case and
missed a deadline to file an appeal in federal
court by 24% months.
“Because Joe has been abandoned at ev-
ery step by his appointed lawyers, Joe’s case
constitutes a complete failure of our system
of justice,” according to the petition filed by
Weinstein and other Jawyers with the Vir-
ginia Capital Representation Resource Cen-
ter.
Wilder said Wednesday that he will decide
“before the week is over” whether to spare
Wise’s life. Wilder has commuted death sen-
tences twice before.
In an interview this week, Wise, now 31,
refused to acknowledge killing William Ri-
cketson, the superintendent of buildings and
grounds at the Mecklenburg Correction
Center and former chief of the Boydton Vol-
unteer Fire Department. But, Wise said, “I
was involved. I’m sorry that it happened, but
I can’t change it. I've been praying for [Ri-
cketson’s} soul for years.”
Wise killed Ricketson on Dec. 1, 1983, in
what prosecutor Frank Harris called a “very
sordid, horrible crime.” Ricketson had left
his house shortly before dark to get a hair-
cut and do some hunting; he had a rifle and
shotgun in the cab of his truck.
It’s unclear why or how, but about 8:30
that night, an intoxicated Ricketson wound
up at Wise’s house. Wise shot him’ with a
.25-caliber pistol, beat him over the head
with a rifle, put him into a hole filled with
water and shot him a second time in the
chest with a shotgun. The official cause of
death was drowning.
Wise drove Ricketson’s truck to Wise’s
father’s house in nearby North Carolina,
where he was arrested the next day. After
Wise was returned to Mecklenburg, Judge
Robert T. Vaughn appointed Claiborne, of
nearby Halifax County, to defend him.
As outlined in the petition, the primary
complaint against Claiborne says he failed to
tell jurors about Wise’s difficult youth during
the sentencing phase of the trial.
William H. Wright Jr., another lawyer
from the resource center, said Claiborne
should have told the jurors about Wise’s
family history. Wright said that Wise’s
mother was beaten by his father while she
was pregnant with Wise; that Wise suffered
head injuries as a child, mostly at the hands
of his parents; and that Wise’s father was a
convicted murderer who introduced Joe to
drugs when he was 12.
Claiborne’s defenders include Harris, who
prosecuted Wise and says that although
Claiborne was then an inexperienced lawyer
two years out of law school, “he worked dil-
igently on the case. Had I been in his shoes,
I would have done what he did” in defending
Wise.
Circuit Court Judge Charles L. McCor-
mick III, who presided at the trial and later
rejected an appeal based on claims of poor
representation by Claiborne, would not dis-
cuss the case.
When it came time to appeal Wise’s death
sentence, two other court-appointed law-
yers, Bruce E. Robinson, of South Hill, and
Robert Hawthorne, of Kenbridge, “simply
defaulted,” the petition says. Robinson said
the two “went meticulously through the rec-
ords” before asking the trial judge to over-
turn Wise’s death penalty.
Asked this week why the filing deadline
for an appeal was missed, Hawthorne said: “I
think Joe Wise got inexperienced counsel all
JOE LOUIS WISE
... ‘I'm sorry that it happened”
along the way.”
If Wise’s trial were to be held today, he
could not have only one attorney. Beginning
last year, defendants in Virginia death-pen-
alty cases, defendants must have two attor-
neys, one with at least five years’ experi-
ence in criminal law and some specialized
training in capital cases.
State Sen. Benjamin J. Lambert HI (D-
Richmond), who sponsored the change in
the law, said Wise “suffered gross injustices”
under the old system and noted that Wise
twice wrote to the judge complaining about
his lawyer.
From behind a glass partition at the
Greensville Correction Center—and about
30 feet from Virginia’s electric chair—Wise
said that he did not know Ricketson, who he
said was “very intoxicated” the night of the
slaying. Pausing and holding his head in his
hand, Wise, whose IQ is 78, added that “talk-
ing about it makes me feel sad it happened.
“I wish Mr. Claiborne would be man
enough to admit that he didn’t know what he
was doing,” Wise said, adding that in any
event, “I forgive him. Everyone makes mis-
takes. I made a great, big mistake.”
oe te rg werd aw
Associated Press
; ' JARRATT, Va., Sept. 14—Joe
Louis Wise was executed in the
$tate’s electric chair tonight for the
3983 robbery and murder of a
Southside Virginia man.
Wise, 31, was pronounced dead
at 11:12 p.m., said Wayne Brown,
operations officer at the Greensville
Correctional Center here.
: Brown said Wise made no last
statement and that clergy and fam-
ily members visited him on his final
day.
* Wise was convicted of killing Wil-
liam H. Ricketson, a building and
grounds employee at the Mecklen-
gurb Correctional Center.
Ricketson, 43, was found covered
with dirt and cinder blocks in a shal-
low privy hole in Mecklenburg in
Décember 1983. An autopsy indi-
cated that he had drowned, but he
also had been beaten and shot in the
eye and chest.
NUSbUA
Wise was arrested that day as he
was putting oil in Ricketson’s pick-
up. He acknowledged involvement
in the slaying.
Gov. L. Douglas Wilder last week
rejected Wise’s request that he be
granted clemency because his trial
attorney and two other lawyers ap-
pointed to represent him on appeal
Wise, who was
black, was
convicted in 1984
in a racially
charged trial.
failed to handle his case properly.
“Nothing else can be done,” Wil-
Fo fost Sopt: tS 74973
Virginia an Dies by Electric Chair for 1983 Robbery, Murder
liam H. Wright Jr., one of Wise’s
attorneys, said Monday.
Wise, who was black, was con-
victed in 1984 in a racially charged
trial that observers described as a
courtroom mismatch between a
veteran prosecutor and an inexpe-
rienced court-appointed -defense
attorney.
Ricketson, the victim, was white
and well-known in the community.
During the trial, Wise’s attorney,
William Bryant Claiborne, who is
black, received death threats and
required-a police escort to enter
and exit the courtroom.
Claiborne, of Halifax County, had
never before faced a criminal or
civil jury and spoke to jurors for just
two minutes during the sentencing
phase of the trial.
Wise later complained that Clai--
borne, who has not commented on
his role in the case, was nervous _
throughout the trial and had im-
plored Wise not to take the witness
stand.
Barry A. Weinstein, one of sev-
eral lawyers who petitioned Wilder
to grant clemency, noted that Clai-
borne did not bring up Wise’s trou-
bled childhood durmg the sentenc-
ing phase of the trial, and he called
Claiborne’s efforts the worst he had
seen in 15 years of capital litigation. ©
When Wise’s case was up for ap-
peal, two other court-appointed at-
torneys failed to file appeal docu-
ments before the deadline. The
Wise case helped lead the General
Assembly to pass legislation requir-
ing that Virginia defendants who
face the death penalty be repre-
sented by lawyers with experience
in such cases.
Wise spent much of Monday and
today visiting with his family, said
Wayne Brown, operations officer at
the Greensville prison.
Until he was moved to a cell next
to the electric chair at Greensville
last month, Wise was held at the
Powhatan Correctional Center.
Wise was the 21st person exe-
cuted in Virginia since the state
resumed executions in 1982, and
the fourth this year.
Across the country, 220 people
have been executed since 1976,
when the Supreme Court allowed
states to resume the death penalty.
“JOE LOUIS WISE
. . governor would not grant clemency
His am Gaede
OPAPP anne
aT ACTION A
URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 « 303-440-0913 « FAX: 303-258-7881
, 16 September 1993
Further information on EXTRA 75/93 (3 September 1993) - Death Penalty
USA (Virginia): Joe Louis WISE, Sr
Amnesty International has learned with deep regret that Joe Louis Wise,
Sr was executed as scheduled in Virginia, USA, on 14 September 1993.
Thank you to all those who sent appeals on Joe Wise’s behalf. Letters
to the authorities mentioned in the original Urgent Action expressing
regret at his execution would be weicome. -
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A Clipping From
Virgnia Press Services
News Clipping Bureau
P.O. Box C-32015
Richmond, VA 23261-2015
The News-Progress
Clarksville, VA
Circulation: 5,997
pb: By 3 Federal Jadge Methige
Pi sAn. appeal: “ot .a capital murder
conviction ‘and death. sentence by a
’ North Carolina’ man who killed a
, Boydton residént in 1983-has been
rejected by a federal judge.
Joe Louis Wise, a former resident
of Spring: Hope,. N.C., has been
_pursuing appeals since 1984, when
he was convicted of capital murder,
grand larceny,. robbery and use of a:
firearm in the commission of a
felony in connection with the Dec.
1, 1983, slaying of- ‘William: H.
Ricketson of Boydton.: ‘
In a ruling .made public. last
week, US. District Judge -Robert
R. Metiget.| dismissed all six of
Wise's claims. . bi’
“Wise said his right toa ‘air t trial
had been prejudiced: because his
lawyer did not present.evidence to
the jury of his “abusive family-en-
vironment and background." +»
If jurors had heard that evidence,
Wise said; “they would: have im-_
posed a life sentence rather than
death." But the federal judge dis-
_ agreed, tuling that “mere specula-
tion .3::is insufficient to demon-* :
’ Strate actual prejudice."
4 aca the death penalty,
Merhige
ruled.
"The evidence reveals that the
victim. was shot at close range
through the eye, beaten over the
head with a blunt object with suffi-
cient force to fracture the skull and
tear blood vessels from brain tissue,
‘drowned and buried in a sewage-
’. filled hole which-once seryed as an
"Outhouse and fi inally shot in the
i
4
With or without Wise's family °
history, the jury had more than
sufficient cause to find the crime
jRadanansonaaadanany MEAN
was wanton or vile enough to war-
Appe: al Rej ecte di
east and side," t the iuleed na
nA’ sgnbhaaradoapaanasoadannnsng aay
’ During the trial, the enc
argued that the crime was “one of
the most violent, more heinous
killings and armed robberies that
the human mind could imagine."
Ricketson's body was found a day.
after the slaying, covered with dirt
and cinder blocks in a shallow privy-
hole just outside of Chase City. .
‘ Sy ook, . ee
“Wise ¥ was arrested later that =,
on Interstate 95 as he was adding
. Oil to Ricketson's pickup truck. He
‘also was carrying the gun_uséd to
_ Shoot Ricketson in the eye. i
In his appeal, Wise also raised :
claims about the alleged denial of :
his right to psychiatric assistance
and the alleged ineffectiveness of
his lawyer. .
fA OE
NQSRAHINAAGSEN
Tur Visuncron Posr
Scramh : ;
to Save Va. Man on 1 Death Row
Lanwyérs Petition Wilder, Argue Inmate Was Vietim of. Poor Legal Representation
By Donald P. Baker
-_ Washington Post Staff Writer
RICHMOND, Sept, 10—It. was a slaying -
that heightened ‘racial tension ‘in: rural: °
Southside Virginia, and now Joe Louis Wise,
21, a: black, . borderline mentally. -Tretardéd
ninth-grade dropout, sat before a jury. about
to decide whether he shojild be executed for
killing a well-known, white Mecklenburg
County:man. ee
Wise’s court-appaitited” ‘attorney, William’.
Bryant Claiborne, who’:had’ never - before ~~ ginia Capital Representation Resource Cen-.
faced a civil or. criminal. j jury, spoke just | two -
minutes,. compressing ‘the. case for: Wise’s
life into.'22 sentences, Claiborne, then 28,.
essentially told jurors that they. knew: the
evidence they’d considered to convict Wise.
.“L ask that you sparé this 1 man,” said Clai-.
borne,’ who - Wise later .said' was ‘nervous ©
throughout the 1984 trial and had'implored :
Wise not to take the. stand, “You know the.
facts.” =... : tte
Forty-two minutes later, jurors returned
recommending that Wise be executed. ;
It was thé climax to what observers called
1. courtroom, mismatch* between: a veteran. .
orosecutor .and . an’ inexperienced: ‘defense :
awyer, a case that stirred’ racial emotions
ifter Claiborne, who, like. Wise. is black, re-
-eived death threats and had to be escorted
o-and from the courtroom by. sheriff's dep- is
ities,
“Tn 15 years of capital litigation; I have
‘ever seen:'such. poor’ representation”: of a
nurder defendant, said Barry A. a
ine:of the lawyers now petitioning: Gov. L.
Jouglas Wilder to grant clemency’ to Wise, .
vho is scheduled to die, Tuesday. ‘in . -Vir-
‘inia’s electric chair. «
Claiborne, who Wise ‘gays visited hint. only
nce before the trial, declined to discuss the:
ase this week, On. . Wednesday he met.with
t
The trial "wasn't the end. of Wise’s legal
frustrations. : When it came’ ‘time to appeal
"; his case, the petition says, two more court-"
appointed attorneys did not conduct an in--
‘dependent investigation of the-\case.-and
missed a deadline to file an appeal in federal
court by 24% months..
-““Because Joe has been abandoned at ev- °
ery step by his appointed lawyers, Joe’s'case -
constitutes a complete failure of our system
of justice,” according to the petition filed by .
“Weinstein. and other lawyers with the Vir-
ter.”
“Wilder said. Wednesday that he will decide
“before the week is over” whether to spare
Wise’s life. Wilder has commuted death sen-.
Semen twice before.
- In an interview this week, Wise, now 31,
perce: to acknowledge killing William Ri-
_ cketson, the superintendent of buildings and
- grounds. at the Mecklenburg Correction
Center and former chief of the Boydton Vol-
‘unteer Fire Department. But, Wise said, “I
was involved: I’m sorry that it happened, but |
I can’t change it, I’ve been praying fer Re.
_cketson's s] soul for years.”
Vilder’s legal: -counsel,: Walter .A:.. “McFar- i
ine, but ‘beither would comment,
Wise killed Ricketson on Dec. 1, 1983, in
what prosecutor Frank Harris called a. “very.
sordid, horrible crime.” Ricketson had left .
his house- -shortly before dark to get a hair-..
_cut and do some hunting; he had a rifle and
shotgun in the cab of his truck.
It’s unclear why or how, but about 8: 30 |
that: night, an intoxicated Ricketson wound
up at Wise’s house. Wise shot ‘him witha:
.25-caliber pistol, beat him over the head :
with a rifle, put him into a hole filled with
“water and: shot him a second time in the
chest with a shotgun. The official cause of.
death was drowning:
“Wise drove Ricketson’s truck - Wise’: s.
father’s house in nearby North Carolina,
where he was:arrested the next day. After
Wise was returned. to Mecklenburg, Judge
Robert T. Vaughn appointed Claiborne, of .
nearby Halifax County, to defend him. :
As ‘outlined in. the: petition, the primary
complaint against Claiborne says he failed to °
tell jurors about Wise’s difficult youth during
the sentencing phase of the trial.
” William H. Wright Jr., another lawyer
from the resource. center, said Claiborne _ :
should: have: told ‘the jurors about Wise’s.
family history. Wright said that Wise’s
“mother was beaten: by his father while she
was pregnant with Wise; that Wise suffered
head injuries as a child, mostly at the hands
of his parents; and that Wise’s father was a
~ Convicted murderer who introduced Joe to
drugs when he was 12,
* Claiborne’ s defenders include Harris, who
prosecuted Wise and Says that. although
Claiborne was then an inexperienced lawyer
two years out of law school, “he worked dil-
igently on the case. Had I been in his shoes,
I would have done what he’ did” in defending
; Mise.”
- Circuit Court Judge Charles L. McCor-
- mick III, who presided at the trial and later
rejected an appeal based on claims of poor
' representation by commie! would not dis-
cuss ‘the case, -
"When it came time to opel Wise’s death
" sentence, two other court-appointed law-
_yers, Bruce E. Robinson, of South Hill, and
Robert Hawthorne, of Kenbridge, “simply
defaulted,” the petition says. Robinson said
the two “went meticulously through the rec-
ords” ‘before asking the trial judge to over-
turn Wise’s death penalty.
’ Asked this week why the filing deadline
for an appeal was missed, Hawthorne said: “I.
think Joe Wise got inexperienced counsel all
JOE LOUIS: WISE ssi.
é = Ti sory thai happened” a ®
seis the way.”.
If Wise’s trial were to. be: held: today, he
could not have only one attorney. Beginning .
last year, defendants in Virginia death-pen-: sh
alty cases, defendants must have two attor-" -
neys, one with at least: five years’ experi-
ence in criminal law and some Specialized
‘training in capital cases, _-: & E
. State Sen. Benjamin J. es (-
Richmond), who sponsored the. change in
the law, said Wise “suffered gross injustices”
‘under the old system and noted that Wise.
twice wrote to the judge complaining about
_ his lawyer. oo
' From behind a glass partition at the
’ Greensville Correction Center—and about :
30 feet from Virginia’s electric chair—Wise_
said that he did not know Ricketson, who:he .. |.
said was “very intoxicated” the: night ofthe... |.
slaying. Pausing and holding: his head in his :.
hand, Wise, whose IQ is 78, added that “talk-
ing about it-makes me feel sad it’ happened, '*
“I wish Mr. Claiborne would be man*
enough to admit that he didn’t know what he.
was doing,” Wise.said, adding that in any
event, “I forgive him. Everyone. makes mis- -
takes. I made a great, big mistake.”
_ ¢
FRIDAY, SEPTEMBER 10, 1993 D:
HES Estate
ee
AClipping From
GINIAPRE™ ERVICES
bis UREAU
NEWS Caen
P.O. Bo
Richmond, 015
804-798
News Prog q _urksville
WAY ke 2 1988
i aah aod: oie
1. 7 ioe
ee OYBTON oe “I Louls’
‘convicted murderer who was sen-
*tenced here Jn'December of 1984 to
‘death’: in; the’ brutal slaying
Cwittiags oward’ ‘Rickettén,
¥ courtroom to ear his attorneys. file
ss that verdict. The
¢.
¢Harris#as: having *
‘erime't
and
Dy Harris,was, describing
been’ ‘given | 4s
I urd trial of t
ise, Ga
: entence, | life’ fiebrtbcnenane
Hary for thé December i, 1983 act.’.”
tit Basically, Wise claims that he was
effectively. ‘represented by his
attorneys ‘x uring ;the trial. Which
atestimony, ptold how | :Ricketson}
Cormick Takes
Wise, ‘the
‘returned I lasf‘Thursday to'the same +
eed ys
ommonwealth’s 8:
‘hat had .
‘Jas: se ey in the
20 years: in ‘the: -peniten- :
elie Charles | McCormick who
heard the case and.handed down the
jury-recommended. death sentence,
took.under advisement the motion
: filed by Wise’s attorneys. In a bill of
particulars, Wise’s current: counsel
‘ claims that his attorneys during the
‘ trial were ‘‘totally unprepared”’.
; Claiming © that ‘his attorney. only
visited. him twice ‘before the trial,
‘Wise’s attorneys: argue that the trail
was”: “unduly: delayed and thus,
- reduced the:.opportunity to locate
- -witnesses.'The week-long trial was
. delayed by what Judge McCormick
“termed as “legal difficulties” which
were »:associated ' with, recalling
| eae witnesses.
#s\iitieasy/ Shirley Whittaker, and |
pont “others is mentioned in the bill of
‘particulars filed with the court..
“Wise“"and ‘three others were
arrested on December 2, 1983 in |
Harnett County, N.C. on Ricketson’ s-
_ Continued On Page2
a ee
AMGANGHHE
“et
Dano RANT HaleRRobahagnnoans
haa
J ury convicts
Wise in trial
at Boydton,,.
Times-Dispatch state staff. T1483
" BOYDTON — Joe Lewis Wise was
convicted last night of capital murder
in the slaying of.a Boydton man after
a Mecklenburg County Circuit Court
jury deliberated for 5% hours. ~
The jury will decide today. whether
Wise, 22, of Spring Hope, NG. shou}
be sentenced to death. :
Wise also was convicted of armed
robbery, and sentenced ; to. life, of
grand larceny and sentenced to 20
years in jail and of felonious use of a
firearm and sentenced to two years.
The verdict came in the fifth aa of
ren =
the trial. ae aoe
Earlier yesterday, ° ‘Comm n-
wealth’s Attorney Frank Harris |
called the Dec. 1 slaying of William.H.
Ricketson “one of the most violent,
more heinous killings and armed rob-
beries that the human mind ar
imagine.”
Ricketson was found Dec. 2 cov-
ered with dirt and cinder blocks in a
shallow privy hole near an old excel-
' sior plant outside Chase City. He had
been drowned, but ‘police said he had
also been shot twice and beaten.
Wise was arrested on Dec. 2 on
Interstate 95 near Dunn, N.C., while
pouring oil into’ Ricketson’s white
pickup truck. ;
Wise did not testify yesterday as
some had expected. He told a report-
er during a break that he wanted to
testify, but did not on the advice of his
. a: William Bryant Claiborne.
o>
nriaseUM AIAN AMAR PPAANANRN| ANY
2°
DHYRARAAPRYaAR yy TERY
SYR
“By John Hoke : ,
i Times-Dispatch state ‘staff .
- BOYDTON.—. Joe Lewis Wise. iniplicated at least six
people, including himself, in the slaying of a Boydton man, —
according to nine statements made to police by Wise that
. were presented yesterday i in 1 Mecklenburg County Circuit
Court. -
‘Wise, 22, ‘of Spring Hope, N. C., is charged in the Dec. 1
slaying of William H. Ricketson, 43, who was the buildings —
’ when I shot him,” Wise said in that statement. “I had the
and grounds superintendent for the state’s Mecklenburg
Correctional Center. Wise.is also charged with armed
robbery, grand larceny. and felonious use of a firearm.
The ‘capital murder trial’s mala day was completed
4 yesterday.
Ricketson’s body. was tues submerged in an unused
privy hole next to an old excelsior plant south of Chase .
City on Dec. 2. An autopsy showed that Ricketson had died
from drowning, but had also been shot with a small-
caliber gun through his right eye, beaten severely and shot
in his right side with a shotgun.
The nine statements made ‘by Wise from Dec: 2 to May 7
were read to the 12-person jury by Mecklenburg County
Chief Deputy Howard Morris. -
In the first several statements, Wise admitted partici-
pating in the slaying by himself or with another man,
Frank Craddock of Chase City. In his later statements,
Wise alleged that Ricketson had been initially shot by his
father’s girlfriend, Shirley Whittaker of Middlesex, N.C.,
and others at the excelsior plant had beaten and thrown
» Ricketson into the privy hole. '—
Wise was willing to take “the rap” and had been ordered
by Ms. Whittaker to lie in the earlier statements to protect
the others because he ‘was scared of retribution from his
father, Massie Ray Booth, Wise said in a deposition May 7.
A common thread running through most of the state-
ments was Wise’s assertion that Ricketson had parked-his
white pickup truck along the road in front of the excelsior
__-plant and had gotten out before he was shot.
In Wise’s earlier statements, he contends he asked
Ricketson what. he was doing and they then got into a
fight. When Ricketson appeared to be reaching for a gun, -
Wise shot him in the eye, he said. Ricketson staggered
- back eaed ‘his truck before: céliavsing. :
In two statements, Wise said that Craddock then began
. beating™ Ricketson on the head with. a \ahotgamn: stock and
~ then threw the body into the hole. - ;
- But in a statement taken by Morris on Dec. 12, Wise said
he was alone at the plant when he shot Ricketson, hit him
~“on the-head, threw mies wind the, hole and then shot him
~again..
"| couldn’t see the: man in the hole ‘ant he ‘etean dead
shotgun, it was the same one I hit him over the head with
twice and the shotgun I shot him aes while he was.in the.
- hole.”
In statements to Morris i in January and May that were
Presented, Wise said his father was the head of an opera-
tion that sold drugs and stolen goods out of the excelsior
‘plant, which _was set up as a flea market.
_He said Ms. Whittaker shot Ricketson initially, someone
else beat him over the head and Booth shot him when he
was in the hole. .
“| began running toward the road. My dad said, “You
better come back, boy, or you’ll end up in the ‘hole, too,’ ”
Wise said. “I knew these people would: do anything to
protect my dad. I love my dad, but I can’t take the rap for
him.” .
. Ms. Whittaker, Booth’s wife and a third woman, all of *
whom had children by Booth, testified Wednesday that
' Wise had arrived at their homes in Middlesex, N.C., early
in the morning of Dec. 2 in Ricketson’s truck and said he
had just.shot a man at the excelsior plant.
Wise was arrested with Craddock later that day while
he was near Ricketson’s truck on Interstate 95 near Dunn,
N.C. Police said the .25-caliber automatic gun that Wise
carried had fired the bullet that went through Ricketson’s
eye, .. =
Critical to Commonwealth's Attorney Frank Harris’
case for capital murder is proving armed robbery. Wise.
-Said in a statement that Ricketson’s wallet was on the
truck’s dashboard and shat he didn't know who had taken
it.
a i eneinil
-~
Deputies searching for the missing man checked out an abandoned factory outside of town where they found blood, spent
shotgun shells, and drag marks that led behind the small office building (left) to a gruesome, sickening discovery.
The real horror of it was that the victim didn’t
die from the gunshot wounds or the bludgeoning — he
died slowly at the bottom of a “privy pit,” drowning
amid the muck and mire. That’s why a jury decided
to send his stonehearted slayer to the hot seat.
too, and Sheriff Harris was worried.
And the sheriff, then 49, wasn’t
Ricketson’s only friend. Far from it.
Bill had a townful of friends.
His full name was William H. Rick-
etson, but everybody knew him simply
as ‘‘Bill.’* He was a former chief of-his
town’s volunteer fire department, and
the‘kind of guy who’d do anything for
a friend. He was an avid hunter and
fisherman in a county where those pur-
suits are prized.
Mecklenburg County, home to abou
30,000 souls, is in the heart of The Old
Dominion’s ‘‘Southside,”’ hard by the ©
North Carolina border. It’s 675 square
miles of rolling tobacco fields and
beef-cattle farms broken by deep pine
woods teeming with deer, a gentle land
62 Inside Detective
in which the friendly residents speak
their own dialéct—a soothing, rich
drawl. Gaston Lake and Buggs Island
Lake provide the residents with all the
fishing they can handle.
If you exit off U.S. 58 or Interstate
85 and visit the area, you will see the
small towns of Brodnax, La Crosse,
South Hill, Boydton, Clarksville, and
‘Chase City, which break the farms and
fields. It’s like going back in time.
Boydton, the county seat where Rick-
etson lived, is marked by a tiny down-
town section, an august white
courthouse with a statue of a Confeder-
ate soldier out front, and Victorian
mansions straight out of the sto-
tybooks.
Bill Ricketson was pure Mecklen-
burg County. And his friends wanted
to find him.
It’s no small testament to the man
that the members of several deer-hunt-
ing clubs who were enjoying their pur-
suit in mid-season, promptly stopped
hunting deer early that Friday morn-
ing. They turned to a more important
hunt—the search for their friend Bill.
A state police helicopter joined the
hunt-club members and deputies in the
search, as did prison employees and
police from each of the county’s
towns. All morning, they combed
through the area’s lush forests, looking
for signs of Bill Ricketson. Mean-
while, deputies broadcast a description
and alert for Bill and his pickup
truck—a 1979 Ford, white in color,
Shock wa
former
with license-
Bill’s fam
the day befor
ternoon, he’d
going to get a
ing. His kin t
guns in the tr
seen at 7:00
when he’d st:
Chase City.
Sheriff He
searchers kep
noon on Frid:
man, had bee
4, 1973—aln
Now he faced
of his 10 yea
concern over
ened as the d
nowhere to b:
About 1:1(
the search c
white Ford f
stafion off In
North Carolir
area is abou
Boydton.
The men bt
truck, then th
station emp!
Harnett Coun
‘expected to take the stand today as
SUAINEQIOG a
By. John Hoke‘
Times-Dispatch state staff
BOYDTON — Joe Lewis Wise is
his capital murder trial enters its
fifth day in Mecklenburg County Cir-
‘cuit Court.
Mecklenburg County Common-
wealth’s Attorney Frank Harris rest-
ed his case yesterday morning. .De-
fense attorney William Bryant
Claiborne opened his.case by again
calling three North Carolina women
who had testified that Wise had told
Aiea he had shot a man.on Dec. 1.
- Wise, 22, of Spring Hope, N.C.,. is
charged in the death of William. H.
Ricketson of Boydton. He is also
charged with armed robbery, grand -
larceny and felonious use of a fire-
arm. Harris is seeking the death
penalty. -
Ricketson, 43, the buildings il
grounds superintendent at the Meck-
lenburg Correctional Center, was
found drowned.in an unused privy
hole near an old excelsior plant out-
side Chase City on Dec. 2. He had been
shot through the eye with a bullet
fired from a small-caliber gun, beat-
en severely and shot in the side with a
shotgun.
When Wise was arrested along In-
terstate 95 near Dunn, N.C., on Dec. 2,
he was pouring oil into Ricketson’s
pickup truck and was carrying the
pistol with which Ricketson had been
shot.
The three women, Shirley Whitta-
_ker.and Mary Booth, both of Middie-
sex, N.C., and Clarice Bowser of
Spring Hope, N.C., gave virtually
identical testimony last week that
Wise had arrived in the pickup truck
2 case ciletiaisd attempts 2
ro
am. and:2 a.m. Dec. 2 and told them
he had shot a man at the old excelsior :
plant earlier that evening.
’ When the women did not show. up
for court Monday morning, the trial
was continued until yesterday.
Claiborne sought yesterday to dis-
credit their testimony to support
~ Wise’s contention that Ms. Whittaker
fired the: first shot at Ricketson and
. that several other persons, including
Wise’s father, Ray Booth, were in- -
volved in the slaying. | .
Booth, whose whereabouts is un-
known, is separated from Mrs. Booth
and has fathered children by all three
of the women, they said.
Ms. Bowser testified yesterday that
she also has a 6-month-old child fa-
thered by Wise. She also said that
Wise first arrived at her ‘home as
early as 10 p.m. on Dec. 1 in an appar-
ent contradiction of earlier.
testimony.
Ms. Whittaker cadena ‘a poor-
quality recording of a telephone con- |
versation she had with Wise from jail
in mid-December. Although most of
the conversation on the tape was in-
audible, Wise can be heard in parts
describing how he shot the man, beat
him, threw him in the hole and then
shot him again. :
Wise has given police nine state-
ments about the slaying. In several of
the earlier statements, he admitted -
killing Ricketson. But in the last two
statements, Wise claimed Ms. Whitta-
ker had fired the iritial shot at Ricket-
son, who had stopped his pickup truck
in front of the remote excelsior plant,
and that Booth had shot him with a
shotgun after he was dumped into the
pt a a PORE Sle eNO Ie as
ai Ms. Whittaker’s home between 1
a
a
e@. od
privy sete.
Wise said he lied: in the: ear ier
statements because Ms. Whittake¢
* had told him to and to protect ehis
"father.
~ “It’s what she told me to say,” Wise
shouted before the tape was playéd.
Claiborne contended the tape:té-
corded conversation was an effort:
Ms. Whittaker to help Wise reheaf&sé
his story of the sequence of events:
She said she taped Wise’s alleged
confession to protect two other men
Wise intended to implicate in thé
slaying. ae
The old éxecisior ‘plant was being
used as a flea market and, according
to testimony, a base for selling. drugs
and stolen merchandise. gett
~Ms. Whittaker denied going there
during the week of the murder, which
occurred on a Thursday night. ~*
The three women said Wise, Booth,
Mrs. Booth and Ms. Bowser went ‘to
the old plant’ on Tuesday night and
returned to North Carolina Wednes-
day morning, leaving Wise at the old
plant alone.
But Juanita Hairston of Eden, N. om
a friend of Wise’s who has a 9-month-
old child by him, testified yesterday.
afternoon that she saw Ms. Whittaker
arrive at the old excelsior plant at
about 6:30 p.m. on Wednesday, the day
before the slaying.
She later received phone calls from
Booth and a woman she believed was
Ms. Whittaker threatening her and
telling her not talk with police about
the slaying.
“She bragged that she killed a man
at one time and buried him down in
the. woods,” Ms. Hairston testified
about Ms. Whittaker. “They called me
on the phone and threatened me.”
UF thn me ya i ti tl et eA AeA gy
RAQEGREAOAARGA LE
2
c--?
—7?
Fee
ca
INSIDE
Wuleanr
buy ia
TIVE, July,
1994.
Inside Detective 61
ow
WAYE, Alton, black, elec. Va. SP (Mecklenburg) on 8/30/1989
oe | 9
Rapist-Killer
Electrocuted
In Richmond :
) : By Pamela Overstreet .
United Press Inter national
RICHMOND, Avg. 30—Con-
fessed killer Alton Waye, who was
newly baptized and elected to take
commuhion as his ‘last meal, was
electrotuted tonight for raping and
murdering a Southside Virginia
widow in 1977.
The {34-year-old ;former factory
worker; and Army veteran who
spent more than a decade on death
row was pronounced dead at 11:05
p.m. after receiving two 55-second
surges of 2,525 volts of electricity,
State Penitentiary Operations Man-
ager vd Coble said.
Waye’s final statement was: “I
would like to express that what’s
about to occur here is a murder. I
want everybody to know I forgive
the people involved in this murder,
that I,don’t hate nobody and I love
you.” » i |
Outside the penitentiary, about
50 death penalty opponents held a
silent candlelight vigil while across
the street a handful of death penalty
supporters ‘shouted and carried
signs. | |
Earlier in| the day, the governor
of Virginia, a federal judge, the U.S.
Circuit Court of Appeals and the
Supreme) Court all refused to halt -
the execution. |
State |Penitentiary Chaplain A.C. |
Epps, who stayed with Waye until
his final} hours, said Waye believed
God had forgiven him for the slay- -
ing, an that the condemned man ~
requested a simple meal of commu-
nion bread and juice.’ ;
Hours before his ‘execution, the
newly baptized Waye:was visited by
See EXECUTION; 86, Col, 1
|
|
|
Ri
|
|
{
|
i
|
|
Tuurspay, Aucust 31, 1989
jese
Convict Dies in Electric Chair at
—
~
EXECUTION, From Bl
his mother, Alice Waye, a brother,
--two sisters and -several nieces and-——Pescribi
~ nephews. He spent the rest of his
day with prison chaplains.
Waye was put to death for the rape
and murder of Lavergne Marshall,
61, whose body was found in a bath-
tub of her Kenbridge, Va., home on
Oct. 14, 1977. She had been beaten
beyond recognition, stabbed 42 times
and covered with bleach.
Waye, who lived about two miles
away from Marshall in the rural -
Southside locality, first told his father
of the crime shortly after arriving
home in blood-stained clothing, then
confessed to police, leading them on a
tour of the murder scene.
Waye’s lawyers argued that he
was not adequately represented at
trial by his attorney or a private’
psychiatrist who conducted an ex-
amination for the defense.
They also suggested the courts
- should provide more time to inves-
~tigateallegations” that™ Wayé’s" ~~" Thé “panel €xpréssed skepticism ~~ ban on capital punishment in 1976.__|
THE WASHINGTON POST
drinking companion on the night of.
the murder may have been impli-
cated in the crime.
man” with a diminished mental ca-
pacity, NAACP lawyer Richard
Burr said “within the last few weeks
... we have conducted the inves-
tigation that has never been done.”
Gov. Gerald L. Baliles issued-a
statement saying: “I do not believe
the governor’s power of executive
clemency should be exercised in
this instance.”
U.S. District Judge Robert R.
Merhige jr. refused to grant a stay,
saying the “evidence is absolutely
overwhelming” against Waye.
There was little or no new infor-
mation in the appeal, said Merhige,
who Monday also rejected an appeal
based on a claim that the jurors
~-were improperly instructed.
A panel of the 4th U.S. Circuit
_ Court of Appeals then listened to
arguments via teleconference and
refused to stop the electrocution:
Richmond.
that a new investigation could yield.
new facts after 12 years, and Judge
Emory Widener warned Waye’s
bre a =
"asa “poor biack~tawyers; “You "can't continue forev-=
er until the end of the world.”
After summarizing the appeal
history—his case has been heard by |
30 judges in at least 17 hearings—
the three-judge appeals panel
. and the final stage has been
reached in this case.
“We are not unaware of the se-
riousness of the case. We have
carefully considered the current |:
petition . . . and although we decide
the case on procedural aspects, we
are of the opinion that it is without
. «. merit.”
Finally, the U.S. Supreme Court
refused to intervene by a vote of 7
to 2, with justices William Brennan
~and Thurgood “Marshall dissenting. ~
Waye was the eighth person to die |}
in Virginia’s electric chair and the
117th executed in the United States~
since the Supreme Court _lifted-the-
B2 Tuurspay, Aucust 31, 1989
wrote: “There must be some finality > a
SHY
* © @ THE RICHMOND NEWS LEADER, Thursday, August 31, 1989
Prison chaplain says Waye
expressed remorse at end
By Jim Mason
News Leader staff writer
Before his execution. for the rape
and brutal murder of a 61-year-old
Lunenburg County woman, convicted
killer Alton Waye expressed some re-
morse, a prison chaplain who was
; with him said today.
; “He said he had made mistakes in
his life, and that it hurt other people,
; and that he regretted that and he was
‘ glad God had forgiven him,” said the
‘Rev. Russ Ford.
‘ Waye was pronounced dead at 11:05
last night after receiving two 55-sec-
ond surges of 2,500 volts of electricity
in the State Penitentiary’s electric -
chair.
‘A half hour before he died, Waye, a
34-year-old U.S. Army veteran, told
his mother, Ophleia Waye, “he was
sorry for the pain he had caused her,”
Mr. Ford said.
For a last meal, Waye, who was
baptized in the prison chapel 27 hours
earlier, had communion bread and
juice. “We celebrated the Last Sup-
per, and it was a very. meaningful
time for him,” Mr. Ford said.
“I believe that Alton was hopeful
that something would spare his life.
But when he realized that would not
happened, he was saddened ... and
resigned himself to the fact that he
was going to die. ;
“He was very much a gentleman
and very much prepared” on the walk
from his cell to the electric chair, the
chaplain added.
“J think it was very important to
Alton to express that he didn’t harbor
any anger or malice toward anyone,
and he expressed that particularly to
those on the execution team,” Mr.
Ford said. uhh
“Seek the Kingdom of God,” the
chaplain recalled telling Waye as the
condemned man was being placed in
the 1908-vintage oak electric chair.
Waye’s final words, according to
John Coble, the prison’s operations
officer, were:
_“T-would like to express that what
is about to take place is a murder. I
want everyone to know I forgive the
people involved in this murder, I don’t
hate anybody, and that I love you.”
“. Waye was sentenced to die for the
rape and murder of Lavergne Mar-
shall, the widow of a prominent Lu-
nenburg County farmer, in her home
Oct. 14, 1977. :
Sheriff's deputies found Mrs. Mar-
shall’s nude body in a bath tub. Her
face had been beaten beyond recogni-
tion and she had been stabbed 42
times. with a butcher knife. Bleach
‘ had been poured over her body. |
_ After Waye’s execution, Gary L.
: Marshall, a United Press Internation-
al reporter who had been among the
witnesses, described how swiftly
death had come.
“Two jolts, one clinch, one relax, he
clinched again and he .was gone, just
gone,” Marshall said. “It was hard to
watch.”
Another newsman who was a wit-
ness at the execution, WXEX-TV an-
chorman Kevin McGraw, said the ex-
ecution was “a stunning thing to
watch.”
Waye became the eighth person to
die in the state’s electric chair and
the 117th person to be executed in the
United States since the Supreme
Court lifted the ban on capital punish-
ment in 1976.
Outside the Penitentiary, about 50
death-penalty opponents held a can-
dlelight vigil in front of the old De-
partment of Corrections office build-
ing on the east side of Belvidere
Street.
They had attended a service at St.
Peter’s Catholic Church downtown
and held a candlelight vigil on the
sidewalk outside Capitol Square be-
fore marching west on Main Street,
with a police escort, to the prison.
During their candlelight vigil at the
prison, the Rev. Roger Reed led the
singing of “We Shall Overcome” and:
“Battle Hymn of the Republic” and at
one point talked about the signifi-
cance of the protest:
The death penalty does not deter~
murders, said Mr. Reed, pastor of
Third Street Bethel A.M.E. Church
and president of the Richmond
branch of the National Association
for the Advancement of Colored Peo-
ple.
Across the street, about an equal
number of death penalty supporters
. gathered and counted down the last
.
few seconds before the scheduled 11
p.m. execution, then clapped and
shouted. A few yelled, “Burn, baby
burn!” 3
Waye’s execution took place as
scheduled after his attorneys lost
their final appeal to save him. Shortly
before 8 p.m., the U. S. Supreme Court:
denied a stay of execution.
The vote was 7 to 2. Justices Wil-
liam J. Brennan and Thurgood Mar-
shall, who oppose the death penalty,
voted to stop the execution.
Waye’s attorneys appealed to the
panel of the 4th U.S. Circuit Court of ’
Appeals denied a stay late yesterday.
afternoon.
In refusing to stop the execution,
the appeals court judges upheld rul-
N
ings by U.S. District Judge Robert R.
Merhige Jr. :
Merhige denied a stay yesterday
morning in ruling on claims of Waye’s
diminished mental capacity and lack
of adequate psychiatric evaluation
when he was tried in 1978.
On Monday, Merhige denied a stay
that was based.on a claim that the |
trial jury was given a faulty instruc-
tion. : :
Also yesterday afternoon, Gov.
Gerald L. Baliles denied clemency for
Waye. Mrs. Marshall lived alone in
her home near Kenbridge. Waye, then
22, lived with his parents about two
miles from the widow’s home. °
According to testimony at Waye’s
1978 jury trial, Waye and another
man had been out drinking beer be-
fore they drove to Mrs. Marshall’s
home. Waye gained entry by asking if
he could use the telephone. *
Shortly after the killing, Waye first
confessed to his father and then tele-
phoned the Lunenburg County Sher-
iff’s Department and told of the kill-
ing. Deputies picked up Waye at his
home and he took them to Mrs. Mar-
_shall’s home.
After hearing the case, a jury made
up of neighboring Mecklenburg Coun-
ty residents deliberated about 10 min-
utes before convicting Waye of capi-
tal murder. The jurors deliberated
another 20 minutes before deciding on
the death penalty.
Up until two weeks ago, when he
was brought to the Penitentiary,
Waye had spent more than a decade
on death row at Mecklenburg Correc-
tional Center while his case was ap-
pealed .
The other men executed since Vir-
ginia resumed using the death penal-
ty in 1977 were Frank J. Coppola, 38,
on Aug. 10, 1982; Linwood E. Briley,
30, Oct. 12, 1984; James D. Briley, 28,
April 18, 1985; Morris Odell Mason, 33,,
June 25, 1985; Michael Marnell Smith,
40, July 31, 1986; Richard Lee Whitley,
41, July 6, 1987; and Ear] Clanton Jr,
33, April 14, 1988.
Waye may have been the last to be
- executed in the antiquated prison
near Richmond’s downtown. The
State Penitentiary is scheduled to be
closed by June 30, 1990, and correc-
tions officials say the electric chair
‘. will be moved to a new prison under
Supreme Court after a three-judge .
construction in Greensville County.
Wayne Farrar, spokesman for the
» Department of Corrections, said no
' executions are scheduled for any of
the remaining 41 death row inmates
before the chair. is moved.
fe NOTICE OF REDEMPTION TO THE HOLDERS OF
Cu") 00.
Bruce Parker/The Richmond News Leader
Death-penalty opponents hold a candlelight vigil outside the Penitentiary last night.
Community torn by two deaths
By Jeffrey y St John
News Leader Correspondent
KENBRIDGE — The execution of Alton Waye for the
murder of a Lunenburg County widow leaves residents of
this rural Southside farming community, where he was
born, grew up and went to school, caught in a strong
crosscurrent of conflicting opinion, emotions and doubt.
“A lot of people just don’t want to talk about it,” Gordon
F. Erby. said of Waye’s execution and the murder of 61-
year-old Lavergne B. Marshall: “It still bothers a lot of us.
Alton Waye was the last person on earth you would think
capable of such a nasty act.”
Erby, Victoria’s town manager, attended 9th and 10th
grade with Waye and his identical twin brother, Alvin,
who now lives in Maryland.
He said the twins were “outgoing and happy type of
people. ” They came from a “poor but proud” sharecrop-
ping family.
Dr. R. Charles Dunavant, a Kenbridge veterinarian and
neighbor of the slain woman, knew the Waye twins since
they were:14..He recalls.that their father, Peter Waye,
who died in 1986, headed a family of four boys and one girl
that was hard-working and religious. . '
“They were very well thought of in the community,” Dr.
Dunavant recalled. “I remember Alton as a very nice,
polite and bright young man. So it was a real shocker
when his daddy said his son had come home and told him
that he had done something terrible to Mrs. Marshall less
than a mile away.”
baton se! Sheriff Archer G. Daniel, a deputy at the
time, recalled that Alton Waye had never been in trouble
with the law.
“He never gave any. indications that he might be poten-
tially violent,” Daniel said. “Even after his arrest, he was
just as nice as he could be. Something must have snapped
that night. It’s the only explanation I can offer. Alton
Waye just did not fit the image of a brutal, sadistic killer.”
Dorothy C. Tucker, publisher of the Victoria Dispatch,
maintains even after a dozen years that residents in the
region are still groping for some answer that will explain
a case she contends is baffling, bizarre and frustrating.
“During his three-day trial in Mecklenburg,” Mrs. Tuck-
er said, “and during his decade on death row, he never
offered a motive or an explanation for the killing.”
On Tuesday, Ophelia D. Waye, 60, said her son never
discussed the case with her during her visits to him in
prison. “He talked with his father about it when his was
alive, but he never did with me. I always have had the
feeling that there was more to it than I can explain. As his
mother I don’t believe Alton did it; another person did it.”
Richard H. Burr III, director of the capital punishment
project for the NAACP Defense Fund, argued in last-
minute appeals Tuesday that a friend of Waye’s was
outside of the Marshall house on the night of the murder
and might have been implicated in the crime.
However, Sheriff Daniel said the friend was questioned
and cleared.
Alton Waye outlived the sheriff who arrested him, the
commonwealth’s attorney who prosecuted him and the
judge who tried his case and sentenced him to die.
What’ s the best dinner deal in town? The latest cuisine? Restaurant reviewer
John Barrett tells you in his column, “Dining Out,” every Friday in the Week-
ender section of The Times-Dispatch.
t
2, #5: “Chickamauga-
ly of Personalities,” by
ctfollo of drawings of
Forbes. Story of Con-
lambersburg Avenged.”
2, #6: “Slippi
ide,” by V, (Paty
.» Cc.
3 Colonel in the Civil
»wer thought of Lee.
‘hat Never Was.” The
Crook and Kelley.
. 2, #7: “How The
usea,t by Dr. Francis
"1 established Thanks-
ware—The Northern
¥ robriand—Latter Day
r
2, #8: “Brandy Sta-
2arned Federals Could
cker. Profile on A. P.
_Nye. “Christmas in
icket Line.” Spywork
$
2, #9: “Grant as a
‘d Steere. “‘The Mys-
City Point.” “A Gal-
by Winslow Homer.”
S Raid on Memphis.
Pp Kearny,
+, #10: The story o:
Shington, by m s
zen. John B. Gordon.
ns_of Lincoln and
1e Battle of Corinth.
1961-Feb. 1962)
+ campaign in
James Warner
' of 1861. Pro-
las, “Lincoln’s
cry ot the New York
8S Crossroads,
Ships Versus Forts
‘es. Profile on “Par-
aueatarias, Aettl
awald, e Stor
in the Civil War.
of White Sulphur
U.S. Balloon Corps,
4: The Vicksburg
wss, ane Turn-
cy.” “As a Minister
rettysburg.” “Exiles
ex-Confederates in
5: A CWT EXCLU-
tions by Lafayette
Secretary of War
r of Lincoln. This
em. Don’t miss it.
asil Turchin,
6: “The Real Story
y E. J. Stackpole.
ct in the re-enact-
n, by Dr. Frederic
‘ of the West” met
rate service,
» #7: A Tour of
ident Eisenhower.
‘riginal manuscript
= Ppl foctinique
\ manufacture.
ike Etre, _
#8: The st of
e, by Beanies F.
o Brigade, by Alan
feros von Borcke,
Article by Dr.
he Enfleld Musket.
9: The Hampton
Debacle at Ball’s
.\coln’s Hard Luck
3 A. Lord writes
Also an article
fronclad,
#10: “The VMI
New Market,” by
The oft-destroyed
ary. of the
ll Jackson’s
fle of CW
1 the Knap-
Leroy E. Smith,
President
Edward J. Stackpole,
Publisher
Robert H. Fowler,
Editor, General Manager
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REGULAR CONTRIBUTORS:
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Wham ag Ms mn We Ui > she }
WH det JD LN g 4LMouny, WOLGG, . thi
Richmond, VA 4/29/1862
SE neem ee 1 enn ES
Civil War Times
[ILLUSTRATED
A non-partisan magazine of American History
Volume 3, Number 10
IN THIS ISSUE
A SPECIAL REPORT:
February 1965
New Evidence in Lincoln Murder Conspiracy
by Robert H. Fowler ....... Page 4
‘The Civil War Need Not Have Taken Place’
by Bruce Catton ....... Page 13
When Grant Faced Lee Across the North Anna
by Joseph P. Cullen ....... Page 16
Federal Spies in Richmond
by Richard P. Weinert ....... Page 28
From Atlanta to a Federal Prison Camp
by William Candace Thompson ....... Page 40
A CWTI EXTRA
The Mississippi County that ‘Seceded’
by Jack D. L. Holmes ........ Page 45
REGULAR FEATURES
LOO! Years Ago 2.5. edie ale cain Ve be see ihee tans ee eeebe ee tee enees Page 24
Editorially Speaking .........c.cceceeceese cette eeeeeeesneeeseaees Page 35
Weapons & Equipment ......... 0.6 c cece recente eee nee nnes Page 36
Classified fils. octets aeidjeiin cence oe Eiate’s ad ece so ewe dis o'b w aluidie ole Hate sees Page 38
Book: Reviews ..« oof. bw tues demos tine signee oe bee oo algae © eels was Page 39
OUR FRONT COVER—This woodcut drawing by Albert Berg-
haus first appeared as the cover illustration of “Frank Leslie’s Illus-
trated Newspaper” on April 29, 1865, two weeks after the Assassination
of Abraham Lincoln. The original caption read: “Assassination of
President Lincoln in his private box at Ford’s Theatre, Washington—
April 14.” Besides Booth and the President, the other persons in the box
were Mrs. Lincoln, a Miss Harris and her fiance, a Major Rathbone.
OUR BACK COVER-From the Library of Congress, this photo-
graph shows unidentified troops wearing gray uniforms but otherwise
outfitted as Federal soldiers. (Explanation accompanies photograph.)
Second class postage paid at Gettysburg, Pa. CIVIL WAR TIMES Illustrated 1s
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Copyright 1965, Historical Times Inc.
2
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WEBSTER, James CORRECT DATE [-6-99 e
James Webster, black, hanged Jan. 9, 1899, for
rape and Bedford City, Va,
Undated 1900 Chicago TRIBUNE carying 1899 exe-
cution list & sent by Massey,
Age 18. Contessed his guilt but Sard on Mis way To
the gallows : "1 awe rach t00 lrandsome to die tor that
old Woman.”
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WEBSTER, James January = 1899 |
James Webster, black, hanged Jon. 1899, for
rape and Bedford City, Va.
Undated 1900 Chicago TRIBUNE’ carying 1899 exe-
cution list & sent by MAESeY
Age 18-Correct date‘ 1-6-1899 per RICHMOND DIS-
PATCH, Richmond, Va., 1-7-1899 th-6) From
DISPATCH, While he confessed his guilt at the
gallows, he said 'I an much too handsometo die
or that old woman,”
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Fripay, Jucy 3, 1987 C5
Tue WASHINGTON Post
Stay of Execution Is Denied
For Killer of Fairfax Woman
The Virginia Supreme Court and the 4th U.S. Cir-
cuit Court of Appeals turned down a request yester-
day to stay the execution of convicted killer Richard
Lee Whitley, a Fairfax County man who is scheduled
to die Monday night in the electric chair in Rich-
mond.
The only remaining avenues for appeal are the
U.S. Supreme Court and a request for clemency
pending before Gov. Gerald L. Baliles.
A panel of the federal appeals court rejected ar-
guments from Richmond lawyer Timothy Kaine, who
said procedural errors prevented constitutional
questions from being litigated.
A state Supreme Court panel tuned down an appeal
based on Kaine’s contention that Whitley is feeble-
minded within the meaning of Virginia law and so
: should be placed in a psychiatric hospital.
g Whitley, 41, is scheduled to die for the 1980 mur-
der of Phoebe Parsons, 63. Whitley cut her throat
3 with a pocketknife and strangled ker with a rope,
then mutilated her body.
He then took Parsons’ credit cards, wallet and
eS 1978 Volkswagen and drove to Tampa, Fla., where
he was arrested one week later.
VIRGINIA
Whitley Awaits Ruling
® Richard Whitley hoped for a
Supreme Court ruling grant-
ing his appeal while he
awaited his scheduled execy-
tion today. Page B3
Whitley Awaits Supreme Court Ruling on Appeal
g Richard Whitley, whose clemency appeal had been rejected
by Virginia Gov. Gerald L. Baliles, hoped for a successful Su-
e preme Court appeal yesterday while awaiting his scheduled
- execution tonight at the State Penitentiary in Richmond.
Baliles denied Whitley’s clemency request on Friday.
y Richmond lawyer Timothy Kaine pinned hopes on an appeal
to the country’s high court. Whitley’s case was litigated through
the state courts last week, and a stay request was filed with the
Supreme Court Thursday night.
Chief Justice William Rehnquist referred the appeal to the ful]
court, and as the court is in recess, each justice had to be con-
tacted and polled during the weekend.
The 41-vear-old Whitley was sentenced to die for the 1980
of his next-door neighbor, 63-vear-old Phebe Pars-ns, in
Famtax County. Testimony in his two-day May 198] trial
Showed that Whitley cut Parsons’ throat, strangled her with a
rope and s€xually assaulted her.
AROUND THE REGION
PIR LO SINISE
ASSOCIATED PRESS
Convicted killer Richard Lee Whitley in a Va. prison,
THE WasHincre: i
= ~ | eT
Monnay, JULY 6, 1987 BY
eed
WHITL
Threw
MY
a Lg
Richard, white, elec., Vabgeinia
ro
ag
THE RICHMOND NEWS LEADER, Tuesday, July 7, 1987
Final appeal fails;
Whitley is executed
By Jim Mason
News Leader staff writer
While death penalty supporters and
opponents demonstrated outside the
State Penitentiary, Richard Lee
Whitley became the sixth man exe-
cuted since Virginia resumed the
death penalty.
Whitley, 41, from Fairfax County,
was executed last night for the mur-
der and sexual mutilation of Phoebe
Parsons, a 63-year-old next-door
neighbor, in 1980.
Mrs. Parsons, a widow, was stran-
gled and her throat was slashed. She
was assaulted sexually with umbrel-
las.
Whitley was pronounced dead at
11:07, nine minutes after he entered
the death chamber, said Dwight Per-
ry, operations officer for the prison
Fa eeeemeninininenenniiaeniaiiaaemnanieesseiinnenaaT
here. Whitley had no final words, Per-
ry said.
The execution was carried out four
hours after Whitley lost his final ap-
peal to the U.S. Supreme Court. By a
6-2 vote, the court refused to block the
execution.
All of Whitley’s earlier appeals
through federal and state courts had
been denied, and Gov. Gerald L. Ba-
liles had refused a plea for clemency.
After Perry’s terse announcement
that the execution had been carried
out, three of the four news reporters
who were among the 10 witnesses
described the execution.
They said Whitley, accompanied by
the prison chaplain and members of
the state’s execution team, walked to
C0 See Whitley, Page 4
Fairfax Co.) 7-6-1987
Whitley
O Continued from Page 1
the electric chair from his nearby
basement cell.
Whitley, his head shaved, wore a
blue work shirt, blue jeans and rubber
flip-flops, the witnesses said. They
added that he appeared dazed and
glanced momentarily at the witness-
es as he was strapped into the wooden
chair.
Whitley received two 55-second
charges containing 2,500 volts each of
electricity, according to the witness-
es. Then, a guard opened Whitley's
shirt and a doctor checked for vital
Signs. .
The witnesses quoted the doctor as
having said, “This man has expired.”
A white curtain then was drawn be-
tween witnesses and the electric
chair, they said.
About 15 minutes before the execu-
_tion, Timothy Kaine, Whitley’s law-
Richard Lee Whitley is sixth
man to be executed in Virginia
since reinstitution of death
penalty b 1982.
yer, told reporters gathered outside
the Penitentiary’s entrance on Spring
Street that state imposition of the
death penalty is wrong.
“Murder is wrong, whether it is at
Gulag ... Fairfax County, or Spring
Street,” Kaine said.
During a vigil held outside the pris-
on last night, about 150 people, some
carrying signs, expressed a similar
view in talking with reporters.
“It’s wrong to kill people,” said
protester John Gallini of Chesterfield
County. “The state should be finding
other ways that say that violence is
wrong, that it’s not a solution to our
problems,” said Gallini, a retired
chemical engineer.
One sign stated, “Execute justice,
not people.”
Across the street from death pen-
alty opponents, about an equal num-
ber of people turned out to show sup-
port for the execution. None of them:
carried signs, but occasionally some
group members would heckle the
death penalty foes.
A few minutes before the execu-
tion, the death penalty foes, who in-
cluded several clergymen, held hands
in a circle. Across the street, some
youths shouted, “Goodbye!”
Richmond police and Penitentiary
officers kept the groups separated.
No scuffles occurred, and no arrests
were made. |
The scene was considerably more
subdued than last July 31, when Mi-
chael Marnell Smith was executed for
the murder and rape of a woman in
' James City County.
Earlier last night, Marie Deans, di-
rector of the Virginia Coalition of
Jails and Prisons, met with Whitley.
She said he was calm and “seemed to
be holding up well.”
Whitley had been transferred to the
Richmond prison June 17 from death
row at Mecklenburg Correctional
Center for the final wait before his
execution.
For his final meal, Whitley had
Steak, French-fried potatoes, tossed
salad with French dressing and iced
tea, penitentiary officials said. He
also had a banana split.
Whitloy was the 242nd person exe-
Va. Court Rejects Death Appeal
@ The Supreme Court refused yesterday
to hear the appeal of Virginia death row
inmate Richard L, Whitley, whose execu-
tion for a 1980 murder of a Fairfax County
woman was stayed in December 1985.
Whitley, 40, is scheduled to be electro-
cuted July 6.
The justices let stand rulings that Whit-
ley received adequate legal help during his
ober, a three-judge panel of the
4th U.S. Circuit Court of Appeals con-
Cluded that evidence Clearly established
Whitley’s guilt in the killing of Phoebe
Parsons, 63. The woman had been stran-
according to evidence Presented at Whit-
ley’s Fairfax County trial. NG S4r 259% 4
ot pee Sa? Pos
= ece cc #
Court, federal appeals cour re-
f
i
fil
it
é
Ee
f
a
e
°
i
ir
Al
ui rf
‘horrible sight was
1 with unmistaka-
ianence. She stop-
ice. She could take
en of the Fairfax
tment’s patrol di-
scene shortly with
officers. They sec-
stigator Jessee C.
> county police
ved on the scene
zan his investiga-
to determine that
side. In addition to
od on the furniture
2re ink smudges.
ld victim’s throat
there was also a
wrapped tightly
» had died from li-
yn or from a cut
oved and taken to
ledical Examiner’s
ames Beyer con-
s had been dead
iree days. He also
uffered contusions
and lacerations on
Although her body
» time she was dis-
examiner could de-
ven in her vagina.
»ted that the exces-
that had elapsed
ted may have been
aces, if there were
iough to escape de-
thologist’s efforts
ne existence of two
had killed her had
‘e umbrella so far
it had penetrated
nto her abdominal
ad also rammed
into the victim’s
iroat
1,
ler Pius
“it
rectum that only one inch of it was
left protruding from the corpse.
Investigator Sutherland found the
victim’s bra and panties in the livng
room,.and a trail of blood that led from
the kitchen to the dining room, living
room and which ended up finally in the
bedroom. Fairfax County Police Officer
Andrew Johnson, a latent fingerprint
expert with the police laboratory unit,
collected dozens of bloody fingerprints
in the house, many of them in superb
condition.
As Fairfax County’s Commonwealth
Attorney, Robert F. Horan Jr.. would
later comment, “I don’t think I ever had
more usable fingerprints than in this
case.” Horan has been Fairfax County’s
chief prossecuting attorney for over 14
years and has prosecuted more than 100
homicide cases in that time. He termed
the Parsons murder as “probably as
brutal and atrocious a killing” as he had
' seen, characterized by “sheer deprav-
ity.” :
As Investigator Sutherland coordi-
nated the search for evidence inside the
house, Investigator William A. Mullins
began a canvass of the neighborhood.
Inv. Mullins didn’t have to-go far, be-
cause on almost his first stop at a house
next door he learned that a tenant had
been missing for the past three days.
Only recently, Richard Lee Whitley, a
33-year-old house painter, had sublet
some space to a young married couple.
The couple told Inv. Mullins that they
had last seen Whitley around 8:30 p.m.
the prevous Friday night when they
were on their way out for the evening.
They also told the sleuths that Mrs.
Parsons had occasionally hired Whitley |
to do odd jobs around her house.
Among some of the items found in the
Parsons house were a checkbook, bank
statements and canceled checks. Sure
enough, Mrs. Parsons had written sev-
eral checks to Whitley.
As the sleuths looked through their
own records in Fairfax County, there
was no information on Richard Whitley
in their files. However, in nearby Ar-
lington County they discovered that
Whitley had only recently been arrested
on charges of sodomizing a teenage. boy.
When the Parsons murder occurred,
Whitley was awaiting trial-on those ©
charges.
The investigators resumed their can-
vass of the neighborhod to see if they
could learn more of the habits of their
WAS "SHEER DEPRATY!"
BRIERE : of
Trail of blood in Parsons home led to disarrayed bedroom where slain woman’s body
was found lying under:a pile of clothing and blankets in the middle of the floor
suspect. They learned from several of
the neighbors that Whitley, who .was
legally married, had sexually assaulted
his ten-year-old stepdaughter, and as a
result his wife had left with the girl
several weeks earlier. And because
Whitley was having trouble paying the
rent, by himself he had only recently
decided to sublet living space to the
young married couple.
Meanwhile, Officer Andrew Johnson
had made positive identifications of the
bloody fingerprints found in the house,
and as a result, just two days after dis-
covery of the body, a murder warrant
was sworn out for the arrest of Richard
Lee Whitley.
Where to find Whitley was the big
problem. It was obvious he had
absconded—no one could think of any
other motive to.do so than to avoid law-
men seeking to question him. About the,
only thing the investigators had as a
lead was the car belonging to Mrs. Par-
sons, which was known to be a 197
Volkswagen Rabbit.
By this time also the investigators
had obtained Whitley’s rap sheet from
other states. An ex-convict who had
served time in prisons in’ Illinois and
RT
Si caine alana
Nevada, Whitley had been known
primarily as a burglar. His long crimi-
nal record had begun in Greenwood,
Wisconsin, where his mother still lived.
“He. could be anywhere,” mused the
red-haired, mustached Inv. Sutherland.
As result, on July 30th, Common-
wealth Attorney Horan requested and
obtained from the United States Attor-
ney in Alexandria, Virginia, Justin W.
Williams, a federal warrant for the ar-
rest of Whitley on a charge of unlawful :
flight to avoid prosecution. If Whitlev
was still in the United States, the assis-
‘tance of the FBI would be needed to help
locate and bring him to justice.
Several days went by and nothing
happened. It seemed most plausible
that the Chicago-born Whitley would
nave returned to the Midwest. But law
enforcement officials in Nevada, Illinois
and Wisconsin found no trace of him.
The Fairfax County police investigators
went back to their drawing boards.
Inv. Mullins went to work on a profile
of Whitley’s personality and habits by
contacting all of Whitley’s acquain-
tances who could be identified and lo-
cated. Sifting through some of his be-
longings seized at his house and inter-
Official Detective 15
i aE
While probers searched for clues in living room and other rooms of ransacked house,
they found cancelled checks made out to man known to have done odd jobs for victim
viewing several persons who were most
familiar with the suspect, Inv. Mullins
discovered that Whitley had a girlfriend
who was living in central Florida. ‘
“Tt wasn’t a lot to go on. But we just
played the hunches,” Inv. Sutherland
later reflected.
A description of Mrs. Parsons’ car was
wired to Florida police agencies because
Whitley’s girlfriend was reported to
have moved there, but exactly where
was not known.
’ After scarcely a week the police got a
lead. A uniformed patrol officer was in-
vestigating an apparently abandoned
car parked in front of the Okeechobee
County Courthouse. When he ran the
license plate through the NCIC (Na-
tional Crime Information Center) com-
puter, the Parsons name came up, with
information that it was connected with
the murder of the owner. As the patrol
officer soon learned, a kev had been
broken off in the ignition.
Detective Eugene O’Neill of the
Okeechobee City Police Department ©
‘ processed the car for evidence and found
50 drug capsules in a bottle, an empty
Marlboro cigarette box, a Rand Mc-
Nally road Atlas and two credit card
receipts. One was a Chevron receipt
from Land of Lakes. Florida in the name
of the late Robert Parsons. The other
was an Exxon-receipt. Both had been
recently signed with the name Robert
Parsons, an obvious fraud because Par-
16 Official Detective
sons had died more than two years ear-
lier.’
Working through the Florida Bureau
of Investigaton, Det. O’Neill recovered .
latent prints from the credit card re-
ceipts and from a page of the road atlas.
When that staté’s criminal detection
bureau failed to identify the latents,
they were sent to the FBI and identified
as Whitley’s. \
By this time Richard Whitley was a
wanted man in Florida, but where he
was in Florida was a problem. Inves-
tigators Sutherland and Mullins had
rightly guessed that Whitley had
sought out the the company of his
former girlfriend, but when Florida
lawmen arrived at her last known ad-
dress they found that she had left for
other pastures. They could only specu-
late that perhaps she had left after
Whitley had arrived.
Florida police: also had, their own
reasons to find Whitley. Almost simul-
taneously with the finding of the Volks-
wagen, on August 1, 1980, a brutal
double murder had been committed in
Homes Beach, Florida, a fashionable
beachfront community near Tampa.
The discovery of the Parsons car had
informed Florida police about the Vir-
ginia murder, and had led them to sus-
pect that Whitley could also possibly be
involved in the Homes Beach slayings.
. Apicture of Whitley was broadcast on
television stations in central Florida for
the following week. Therefore, Tampa
City Police were not surprised when
they received a phone call from someone
who believed he knew where Whitley
could be located. Bes ;
“He’s in my boarding house. I let a
room to him two weeks ago,” an elderly
man said over the line to the Tampa .
police communications officer.
On August 8, 1980, members of the
Tampa City Police and Manatee County
Sheriffs Department staked out Whit-
ley’s apartment and waited for him to:
return. When he did, he was arrested
without incident and brought to city
police headquarters.
Whitley waived his right to have an
attorney present during the question-
ing conducted by Tampa Police Sgt.
Jerry Feltman and Manatee County
Sheriff's Det. Sgt. Mark Flint.
One of Whitley’s first comments to
the detectives, who asked him about the
Homes Beach murders, was, “You're not
going to pin this one on me.”
“What do you mean by that?” one of
the sleuths responded.
“You might pin the Virginia one on
me, but I’ve never been to Homes
Beach,” he said.
“You killed the old lady in Virginia?”
Whitley hesitated.
“Yes or no?”
“Ves.”
“Where did you kill her?” they asked,
pressing the question. ;
“In the throat,” Whitley replied. “I
killed her in the jugular vein. They die
quicker when you cut them there.”
“What was she doing when you killed
her?” :
“The old lady was praying.”
“Why? So you wouldn’t kill her?” '
“Yeah, I guess,” the unemployed
house painter said.
The Florida lawmen were able to
clear Whitley on the Homes Beach mur-
ders, and in the meantime Inv. Suther-
land had arrived from Fairfax County to
take charge of the investigation and
prisoner in the Parsons case. Although
there were some lesser criminal charges
pending against Whitley, Florida pro-
_gecutors dropped them so that the mur-
der case could be tried in Virginia. And
Whitley himself eased the process by
waiving extradition.
Whitley was returned to Virginia
that same month—August, 1980—and
booked on the murder and other charges
filed against him. The following month
he was taken to the Virginia Central
State Hospital in Petersburg for a
psychiatric examination. The conclu-
sions rendered by examining doctors
then were that Whitley was alert,
friendly, well-oriented and showed no
signs of mental illness.
In January, 1981, Whitley stood trial
on the outstanding sodomy charges
pending against him in Arlington
(Continued on page 52)
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en
1987
’
A Virginia prosecutor said the
KILLING OF PHOEBE
by KRIST BOARDMAN
Special Investigator for
OFFICIAL DETECTIVE STORIES
1980, when the pretty young wo-
man in her early twenties pulled
up to her mother’s house. Although she
talked to her on the phone frequently,
she hadn’t seen her mother for at least
several weeks and she was anxious fora
I T WAS AROUND midday, July 28,
reunion. Her mother, Phoebe Parsons,,
had had to go through several impor-
tant changes in the last few years. Her
husband had died just two years earlier
and her only daughter was already into
adulthood and living away from home. |
Phoebe Parsons’ daughter expected to
find her mother at home when she ar-
rived at the Pimmet Hills, Fairfax
County, Virginia home when she ar-
rived. But her mother’s car was not
there, and from outward appearances,
anyway, neither was her mother.
The young lady thought to herself,
“She’s probably on an errand.” Or on
one of her community projects,
perhaps. Phoebe Parsons was an active
churchgoer and participant in charita-
ble projects, and those activities helped
to take some of the sting out of her lone-
liness.
But as soon as the young woman in-
serted her key into the side door and it
creaked open, she sensed that some-
thing was terribly wrong. Her mother
always kept a tidy house, and now it was
in disarray—furniture knocked over,
drawers pulled out and dumped, even
blood spattered on the refrigerator.
Blood. The dreaded image hit her, it
seemed, like a sledge hammer between
the eyes. Or perhaps, in the heat of the
unventilated house, it was the at first
faint stench which seemed to hover in
the warm, close air before it wafted its
Robert F. Horan’ Jr., Virginia Common. -
wealth Attorney for Fairfax County,
characterized the Parsons murder ‘‘as
brutal and atrocious a killing’’ as he
had seen in more than fourteen years
way into her nostrils.
In each room she entered, the ran-
sacking ‘and stench appeared to be
worse than in the room before. Intu-
itively, she knew what awaited her.
She began to sense that she would find °
her mother dead. é
One bedroom was in complete disar-
ray, with everything dumped. Another
bedroom was even worse, with a heap of
clothing and blankets in a pile in the
center of the floor. And then she saw
them—the legs and hands sticking out
from beneath the pile.
As she pulled some of the blankets
and clothes off her mother, what she had
feared in her worst. imaginings was
even more awful in actuality. Just a
v
.short glimpse and the horrible sight was
etched into her mind with unmistaka-
ble finality and permanence. She stop-
ped and called the police. She could take
no more.
Sergeant Tim Bowen of the Fairfax
County Police Department’s patrol di-
vision arrived at the scene shortly with
two other uniformed officers. They sec-
ured the scene. Investigator Jessee C.
Sutherland of the county police
homicide unit arrived on the scene
shortly after and began his investiga-
tion.
It was not difficult to determine that
there had been homicide. In addition to
the spatterings of blood on the furniture
and walls, there were ink smudges.
While the 63-year-old victim’s throat
had been slashed, there was also a
typewriter ribbon wrapped tightly
' around her neck. She had died from li-
gature strangulation or from a cut
throat, perhaps both.
The body was removed and taken to
the Fairfax County Medical Examiner’s
Office. There Dr. James Beyer con-
cluded Mrs. Parsons had been dead
for approximately three days. He also
noted that she had suffered contusions
on her back and legs, ‘and lacerations on
the side of her head. Although her body
was unclothed at the time she was dis-
covered, the medical examiner could de-
tect no traces of semen in her vagina.
but in his report he noted that the exces-
sive heat and time that had elapsed
since she was assaulted may have been
sufficient for any traces, if there were
any, to degenerate enough to escape de-
tection.
However, the pathologist’s efforts
were hampered by the existence of two
umbrellas. Whoever had killed her had
jammed a collapsible umbrella so far
into her vagina that it had penetrated
another 12 inches into her abdominal
cavity. And he had also rammed
another one so far into the victim’s
She was found in her ransacked home, her throat
slashed, garotted with a typewriter ribbon,
the victim of hideous sex abuse. But the killer
had gotten careless, and ned live to regret it
14 Official Detective
OFFICIAL DETECTIVE MAGAZINE, December, 1981
rectum that only
left protruding fro:
Investigator Su:
victim’s bra and f¢
room, and a trail o!
the kitchen to the
room and which en
bedroom. Fairfax C
Andrew Johnson,
expert with the po
collected dozens of
in the house, man)
condition.
As Fairfax Coun
Attorney, Robert |}
later comment, “I d
more usable finge)
case.” Horan has be
chief prossecuting
years and has prose
homicide cases in t
the Parsons murd
brutal and atrociou
seen, characterizec
ity.”
As Investigator
nated the search fo
house, Investigator
began a canvass 0
Inv. Mullins didn’t
cause on almost his
next door he learne
been missing for t}
Only recently, Ri
33-year-old house
some space to a yo
The couple told In:
had last seen Whit
the prevous Frida
were on their way
They also told th
Parsons had occasic
to do odd jobs arou
Among some of tI
Parsons house wer:
statements and ca
enough, Mrs. Parsi
eral checks to Whi
As the sleuths |
own records in Fa
was no information
in their files. How
lington County tt
Whitley had only re
on charges of sodon
When the Parson
Whitley was awai
charges.
The investigator
vass of the neighb
could learn more o
Killing Was “Sheer
County. He was convicted. At about the
same time his court-appointed attorney
in the murder case made a motion be-
fore a Fairfax County Court judge for a
new, more detailed psychiatric exami-
Auapar Went pK
of a a
Depravity” (from page 16)
with the intention of robbing her. He
said that robbery was incidental to the
murder itself, and during the trial he
had introduced a check that Whitley
had cashed for $112.45.
nation. This motion was granted and’. “Any man with a hundred dollars in
during the following two months Whit-
ley was reexamined. But the new tests
were of no benefit to him because the
doctors essentially reaffimed their ear-
lier conclusions and added that Whitley.
was competent to stand trial and
showed no evidence of psychosis.
During Whitley’s short, two-day trial.
it was revealed in testimony that on the
eventing of July 25, 1980, he had been
drinking before he arrived at Mrs. Par-
sons’ house.
“We were talking about my wife (who
had left him two weeks earlier) and
going to church and everything,” Whit-
ley was quoted as telling the police,
“and the next thing I know she was
dead.”
According to Commonwealth Attor-
ney Horan, Whitley had become en-
raged with Mrs. Parsons when she re-
proached him for having sexual rela-
tions with his ten-year-old stepdaugh-
ter. Mrs. Parsons knew of that in-
cident because she was well ac-
quainted with Whitley’s wife. But
in addition to that she had been get-
ting disgusted with Whitley constant-
ly borrowing money from her. Rather
than pay her back outright, he had
repaid her by performing the odd jobs.
It was a situation that Mrs. Parsons
wanted to end, said Mr. Horan.
The brevity of Whitley’s trial was un-
derscored by the brevity of the jury’s
deliberations. May 13, 1981 after but 32
minutes to ponder a verdict, the six-
man. six-woman iurv declared Richard
Lee Whitley guilty of capital murder.
That conviction qualified Whitley for
the jury to consider whether to impose
the death penalty, which it could not do
under Virginia law if he were convicted
of first degree murder. After another
hour and 20 minutes of deliberation,
after counsels’ arguments had been
heard and instructions from the judge
had been given, Whitley’s jury also re-
commended that the defendant be exe-
cuted.
The decisions of the jury in both the
evidentiary and sentencing phases of
Whitley’s trial obviously did not please
his court-appointed attorney, Warren
McLain. He said, “We have proved be-
vond a resonable doubt that the motive
in the murder was not robbery. We
had hoped for a finding of first degree
murder.”
McLain had contended during the
trial that while credit cards and an au-
tomobile were taken from the victim’s
home, the defendant had not gone there
52 Official Detective
his pocket would not have the intent to
commit robbery,” Mr. McLain argued.
Under Virginia law a jury’s recom-
‘mendation of the death penalty for a
defendant convicted of a capital murder
has to be independently confirmed by
the presiding judge in the trial. On June
12, 1981; Judge Fred Bruce Bach of the
Circuit Court of Fairfax County concur-
red with the jury’s recommendation of
death and set Whitley’s execution date -
for March 29, 1982 when it was hoped
that his appeals would be exhausted.
One of the more salient features to be
revealed about Whitley in his pre-
sentence report was that he had beaten
and raped his own mother in 1974. This
became known during a research of his
criminal record when this information
was recorded by his probation officer.
who’d been told the story by Whitley’s
sister. : i
Although the court and jury granted
everything that the Commonwealth of
Virginia had requested, Horan was
asked if the penalty was appropriate in
view bf some of Whitley’s behavior,
which seemed to be motivated by sheer
lunacy.
“The modern theory among some 'be-
havioral scientists is to divide the world
between good people and sick people,”
Fairfax County’s chief prosecutor said.
“T think there’s a third category and
they are bad people. There are some
people who are just mean. They like to
beat, kill and abuse people. Whitley is
just mean as his history shows. His pure
meanness, violence and depravity have
placed him in a class by himself.”
Horan said that for the death penalty
to be imposed, “You, ,have:to have a
crime that strikes twelve people as more
than just a murder. It’s got to be a hein-
ous crime. It is capital murder with a
capital. C.”
Virginia has not had an exection
sincé 1962, and though the state has 16
inmates on death row, Horan says he
personally is pessimistic that Whitley’s
sentence will actually be carried out.
Since the U.S. Supreme Court decree in
1977 that the death penalty was not
cruel and unusual punishment, “the
federal courts have screwed around
with that since 1977. . . I’m sure they’ll
screw around with it till 1987.”
There’s nothing that qualifies fed-
‘judges more than state judges, the pro-
secutor said. “Once the trial judge, nine
members of the Virginia Supreme
Court and the U.S. Supreme Court have
decided on the punishment that should
be the end of it,” Horan said. “It would
be different if new arguments were
being advanced in the federal courts,
but they are the same old ones.” ***
If Shoe Fits, He’s the Killer
fortable but that if she developed any
life threatening symptoms or illness,
she would not be treated.
Maestes was found guilty of first de-
gree burglary with personal injury on
Tuesday, March 25th, 1980 and sen-
tenced to nine years in the penitentiary.
Three days later, on Friday, March 28th
Mrs. Wood regurgitated, aspirated and
died. With her death the intricate detec-
tive work began.
Deputy District Attorney Donald
Blake, who had prosecuted the case
against Maestes, immediately moved
that Maestes be charged with first de-
gree murder, having been responsible
for the death of the elderly woman dur-
ing the commission of a felony. But the
court-appointed defense attorney,
Roger Gilbert ‘of Oroville, countered
that the suspect could not be tried for
murder after having been convicted of
, burglary in the same crime. To do so, he
said, would be putting Maestes in dou-
ble jeopardy. He cited a 25-year-old case
in which an ex-convict had pleaded
guilty to brandishing a weapon—a
misdemeanor—before. the arresting of-
ficers located his prison record: Tried
(from page 45)
again as an ex-convict, the suspect was
found guilty of felony possession of a
firearm, but the verdict was overturned
by the state supreme court which de-
clared the prosecution as obligated to
know all the facts before accepting the
lesser plea.
Prosecutor Blake responded that in
the case of Mrs. Wood all the facts were
not yet in and that the court could not
know at the time of the conviction
when or if the victim would die. The
court upheld his contention.
Counselor Gilbert then angrily de-
clared the victim had died of natural
causes and his client was not responsi-
ble for her death. While the legal war
was waged in court, the remains of Mrs.
Wood were taken to Sacramento for
examination and autopsy by Dr. Patrick
Roooney, one of the best know forensic
pathologists in California.
Dr. Rooney worked carefully. When
he had completd his examination he re-
ported the victim had-received a frac-
ture of the left orbital wall, an area in
the vicinity of her eyes, a broken left
malilliary sinus, or the upper jaw, a
(Continued on page 55)
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1492 802 FEDERAL REPORTER, 2d SERIES
him relief on this claim. With regard to
Whitley’s remaining four claims,!° the dis-
trict court rejected each on their merits and
dismissed Whitley’s habeas corpus petition.
Upon dismissing Whitley’s habeas corpus
petition, the district court denied his appli-
cation for a stay of execution and refused
to grant him a certificate of probable cause
to appeal."
On December 12, 1985, this court con-
sidered Whitley’s application for a certifi-
cate of probable cause to appeal and for a
stay of execution, both of which were
granted.!?
_ In his appeal from the district court’s
dismissal of his habeas corpus petition,
Whitley raises two principal issues: wheth-
er Whitley’s trial counsel failed to provide
Whitley with constitutionally effective le-
~gal representation at the sentencing phase
of Whitley’s trial, and whether the district
court properly ruled that substantive
claims that Whitley had not appealed to the
Virginia Supreme Court, either on direct
appeal or in his state habeas corpus appeal,
were not cognizable in a federal habeas
corpus action under the doctrine set forth
in Wainwright v. Sykes.'* Initially, we
consider Whitley’s allegation that his trial
counsel ineffectively represented Whitley
at the sentencing phase of Whitley’s trial.
I.
Whitley’s primary contention is that the —
district court erred when it concluded that
Whitley’s court-appointed counsel provided
9. As noted by the district court, under the sec-
ond prong of the test set forth in Strickland,
to establish constitutionally defective perform-
ance by counsel, Whitley would have had
to have shown that there was a “reason-
able probability that, absent the errors [in coun-
sel’s performance], the sentencer
would have concluded that the balance of aggra-
vating and mitigating circumstances did
not warrant death.” Strickland v. Wash-
ington, 466 U.S. at 668, 695, 104 S.Ct.
2052, 2068-69, 80 L.Ed.2d 674.
10. See note 8, supra.
11. Whitley's scheduled execution date was De-
cember 16, 1985.
Whitley with constitutionally effective rep-
resentation during the sentencing phase of
Whitley’s trial. Specifically, Whitley con-
tends that his trial counsel failed adequate-
ly to investigate possible mitigating circum-
stances to present to the jury during the
sentencing phase of Whitley’s trial. As a
result, Whitley contends that he had no
defense in this crucial phase of his trial.
During Whitley’s state habeas corpus
‘proceeding, the circuit court held an eviden-
tiary hearing on certain issues relating to
Whitley’s representation during the sen-
tencing phase of his trial.1* At that-hear-
ing, Whitley presented evidence of mitigat-
ing circumstances that he claimed his trial
counsel could have discovered and present-
ed during the sentencing phase of Whit-
ley’s trial had counsel investigated Whit-
ley’s case adequately. This evidence in-
cluded information that Whitley’s trial
counsel could have presented to the sen-
tencing jury through the testimony of
Whitley’s employer, Gary Monahan, as to
Whitley’s alcohol consumption in the days
preceding the murder, the testimony of Pa-
tricia Soberg, Whitley’s sister, as to the
tragic circumstances of Whitley’s child-
hood, and psychiatric and like evidence of
Whitley’s organic brain dysfunction and his
antisocial personality disorder. Because
his trial counsel was unaware of this poten-
tially mitigating information, Whitley con-
tends that they were unable to prepare or
present an effective defense during the
sentencing phase of Whitley’s trial. Thus,
12. This court stayed Whitley's execution dur-
ing the pendency of this appeal, or until
the further order of this court.
13. Whitley also raises a third issue in his
brief, namely, whether the rationale of Wain-
wright v. Sykes extends to compel procedur-
al default of claims that a state habeas tri-
al court considered on the merits, but which
the petitioner did not appeal to the state su-
preme court. As Whitley implicitly recog-
nizes in his brief, this issue is subsumed in
the question whether the district court proper-
ly considered the majority of Whitley's claims
to be barred from consideration in a feder-
al habeas corpus action due to Whitley's proce-
dural defaults in state proceedings.
14. See note 4, supra.
WHITLEY v. BAIR 1493
Cite as 802 F.2d 1487 (4th Cir. 1986)
Whitley concludes, the district court erred
in holding that, despite the unreasonability
of trial counsel’s performance, there was
no resulting prejudice to Whitley, and,
therefore, that Whitley’s representation
during sentencing was not constitutionally
ineffective.
[1] As noted above, the Supreme Court
has established a two-part test for deter-
mining whether an attorney’s performance
during trial was so ineffective as to deprive
a criminal defendant of his sixth amend-
ment right to counsel. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The first part of the
test requires a defendant to show that his
counsel was deficient by identifying the
counsel’s acts or omissions that the defend-
ant alleges were not the result of reason-
able professional judgment. Id. at 690, 104
S.Ct. at 2066. Indulging a strong presump-
tion that counsel’s conduct falls within the
wide range of reasonable professional as-
sistance, the district court must then deter-
mine whether, in light of all the circum-
stances, as viewed as of the time of coun-
sel’s conduct and not through hindsight,
the defendant has carried his burden of
showing that his counsel’s acts or omis-
sions fell outside the range of reasonably
competent assistance. /d.; see also Dar-
den v. Wainwright, — US. —, —,
106 S.Ct. 2464, 2473-75, 91 L.Ed. 2d 144
(1986).
[2,3] If counsel’s performance was out-
side the range of competence demanded of
attorneys in criminal cases, the defendant
must then establish that any deficiencies in
counsel’s performance were actually preju-
dicial to the defense. See Strickland v.
Washington, 466 U.S. 668, at 691, 104 S.Ct.
2052, 2066-67, 80 L.Ed.2d 674: “An error
by counsel, even if professionally unreason-
able, does not warrant setting aside the
judgment of a criminal proceeding if the
error had no effect on the judgment.”
Such a showing requires the defendant to
establish that there is a reasonable proba-
bility that, but for counsel’s unprofessional
errors, the result of the proceeding would
have been different. Jd. at 694, 104 S.Ct.
at 2068. Thus, if a defendant challenges a
death sentence such as the one at issue in
this case, the defendant must show that
there is a reasonable probability that ab-
sent counsel’s errors, the sentencer, includ-
ing an appellate court to the extent it may
weigh evidence, would have concluded that
the balance of aggravating and mitigating
circumstances did not warrant the imposi-
tion of a death sentence. Jd. at 695, 104
S.Ct. at 2068-69.
In this case, the district court found that
Whitley had met the first part of the test
set forth in Strickland. More specifically,
the district court found that defense coun-
sel’s failure to investigate potentially miti-
gating circumstances in Whitley’s back-
ground, including Whitley’s psychiatric his-
tory and his traumatic childhood, constitut-
ed performance outside the wide range of
acceptable conduct for counsel in criminal
cases.
Although the district court did find Whit-
ley’s trial counsel’s performance to be un-
reasonably deficient, it also found that
such deficiency did not actually prejudice
Whitley’s defense. Weighing each piece of
additional mitigating evidence that Whitley
proffered against the potentially negative
evidence accompanying it, the district court
found that the cumulative effect of this
evidence was simply to add to the weight
of aggravating circumstances, thereby tip-
ping “the scales more drastically in favor
of the sentence of death.”
On appeal, Whitley contends that the dis-
trict court erred in concluding that his at-
torneys’ deficiencies at trial did not preju-
dice his defense, arguing that competent
defense counsel could have minimized the
negative aspects of the testimony of those
witnesses who could have been called in
mitigation but whom Whitley’s trial coun-
sel failed to present during the sentencing
phase of Whitley’s trial. The Common-
wealth, on the other hand, contends that
the district court erred in concluding that
Whitley’s trial counsel were constitutional-
ly deficient in their representation of Whit-
ley during the sentencing phase of his trial,
arguing that the district court’s finding of
WHITLEY vy. BAIR 1497
Cite as 802 F.2d 1487 (4th Cir. 1986)
Note 17—Continued
the balance of the claims made in the feder-
al habeas petition on their merits. We add
at this point that Whitley does not now ap-
peal all the adverse holdings the district
court made-on the merits of the issues present-
ed to it.
Our conclusions with regard to each of
the claims on which the district court held Whit-
ley was procedurally barred are as follows:
Claim 5 (prosecutor's allegedly improper re-
marks during. guilt phase of Whitley's
trial): procedurally barred due to Whitley's fail-
ure to raise the issue at trial, and due to Whit-
ley’s failure to appeal state habeas court's rul-
ing that Whitley had procedurally defaulted
on this claim. (Joint Appendix 225 & 536
et seq.) On direct appeal, the Virginia Su-
preme Court held this claim was procedural-
ly barred because not raised at trial. Whitley
v. Commonwealth, 223 Va. at 76, 286 S.E.2d 162.
Claim 10 (alleged denial of assistance of coun-
sel without Whitley's valid waiver of same): pro-
cedurally barred due to Whitley's failure
to raise the issue at trial or on direct ap-
peal, and due to Whitley's failure to appeal
state habeas court's ruling that Whitley had pro-
cedurally defaulted on this claim. (Joint Ap-
pendix 224 & 536 et seq.)
Claim 11 (alleged ineffective assistance of coun-
sel during guilt phase of ,Whitley’s trial): proce-
durally barred as to every allegation in
this claim except the allegation that Whit-
ley’s counsel failed to conduct adequate
voir-dire of the jury concerning their willing-
ness to impose the death penalty, due to Whit-
ley’s failure to appeal the state habeas
court's adverse rulings on these allegations
on their merits. (Joint Appendix 226 & 536
et seq.) (with regard to the voir dire allega-
tion, the district court rejected. this allegation
on its merits, a ruling from which Whitley
does not appeal).
Claim 14 (removal of jurors who expressed scru-
ples against the death penalty): procedural-
ly barred due to Whitley's failure to raise
the issue at trial or on direct appeal, and due
to Whitley's failure to appeal the state habe-
as court's ruling that the claim was procedural-
ly barred. (Joint Appendix 224 & 536 et seq.)
Claim 15 (introduction of Whitley’s involun-
tary custodial statements during guilt phase
- of Whitley’s trial): procedurally barred due
to Whitley's failure to raise the issue at trial
or on direct appeal, and due to Whitley's fail-
ure to appeal the state habeas court’s ruling
that the claim was procedurally barred.
(Joint Appendix 224 & 536 et seq.)
Claim 18 (introduction of Whitley's allegedly in-
voluntary custodial statements during the sen-
tencing phase of Whitley's trial): procedural-
ly barred due to Whitley's failure to raise
the issue at trial or on direct appeal, and due
to Whitley's failure to appeal the state habe-
as court's ruling that the claim was procedural-
ly barred. (Joint Appendix 224 & 536 et seq.)
Claim 24 (no jury instruction on definition
of aggravated battery as requiring severe physi-
cal abuse of the victim): procedurally
barred due to Whitley's failure to raise the is-
sue at trial or on direct appeal, and due
to Whitley's failure to appeal the state habe-
as court's ruling that the claim was procedural-
ly barred. (Joint Appendix 225 & 536 et seq.)
Claim 25 (no jury instruction on definition
of aggravated battery as requiring a killing
that is quantitatively and qualitatively
more than that required for ordinary mur-
der): procedurally barred due to Whitley's fail-
ure to raise the issue at trial or on direct ap-
peal prior to his reply brief, and due to Whit-
ley’s failure to appeal the state habeas
court's ruling that the claim was procedural-
ly barred. (Joint Appendix 225 & 536 et
seq.) On direct appeal, the Virginia Su-
preme Court held this claim to be procedural-
ly barred under Rule 5:21. See Whitley v. Com-
monwealth, 223 Va. at 79 n. 2, 286 S.E.2d 162.
Claim 27 (erroneous malice instruction): proce-
durally barred due to Whitley's failure to
raise the issue at trial or on direct appeal,
and due to Whitley's failure to appeal the
state habeas court's ruling that the claim
was procedurally barred. (Joint Appendix
225 & 536 et seq.)
Claim 28 (no jury instruction on torture compo-
nent of the Virginia capital murder statute): pro-
cedurally barred due to Whitley's failure
to raise the issue at trial or on direct ap-
peal, and due to Whitley's failure to appeal
the state habeas court's ruling that the
claim was procedurally barred. (Joint Appen-
dix 225 & 536 et seq.)
Claim 29 (inadequate mitigation instruc-
tions): procedurally barred due to Whitley’s fail-
ure to raise the issue at trial or on direct ap-
peal, and due to Whitley's failure to appeal
the state habeas court’s ruling that the
claim was procedurally barred. (Joint Appen-
dix 225 & 536 et seq.)
Claim 30 (no jury instruction on fact that
jury could sentence Whitley to life imprison-
ment for any reason, or even for no rea-
son): procedurally barred due to Whitley's fail-
ure to raise the issue at trial or on direct ap-
peal, and due to Whitley's failure to appeal
the state habeas court's ruling that the
claim was procedurally barred. (Joint Appen-
dix 225 & 536 et seq.)
Claim 31 (no jury instruction in sentencing
phase that jury could find battery to be aggrava-
ted only if they found that victim was still
alive when battery occurred): procedural-
ly barred due to Whitley's failure to raise
the issue at trial or on direct appeal, and due
to Whitley's failure to appeal the state habe-
as court's ruling that the claim was procedural-
ly barred. (Joint Appendix 225 & 536 et seq.)
Claim 32 (state psychologist’s testimony dur-
ing sentencing phase of Whitley's trial violat-
ed Whitley's fifth amendment rights): procedur-
ally barred due to Whitley's failure to raise
the issue at trial or on direct appeal, and due
1496 802 FEDERAL REPORTER, 2d SERIES
wedging a broom stick in the inmate’s rec-
tum. We agree with the district court that
these negative aspects of Dr. Follansbee’s
testimony outweigh the. mitigating effect
that his testimony might have had.
In his argument on appeal, Whitley relies
principally on a recent unpublished opinion
of this court and on a decision from the
U.S. Court of Appeals for the Eighth Cir-
cuit, which cases held that a habeas corpus
petitioner had been denied effective assist-
ance of counsel during the sentencing
phase of petitioner’s trial. See Clark v.
Townley, 791 F.2d 925 (4th Cir.1986) (un-
published); Pickens v. Lockhart, 714 F.2d
1455 (8th Cir.1983). In both cases, the
courts found that the defendants’ attor-
neys’ failure adequately to explore and
present mitigating evidence demonstrating
defendants’ troubled backgrounds was un-
reasonable representation and prejudicial
to the defendants’ defense at sentencing.
Thus, each court concluded that the defend-
ants’ were entitled to resentencing. Whit-
ley now contends that these two decisions
constitute persuasive authority for a find-
ing that Whitley’s defense at sentencing
was prejudiced by his trial attorneys’ fail-
ure to develop and use the potentially miti-
gating evidence described above. We are
not convinced.
The Supreme Court has recognized that
the determination of whether an attorney’s
unreasonable performance prejudiced his’
client’s defense is one that must be judged
according to the circumstances of each
case. See Strickland v. Washington, 466
USS. 668, at 693, 104 S.Ct. 2052, 2067-68, 80
L.Ed.2d 674.. On the facts of this case, in
particular those overwhelming facts relat-
ing to the heinous nature of the crime with
which Whitley was charged and convicted,
as well as the fact that any mitigating
evidence that Whitley’s trial counsel might
have developed and presented would have
been accompanied by additional aggravat-
ing evidence, we conclude that Whitley’s
17. Due to the necessarily complicated nature
of the discussion on the question of procedur-
al default (there were seventy-one claims
made in the various appeals and habeas pro-
ceedings in this case, including duplication),
trial attorneys’ alleged errors in failing to
develop such mitigating evidence did not
result in such prejudice to Whitley’s de-
fense at:sentencing that there is a reason-
able probability that, but for counsel’s al-
leged unprofessional errors, the result of
the proceeding would have been different.
See Moore v. Maggio, 740 F.2d 308, 318
(5th Cir.1984); Briley v. Bass, 750 F.2d
1238, 1248 (4th Cir.), cert. denied, —— US.
—,, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1984).
In sum, we find that the negative aspects
of any testimony that Whitley now con-
tends his trial counsel failed to present
during the sentencing phase of Whitley’s
trial far outweighed any positive mitigating
effect that such testimony might have had.
Thus, we find that the district court cor-
rectly determined that there was no preju-
dice to Whitley as a result of his trial
counsel’s alleged deficiencies during the
sentencing phase of Whitley’s trial. We
affirm the district court’s ruling on that
ground. We reiterate that we do not reach
the question of whether or not Whitley’s
trial counsel actually were deficient in their
representation of Whitley at this phase of
the proceedings, and we emphasize that we
do not in any way adopt the district court’s
finding in this regard.
is
As his second point on appeal, Whitley
contends that the district court incorrectly
concluded that the majority of Whitley’s
claims in his federal habeas corpus petition
were barred from consideration in federal
court under the doctrine of procedural de-
fault set forth in Wainwright v. Sykes.
Whitley argues that such error necessitates
a remand to the district court for considera-
tion of these claims on their merits. We
conclude that the district court correctly
disposed of these claims on procedural
grounds and affirm the district court’s
judgment in this regard as well.!”
our holdings with regard to each of the
claims on which Whitley alleges the dis-
trict court erred in ruling them to be procedur-
ally defaulted is summarized in a readable fash-
ion below. The district court addressed all
WHITLEY vy. BAIR 1495
Cite as 802 F.2d 1487 (4th Cir. 1986)
trial, had trial counsel called her to testify,
this court should not consider those nega-
tive aspects because they were predicated
on hearsay and thus inadmissible. We do
not conclude that the negative aspects of
Mrs. Soberg’s testimony absolutely would
have been admitted during the sentencing
phase of Whitley’s trial. We do concur
with the district court, however, that there
was a strong possibility that the negative
aspects of Mrs. Soberg’s testimony would
have been admissible (some of them cer-
tainly were), and that, if admitted, the neg-
ative aspects of her testimony would have
far outweighed the mitigating effect on the
jury that her testimony might have had.
Whitley also contends that certain psy-
chiatric and like testimony presented dur-
ing his state habeas corpus proceeding
would have been persuasive to the jury in
mitigation of his sentence if his trial coun-
sel had presented it during the sentencing
phase of Whitley’s trial. Dr. John D. Fol-
lansbee, a psychiatrist, and Dr. T. Richard
Saunders, a clinical psychologist, testified
on Whitley’s behalf during Whitley’s state
habeas corpus proceeding. Dr. Saunders
testified that he had found evidence that
Whitley had an organic brain dysfunction
that impaired Whitley’s ability to reason
and make judgments. Dr. Follansbee testi-
fied that Whitley had an antisocial person-
ality disorder and that this disorder, when
combined with Whitley’s organic brain dys-
function, accentuated Whitley’s inability to
control his extreme impulses.
Once again, the mitigating aspects of
this evidence are markedly outweighed by
the negative information that would have
accompanied it. Thus, although Dr. Saun-
ders testified as to Whitley’s mild organic
brain dysfunction during Whitley’s state
habeas corpus proceeding, in statements
that he made prior to this testimony, Dr.
Saunders made repeated references to
Whitley’s sadistic behavior patterns. » For
example, as the district court noted, in a
16. Dr. Gwaltney, the state psychologist who ex-
amined Whitley prior to trial, testified dur-
ing Whitley's state habeas corpus proceed-
ing that the fact that Whitley was suffering
from a mild organic brain dysfunction
report dated April 18, 1984, Dr. Saunders
stated that, “[sladistic treatment of other
people and dealing with other people in
ways which inspire anxiety or guilt are
quite common to [Whitley];” that Whitley
“seems to approach others in an extraordi-
narily aggressive, uncontrolled affective
_state that is exceptionally vicious and hos-
tile;’ and that Whitley exhibits “a pattern
of fear-induction and anxiety induction in
other people, both showing a willingness to
respond aggressively and actually doing so
when it suits his purpose.” Dr. Saunders
also mentioned in his report Whitley’s ex-
tensive criminal history, including Whit-
ley’s recent conviction for raping a male
hitchhiker, as well as Whitley’s alleged
rape of his mother, and his alleged sexual
misconduct with his eleven-year-old step-
daughter. We find that this negative testi-
mony from Dr. Saunders would have far
outweighed any positive benefit that Whit-
ley would have obtained in mitigation of his
sentence had the jury been informed of
Whitley’s organic brain dysfunction.'®
We further conclude that Dr. Follans-
bee’s testimony would have been similarly
ineffective in mitigation of Whitley’s sen-
tence. Thus, although Dr. Follansbee dis-
cussed in his testimony the effect of Whit-
ley’s organic brain dysfunction on Whit-
ley’s ability to control his extreme impul-
ses, he also made numerous negative com-
ments about Whitley’s personality and
background that would inevitably have
come out during the Commonwealth’s
cross-examination had Whitley’s trial coun-
sel put Dr. Follansbee on the stand during
the sentencing phase of Whitley’s trial. In
a report submitted into evidence in the
state habeas corpus proceeding, Dr. Fol-
lansbee noted many of the same negative
incidents to which Dr. Saunders had allud-
ed in his report of April 18, 1984, and also
included a reference to an incident in prison
in which Whitley had brutally beaten an-
other inmate and had ended the assault by
would not have changed his conclusion
that Whitley was not mentally disabled at
the time of the crime. Dr. Gwaltney went so
far as to state that “each of us have an organ-
ic dysfunctioning brain.” .
1494 802 FEDERAL REPORTER, 2d SERIES
no prejudice rendered a finding on the per-
formance component of the Strickland test
superfluous.
[4] We agree with the Commonwealth.
Consequently, we affirm the district court’s
finding that there was no prejudice to
Whitley’s defense as a result of his attor-
neys’ allegedly deficient performance dur-
ing the sentencing phase of Whitley’s trial.
Although we are by no means convinced
that Whitley’s attorneys’ performance dur-
ing sentencing was outside the wide range
of competence expected of counsel in crimi-
nal cases,'5 as a result of our affirming the
holding of the district court that there was
no prejudice to Whitley’s defense, we do
not decide that issue. Strickland v. Wash-
ington, 466 U.S. 668, at 697, 104 S.Ct. 2052,
2069-70, 80 L.Ed.2d 674, plainly states that
a court need not determine whether coun-
sel’s performance was deficient before ex-
amining prejudice that defendant allegedly
suffered as a result of alleged deficiencies,
and, if it is easier to dispose of an ineffec-
tive assistance claim on the ground of lack
of sufficient prejudice, a court should fol-
low that course.
With respect to the evidence of Whitley’s
troubled family history that his trial coun-
sel allegedly failed to develop or present
adequately, a review of the record indicates
that Whitley’s sister, Patricia Soberg, was
willing to testify on Whitley’s behalf as to
the abuse and neglect that he suffered as a
child. This testimony would have indi-
15. See Darden v. Wainwright —— US.
—, —, 106 S.Ct. 2464, 2474-75, 91
L.Ed.2d 144 (1986) (rejecting habeas corpus pe-
titioner’s contention that his counsel failed
to delve sufficiently into petitioner's back-
ground and as a result were unprepared
to present mitigating evidence at petition-
er’'s sentencing hearing); Ballou v. Booker,
777 F.2d 910 (4th Cir.1985) (counsel's failure
to investigate victim’s credibility in rape
case not ineffective assistance in light
of strength of evidence against defendant, in-
cluding evidence from defendant’s own admis-
sions); Burger v. Kemp, 753 F.2d 930
(11th Cir.1985) (holding that counsel’s deci-
sion not to investigate mitigating evidence fur-
ther than he did was not unreasonable in
light of overwhelming nature of gruesome evi-
dence against defendant and possibility of nega-
cated, among other things, that Whitley’s
father had abandoned the family while
Whitley was an infant, that Whitley’s
mother drank heavily, that she beat her
children with a belt, sometimes knotted
with a buckle, that she left Whitley in the
care of his sister from the time he was a
small child, that Whitley left school at age
15, that Whitley’s family was mired in pov-
erty, that Whitley had injured his head in a
train accident while a child, and that Whit-
ley’s older brother frequently beat Whitley
and exercised an undue criminal influence
on him during his adolescence.
Admittedly, such testimony could have
had a mitigating effect on Whitley’s sen-
tencing jury. In addition to this potentially
mitigating information about Whitley’s
background, however, Mrs. Soberg’s testi-
mony also included information that was
very damaging to Whitley’s defense at sen-
tencing. For example, Mrs. Soberg’s testi-
mony would have disclosed information re-
lating to Whitley’s extensive criminal back-
ground of which Whitley’s trial counsel had
scrupulously and successfully kept the jury
unaware throughout the course of the en-
tire trial. Mrs. Soberg’s testimony also
would have included information about
Whitley’s prior abuse of elderly women, as
well as information as to Whitley’s alleged
rape of his own mother.
Whitley now contends that although
there were negative aspects to the testimo-
ny that Mrs. Soberg could have presented
during the sentencing phase of Whitley’s
tive evidence from defendant's mitigating wit-
nesses), vacated and remanded on _ oth-
er grounds, —— US. —~, 106 S.Ct 41,
88 L.Ed.2d 34 (1985).
Our doubt as to whether Whitley’s trial coun-
sel’s performance was unreasonable during
the sentencing phase of Whitley’s trial is rein-
forced by the fact that counsel’s failure to con-
tact Mrs. Soberg as a potential mitigating wit-
ness was a result, in large part, of Whitley's
own statement to counsel that such con-
tact would be fruitless because, to quote coun-
sel, “she hated his guts.” See. Tucker vy.
Kemp, 776 F.2d 1487 (11th Cir.1985) (coun-
sel not ineffective for failing to present mitigat-
ing evidence of petitioner’s turbulent family his-
tory during sentencing in view of petition-
er’s failure to provide counsel with names
of mitigating witnesses).
1498 802 FEDERAL REPORTER, 2d SERIES
In his federal habeas corpus petition,
Whitley raised numerous issues that he
had previously raised in his state habeas
corpus petition, but that he had not raised
at trial or ‘on direct appeal.!® Whitley did
not appeal to the Virginia Supreme Court,
moreover, the circuit court’s adverse ruling
on the majority of these claims in Whitley’s
state habeas corpus proceeding."
In addition to this large category of
claims, Whitley also reraised in his federal
habeas corpus petition one claim that he
had raised at trial, on direct appeal, and in
his state habeas corpus petition, but not in
his appeal from the circuit court’s denial of
his state habeas corpus petition.” Finally,
Note 17—Continued
to Whitley's failure to appeal the state habe-
as court’s ruling that the claim was procedural-
ly barred. (Joint Appendix 225 & 536 et seq.)
Claim 35 (Ake claim): procedurally barred
due to Whitley's failure to raise the issue at tri-
al or on direct appeal, and due to Whit-
ley's failure to appeal the state habeas
court’s ruling that the claim was procedural-
ly barred. (Joint Appendix 225 & 536 et seq.)
18. See note 2, supra (claims 10, 11, 12, 14,
15, 18, 24, 25, 27-32 & 35). For a discussion
of the circuit court’s disposition of these
claims, see note 3, supra.
19. Whitley raised only two issues in his ap-
peal from the circuit court's dismissal of
his state habeas corpus petition. See text ac-
companying note 5, supra. The Virginia Su-
preme Court found that the circuit court
had properly disposed of these claims on
their merits and refused Whitley's petition
for appeal.
20. The claim concerned the trial court's alleg-
edly erroneous admission of a photograph
of the victim. See note 2, supra (claim
3). Whitley does not raise that claim
here, however.
21. See note 2, supra (claims 1, 2 & 5).
22. Thus, the district court considered Whitley
to have procedurally defaulted on fourteen
of the nineteen claims that he raised in
his federal habeas corpus petition. See note
2, supra (claims 5, 10, 14, 15, 18, 24, 25, 27-32
& 35). With regard to Whitley's claim that
his trial counsel rendered constitutionally inef-
fective assistance during the guilt phase.of Whit-
ley’s trial (claim 11), the district court con-
sidered all but Whitley's allegation of ineffec-
tive assistance during voir dire of the jury to
be procedurally barred from consideration by
a federal habeas court.
there were also in Whitley’s federal habeas
corpus petition three claims that Whitley
had raised on direct appeal and in his state
habeas corpus petition, but not at his trial,
nor in his state habeas appeal.”!
The federal district court considered to
be procedurally barred under Wainwright
v. Sykes any claim which either had not
been presented to the Virginia Supreme
Court or had been held by the state courts
to be procedurally barred.” Thus, of the
nineteen claims that Whitley raised in his
federal habeas corpus petition, the district
court considered only five on the merits,
dismissing each as being without merit.
Of the eleven claims on which the Virgin-
ia Supreme Court ruled on the merits in Whit-
ley’s direct appeal, see note 1, supra, Whit-
ley raised only three in his federal habeas cor-
pus petition. See note 2, supra (claims 1, 2
& 3). The district court disposed of each
of these claims on the merits, a disposition
from which Whitley does not appeal.
23. See note 8, supra, and accompanying
text; see also note 2, supra (claims 1, 2, 3, 11
(in part) & 12).
In ruling on Whitley's contentions in his
state habeas appeal, the Virginia Supreme
Court relied on the U.S. Supreme Court's opin-
ion in Wainwright v. Witt, 469 US. 412,
105 S.Ct. 844, 83 L.Ed.2d 841 (1985), to dis-
pose of Whitley's claim that his counsel ren:
dered ineffective assistance during the
guilt phase of Whitley's trial by failing to con-
duct adequate voir dire of certain jurors con-
cerning their willingness to impose the
death penalty. See note 2, supra (claim 11).
In Witt, the Supreme Court held that the prop-
er standard for determining when a prospec-
tive juror may be excluded for cause because
of his views on capital punishment is wheth-
er the juror’s views would prevent or substan-
tially impair the performance of his duties as
a juror. Given this standard, the Su-
preme Court reversed the Court of Ap-
peals grant of a writ of habeas corpus, hold-
ing that the Court of Appeals had focused un-
duly on the lack of clarity of the questioning
of the prospective juror, and on whether
the juror’s answers indicated she would auto-
matically vote against the death penalty.
By relying on the Supreme Court's holding
in Witt in disposing of Whitley's claim of inef-
fective assistance during voir dire, the Virgin-
ia Supreme Court apparently was holding that
it was rejecting Whitley's contention that
his counsel unreasonably represented him
by failing to ask certain questions during
WHITLEY v. BAIR 1499
Cite as 802 F.2d 1487 (4th Cir. 1986)
In this appeal, the only substantive rul-
ing that Whitley challenges concerns the
district court’s disposition of Whitley’s
claim that his trial counsel allegedly failed
to investigate and present potentially miti-
gating evidence during the sentencing
phase of Whitley’s trial. We have in this
opinion already affirmed the district court’s
disposition of this claim. Because Whitley
does not appeal from the district court’s
disposition on the merits of his other four
claims, we need not, and do not, address
them here.
[5] Whitley does appeal from the dis-
trict court’s disposition of the majority of
his claims on the ground of procedural
default.4 In particular, Whitley argues
that the district court erroneously. applied
the doctrine of procedural default to those
of his claims that he raised in his state
habeas corpus petition, but did not appeal
to the Virginia Supreme Court in his state
habeas appeal.2* Whitley raises three sep-
arate arguments in this regard.
voir dire because the holding in Witt indi-
cated that such questions were not re-
quired. Thus, in passing on the merits of Whit-
ley's ineffective assistance claim, the Virgin-
ia Supreme Court also arguably commented
on the merits of Whitley's claim that he
was deprived of due process by the trial
court’s alleged premature exclusion for cause
of several jurors who gave equivocal an-
swers concerning their readiness to impose
the death penalty. See note 2, supra (claim 14).
If the Virginia Supreme Court did, in
fact, comment on the merits of Whitley's
claim 14, then the district court's conclu-
sion below that Whitley had defaulted on
this claim was error. Nevertheless, assum-
ing without deciding that such was the case,
we would conclude that such error, if any
was committed, was harmless inasmuch as
we have examined the substance of Whit-
ley claim 14 and have concluded that it
is without merit. See Wainwright v. Witt,
469 U.S. 412, 429-32, 105 S.Ct. 844, 854-56,
83 L.Ed.2d 841 (1985); Lockhart v. McCree,
— US. —, 106 S.Ct. 1758, 90 L.Ed.2d
137 (1986).
24. This disposition encompassed fifteen of Whit-
ley’s claims. See note 2, supra (claims 5, 10,
11 (in part), 14, 15, 18, 24, 25, 27-32 & 35).
25. In an effort to expand the scope of his con-
tentions concerning the procedural default is-
sue, Whitley argues in his brief that the dis-
First, in a footnote in his brief, Whitley
argues that. the district court erred in con-
cluding that the doctrine of procedural de-
fault is applicable to a federal habeas cor-
pus petitioner’s failure to raise issues on
appeal in a state postconviction proceeding.
Second, ‘Whitley argues that he did not
default on his state habeas corpus claims
by failing to appeal them to the Virginia
Supreme Court because he complied with
applicable Virginia procedure, thereby pre-
serving his claims for federal habeas cor-
pus review. Third, and finally, Whitley
claims that he can show “cause” and “prej-
udice” for his failure to appeal any default-
ed claim, thereby preserving for federal
review those claims for which he can make
such a showing, see Wainwright v. Sykes,
433 U.S. at 87, 97 S.Ct. at 2506-07, and that
he should be given an opportunity to make
such a showing on remand to the district
court. We consider each of these argu-
ments separately below.
trict court held that the majority of Whit-
ley’s claims were procedurally barred not be-
cause they were not raised at trial or on di-
rect appeal but rather because Whitley's
state habeas counsel did not include
those claims in Whitley's petition for appeal
to the Virginia Supreme Court in Whitley's
state habeas appeal. We do not believe that
the district court’s holding was so nar-
row. Rather, our reading of the district
court’s opinion is that the district court con-
sidered the majority of Whitley's claims to
be procedurally barred due to Whitley's de-
faults at trial and on direct appeal, as well. as
to those defaults in the state habeas proceeding.
26. Whitley recognizes in his brief that there
are numerous issues, later raised, for which
his appellate counsel on direct appeal failed
to fulfill the requirements of Virginia Su-
preme Court Rule 5:21. Nevertheless, Whit-
ley contends that he should not be barred
from raising these claims in his federal habe-
as corpus petition because he can show val-
id cause for his appellate counsel's failure
to raise these claims and prejudice result-
ing therefrom. Consequently, our ruling
with regard to Whitley's contentions concern-
ing his ability to show a valid cause and preju-
dice for his defaults at the state habeas lev-
el also encompasses Whitley's contentions con-
cerning claims for which Whitley's appel-
late counsel failed to fulfill the requirements
of Rule 5:21.
Ss Bie 7
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ger ities
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No. 1
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WTTCHER
WG chodedud Mihy
Thomas Je Rice - aad two
of Roanoke, are the gueete
ames M. Senseney,
sarne Booth and Mies
\of Vivian, W, Va, are
A Mees Raiph i Fitob.
ey-General William A.
tetched Le
he guest. of Mrs. George
nae revurned. to Ber home ‘mal
( of Hoiccab :
Mise Emma 4yray Jen-;
yuchburg, ' are Khe gVeete:
baie Adaj: se
po Stuart isthe gest of;
Mise Elizabech lgie,
jand awful thle
Xington laat' +
pend eo bears with bie!
dence Wn the. sere eck tf
ehh at Abe
ieee ‘oflcers of;
the court, minieter a
Pocfing s of a S white
{man ever to occur In. Rookbridge,
and the *xécution was impressive
the: Power of
description
the tragic ending of oe young lite}
lin expiation of crime a
is doom
with: . mileon bie face aad with}
ot
‘Sheriff | R
several bewepaper
prisoner's cell at 6; a
Kreeted his visitors
men to the
‘clock, Wileber
witha pleasact
“f}ealutation, and eppeared cheerful |
and Aopetal, se epoke without
Mon ef hie $mpending :
“expressed Bie utmoe
“ity
a ©
att
a = 2°, hance ab
WLLlian oe white, o 9 hanged &
se ‘of Henry J. 8mish
home” on Walker's Creek
scuittay bight, February | 24,1906,
by Wiloher, hie trial and coh vietion|
y are matters of. reeent:,
aad ‘are femffier to
Phen ‘doheidéied
Smith’ * lslarlerse with hie love
affaires, While Ja Jail here beaid
that. Smith had‘ ‘come between. bim
and several Women. At any: rat
‘he conceived that Smith. wes hie}
enemy, ard his subsequent agtions
One to believe that he att¢m pt:
ed to get rid of thie enemy,
“On the night of the murder W ie
cher. Went to the home cf. Smith
and tried to Induce» ap ei © §0
Oa Smith’ ‘
went to a nearby stor
= boasted ‘of his crime, saying thet
L Sr docs" sdalited
he bad eevers! balls left for. borne:
body else, and if anyone” in
store wanted” to “ebutle of
mortal eoil”’ he
whore bourne ho
tt Was evident
‘drinking, ~
that he haa ts
: Vmoonebing
mith,
| prelimnianry beatiog befer
Strate Bolen, :
ito Jeilin Laxigton.iHe | was in
ej ed for murder by the.
Wileher’
1] Cotoner Jone Gibwon ‘Died wm
~ Laat Wednesday Night .
- Colonel John Alexander. Gibeon
dl ed. at bis homeo Timber Ridge|
leat. Wednesday night, _Auguat!
, shortly. alter midnight. Hie!
death was due’ to liver trouble and | j
{the infirmaties | inoident to old age, |
he having ‘pessed hie 78rd year,’
The funeral took . place from the
Areociate Reformea Presbyterian
churoh at Timber: Ridge Thureday
sfternon at 4 o'clock, conducted.
by hie Pastor, Roy. Lb, TT. Prealy,
| who was ‘Besieted by” Rey. TA
Trostie and Rey. S. W. ‘Haddon,
Interment was made In the Rearvy i
yeemetery, Fe : :
Colonel Gideon was a son ‘ot ae ;
Jobn Gibeon of Timber Ridge, who
Wasa prominent resident of that
sl Mise renee Fis. mother wae. e-
Mise Taylor of the. same vicinity.»
He received te education ‘at.
Washington College: now Wasi...
ington and Lee al veraity Hee
Wat A public. Bpirited oan, and
a time served ae deputy. ab :
the county, and was Inter a ep
Vleor for Routh River disteicy.
)Meny yeare Colone! Giben-
feourpicucuain Rep mee
“| of Rook bridye. He Wars
ay cand fer sha é time et ved
va ay entered te rat
fedefae fer vice Apr a
bey second 2
y AUBUet, Stile, Amherst county, Va. In 1870 and fi
wawetn EU OD asked 8rd, between 8 o'clock &-™. and 6! she was married to Mr. Pembroke and te
s Her Agger oc? Upon the} the prieoner if he had any astate- o’clock p. m., as the time forthe! Waugh of Amherst. county, and mich
pe nae Aseociation in scesion at |ment he wiehed to make execution. The prisoner rece:ved/ since hia death in 1885, has made| site 4
Springs are Judge Ss. Houston {in a steady and distinc the death sentence without ‘any | her Lome in Lexington and Alex- edjou
tober, Mesere. © William "T 1 he had not. Dr. ddeeal = expression at (eae Borlandciad nee ee ee ee
*, Greenies D. Letcher, n.}| that Wilehe dread, but - presented the eame| Mrs. Waugh is survived. by eix} Mr
“worgs: feck ie aud: -{to him the stolidity and ‘indifference that sistere: Mrs. Robert. C. Berkeley of perty
al. Willia As Anc I ce characterized him during the trial. Morgantown, W, Va.; Mre.: Wil-|thatt
a i After the sentence, Sheriff Mogri- liam H. Machlin of Tennessee, repair
4r.< Thornton Whaling, 1 thi son and Jailor Jackson escorted Mre. Joho D. Rogers of ‘Lexing- hrs ms
Popular pastor of the bleck the prisoner back to the Jail, andj} tcn, Mrs. Cutrie M. Richeson of has Ic
he wae confined in one of the ateelj Buena Visita. Mrs, Thomas Mow-| resort
[he trap was s cages. He never left his cell unti bray of Fincastle, and Mrs. Mar-| water
Sheriff J. L, Ba Y| the morning of hie execution, — shall Barrett of Amherst county. — ter aol
body. shot ~ Wilcher was born and grew to The funeral took ‘place Monday busine
manhood on Kerr's Creek, but for afternoon at 6:30 o'clock. frem} Mr.
é ola the past three years he made his the home of Mrs, Rogers, tte bridge
not a tremo home on Walker’s Creek. He was Epiecopal service’ being read by | where
Reid Whi dJ -}® son of the late Thomas Wilcher,| Rev. Harry W. Myers, Intorment| — os
a; ced life| He hed few advantages in early} was made in the Lexington ceme- os
aye Soe tie life, and in se nee ES Be Brew/tery. J? ee colts
cy was left hang-| up without restraint, with a bent} i ages ee eee tof Mrs
ook,’ when it w; for tldleaia vicious “habite.- ‘He = Death of Mise Jenule McCown ane
aot d« coveted the distinction: of being Mies Jennie -R. McCown. died | Wiliinn
undertaking iehment recognized asa@ bully in hie com. this morning shortly after 7 c’cluck field, c+
"| Varner, Pole & Co. it w. munity, and when under influence at her homein Newport News, af- Ween
of liquor, which was frequent, he} ter an illness of stout twe months. Mr. Ro
wae regarded as a dangerous man.;'The remaine will purckas
Okbridge: 6 | He is survived by his, widowed
2 liata afternoon,” mother and three brothers —
woe pies three-sisters, Le a a
utter of Lynch-| that. if: _ During the closing weeku of hig just ue:
ista, Monday night Methodist church. = without . flowers and “religings i ee
midnight. Theshoot _ Wiloher rest : : Ot/ literature, and often delicacies to’ tevening. Ir-|~ Waitin
Aula Previous: to” his. - oA eat, which were furnish d hia) terment will follow in the Lexing- } Ityeu:
; number of his friends and relatives| by a ton cemetery 9 ee
Ne Cause of the shoot-: visited the cell nd bade him good. ese] Wiss MoCown® war's daughter folkints
ger, but : as can be| bye, and a eong service was held in this way their i of the late A.J. McCown of Lex-; Dean's
ie alleged-that Mr. Hut. for his: benefit. “He Went to bed| spirit ingion. Her home wae made ip ache,
matted to be in the’ room | 8hortly after 11 e’clock and g2tup : re ; Lexington — until Just” Decemter, 4? Ctra ore
white chambermaide, Friday “morning: about 5 o’clook,} Wilcher Makes. ue When. aie fomeved : pees
eciee bie might key and|Juet before execution he ate! In addition. ‘enicon-| Newe, sir, Lo Mrs.
‘room. Hutter attempt- PEL, relish, and after- fe “Ol Wilohese noe jlive iizton Nt.
sr eh shot him,the : ia ac ustomed) hae oe ee ped by oot hard:
effect in the right arm. | smoke.” = [after he | avicted of m Hone |
® fecoud time, the bal! but} 7 _. afternoon, ; : as MeCowa | Rleers <0
& emal £ oxi caiea: ies Mc 6) Unare re
: a : Pe, > indet Const:
MY -osharp pair
J 7 Hh i e % “ whan the as
“I heértily acknowledge tha tae anton
gullty ofthe orime for which D AY a:
was taken to Lynch-
Pay Morning, and is be-|
at the Hygeia Hoe
* “said that 1 ligion, il *! cme fn bu
Painful, not] 6° dA bee iS} id August . a
gees 4 h 2 a sit ad eae . : ‘ .2 oT he: remaing |
Sodt vin Hartisonturg Mon.
obanged | of all m “sins ught salvation
ock bridge: held their he had confidence inj Shrough the Lor cous Christ, the! y e 1B of hear
ing last Saturday, the{b slvation. He repeated: | Saviour of stone ound pease D, eul{ Grove, Rockbridge county,
the office of Common. id’ he longed for the time o| to him, and | have found peace in wae born in 1928. Her. huebe
torney . E. Moore, come when his execu m2 would Heving tn fn = : ® prominest mem- }
ranciet caused by the take place iS ek AGY:. t
f terme of school trus-| The place of execution was: an| > ahh Aas apni ME, Churet
ix distriote of Rock-|enel the rea ome oft
: dea
gondemned
se egot tbados! #5 New Wheat...
Saved through eT eee
very thankful to aay and | Qlasvco
been kind to me. [will] w. K, Ar
Fy one of them to «| Mi
fal to the Lord
y kind friends to ms. God z ee f
with them aij : Property Sale
: ik 2 ¥ 2 Lf deay bo sh off hs —Bhouk
Mea Genta < Wiebe Rides]
residenoe on Wasrhington street, ad. | Lan! —Choice
WwW roperty. The
g tb. .
- | Spring chioke
ase b=-Hama,
Seah eget ey
pi jotning the Wadd Ray
ohildr.
re. Thomas
en
of Mra. J
es.
pen the guest
are, hag
aun to
retur
set,P
is of
day, sad
{ J. Rice
of Roanok
ee
ma Gray Jen.
who,
George|
T home
© the guests
the g eat of
th Ogle, at
will epend |
and the execution was impressive | *4d several wom
Several” news
Prisoner’g
Dd expreated
dence in the.
Dese of the aif
forrison ang
entered and?
~}read the de
Prisoner, w
Visible emo
of his awfy
Steady trea}
chjunairaid. “jiy.
ef elections feot
Oered an ear
Prayer in be
4IQap.
ce ena SVCTEOD »ab £ 0'o ack, conducted ‘
tween him by his pastor, Rov. L..T.. Prévely, a2
te;/ who was sesisted by Rev. J. A:
bis} Trostle and Rev: S. W. . Haddon.
ong Interment was In
ae “éo1 ‘ . ‘
a: Oveur in Rookbridge, |-“2%¢ Smitt
veon hi e, now Wasb-
! ‘University, He
ted man, and for
deputy sheriff of | .
-was later a super.
River district. For} -
® Colonel Gibson was!
n Republican pelitios
of Rockbridge. He Was active as a
Readjuster and later as a Repubii-
can, and for some time served hia
party as county Chairman, ©
|< Colonel Gibson entered the Con-
| federate service April 21, 1861, as
to the! second lieutenant: of the Rock
re.Smith ‘( bridge Dragoons.” In 1862°he was
. Man, ancy made captain cf Company H 14th
4 Years, *-irginia Cavalry, and in January,
- After aj 1863, he “Was made. lieutenant
© Magis-|c fonel. He was wounded at Monoc-.
Soy in 1864, and in the fal of the
same year was capture fa 3
Riyal and held 4 beet
Johnson's Ieland u ae Ge.
der, He way 2 ses
lant eoldier
<L
Cagle
mortal coil’’
them start o
cor i
Mue
Beth
lth
little
muri
exped
flret ¢
fof th
their
and it
ofih
AMpending doom,
his: utmost con’
Prospect of hap
pilfe beyond.
nd Jailor Jack.
2.
Yate.
to bis side an
gallows. . | jailin Le
, Pastor of the/ed for mur
ehureb, Wil-/and bie tri
advisor, ~ joined! of the Cir
sor and to
siked with af
ae
i ;
rising, generous
genial man, and w
: i esteem by ,
Ww court, The Waj
and others throu
werd great
Post iu
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Haidar Ae. es oud lg one pid lo Ctl ch th fect ey. Pou te Ws large’ Fy 3 We nest anti ha
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"The negro woman, Jane, the murderess of the Winston family, has made a full con= e
fession, and related the particulars of the manner in which she accomplished the.
deed. Mr. Winston is slowly recovering, He is not yet aware of the fate of his
wife and child, and thinks he received his wounds by a fall while walking in his
-sleep." NEW YORK TIMES July 28, 1852, . i
g ‘ + @ wee nq
; c g * ate
Ur on eee cajeus state that Mr, Winston is slowly recovering. He has been we
= : ; " atts
| informed of the death of his wife and child, but not that they were murdered, sab.
NEW YORK TIMES, duly 31, 1852, 10 » qoob ows,
"The Negro woman, Jane, the muiderer of the Winstons family was brought up itor trial,
on August 9, She pleaded guilty, and was sentenced to be hung on Sept. 10.
NEW YORK TIMES, August: 11, 1652. ; i |
¢ ° * . 6 |
"John Williams, the negro whose wife was hung’ at Richmond, Va., last
Friday for the murder of Mrs, Winston and daughter,‘was tried for the .
same offense on Tuesdau, SKMMAXALOXRUS XAMAXKAMK AKA AA X BRXKAXKEXREAERAXRA
found guilty and sentenced to be executed on the 22nd of October. ‘n
excited crowd was present in the courtroom who loudly applauded the ver-
“dict and some, it is said, threaténe@ to seize and hang him on thé spot.
Mr, Winston was called to the stand and gave in his evidence. He has
nearly recovered from:his wounds.*® WEEKLY REGISTER, Raleigh, NC, Sept, :
ad, LOSS E97 FO) | . pit, :
€
a
"TRIAL OF THE MURDERERS. - John and Jane Williams, charged with the murder
of Mrs, Winston and her infant child, were yesterday brought before the Hus-
tings Court for trial. Jane Williams was placed at the bar, and uvon being
- arraigned plead guilty, bo the indictmert. The court sccordingly proceeded |
to pass sentence of death upon her, Friday, the 10th of Septem ber, was
named as the day of execution. The'trial of Jéhn Williams was vostponed
until Thursday, the 12th inst. He steadfastly vrotests, we &dtarn, that he
is wholly inmocent and it is proper to say that the wretched woman- the
confessed murderesss -in every statement she has made velatine to the -
horrible deed unqualifiedly exculpates her husband fromall participationin |
the murder, The: Court room was crowded almost to su focation, by eager
spectators, who viewed the accused murderers withtthé’ smame degree of
curiosity with which one might readily suvvosed would be bestowed upon
ferocisious beasts, exhibited to the nublic without charge, Jane Wolliams-
aonearsd cowed and 'héartsick" to KKB use one of her own prkases, Her
‘husband seemed to be awfully frichtenedesat the’ fate which spvarenthy
awaiss him, Indeed, he annears to be the oreater concerned of the two,
When sentence of death had been nronounced upon the women,’ she aroge and
witnout evidencine the slichtest trepidation, accompanied the jailer
to the prison, from which she will not .acsin emergecuntil the dey of execution.-
RICHMOND TIMES, 9th." REGISTER, Raleigh, NC, '#"%eE'%" (1:5,)
REANKER S WOM AA LR RRMA RE XX "i |
"CONFESSLON OF THE MURDER. '- "The mulatto woman Jane, charged with the murder
of Mrs, Winston and child, voluntarily confessed to Rev, Mr. Rvland
Saturdey evening that she committkd the murder. She persisted however tha t
“although her husbend knew of “her:dntentions, hethad not varticipated in the
deed. The only regson we have heard that she assigned:for her conduct
was, that she was unwilling to go to the country for thrée or four weeks,
in attendance on her mistress.- Shé saicd she would make a full confession wy
to the.court. On Sunday, by request, Mr. Starke, her jeilor, questioned
her concerning the ‘murder and she’ also made full:and promot confession to
him of ,
So |
% . . g »
aN
JANE WILLIAMS and her husband, JOHN WILLIAMS, slaves, hanged at Richmond, Va,, Jane on
Septe 10, 1852, and John on Oct, 22, 1852,
"The Richmond WHIG of July 19, 1852, says: "Mr. Joseph Winston of the firm of Nace and
Winston, commission merchants, residing at the northern extremity of Seventh St., near
the City Spring, together with his wife, and an only child about eight months old, were
the victims of the butchery, The two Latter were .found.dead in bed eary yesterday morn-
ing, and wile we write, Mr. Winston is thought to be beyond hope of recovery, though
still alive. His head had a terrific wound upon it, immediately between the eyes, ©
opening the forehead, and there are three other wounds on the back of his head. WM
Mrs. Winston also received three or four wunds = one about three-quarters of an inch
wide, and two incksslong, on the forehead, immediately above the nose, apparetly made
with some blunt instrument; also,twwa@ deep cuts on the side of her head, The child
seemed to have been somthered, or choked, to death, or dashed against the wall - the
throat and breast exhibiting severe bruises. Teh
"An immense concourse of persons were going to and coming from the scene.of the mrders
all yesterday morning. Mr. Winston, as we said, is still alive, and speaks - though’
entirely insensible either of the loss of his wife and child or of his own situation,
On’ being asked if anything was the matter with him, he answered, 'No, only my jaw pains
me,' When asked who struck him, he replied: No one,'
"Six negrees, threemen and three women, belonging to Mr, Winston have been arrested, It
is reported that two of the (man and wife) desired tobe sold, but Mr, Winston refused to
sell thems hence their diswatisfaction, and hence, it is though, their too fatal revenge, A
"Mr, Winston had made preparations to leave the city, with his wife, who was in delicate
health, yesterday morning, for the North, and had in his possession $100 in cash and
drafts for large amounts = all of whichwas found safe, so it appears that plunder was not
the object of the murderers, The house had not been forcibly entered = the locks, windowd
and doors were all secured = and theinference is irresistible that the horrid butchery was
the work of those who were acquainted with, and had access to the premises, One of the
negro women, who is suspected, kept the key of the outer door, in rear of the premises, and
was, as usual, the first to enter the house, yet was not the first to give the alarm, On re-
turning to the kitchen after opening thk house yesterday morning, this woman said that 'The
white folks must be dead = she couldn't wake them! A hatchet was found in the room occu=
pied by the woman and her husband who is a carpenter and a man of malignant temer, It
had traces of blood on the handle, and appeared to have been recently washed, Marks of
blood, we learn, were found on the person of the same negro woman,
"The negroes yesterday underwent anztexamination before the Coroner = but, without being
concluded, it was continued tntil this morning.
"Mr, Winston has very extensive family connections in this city, and the shock is so sudden
and astounding that, as may be supposed, the deepest sympathy for them pervades our entire
community.s Every effort, we are satisfied, will be made to bring the offenders to justices
and circumstances already brought to light are so strong as to induce many to believe
that the wretches are now in custogy."
NEW YORK TIMES, New York City, July 22, 1852.
"The Richmond papers say that the Coroner's Jury in the murder of the Winston family had
returned a verdict that the deed was committed by the negro nurse and her husband,"
NEWYORK TIMES, 7-23-1852,
"Three of the slaves of Mr, Winston, at Richmond, Vae, have been committed to answer the charg
of mrdering their master, mistress and their child, as related a day or two since. The
Kichmond REPUBLIC AN of 7#22, says: 'Rumor has it on the streets yesterday that John Willimms
had made-a confession to Mr, Rand about the late murder, On Inquiry we find that John said
no mre to Mr. Rand than he did to the coroner and that was 'that he believed his wife
knew all about it,' The black scoundrel is evidently anxious to shift the responsibility
from his own shoulders to the back of his wife, but he ban hardly hope to succeed in such
a diabolical plot." NEW YORK TIMES, July 2h, 1852.
WILLIAMS, Jane and John, blacks, Richmond, Vsa., 1852 - Continued,
him of committing the murder. She 9lso told him the varticulars of the
transaction. She said thet = little before day-break, and in advance of her
usual hour of rising, she rose without disturbing her husband, vrocured
the KKHKANXKXK KOKA XHKAAXHA broed-edged sgatchet, entered the house, oro-
ceeded to Mr, Winston's room and commenced her fiendish labors by knocking
Mr. Winston senseless. He scarcely struggled. On leaving him, she stepped
around the bed, and commenced cuttins into the head of Mrs, Winston, Mrs,
W.'s struggles wore so great that Janessays she inflicted stronger and more
frequent blows upon her head than she did upon Mr. W. in order to silence
her quickly. She then killed the infaéat, washed of® the blood, and laid it
in the cradele. She then washed the blood off the hatchet, hid it, and then
gave the alarm. Jane further stated that she considered that she has
been ill-treated by Mr. and Mrs, Winston, and had been brooding over her
bloody revence for some time. The devil, she stated, had such vossession
of her last Monday morning, that she believed she could have went further
than she did, if necessary. She denies stealing the watch and clothing,
We hear that Mr. Winston continues to imvrove and will probably recover,
He is hotally unconscious of the cause of his condition - no doubt having
been struck while alseep. He has not yet been informed of the sad fate of
his wife snd child; though he manifests creat anxiety to know where they
are, and why they are absent. - WHXXEXX wWHIG,"
REGISTER R, Raleigh, NC,Auegust |, 1852 (3-6)
f Zz f WILEIAM LD y Henry
"Roanoke, Yaey 3-18-190l\-lenry “illiams, a negro, was
hanged here today. The crime for which Williams was
hanzed was cornmitted Jan O last He entered the house
|, Pr Ta heaahe Tne pi ie -_ t e 3 ° € j OU
o° George J. Shields, a well known voung business man
9 and, after assaulting Mrs. »nields, cut her throat, He >
0 Y. then Subwck iildred, the 3-rear-old daughter of the
aval rena 4h.
couple over the head with a hatchet and rosbad the
house,"
According to trial transeryyt conttined ta Same 1897 Ploer, Ewe. Fpers of
ower, the ou liler CP Mts anaster got hahed U by w1e tbe Louschl
Saves, (probably Wits), and gave live birth 10 a mulatto bastard tn S/8Y 97,
White a midyte bofbrened rs. Wywme tht the till wits OF toe wrong co/bur’ she
tmestiatly arotred the SHewes to ‘9th rid oF 14: Ja Millis Carried Wee OUI 1107-
Sit, olyg a tale tree feet deep. pitted toe baby ta bresd first ano beried 17
Alle. fb was ny tit 2s Ie begged te ors Fad YA When when dont, Pre
Pomped yp and down upon toe sper 70 pack shut the cart we di SO
tt A tndmner that Suggested luge aad fustutior Ms. Wyone Cold 107
be prosecuted because Slave evidence Was praobssable qgaiass her td Ste
bs Stuar? 0g 79 sorry A//>
WILLIS, © A Sorotd CASE S0CED ©
Av
Slave of John Me Wynn, sentenced to be hanged, Sussex <i
CH, Va.e, on Friday, July 30, 1847, for the mrder of
infant child of Miss Elmira W&% Wynn, ‘\d Ry
C C
Sun. Conte ae Book, 1.843-1852, pages ‘unnumbered; Cet yet” Y
From: Arch. of Va., Aud, Recs., Box 7, Item Kf ria
153, 1847 Envelope: Sussex County, trial on f/f
June 15, 1847, of Willis, slave of John Wynne, ¢ /
for the murder of an infant child found buried (-
on the plantation. Valihked at $520, Governor
refused to stop the execution in a note dated
Judy 7, 1847. Over
Slave WILLIS, hanged Sussex Court House, VA, hanged 7=30-17)7
The following, from Mearn, condensed from June, 187, folder,
Executive Papers of Governors of Virginia, Virginia State Archives,
Richmond:
"The daughter of Willis' master became pregnant by one of the
household slaves sh saghabel Willis), and gave birth to a mulatto
child on May 29, 1817. When a midwife informed Mrs, Wynne that
the child was ‘of the wrong color,!' she immediately ordered the
slaves to ‘get rid of it.' Willis carried the child outside,
dug a hole three feet deep, pitched the baby in KBXXX head-first
and buried it alive. It WXXXXER¥XRARK was crying as he heaped the dirt
upon it. Theb, when done, he jumped up and down upon the spot KaXdHeX
to pack down the earth and did so in a manner that suggested rage and
frustration. Mrs. Wynne could not be prosecuted because slave
evidence was inadmissable against her and she denied it all."
| July }
Slave WILLIS, hanged Sussex Court House, Virginia, on EXK 30, 187.
CLERK’S OFFICE
Circuit Caurt of Sussex County
SUSSEX, VIRGINIA 23884
(8O4 246-5511
SIXTH JUDICIAL CIRCUIT
ROBERT G, O'HARA, JR., JUDGE
EMPORIA, VIRGINIA 23847
GARY M. WILLIAMS, CLERK
CAROLYN P. MATTHEWS, Deputy CLERK
W. PARK LEMMOND, JR,JUDGE
HOPEWELL, VIRGINIA 23860
6 February 1985
Mr. Watt Espy
University of Alabama
School of Law Library
P. O. Box 6205
University, Alabama 35486-6205
Dear Watts
Many thanks for the additional information on executed
felons which you gleaned from the archives of the State Lib ra-
ry in Richmond. I am glad to know that you had a successful
visit. I am enclosing photocopies of the records I have found
on six of the cases of your inquiry of 20 January.
The most interesting case is that in 1847, and one cannot
help but wonder if Willis was the father of the black baby born
basely of the body of Miss Elmyra Wynne. 50 notorious was this
case, one cannot help but wonder, too, if it did not hasten the
death of John M. Wynne, who was dead by February, 1848. Indeed,
the scandal must have prompted the removal of the Wynne family
to Edgcombe County, North Caroline, for John M. Wynne wrote his
will there on 18 October 187,"being in a low state of health."
A copy of this will was spread in Sussex County Will Book P at
page 176, and it is interesting that it notes "first I want my
wife and family to take three or four hundred Dollars of my Est-
ate & by them a piece of land worth about the same to settle
themselves upon land or plantation..." It is certainly an out—
rage if Willis were executed for carrying out a murder instigated
by his owner's family. His instructions to "take care of" the
. infant are ambiguous, but the implication seems to be "get rid of",
for why would a man be expected to care for an infant? I have
found no court actions against any members of the Wynne family,
so any aiding or abetting on their part, if any, was certainly
treated with impunity.
I cannot help you with an explanation of why Stephen Hamlin (2)
was paid for a slave executed in or before 1786, but I will be on
the watch for such information. You know how poorly indexed the
early court records are. I have thoroughly indexed all loose court
papers through 1785, which includes a topical index on slaves, so
hopefully in indexing the 1786 papers I will come across something
relevant to the above soon.
found blood, spent
iing discovery.
lidn’t
ning —he
rowning
decided
seat.
id his friends wanted
testament to the man
s of several deer-hunt-
ere enjoying their pur-
on, promptly stopped
rly that Friday morn-
1 to a more important
1 for their friend Bill.
helicopter joined the
ers and deputies in the
irison employees and
ich of the county’s
rning, they combed
’s lush forests, looking
ll Ricketson. Mean-
yroadcast a description
Bill and his pickup
Ford, white in color,
Shock waves rocked the town of Boydton when Bill Ricketson’s brutal murder came to light. The widely respected victim, a
former chief of the town’s volunteer fire department, was known as a man who would do anything to help out a friend.
with license-plate number CSB-746.
Bill’s family hadn’t seen him since
the day before. Early that Thursday af-
ternoon, he’d left home, saying he was
going to get a haircut and then go hunt-
ing. His kin believed that he had shot-
guns in the truck with him. He was last
seen at 7:00 p.m., driving his truck,
when he’d stopped by a business near
Chase City.
Sheriff Harris and the rest of the
searchers kept up the hunt for Bill past
noon on Friday. Harris, a big, friendly
man, had been sheriff since December
4, 1973—almost a decade to the day.
Now he faced one of the blackest days
of his 10 years in office. The sheriff’s
concern over his missing friend height-
ened as the day wore on. But Bill was
nowhere to be found.
About 1:10 p.m. on Friday, even as
the search continued, two men in a
white Ford pickup pulled into a gas
station off Interstate 95 near Dunn, in
North Carolina’s Harnett County. That
area is about an hour’s drive from
Boydton.
The men bought some oil for their
truck, then they got into a fight. A gas
station employee quickly called the
Harnett County Sheriff’s Department.
Deputy Ricky Symmonds responded
to the scene.
Symmonds took a .25-caliber pistol
off one of the men, a guy who identi-
fied himself as 21-year-old Joe Wise
Sr., of Spring Hope, North Carolina.
The deputy charged Wise with carry-
ing a concealed weapon. Symmonds
also found a shotgun with a broken
stock inside the truck.
Then the lawman ran the truck’s li-
cense-plate number through the Na-
tional Crime Information Center
(NCIC) computer link. He saw that the
vehicle belonged to someone named
Bill Ricketson. There was no indica-
tion in the computer system that the
truck had been stolen, or that Bill was
* missing.
The deputy asked the two men about
Ricketson. Joe Wise and the man he’d
driven up with and fought, 28-year-old
Burley Ford, said that Ricketson had
lent them the truck. Deputy Symmonds
decided to check out that claim. Noting
Bill’s address from the computer, he
called the Mecklenburg County Sher-
iff’s Department at its Boydton head-
quarters.
Of course, every member of the de-
partment’s tiny staff was well aware
that Bill Ricketson was missing. The
Mecklenburg deputies advised Sym-
monds to hold the two men, as well as
the pistol and the shotgun with the bro-
ken stock. Symmonds did so. He de-
posited both men in the Harnett
County Jail. Neither was saying where
Bill was.
So the search was still on in Virgin-
ia.
The name Joe Wise meant nothing
to the Mecklenburg lawmen. But they
were familiar with Burley Ford—he’d
been in several minor legal scrapes.
The deputies knew that Ford was
known to stay at an old factory on
Route 688, a rural road outside Boyd-
ton. On Friday afternoon, Sheriff
Harris sent Deputies Lawrence Clary
and Willis Clayton out to the old fac-
tory to see what they could find.
Clary and Clayton, who were
friends as well as colleagues, rode out
to the factory together, following the
country road as it snaked through
fields and woods. Clary, then 35, was a
former Army signalman who’d joined
the department on April 1, 1972. He
might have joined up on April Fool’s
Day, but Clary was dead serious about
the law enforcement career he loved.
Inside Detective 63
puties called a coroner to the
made the official pronounce-
‘eath.
h the glare of car headlights,
ies scoured the scene for evi-
side from the pieces of ce-
1 blood and hair on them, the
the shotgun shells, there was
e found.
y, the lawmen cleared the
had the body sent for autop-
state medical examiner’s of-
Richmond, the capital of
ithologists soon prepared a
‘rt for the lawmen. Bill had in
beaten and shot. The patholo-
vered a .25-caliber slug from
te had also been hit in the up-
by buckshot pellets, which
1 the shotgun shells found at
. His skull had been cracked
‘re beating.
ose injuries hadn’t actually.
> victim. That was the worst
d drowned in the shallow wa-
ontly, he’d been left, injured
ided, to die there in the cold
in the muddy, offal-filled wa-
bottom.
f Bill’s relatives would later
happened simply: “He went
orture.””
The disturbing question was—why?
The deputies, working in a county
that normally doesn’t chalk up more
than five murders a year, intended to
find out why as soon as possible. Joe
Wise and Burley Ford had been ar-_
rested in Bill’s truck. And they were
being held in North Carolina.
The Virginia lawmen didn’t intend
to lose the two suspects. They swore
out warrants charging the pair with one
count each of first-degree murder.
As things turned out, Ford and Wise
waived their rights to fight extradition
to Virginia. By December 5th—the
Monday after the slaying—they were
in the Boydton jail.
Ford wasn’t talking. But Wise was.
Over the next several days, Wise
made five or six varying statements.
By now, the deputies had learned
that Wise had been convicted of as-
sault with intent to rape on-August 11,
1978, in Wake County Superior Court
in North Carolina. He had been sen-
tenced to eight years in prison on that
conviction, and had just recently been
released.
The deputies also learned that Wise,
like Ford, was linked to the crime
scéne. While Ford sometimes stayed in
the office structure at the old factory
site, the deputies learned, Wise had rel-
atives who sometimes ran a flea mar-
ket in the abandoned building.
Ae rea
Wesley Simmons, an investigator
with the sheriff’s department, and
Deputy Howard Morris questioned
Wise. At first, Wise claimed that a rela-
tive of his killed Bill Ricketson. Later,
he finally confessed his own involve-
ment in the brutal crime.
Wise said that Ricketson pulled up
to the crime scene in his truck about
7:30 p.m. on December 1st. Wise said
he asked him what he was doing, they
had words, and then Wise shot Ricket-
son in the face.
From what Wise was saying, it
seemed to be a senseless, savage
crime.
Meanwhile, Wise did not implicate
Ford in the slaying.
Sheriff Harris said that Bill Ricket-
son had a friend who was supposed to
be raccoon hunting in the crime scene
area, and might have been looking for
him when Bill met his death. Deputy
Clary figured that Bill stopped his
truck to see if he could hear the ’coon-
Mecklenburg County Sheriff
Lawrence Clary was a deputy
when he and a feliow law-
man followed the trail that
led to Bill Ricketson’s body.
hounds barking anywhere in the area.
Clary said Bill Ricketson wasn’t one
to look for trouble, but he didn’t back
away from it, either. Still, Clary and
his fellow deputies agreed that there
was no evidence whatsoevef that Rick-
etson had been armed during the con-
frontation.
With the interviews over, the depu-
ties continued to work on other aspects
of the case. They soon discovered that
all the evidence showed that Burley
Ford had not met up with Joe Wise un-
til after the killing, and had played no
role in the crime. The murder charge
against Ford was therefore dropped.
But the Virginia deputies were mor-
ally certain that they had the right man
in Wise, and there was still plenty of
work to do in making the case against
him.
The deputies fanned out to North
Carolina, to interview Wise’s friends
and acquaintances in his home county,
Nash, which is about an hour’s drive
Inside Detective 65 —
The old factory site is known locally
as the “‘’Celsior plant.”’ That’s short
for the official name of the defunct
company, “Excelsior,” which manu-
factured wood products used in pack-
ing and shipping.
The deputies found two stone build-
ings on the lot—the old factory build-
ing toward the rear and a smaller office
building toward the front. It was in the
smaller office building that Ford had
been known to stay.
Deputy Clary knocked on the door.
No one answered. There were no signs
of life. The door was secured by a nail
and a wire.
Clary started to walk back to the pa-
trol cruiser. On the way back, he no-
ticed some blood and spent shotgun
shells on the ground.
The lawman took note, but he didn’t
jump to conclusions. This was the mid-
dle of deer season, and this was a rural
area where someone might well have
shot a deer recently. Still, something
just didn’t look right to Clary.
He and Clayton looked closer and
found some marks in the soil that
seemed to have been made by some-
thing being dragged. They followed
the trail around the side of the small
office buildings, where they found a
piece of concrete with blood and hair
on it. They also found an ink pen with
a company logo imprinted on it. Depu-
64 Inside Detective
ty Clary speculated that the company
was one that serviced the prison where
Bill Ricketson worked.
Most important, the deputies found
a small metal tag that identified its
wearer as a diabetic. Bill was diabetic.
The trail ended behind the office
building, several feet from where it be-
gan. Right there, at the end of the trail,
was a freshly-dug pit privy.
Clary looked at Clayton and said he
was afraid that Bill’s body was in that
pit.
Before they did anything else, the
deputies knew it was time to radio
their boss. They got in touch with
Sheriff Harris, who said he was al-
ready on his way with other deputies.
By the time Sheriff Harris arrived, it
was about 5:00 p.m, It was a cold,
gray, bone-chilling day. Darkness was
falling fast, and it was beginning to
rain. é
The deputies shifted aside the fresh
earth, brush, and cinder blocks. At the
mucky bottom of the privy hole, about
four to five feet down and in shallow
water, was a fully-clothed body.
The lawmen immediately recog-
nized it as the body of their friend, Bill
Ricketson.
There was no pulse. Rigor mortis
had begun to set in. Bill had apparently
been shot in the face—and beaten
about the face, as well.
The deputies called a coroner to the
scene. He made the official pronounce-
ment of death.
Through the glare of car headlights,
the deputies scoured the scene for evi-
dence. Aside from the pieces of ce-
ment with blood and hair on them, the
pen, and the shotgun shells, there was
little to be found.
Finally, the lawmen cleared the
scene and had the body sent for autop-
sy at the state medical examiner’s of-
fice in Richmond, the capital of
Virginia.
The pathologists soon prepared a
grim report for the lawmen. Bill had in
fact been beaten and shot. The patholo-
gists recovered a .25-caliber slug from
his face. He had also been hit in the up-
per body by buckshot pellets, which
explained the shotgun shells found at
the scene. His skull had been cracked
by a severe beating.
But those injuries hadn’t actually.
killed the victim. That was the worst
part.
Bill had drowned in the shallow wa-
ter.
Apparently, he’d been left, injured
and wounded, to die there in the cold
‘privy pit, in the muddy, offal-filled wa-
ter at the bottom.
One of Bill’s relatives would later
put what happened simply: “He went
through torture.”
The disturbir
The deput
that normal]
than five mu
find out why
Wise and B
rested in Bil
being held ir
The Virgi:
to lose the t
out warrants
count each o
As things |
waived their
to Virginia.
Monday afte
in the Boydt
Ford wasn
Over the
made five or
By now, t
that Wise he
sault with int
1978, in Wal
in North Ca:
tenced to eig
conviction, 2
released.
The deput
like Ford, \
scene. While
.the office st
site, the depi
atives who s
ket in the ab
iia nal ld imetnntiowin sisi
The trial of Bill Ricketson’s murderer
was the first death penalty case to be
adjudicated in the Mecklenburg County
Courthouse since capital punishment
was reinstated by the Supreme Court.
from the Boydton locality.
During this probe, the investigators
found a witness who said that Wise
had told them he’d killed a man in
Mecklenburg County. The sleuths
found another witness who said that
Wise had burned several items shortly
after Bill Ricketson’s death. Ricket-
son’s driver’s license was burned in the
fire, the witness said.
- Forensic scientists compared the
.25-caliber pistol taken from Wise with
the .25-caliber bullet recovered from
Bill’s body. They determined that the:
slug had in fact been fired from Wise’s
pistol.
As for the shotgun with the broken
stock found in the truck—that be-
longed to Bill Ricketson. The deputies
established that Wise had broken the
stock in the.act of striking Ricketson in
the face. It had apparently fired the
blast that struck the victim, but sophis-
ticated ballistics tests cannot be per-
formed on shotguns because their
barrels are smooth, not rifled. In other
words, shotguns do not leave identifia-
ble markings on their projectiles as ri-
fles do.
66 Inside Detective
Bill Ricketson’s truck had been re-
turned to Virginia. Little more of evi-
dential value was gathered from it.
Joe Wise awaited his trial at a jail in
Pittsylvania County, Virginia. One day,
he tore his steel bunk off the wall. It
was a frightening display of strength
that even veteran lawmen could not re-
call having seen or heard before.
Psychologists who examined Wise
determined that he was on the bor-
derline of being mentally retarded.
Maybe so, those who’d carried out the
homicide probe said, but he had plenty
of street smarts.
As Wise raged in his cell, Mecklen-
burg County Commonwealth’s Attor-
ney Frank Harris (no relation to the
sheriff) prepared his case against Wise.
Harris would be seeking the death pen-
alty for the accused man.
Harris, a former state trooper, is a
man who enjoys a reputation as a
Straight-shooter throughout The Old
Dominion. As he prepared for Wise’s
trial, he was 59, he’d been in office for
14 years, and he had never had the oc-
casion to pursue the ultimate punish-
ment against a defendant.
The county hadn’t seen a death-pen-
alty case in decades, and the Wise case
would be the first since the U.S. Su-
preme Court had reinstated capital
punishment in 1976.
The trial of Joe Wise was held in
1984 at the Mecklenburg County
Courthouse in Boydton. William
Claiborne, a young lawyer from near-
by Halifax County, had been appointed
to defend Wise. Claiborne is a 1981
graduate of the University of Virginia
Law School.
The state’s case was strong and the
prosecution prevailed. The jury con-
victed Wise of first-degree murder.
During the sentencing phase of the
trial, Commonwealth’s Attorney Har-
ris made an impassioned plea for the
death sentence.
“Now, after Wise shot Ricketson, he
didn’t have to beat him. And after he
shot and beat him, he didn’t have to
drown him,’’ the prosecutor said.
“...And I simply say to you in closing,
if you can think of anything more de-
praved, more wicked, more vile or
more inhuman, more torturous than
what was done to Bill Ricketson, I
don’t know
In his c
Claiborne ;
client’s life
option—li
asked of th
The juro
arrive at th
death. The
that decisic
Virginia
the electric
The year
yers for Jo:
appeals. A
seemingly |
tember 14,
ter the crim
Wise was
the Greenv
Jarratt, Vir
prison is in
about half a
ton. While
held at the 5
worked, Jo
there.
Only Gc
’ could inter
respondents-appellees.
Before HALL, WILKINSON, and
LUTTIG, Circuit Judges.
OPINION
LUTTIG, Circuit Judge:
Appellant Joe Louis Wise, Sr., appeals
from a decision of the United States Dis-
trict Court for the Eastern District of Vir-
ginia denying his petition for a writ of
habeas corpus. We affirm.
I.
On November 8, 1984, Wise was convict-
ed in the Mecklenburg County, Virginia,
Circuit Court of capital murder, grand lar-
ceny, armed robbery, and use of a firearm
in the commission of a felony. On Novem-
ber 9, 1984, the jury found his conduct
“outrageously or wantonly vile, horrible or
inhuman in that it involved aggravated bat-
tery to the victim, beyond the minimum
necessary to accomplish the act of mur-
der,” and fixed his punishment at death.
See J.A. at 354-55; Va.Code Ann. § 19.2-
264.2. The Virginia Supreme Court af-
firmed his convictions and sentence on No-
vember 27, 1985, Wise v. Commonwealth,
230 Va. 322, 387 S.E.2d 715 (1985), and on
April 7, 1986, the United States Supreme
Court denied certiorari, .475 U.S. 1112
(1986). After a hearing, the Mecklenburg
County Circuit Court. dismissed Wise’s
state habeas petition: on December 11,
1989. J.A. at.56-66. Wise, however, failed
to file a notice of appeal until March 28,
1990, more than two months after the expi-
ration of the thirty-day time limit. See
Virginia Supreme Court Rule 5:9(a).' Af-
ter a change in court-appointed counsel and
leave “to pursue an appeal,” J.A. at 90,
Wise appealed to the Virginia Supreme
Court, which dismissed his petition for ap-
peal on April 4, 1991, id. at 133. Wise then
filed a petition for federal habeas corpus
relief under 28 U.S.C. § 2254.. On March
17, 1992, the district court. granted the
1. Rule 5:9(a) provides: “No appeal shall be al-
lowed unless, within 30 days after the entry of
final judgment or other appealable order or
WISE v.”WILLIAMS
_ Cite as 982 F.2d 142 (4th Cir. 1992)
Terry, Atty. Gen. of Va., on the brief), for —
143
Commonwealth of Virginia’s motion to dis-
miss Wise’s petition. J.A. at 326-37. On
October 8, 1992, we granted a certificate of
probable cause to appeal, see 28 U.S.C.
§ 2253.
II.
The district court concluded that Wise’s
claims were procedurally barred from con-
sideration because the Virginia Supreme
Court’s dismissal of his petition rested on
an adequate and independent state law
ground: his late filing of a notice of appeal.
See Coleman v. Thompson, — US. —,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (af-
firming dismissal of habeas corpus petition
as procedurally barred by failure to comply
with Virginia’s thirty-day requirement for
filing notice of appeal).
{1] Wise challenges that conclusion on
four principal grounds. First, he argues
that the procedural bar was not adequate
because the Virginia Supreme Court does
not strictly or regularly enforce the manda-
tory time limit for notice of appeal. See
Johnson v. Mississippi, 486 U.S. 578, 587-
89, 108 S.Ct. 1981, 1987-90, 100 L.Ed.2d
575 (1988) (procedural bar not “consistently
or regularly applied” did not represent ade-
quate and independent state law ground).
In support of this argument, he points to a
number of orders of the Virginia Supreme
Court granting extensions to file an appeal.
J.A. at 274-307. The periodic grant of
extensions on motion, however, does not
mean that the rule is not strictly and regu-
larly enforced. See Meadows v. Legursky,
904 F.2d 903 (4th Cir.1990) (en banc)
(‘{C]onsistent or regular application of a
state’s procedural default rules does not
mean undeviating adherence to such rule
admitting of no exception.” (citing Dugger
v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103
L.Ed.2d 435 (1989))), cert. denied, — U.S.
——., 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).
Indeed, the conscientious consideration of
motions for extension and the granting of
such motions may well be evidence that the
decree, counsel for the appellant files with the
clerk of the trial court a notice of appeal....”
soar tnt aa "Aas ae cos ase OO a
hin 0 hn Aeon Ne marrety
PRAAP PECL Wij 2 Ms oem ORI wom Namaner footnote roe maa ~
pe a
144
~ rule is very strictly enforced; that is, that
the rule’s requirement is absolute, absent
express dispensation from the court.
There is no evidence that Virginia does
not strictly enforce its appellate filing re-
quirement, and Wise has cited no authority
to suggest that it does not. The existing
authority, in fact, confirms that the rule is
rigorously enforced. See, €.g.,. Coleman,
— US. at —, 111 S.Ct. at 2560 (“The
Virginia Supreme Court has reiterated the
unwaivable nature of this requirement.”);
Coleman v. Thompson, 895 F.2d 139, 143
(4th Cir.1990) (“The district court properly
concluded that the failure to comply with
Rule 5:9(a) was an adequate ground to ap-
ply the bar of procedural default.”),
affd, — US. —, 111 S.Ct 2546, 115
L.Ed.2d 640 (1991); School Bd. v. Caudill
Rowlett Scott, Inc., 237 Va. 550, 379 S.E.2d
319, 323 (1989) (thirty-day time limit for
filing notice of appeal is “mandatory” and
jurisdictional); Vaughn v, Vaughn, 215
Va. 328, 210 S.E.2d 140, 142 (1974) (same);
Carlton v. Paxton, 14 Va.App. 105, 415
S.E.2d 600, 602 (1992) (“(T]he pfovision for
timely filing of a notice of appeal is manda-
tory. This court has interpreted such time-
liness provisions strictly.” (citations omit-
ted)), adopted by the court en banc, —
Va.App. ——, 422 S.E.2d 423 (Va.Ct.App.
1992); of Whitley v. Bair, 802 F.2d 1487,
1502 n. 31 (4th Cir.1986) (“Virginia courts
have consistently applied their procedural
default rules.”), cert. denied, 480 U.S. 951,
107 S.Ct. 1618, 94 L.Ed.2d 802 (1987).?
[2] Second, Wise argues that “the Vir-
ginia Supreme Court must have considered
the merits of [his] appeal and not simply
dismissed it on timeliness grounds.” Ap-
pellant’s Br. at 35; see Ake v. Oklahoma,
470 U.S. 68, 74-75, 105 S.Ct. 1087, 1091-92,
84 L.Ed.2d 53 (1985) (procedural bar not
independent of federal law if its application
2.. The district court and appellees appear mis-
taken in their belief that Wise “never moved for
an extension of time,” J.A. at 331, Appellee’s Br.
at 12. Wise’s “Motion for an Order Directing
the Circuit Court for Mecklenburg County to
Vacate and Reinstate its Order of December 11,
1989” also sought, “in the alternative,” a thirty-
day extension. J.A. at 69. The Virginia Su-
982 FEDERAL REPORTER, 2d SERIES
requires consideration of constitutional
claims). We disagree. The Virginia Su-
preme Court’s decision below “ ‘fairly ap-
pears’ to rest primarily on state law.” —_
US. at » 111 S.Ct. at 2559. As in
Coleman, “[{t]he Virginia Supreme Court
stated plainly that it was granting the
Commonwealth’s motion to dismiss the pe-
tition for appeal,” and that “{t]hat motion
was based solely on [the petitioner’s] fail-
ure to meet the Supreme Court’s time re-
quirements,” id. — U.S. at —, 111 S.Ct.
at 2559. See J.A. at 130-33. The five
Virginia cases relied upon by Wise are not
to the contrary. See Appellant’s Br. at 34—
35 (citing Tharp v. Commonwealth, 211
Va. 1, 175 S.E.2d 277 (1970); O’Brien v.
Socony Mobil Oil Co., 207 Va. 707, 152
S.E.2d 278 (1967), cert. denied, 389 US.
825, 88 S.Ct. 65, 19 L.Ed.2d 80 (1967);
Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773
(1966); Thacker v. Peyton, 206 Va. 771,
146 S.E.2d 176 (1966); Cabaniss v. Cun-
ningham, 206 Va. 330, 143 S.E.2d 911
(1965)). The Supreme Court in Coleman
explicitly considered all five of these cases
and concluded that their “natural reading”
is that “the Virginia Supreme Court will
extend its time requirement only in those
cases in which the petitioner has a consti-
tutional right to have the appeal
heard.” .— US. at —-—, 111 S.Ct.
at 2560-61 (emphasis added).
[3,4] Wise contends that he had such a
right under the Sixth Amendment because
he had been denied effective assistance of
counsel by the late filing of his state habe-
as appeal. Coleman, however, rejected
this argument: “There is no constitutional
right to an attorney in state post-conviction
proceedings. Consequently, a_ petitioner
cannot claim constitutionally ineffective as-
sistance of counsel in such proceedings.”
Id. — US. at , 111 S.Ct. at 2566
(citations omitted).2 Wise also claims a
_preme Court, however, summarily denied the
motion. /d. at 76.
3. Wise attempts to distinguish Coleman by em-
phasizing that his attorneys, unlike Coleman's,
were appointed by the court so as to comply
with Giarratano vy. Murray, 668 F.Supp. 511
(E.D.Va.1986) (requiring Virginia to provide ap-
pointed counsel to indigent death row inmates
who request it), aff’d, 847 F.2d 1118 (4th Cir.
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treatm:
idn’t seen a death-pen-
des, and the Wise case
rst since the U.S. Su-
ad reinstated capital
976.
ioe Wise was held in
fecklenburg County
Boydton. William
ing lawyer from near-
ty, had been appointed
. Claiborne is a 1981
University of Virginia
‘se was Strong and the
vailed. The jury con-
irst-degree murder.
sntencing phase of the
vealth’s Attorney: Har-
oassioned plea for the
Vise shot Ricketson, he
eat him. And after he
im, he didn’t have to
the prosecutor said.
/ Say to you in closing,
- of anything more de-
wicked, more vile or
more torturous than
: to Bill Ricketson, I
don’t know how you can do it.”
In his closing, Defense Attorney
Claiborne asked the jury to spare his
client’s life. Give him the only other
option—life.in prison—the lawyer
asked of the jury.
The jurors took just 42 minutes to
arrive at their recommended sentence:
death. The trial judge later affirmed
that decision.
Virginia’s method of execution is
the electric chair.
The years passed slowly, with law-
yers for Joe Wise filing the inevitable
appeals. A high court eventually set a
seemingly final execution date of Stp-
tember 14, 1993—almost 10 years af-
ter the crime occurred.
Wise was being held on death row at
the Greenville Correctional Center in
Jarratt, Virginia. Like Boydton, that
prison is in Virginia’s Southside, and
about half an hour’s drive from Boyd-
ton. While death-row prisoners are
held at the prison where Bill Ricketson
worked, Joe Wise had not been held
there.
Only Governor Douglas Wilder
could intervene to save Wise’s life.
In an interview with a reporter in
early September 1993, Wise; 31 at the
time, admitted that he was involved in
Bill’s slaying.
He awaited his execution date in a
‘windowless cell. He spent his time
writing letters and exercising. In an in-
terview with a reporter, he said he had
asked guards about a piece of equip-
ment that he felt was connected to the
electric-chair apparatus.
“I was joking to them,” he said. “I
said, ‘Well, is this what y’all going to
use to put the juice to me?’ But no one
said anything. They try to hide that
stuff, you know.”
Wise’s execution date—Tuesday,
September 14th—finally arrived. Wise
spent his last hours visiting with rela-
tives, lawyers, and supporters. The
week before, Governor Wilder had re-
jected his plea for clemency.
As the appointed 11:00 p.m. execu-
tion time approached, a crowd of about
18 people gathered outside the prison.
Opponents of the death penalty carried
candles and prayed. Others in the
crowd, including relatives of Bill Rick-
etson’s, told’reporters that they had
come in search of an ending and jus-
tice.
Ten minutes before guards. led Joe
Wise into the execution chamber, the
sound of people singing in the room
where he was being held carried out-
side. The song was “‘The Old Rugged
Cross.” :
Soon thereafter, a door opened. Sev-
eral guards led Wise, who was smiling
and laughing a bit, to the electric chair.
His head was shaved and the right leg
of his denim pants was cut along the
calf.
The guards tightened wide leather
straps across his chest, upper arms,
wrists, and ankles. A nun and a priest
read aloud from the Bible. When asked
if he had anything to say, Wise closed
his eyes and said nothing.
At 11:01 p.m., the guards secured
the leather helmet and face mask and
- connected electrical cords to the hel-
met and to the prisoner’s right leg. An
electrical hum began.
The first jolt of electricity was 1,825
volts at 7.5 amps. Wise surged for-
ward, then his back arched away from
the padded back of the wooden chair
and his head pressed against it. His
body relaxed. Then a second jolt was
applied.
After a required five-minute wait, a
guard opened Wise’s light-blue shirt. A
doctor placed a stethoscope on his
chest, listened, and then told the war-
den, “This man has expired.”
It was 11:12 p.m.
Wise was the 21st person to be exe-
cuted in Virginia—including four oth-
ers in 1993—-since the state resumed
executions in 1982. Nationwide, he
was the 220th person executed since.
1976, when the Supreme Court al-
lowed the reinstatement of capital pun-
ishment.
Sheriff Harris retired in 1990. Law-
rence Clary, the deputy who’d found
Bill Ricketson’s burial site, was ap-
pointed to finish Harris’s term, and has
since won popular election. Willis
Ten years after he committed the sense-
less murder, Joe Louis Wise faced the
consequences of his vile deed when he
was strapped into Virginia’s hot seat.
Clayton, who was with Clary when he
found the burial site, became chief
deputy.
Frank Harris, the prosecutor, went
on to private practice.
Sheriff Clary feels that there were at
least two lucky aspects to the case.
He’s glad that he noticed the blood at
the crime scene. And if Wise hadn’t
gone and gotten himself arrested for
fighting down in North Carolina, Clary
feels, the-whole case would have been
tougher to crack. But it was cracked,
and Bill Ricketson’s killer went on
to receive ultimate justice. 006
EDITOR’S NOTE:
Burley Ford is not the real name of
the person so named in the foregoing
story. A fictitious name has been used
because there is no reason for public
interest in the identity of this person.
Inside Detective 67
142
os Louis s WISE, § Sr Petitioner
ot Sa ue So doses ee ta
tes : : ve = ae | ye ;
David- WILLIAMS; Attorney General of
the Commonwealth of Virginia,
- Respondents—Appellees. —.
No. 92-4007.
, United States Court of ‘Mpptals, *
Fourth Circuit.
Argued Oct. 26, 1992.
Decided Dec. 16, 1992. _
Petitioner sought federal habeas cor-
pus relief after he was convicted of capital
murder and the Virginia Supreme Court,
230 Va. 322, 337 S.E.2d 715, affirmed. The
United States District Court for the East-
ern District of Virginia, Robert R. ‘Merhige,
Jr., Senior District Judge, denied the peti-
tion. . Appeal was taken. The Court of
Appeals, Luttig, Circuit Judge, held that:
(1) the failure to file-a timely ‘notice ‘of
appeal in state habeas proceédings was.a
procedural bar to federal habeas review,
and (2) the petitioner failed to show that
habeas review was necessary to prevent. a
fundamental. miscarriage, of dngtice..
~ Affirmed. Leake Serer
7 ~ Pa ee ‘ge Fat
1, ‘Habeas. ‘an 364, 403,
notice - of.. appeal::from dismissal - -of :state |
-habeas. petition : and,- ‘therefore; failure. -to . Y ment; there’ Was “évidence: that ‘murder + ‘was
- file -timely: notice“-of : appeal procedurally ~otitragéously* or: “‘Wantonly vilé;‘horrible“or
barred. federal. habeas, corpus: petition,-even =
though -Virginia Supreme: Court periodical-
_ly: granted extensions:of time.:.;Va.Sup. Ct:
Rules, Rule 5:9(a);: 28 US. GAY. $2 2254.: tae
2. ‘Habeas Corpus e422"
. “Virginia Suprenie ‘Court’s. dismissal of - |
notices of appeal from dismissal. “of. state”
habeas petition was based on ‘untimeliness
of notice, not on merits, and, therefore, ’
federal habeas “ ‘corpus: “petition was proce-
~durally barred... Va. Sup.Ct.Rules, .
5:9(a); 28 US. C.A. § 2254.
ea
‘Virginia Supreme. Court: hy and~
sPotigy
petitioner-appellant. :
Rule :
982 sane is ‘REPORTER, as SERIES
3. Habeas Corpus e690. ai
-Petitioner had no right to effective as-
sistance of counsel on appeal in state habe-
as proceedings and, therefore, failure to
file timely notice of appeal could serve as
procedural bar to federal habeas: corpus
petition. U.S.C.A. Const.Amend. 6.
4. Constitutional Law ¢306(6) ;
_ Habeas Corpus 364, 819
Appointment of counsel in: state habe-
_as proceedings did not give rise to special
relationship that could have. created due
process right and, therefore, dismissal of
state habeas appeal as untimely did not
implicate constitutional right and was pro-
cedural bar to federal habeas corpus peti-
tion. U.S.C.A. Const.Amend. 14;. 28
U.S.C.A. § 2254.
5. Habeas Corpus <—406.
. Counsel’s failure to file timely notice
of appeal in state habeas corpus proceed-
ings was not: “cause”. that could excuse
-procedural default; petitioner had no right
to effective assistance of counsel in habeas
proceedings. - U.S.C.A. Const.Amend. 6; 28
U.S.C.A..§ 2254.0 0° *
See publication ‘Words and Phrases
.» for-.other - judicial constructions and ..
,,definitions.
ae eo Sek ET MAES SE ze fat 2 ad al
6° * Habeas ‘Corpus 401” is gem Ii
Petitioner. failed ‘to: show that federal
habia corpus’ ‘review ‘of his” capital ‘murder
conviction was necessary to prevent funda-
mental’ ‘miscarriage ‘of justice; despite: fail-
3 regular ly-enforced:its:time limits for filing | “ure to: present "evidence at trialrof ‘Petition-
ey s’ * abusive* and* “ériminal” “family” ‘environ-
“inhuman,” “which was* ‘hot. “outweighéd ‘by
ot mitigating’ évidence’ about petitioner’s child- .
“hood: £28" U: be: CAL 5 2254; “va. Code" 1950,
Seah.
ea
organo ‘William’ Silver, *Seiiidder ‘Harri
son, Segal & Lewis,” ‘Philadelphia, “PA? ar-
gued (James. 6. Crawford, ‘on the brief), for
Bas, cone
y- 5
Mal make OSS che na EO f-
».'Thomas ; Cauthorne ; aw es ‘Atty.
“Gen, -Richmond,: VAyy y argued, (Mary: ‘Sue
a A i a ex & ee
—/4#-F3 Virgrnra—
146
water, mud, and human feces,” and _finally
shot Ricketson through the chest with a
shotgun. See 337 S.E.2d at 718-20. A
rational juror could have easily found this
despicable murder ‘outrageously or wan-
tonly vile, horrible or inhuman” even in the
face of evidence of an abusive childhood.
The evidence of an abusive childhood, like
“{t]he psychological evidence [that] peti-
tioner allege[d] was kept from the jury due
to the ineffective assistance of counsel’ in
Sawyer, “does not relate to petitioner’s
guilt or innocence of the crime.” —— U.S.
at ——-——, 112 S.Ct. at 2523-24. At
most, it constitutes mitigating evidence, the
exclusion of which does not warrant appli-
cation of the “fundamental miscarriage of
justice” exception. See id. at 2523 (excep-
tion. “must focus on those elements which
render a defendant eligible for the death
penalty, and not on additional mitigating
evidence which was prevented from being
introduced as a result of a claimed con-
stitutional error” (emphasis added)).
In sum, Wise has failed to show that the
procedural default relied upon by the Virgi-
nia Supreme Court was not an adequate
and independent state ground, that his at-
torneys’ error constitutes cause to excuse
the default, or that federal review of his
claims is necessary to prevent a fundamen-
tal miscarriage of justice. Accordingly, the
judgment of the district court is affirmed.
AFFIRMED.
O —KEY NUMBER SYSTEM
+ums
UNITED STATES of America, _
Plaintiff-Appellee,
v.
Ricky Lynn DANIEL, Defendant-
Appellant.
~ No. 92-7292
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Jan. 18, 1993.
Defendant was pier in the United
States District Court for the Northern Dis-
982 FEDERAL REPORTER, 2d SERIES
trict of Mississippi, L.T. Senter, Jr., Chief
Judge, of possession with intent to distrib-
ute methamphetamine. Defendant appeal-
ed. The Court of Appeals held that: (1)
temporary seizure of package was valid,
and (2) probable cause existed for issuance
of warrant to search package.
Affirmed.
1. Searches and Seizures <164
Defendant did not possess legitimate
expectation of privacy in package ad-
dressed to someone else and, thus, had no
standing to challenge its search or seizure.
U.S.C.A. Const.Amend. 4.
2. Searches and Seizures @164
Even if name on package was defen-
dant’s alias, it was questionable whether
defendant would have Fourth Amendment
standing to challenge its search and sei-
zure, particularly when use of that alias
was part of defendant’s criminal scheme.
U.S.C.A. Const.Amend. 4.
3. Searches and Seizures 13
Although initial detention of package
by airline employee was not a “seizure” for
Fourth Amendment. purposes as employee
was not acting on behalf of government,
Drug Enforcement Agency (DEA) agents
physically handling box and exercising do-
minion over it until — dog could be
obtained was a “seizure.” U.S.C.A. Const.
Amend. 4.
See publication Words and Phrases
for other senlcial constructions. and
’ definitions.- oo
4. Drugs ana Nareoties €182(1)
Included: among “drug package pro-
file” characteristics are size and shape of
package (particularly in view of declared
contents); whether package is taped to seal
all openings; whether mailing labels are
handwritten; whether. return addressee
and return address listed on package
match; unusual odors coming from pack-
age; whether city of origin and/or city of
Satpal:
Mr cabins tind atiins co coe aa cca.
tS
oI EE aE oy
NO a De Ot a a
wee
PP oie ATA tac Renee
destination art
cales; and w.
peated mailing
addressee.
5. Arrest <6
While any
file’ characte
not provide re
activity, aggr
ter under Jez
6. Arrest 6
Drug §&
agent had re<
age containec
tion of packag
sniff dog was
suspicions we
and shape, fa
taped with m:
that labels w:
mailing was 4
that airline er
ond such ma
sender paid
small packag
fact that se
“drug source
7. Searches
Passengi
privacy that
be exposed <
rant does nm
luggage; the
of bag is n
Amendment
suspicion is
forcement A
canine train:
luggage in
U.S.C.A. Co:
See pul
for other
definitior
8. Drugs ar
Drug
agent’s affi
for warrant
established
drug investi
cious for a°
it came fro!
itu tional]
. .
Me Er,
|
ir]
poo se
As in
Court
ng the
the pe-
motion
s] fail-
ime re-
1 S.ct.
1e five
axe not
at 34-
h, 211
1en Vv.
7, 152
9 US.
(1967);
2d 773
. 771,
Cun-
d 911
eman
cases
ding”’
t yell
the
DNStr-
ppeal
S.Ct.
ich a
ause
ce of
1abe-
-cted
ional
ction
oner
2 as-
”?
gs.
256
iS a
the
em=
an’s,
poly
$11
> ap-*
ates
Cir.
ourteenth Amendment due process right
“was created through the “special relation-
“ship” he developed with Virginia by virtue
«of its appointment of counsel for him. Ap-
pellant’s Br. at 23-28. The Supreme
Court, however, has rejected such reason-
g and warned that it
rests on a premise that we are unwilling
to accept—that when a State chooses to
offer help to those seeking relief from
convictions, the Federal Constitution dic-
tates the exact form such assistance
must assume. On the contrary, ... the
“State has made a valid choice to give
prisoners the assistance of counsel with-
out requiring the full panoply of proce-
dural protections that the Constitution
requires be given to defendants who are
in a fundamentally different position—at
trial and on first appeal as of right.
Pennsylvania v. Finley, 481 U.S. 551, 559,
107 S.Ct. 1990, 1995, 95 L.Ed.2d 539 (1987).
Because no constitutional right was impli-
cated, we reject Wise’s argument that the
Virginia Supreme Court necessarily consid-
ered the merits of his appeal before dis-
missing it as untimely. f
{5] Third, Wise argues that his coun-
sel’s failure to file a timely notice of appeal
constitutes “cause,” excusing his procedur-
al default. See Wainwright v. Sykes, 433
US. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d
594 (1977). Under Murray v. Carrier, 477
EUS. 478, 488, 106 S.Ct. 2639, 2645, 91
L.Ed.2d 397 (1988), however, his attorney’s
error will only constitute “cause” if Wise
was denied his right to effective assistance
of counsel. As explained, supra, Wise had
1988) (en banc), rev'd, 492 U.S. 1, 109 S.Ct.
2765, 106 L-Ed.2d 1 (1989). - Wise’s reliance on
this distinction is misplaced, however.* The Su-
preme Court reversed the Giarratano decision
in June 1989,:see'Murray v. Giarratano, 492 U.S.
1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), well
before:any decision on his state habeas petition.
4. Of course, the district court only appointed
counsel for Wise upon his request. See J.A. at
48, 53. Moreover, Wise bases his claim of a
“right to be protected” by Virginia on cases
recognizing: state duties to provide safety for
institutionalized.. mentally retarded patients,
Youngberg v. Romeo, 457 U.S.-307, 102 S.Ct.
2452, 73 L.Ed.2d 28 (1982), to provide medical
‘treatment to prisoners, Estelle v. Gamble, 429
WISE v. WILLIAMS 145
Cite as 982 F.2d 142 (4th Cir. 1992)
no such right in his state habeas appeal.
See Coleman, — U.S. at ——, 111 S.Ct. at
2568 (rejecting existence of “a constitution-
al right to counsel on appeal from the state
habeas trial court judgment”). Moreover,
Wise, like Coleman, was not deprived by
his attorneys of an opportunity to have the
merits of his constitutional claims re
viewed. The state habeas trial court ad-
dressed the merits of those claims. See id.
— US. at —, 111 S.Ct. at 2567.5
[6] Finally, Wise argues that review of
his claims was necessary to correct a “fun-
damental miscarriage of justice.” See Car-
rier, 477 U.S. at 495-96, 106 S.Ct. at 2649-
50. If his trial counsel had presented evi-
dence of his abusive and criminal family
environment, contends Wise, he “would
have been ineligible for a death sentence.”
Appellant’s Br. at 46. This argument is
foreclosed by the Supreme Court’s decision
in Sawyer v. Whitley, — U.S. ——, 112
S.Ct. 2514, 120 L.Ed.2d 269 (1992). Sawyer
requires Wise to show “by clear and con-
vincing evidence that but for constitutional
error, no reasonable juror would find him
eligible for the death penalty under [Virgi-
nia] law.” Jd. at 2523. Here the jury
sentenced Wise to death because it found
the murder “outrageously or wantonly vile,
horrible or inhuman,” an aggravating fac-
tor under Va.Code Ann. § 19.2-264.2. The
evidence showed that Wise shot William
Ricketson at close range through the right
eye with a pistol, smashed Ricketson’s
skull with shotgun blows, drowned and
buried Ricketson under cinder blocks in a
“hole, which had been dug for use as an
outdoor toilet, [and which] was filled with
US. 97, 97 S.Ct. 285, 50 L-Ed.2d 251 (1976), and
to protect foster children whom it places in
foster homes, LJ. ex rel. Darr v. Massinga, 838
F.2d 118 (4th Cir.1988), cert. denied, 488 U.S.
1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989).
None of these cases establish the duty that Wise
would have us impose upon Virginia here.
5. Because Wise failed to show “cause” for the
default, we need not address Wise’s claim of
prejudice. See Smith v. Murray, 477 U.S. 527,
533, 106 S.Ct. 2661, 2665-66, 91 L.Ed.2d 434
(1986) (“We need not determine whether peti-
tioner has carried his burden of showing actual
prejudice ..., for we think it self-evident that he
has failed to demonstrate cause for his noncom-
pliance with Virginia’s procedures.”).
NAME Louis Watkins (alias Polly ue - he OR COUNTY DOE & MEANS
Va, SP (Richmond City E 3-19-1926
O08 OR AGE RACE OCCUPATION RESIOENCE GEN
28 Black
RECORD
Prison sentence for cocaine peddling, (one year)
a4 ——- v2
CRIME pate VEOD FM OTHER
Murder 8-9-1925
atte Sgt. Louis Bertucci ““foorx |"*™"°° Shot
White
MOTIVE
SYNOPSIS
Sgt. Bertucci instantly killed as he sat the wheel of police autombhble in front of 1006 Bacon
alley before Piao pied Senne LOUS. sensirel oe Watkins was known a ihe as the "Black Rigger".
ed to oak conbenuiee this wken murdured, Two pullecs from soa gun had been fired, one striking
Francis and the other boing wild as his hand fell limp in death, It was believed that Francis
had dropped his gun and another black with him (not identified) had picked it up and fled before
other police arrived, He admitted he dropped gun when shot by Bertucci, Denied having shot
officer but two black women said they saw him shoot, ‘omen who witnessed said that whem Sertucci
drove up, several black men walked to car and Francis asked if he was looking for him, Then he
opened fire without waiting for reply. The first bullet struck in head. RICHMOND KXBEX TIMES =
DISPATCH, August 10, 1925,
Watkins made complete conffesione Believed himself mrtally wounded at the time, Admitited he shot
Ruth -Glenn-after_a_cuarrel,—Said_he-had-been—drinking heavily_and_was—in-an_ugly—frame_of mind, —
When ay drove UD y rlegagiar =e gun sticking in ee ago went for it. Bertucci drew and fired
4 x 7 E a Re t's second
shot went wild as he fied, fad meret term in = for neni peddling, He maintained he was
sent to prison for liouor selling, He had shot Glenn woman about dusk but when officers arriived
he had fled, Bertucci received a tip that he had returned and was there bragging about. crime when
he went to 1006 Bacon St. TD August 11, 1925
APPEALS
LAST WORDS
EXECUTION
Virginia
executes
killer-rapist
UNITED PRESS INTERNATIONAL
' RICHMOND, Va. — Confessed
| killer Alton Waye, saving he for-
gave “the people involved in this
‘/-miurder,” was executed Wednesday
night in Virginia's electric chair for
i) the rape and murder of a 61-year-
‘old widow. :
Thé newly baptized Waye, who
took communion shortly before he
was put to death, was walked to the
: | electric chair by an éxecution team
and prison chaplains.
: f° The 34-year-old factory worker
| and Army veteran was pronounced
dead at 11:05 p.m. EDT, State Pen-
itentiary Operations Manager
John Coble said.
“] would like to express that
what’sjpbout to occur here is a mur-
der,” W ave said. “I want, everybody
‘to. know: I forgive ‘the people in-
-volved'in this murder, that I don’t
hate nobody and I love you.”
Waye was condemned to die for
‘ ‘the Oct. 14, 1977, rape and murder
| of liavergne Marshall~of-Ken=
\-bridge, Shé had been raped, bitten,
beaten and stabbed 42 times before
cher! nude body .was dumped in a
-}bathtub and doused with bleach.
-, State Penitentiary’ Chaplain
«| AC, Epps; who stayed with Waye
.|-until his final hours, said Waye be-
lieved:CGod had forgiven him for the
| slaying that shocked his Southside
Virginia community. Waye, who
requested a simple meal of commu-
nion! bread and juice, told Epps,
“It's ih God’s hands now.”
Waye was the eighth person to
| die in the state’s electric chair and
| the 117th person to be executed in
the United States since the Su-
premeé Court lifted the ban on capi-
tal punishment in 1976.
meng a
4 # RE
Thursday afternoon
AUGUST 31, 1989
» ‘TATE epants
ta
Sa
a
RANDOLPH A. HEARST
President.
2 Thursday, August 31, 1989 *
cise
n
i,
SE eee e en eae ee eee een ee re mrecipenaa tito aniin dthtsite aatttiines ition) Eiat eA
THE NEW YORK TIMES NATIONAL FRIDAY, SEPTEMBER 1, 1989
Z All
1s Fight
1s White
ved their daughter
ion, green eyes and
it would allow per-
‘el.
nted their kids to
picked the easiest
liss Walker said.
it was to be black.
lems." ;
{ that in living her
vas never bothered
cept when applying
srospective employ:
e discrepancy be:
designation on her
id the “black” she
e on an application
f lying to take ad-
that encourage the
discrimination fol-
ident was rejected.
irth certificate.
‘overnment put in
.ot black,” she said,
ie the change. ‘‘This
n for me so I won't
this again. I don’t
ox I don’t fit in.”’
Associated Press
Mary Christine Walker, who has
won her battle to live as a black,
saying the victory was ‘like eman-
cipation for me.’
J.S.-Canada Talks
sing part
ster
, Canada.’
issues,” said Mr. Bush. “And where
Canada and the U.S. may have bumps
in the road, we can talk very frankly.”
‘Matter of Some Concern’
One of the biggest bumps concerned
lobsters. ‘‘There’s been a fishing prob-
lem between Canada and the United
| States regarding lobsters,’ said Mr.
Virginia Killer |
RICHMOND, Aug. 3] (AP) — A for-
mer textile worker convicted of raping
and murdering a 61-year-old woman he
stabbed 42 times with a butcher knife
was executed Wednesday night in Vir-
ginia’s electric chair. ;
The man, Alton Waye, 34 years, old,
was put to death after the Supreme
Court voted 7-to-2 against postpone-
ment. Justices William J. Brennan and
Thurgood Marshall, who oppose the
‘| death penalty under all circumstances,
voted for a reprieve.
Earlier, Gov. Gerald L. Baliles
denied clemency for Mr. Waye.
Mr. Waye was the eighth person put
to death in Virginia since the state re-
sumed executions in 1982, and the 117th
nationwide since the United States Su-
preme Court allowed states to resume
capital punishment in 1976.
Brain Damage Is Cited
Amnesty International argued that
Mr. Waye should have been spared the
death penalty because he is borderline
mentally retarded. Defense lawyers of-
fered new evidence showing brain
damage and diminished mental ca-
pacity.
Richard H. Burr, a lawyer from the
NAACP Legal Defense and Educa-
tional Fund in New York, told an ap-
peals panel that Mr. Waye was de-
Executed After Plea Is Rejected
New evidence
was said to tell of
borderline mental
retardation.
prived of an adequate psychiatric
evaluation when he was tried in 1978,
Deputy Attorney General Linwood
Wells argued that the defense should
have raised such objections earlier.
Mr. Waye was convicted of murder-
ing Lavergne B. Marshall, a widow who
the authorities testified had been
beaten beyond recognition when her
nude body was found in a bathtub in her
farm home in 1977. She had been bitten
as well as stabbed and laundry bleach
had been poured on the body, according
to testimony.
Mr. Waye was baptized Tuesday
night and took communion before the
execution.
In a final statement, he said: ‘I
would express that what is about to
take place is a murder. | don’t hate
anyone. I forgive everyone involved.”
About 50 opponents of the death pen-
alty held a candlelight vigil Wednesday
night outside the prison and about 20
supporters of capital punishment gath-
ered on a sidewalk across the street.
“As far as the victim goes, I have
sympathy for the family, but as far as
the guy goes, I believe people can
change,”’ said Mirella Neff, who was at
the vigil with her 2-year-old daughter.
Across the street, Joe Jackson said:
“You can’t let them get away with
murder. If | committed a crime like he
did, I would deserve to die.”
Sue Stone, who was a close friend of
Mrs. Marshall, said she had no reaction
to Mr. Waye’s execution.
“With anyone being killed the way
she was, you never get over it,’ she
said by telephone from her home in Lu-
nenburg County. ‘‘You try to come to
terms with it through the years. We
were very very close, and for a person
as good as she was, a religious woman,
a gentle woman, it’s hard to accept.”
Don't overlook the special
International Report
every Monday
in Business Day
be Acs A ee RON Be
~~ AA@~ The Sacramento BeeFinal-- Thursday; Auguat34;1989-# # — se Ht
0" RICHMOND, Va. ae
“NATIONAL DIGEST
_ Murderer electrocuted in Virginia———-—wwrer Ip
: | Pian
RICHMOND, Va. — A man convicted of the 1977 rape
and murder of a 6l-year-old woman was executed
Wednesday night in Virginia’s electric chair.
“I would express that what is about to take place is a
murder,” Alton Waye, 34, said in a final statement. “I
don’t hate anyone. I forgive everyone involved.”
The U.S. Supreme Court earlier Wednesday refused
by a 7-2 vote to postpone the execution.
Amnesty International has said Waye should not be ex-
ecuted because he is borderline mentally retarded.
Waye was the eighth person to die in Virginia’s elec-
tric chair since the state reinstituted the death penaity in
1977, and the 117th executed in the United States since
the Supreme Court's 1976 ruling allowing reinstatement
of capital punishment.
Waye was convicted of the Oct. 14, 1977, rape and
murder of Lavergne B. Marshall. Her face was beaten
_ beyond recognition, and she was stabbed 42 times. The_
__ killer poured laundry bleach on the body.
Georgian freed in sodomy case
DECATUR. Ga. — A man who spent 18 mar*+-°
Com
in cl
Associated Press:
PITTSBURGI
University say
chess grandma:
overtake the be
“Yd say four
CMU computer
hind Hitech, ac
syivania State |
caster.
Hitech’s five
U.S. Chess Fer
points from the
—in 1985.
Kasparov, tk
haci-—
_ eee
— August 31, 1989 rk A-3
J iss
a
Maes
“=
we 1D
2
— ng
Rapist loses _
appeal, dies in
- electric chair
eI
oped ‘puelyeo
convicted of the 1977 rape and —
murder of a 61-year-old woman
was executed last night in Vir-
ginia’s electric chair= <="
Alton Waye, 34, was pro-
nounced dead at 11:05 p.m. after
receiving two 55-second jolts of
nearly 2,500 volts of electricity,
said Department of Corrections
spokesman Wayne J. Farrar.
Waye went to the U.S. Su-
preme Court. earlier yesterday
seeking a stay of. execution, but
the high court refused by a 7-2
“ee to postpone the execution.
Waye, a former textile work-
er, also was denied clemency -—
earlier yesterday by Gov. Ger- __
ald L. Bailes.
Amnesty International has
said Waye should not be execut-
ed because he is borderline men-
~~tally retarded.
me
6
cence et ae ene ee
ee ee ©
t+
¥
(6861 ,‘T8, snBny, ‘Aepsanyy,
~_ fe &
Thursday afternoon
AUGUST 31, 1989
nit: BRP
-
HOWE
EDITION
TWENTY-FIVE CENTS .
Beis is BE OEP TE PEROT RIE LTT RR ET BEI
ov
By Pamela Grerstreet
UNITED PRESS INTEA#A TIONAL
, -RICHMOND, Va. — Confessed
killer Alton “aye, saying he for-
| pave“the -popie-involved-in-this
murder,” wat executed Wednesday
night in Virgnia’s electric chair for
the rape anc murder of a 61-year-
old widow.
The new: baptized Waye, who
took commizion shortly before he
was put to c:ath, was walked to the
electric chaz’ by an execution team
and prison caaplains.
The 34-v:ar-old factory worker
and Army veteran was pronounced
dead at 11: p.m. EDT, State Pen-
itentiary Operations Manager
John Coble zaid.
“TI woul: like to express that
what’s abov: to occur here is a mur-
der,” Wayt said. “1 want-everybody
Virginia killer executed —
after calling
it ‘murder’
to know I| forgive the people in-
volved in this murder, that I don’t’
hate nobody and I love you.”
Waye was condemned to die for
the Oct. 14, 1977, murder of Lav-
-ergne Marshall of Kenbridge.. She |.
had been raped, bitten, beaten and
stabbed 42/times before her nude
body was dumped in a bathtub and
doused with bleach.
State Penitentiary Chaplain
A.C. Epps, who stayed with Waye
until his final hours, said Waye be-
lieved God had forgiven him for the
slaying, which shocked his
Southside Virginia community.
Waye, who requested a simple meal
of communion bread and juice, told
Epps, “It’s in God’s hands now.”
Waye was the eighth person to
die in the state’s electric chair and
the 117th person to be executed in
the United States since 1976.
Pe oe eel
2. |r
ry
~<
<Yy
ms
“os ga kt
A
ee Se wis x
)
whoLaY, a slave
State of Virginia, Wesley, property of Philip
Ramsey, tried on Nov. 20, 1849, for the SHEXXEX
Oct. ll rape of Martha Brame, white. Execution
scheduled for Dec. 28, 1849, and valued at
pOOOo, Sheriff attests execution took place
on that date and compensation was made on 1-30-
1850,
Arch. of Va., Aud. Recs., Box 8, 1850 “nv.,
Atcording io Exec ye of Coverwsr (9415199 the locating
Ws Mahivbey County.
PR ee Ce ee ee ee ee ee a ee SL mR Se eye Tf gee
WHITLEY, Ri i Vi
LEY, Richard, white, elec. Virginia (Fairfax) 7-6-1987
: ao Ae 4 y ets i —” i oe
oe
Man, Convicted in 1980 Slaying
RICHMOND. July 7 (AP) — A man
convicted of strangling and slashing
the throat of an elderly neighbor and
sexually assaulting her corpse was
electrocuted Monday, the first execu:
tion in Virginia in almosi a year.
The maa, Richard Lee Whitley, was
pronounced dead at 11.07 P.M. five
minutes after the first shock was sent
through hum, said Wayne Farrar, a
spokesman for the State Department of
Corrections
Mr Whitley had no last words and
was strapped into the electric chair by
seven guards, witnesecs said.
High Court Denies a Say
Eartier Monday the United States
Supreme Cart voted 6 te 2 to deny »
exeasion. Gov. Gerald L. Ka-
United States since the
restored capital w 1976. It:
punish ment
was the first here since last July 3. '
In a telephone inerview earlier Mon-
day with & Richmond (clevision station,
Mr. Whitheg said he could hear prison
workers the electric
feet f ;
et | |
funny, ." he said.
?
tee ae 5 eile eeemee tS
THE NEW YORK TIMES, WEDNESDAY, JULY 8, 1967
Court,
all chair just 35)
‘raakes you feel a ini
== py-A
Mr. Whitley's lawyer, Thomas Kaine,
filed the request fora stay with the Su-
preme Court on Thursday after the |}
Virginia Supreme Court and the United
States Court of Appeals for the Fourth
Carcust refused to block the execution.
Death Penalty Opponents
About 30 opponents of the death pen-
ally waited outside the prison in down-
town Richmond as the hour of Mr.
Whitley’s execution approached. They
carried candles and occasionally sang
SUNgA.
“We are outraged al the resumption
uf the death Ity,"’ said the Rev. Joe
Ingle of Nashville, Tenn., representing
the Southern Coalition on Jails and
Prisons.
Mr. Whitley, 41 years old, was con-
ae,
victed of capital murder for the July 25,
1980 slaying of Phebe Parsons, 63.
In court appeals in the six years }..
since Mr. Whitley's conviction, he was
depicted as mentally and emotionally |)
disturbed and the product of a troubled |} -
| childhood.
The only explanation Mr. Whitley of-
fered for the slaying of Mrs. Parsons
was that
ee An
i
;
Of Woman, Executed in Virginia ——-
ane are tual teft him and he fete
had gone on a two-week binge of drugs}
4 and alcohol. me
Federal
Spies
in
Richmond
By Richard P. Weinert
Records of their identities and activities are sketchy. But the
best of them may have been an aristocratic little woman called
‘Crazy Betsy’ who never tried to conceal her Unionist loyalties.
THE MORNING of April 29, 1862, broke
bright and clear in Richmond. Down the
Peninsula the Army of the Potomac was creep-
ing closer to the Confederate Capital. But at
Camp Lee another drama of the Civil War
was about to end. At 10 minutes to 11 o’clock
a carriage drew up before the door of a camp
building. A large man, bent by illness, emerged
on the arm of a jailer and, accompanied by a
priest, entered the vehicle.
The carriage drove to a scaffold on the north
side of the parade ground. There, with firm
tread, the prisoner mounted the scaffold and
took one last look at the gathered soldiers and
bright sky. Then his hands and feet were tied |
28
We om
ELIZABETH VAN LEW—Called "Crazy Betsy" for her eccentric:
ities, this Union sympathizer nonetheless enjoyed a measure of re-
spect in Richmond. This portrait and other illustrations, except as
noted, are from Harper's Monthly Magazine. (c 1911, 1939, by
Harper & Row, Publishers, Inc. Reprinted from Harper's Magazine
by special permission)
and the black cap was placed over his head.
The trap was sprung and with a sickening
thump the heavy body dropped, but the rope
broke under the weight. Guards lifted the man
and tightened the rope again about his neck. |
This time the rope held. So died Timothy
Webster, a Union spy. as
Timothy Webster was not the first or the
last man to die as a spy in the Civil War. Ina
war of brothers, with no ready means to deter- }
mine loyalties, espionage flourished as at prob-
ably no other time in American history. Those
who were careless, or unlucky, or outwitted, |
faced the fate of Timothy Webster. |
enone
&
of Milita
in CWT
article o»
in our O
WEBS
ton, chie
Potomac
dent-eleci
then had
disloyal «
cessful tl
entrusted
Richmon
perilous
Point or
from the
to Yorkt
Way.
Once i
all the n
sible. Af
amiable
way of I
in both !
across tl
mail hav
Pinkerto
@
ett i:
her eccentric-
veasure of re-
ons, except as
711, 1939, by
er's Magazine
ut the
called
‘alties.
his head.
sickening
the rope
the man
his neck.
Timothy
st or the
Var. Ina
to deter-
at prob-
y. Those
utwitted,
Richard Weinert, a historian in the Office of Chief
of Military History, U.S. Army, whose studies appear
in CWTI from time to time, contributed the fine
article on Confederate border troubles with Mexico
in our October 1964 issue.
WEBSTER was a trusted agent of Allan Pinker-
ton, chief of the Secret Service of the Army of the
Potomac. He had helped Pinkerton smuggle Presi-
dent-elect Abraham Lincoln into Washington and
then had acted as an undercover agent among the
disloyal elements in Baltimore. Webster was so suc-
cessful that a number of Confederate sympathizers
entrusted him with letters to friends and relatives in
Richmond. On October 14, 1861, he set out on the
perilous trip through the lines. Arriving at Gloucester
Point on the York River he calmly obtained a pass
from the local Confederate commander and proceeded
to Yorktown, taking note of the defenses along the
way.
Once in Richmond, Webster was careful to deliver
all the mail and make as many acquaintances as pos-
sible. After touring the defenses of the city with an
amiable Baltimorean, he returned to Washington by
way of Fredericksburg. Webster soon became known
in both Maryland and Richmond as a trusted courier
across the lines. In January 1862 another load of
mail having accumulated he once more headed South.
Pinkerton heard that Webster had crossed safely into
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Confederate territory; then his most trusted spy
dropped from sight. Both Pinkerton and Major Gen-
eral George B. McClellan were worried by the silence.
Pinkerton finally decided to send Price Lewis and
John Scully, two more of his trusted agents, in
search of Webster. Thereby he sealed the latter’s
fate.
Lewis and Scully reached Richmond without in-
cident and quickly learned that Webster was sick in
bed at the Monumental Hotel. He was being cared
for by Mrs. Hattie Lawton, another Pinkerton agent
who lived in Richmond. Shortly afterward the two
erstwhile rescuers were recognized and arrested by the
provost marshals of Brigadier General John H.
Winder. They managed to escape from jail, but were
captured again before they could cross the lines.
They were quickly tried by court-martial and con-
victed as spies. Scully broke under threat of hanging
and betrayed Webster. Once Scully had talked, Lewis
lost no time in saving his own neck. Webster was
quickly arrested and both Scully and Lewis testified
against him at his court-martial. And so Timothy
Webster went to the gallows at Camp Lee. Mrs.
Lawton, who had been arrested with him, and the
two informers were eventually released and sent
north.
THE DEATH WARRANT—From Allan Pinkerton's "Spy of the
Rebellion," published in 1884, this drawing shows Timothy Webster,
a Union spy, receiving his death warrant in a Richmond prison.
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A bit of killer’s lawyer died, too —
By Frank Green
Times-Dispatch staff writer
When the state sent 2,500 volts
through the body of murderer Rich-
ard Lee Whitley on Monday night, a
little bit of Timothy Kaine died, too.
It’s not that Kaine, Whitley’s law-
yer, thought his client was innocent.
Whitley had a long criminal history
and had confessed to the 1980 murder
and sexual assault of an elderly Fair-
fax County neighbor.
“His crime was a terrible crime. It
was a tragedy. I don’t have any doubt
about that,” said Kaine.
But just before Whitley died, the
young lawyer stepped outside the
prison at 500 Spring St. to face the
media, and he hurt.
Carrying a Bible, Kaine offered the
television cameras a prayer for what
he said was a society that would exe-
cute a brain-damaged man who had a
diminished ability to see that murder
is wrong. But it wasn’t even that per-
ceived injustice that bothered Kaine
so much.
Two days earlier, while waiting for
Sunday, July 12, 1987 B
Staff photo by Carl Lynn
Timothy Kaine tries to make the courts ‘play by the rules’
word on Whitley’s last chance for a
stay of execution, Kaine said, “If
Spring Street wasn’t there and the
chair wasn’t there, you can still look
around Richmond and see an awful
lot of pain.
“For somebody who has a view like
mine” about life, said the 29-year-old
Harvard University law graduate,
“the pain is a very real thing. ...
Something personal in me will die,
too,” when Whitley dies.
Hs
“There are a lot of little deaths in
that way every day.”
Kaine’s commitment to Whitley led
to more than two years of trips to the
Virginia and U.S. supreme courts,
US. District Court and the U.S. 4th
Circuit Court of Appeals. The trips
were, for the most part, exercises in
frustration.
In the 48 hours before an interview
a week ago, Kaine had lost efforts in
three courts and failed to win a com-
mutation of sentence from Gov. Ger-
ald L. Baliles.
On Monday, four hours before the
execution, the U.S. Supreme Court de-
nied Whitley’s last chance. “It’s been
hard,” Kaine said. “It’s been hard,
these setbacks. It’s hard to keep going
back and giving bad news to your
client.”
Kaine was not optimistic as he
neared the end of about 1,000 hours of
largely free legal work on the case.
Kaine has been practicing only since
late 1984 and Whitley has occupied a
Continued on page 4, col. 1
|
B-4 Richmond Times-Dispatch, Sunday, July 12, 1987
A bit of killer’s lawyer died as well
Continued from first page
substantial part of his career.
Psychologically, said lawyer Den-
nis Balske, the demands of a capital
case are traumatic. “It’s even more
psychologically draining to be com-
ing down to the execution wire trying
to save your client’s life.
“It’s a very frustrating experience.
So much so that it’s almost impossible
to get lawyers who have done it to do
it again,” said Balske of Montgomery,
Ala. He is a legal director of the
Southern Poverty Law Center. Balske
also has represented clients in capital
cases.
“Everyone is mad at you. The
judges are mad at you. The public is
mad at you. The attorney general is
mad at you. Everybody feels that you
are the bad guy,” said Balske.
Instead, Balske believes lawyers
such as Kaine are “the unsung heroes
of the day. All that they’re doing is
seeing that their client’s constitution-
al rights are being enforced.”
“A capital case is not just another
case,” agreed David E. Boone, a local
lawyer who has represented nine cli-
ents facing the death penalty, a half-
dozen of them as a court-appointed
attorney.
“It’s a different animal. You're
pretty much devoting your life,” said
Boone. “I don’t care about money, I
don’t care about the time spent when
I take the case. I become totally de-
voted to that client. I don’t even know
what day it is.
“He might be the worst person in
the world and you might despise him,
but by God, when you take his case,
you take his life on your shoulders.”
Unlike Kaine, who has represented
Whitley in posttrial matters only,
Boone began handling capital murder
cases at the trial level in 1974. None of~
his clients got the death penalty. “I’ve
been lucky,” said Boone. ~
“I guess the [Alvin E.] Alley case
was probably the toughtest I’ve had,”
said Boone. Aside from the gravity of
the Alley case, in which a Henrico
County policeman was murdered, and
Staff photo by Carl Lynn
Capital murder cases made David Boone's beard gray
the hundreds of hours of work it re-
quired, Boone also had to contend
with threats, some left on his home
answering machine.
“During the Alley case, I literally
had to turn that thing off for about
four. months. ].gat death threats. I got
threats against my children, threats
against my wife,” he said.
“I guess that goes with the territory
... but you worry about your family
and your children. There’s some real
loonies out there.”
Kaine, originally from Kansas City,
contacted the American Civil Liber-
ties Union when he moved here in
1984 with his wife, who is also a law-
yer. He volunteered to assist in post-
trial constitutional questions for
death row inmates.
Instead of assisting, however,
Kaine at first became Whitley’s only
lawyer. His previous lawyer, also a
volunteer, had to drop the case be-
cause she moved to another state,
said Kaine.
Although he normally handles civil
cases, he volunteered his services be-
cause of his opposition to the death
penalty. That opposition stems, he
- said, from “my fundamentai belief
about life. There’s a lot of pain and
suffering and evil everywhere in the
world [and capital punishment] is one
example of it.
“T think it’s a religious perspective.
I spent a year in Central America
working in a Jesuit mission and saw
an awful lot of hunger and infant
deaths caused by malnutrition.
“The essence of human life is prob-
ably suffering and pain. ... The thing
that redeems that is the presence of
God in every person,” he said.
“What the public generally doesn’t
understand about [execution] delays
Continued on page 5
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‘TM
Le PERSONS MEST HOW THE
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NUP MEXE, ADH EXITING THE
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Bob Brown/The Richmond News Leader
Prison spokesman Dwight Perry is followed by witnesses Charles
Murphy and Randy Davis (front to back) as he came out of the
prison last night to announce that the execution was carried out.
cuted in Virginia since the electric
chair came into use in 1908.
After the US. Supreme Court
struck down Georgia’s death penalty
law in 1972, Virginia and a number of
other states revised their capital pun-
ishment laws. Virginia’s revised law
went into effect in 1977, and the first
exe ution under the revised law —
that of Frank J. Coppola, 38 — took
place place on Aug. 10, 1982.
The other men executed since Vir-
ginia resumed using the death penal-
ty were Linwood Ear! Briley, 30, on
Oct. 12, 1984; James D. Briley, 28, on
April 18, 1985; and Morris Odell Ma-
son, 33, on June 25, 1985. The Brileys
vere from Richmond.
Part of Whitley’s lawyer also died
Continued from page 4
is that they think it’s only some law-
yer.out there doing something” aimed
at delaying it.
“The reason there’s a delay is be-
cause the U.S. Supreme Court has set
up a system of a lot of protections for
persons facing execution. And that is
to protect against society imposing
the death penalty” in an unfair way.
“The reason it takes time is not
because somebody out here, like me,
is doing this, although the fact is, if he
didn’t have an attorney he probably
would have been executed in 1983,”
Kdine said.
“All we're doing is saying the US.
Supreme Court has set the rules and
we're just playing by the rules. I think
society has an interest in that.
“I know that makes people mad,
but the alternative is to just have
immediate executions and then what
you end up with is innocent people
bejng executed,” said Kaine.
“People’s anger and fear really
ought to be addressed to the Supreme
Court — and that’s not, at this point, a
real radical, liberal body. These are
conservative justices who still be-
lieve that certain protections have to
bé allowed to make sure that it’s done
fairly.”
The principle injustice in the death
pénalty in Virginia, he said, is that,
“Nobody, as far as I know, is on death
row in Virginia who had enough mon-
eyto pay an attorney. If you had
enough money to pay an attorney like
David Boone ... you're not going to
get: the death penalty.”
Kaine said he did not wish to criti-
cizé Whitley’s original trial lawyers,
but; “In Whitley’s case, his [court-
appointed] attorneys never investi-
gated his background.
“They didn’t know that he had been
diagnosed as completely clinically in-
competent when he was an adoles-
cent. They didn’t know that he had a
long history of childhood head inju-
ries, that he had organic brain dam-
age, that he had psychiatric disor-
ders, that he had a_ borderline
retarded IQ.
“They didn’t know his childhood
was about the worst possible child-
hood that anyone could ever imagine.
“All of that stuff, in my mind, is
critically relevant to a jury in terms
of what they might want to do... the
difference between life and death fre-
quently weighs on exactly. those
factors.”
Yet, because of state rules, Kaine
said he never could argue an issue
such as Whitley’s mental health dur-
ing the appeals because it never was
raised as an issue in the trial. Also
stacking the odds against those on
death row, Kaine said, is that the
state will not pay for lawyers raising
posttrial constitutional claims.
“It’s just shockingly unequal,” he
said. “That is one of the real frustrat-
ing things about doing these cases.
“In my case... most of my work in
the 2 years [with Whitley] has been
trying to get courts to consider
claims that had never been consid-
ered and at each stage I'd get turned
down.” With only one exception, “I’ve
never gotten a court ... to look at the
substance of his constitutional
claims.
“It adds an element of sort of exis-
tential absurdity to be spending your
whole time arguing whether the court
should even consider” the real issues.
A lawyer’s biggest fear when a
death sentence is handed down
against a client, said Boone, is that
“I'm going to wonder the rest of my
life if there was something I could
have done.”
Boone said the feeling must be like
those of a person with a loved one who
has committed suicide. “You always
feel guilty, even though you did not
have anything to do with it.
“My beard was not gray before I
took the first capital murder case but
it was gray after I finished,” said
Boone.
“T will not hold myself responsible
for having lost,” Kaine said. “The
facts are facts, the law is the law and
the judges are the judges. I can’t con-
trol all those factors.
“T'll feel bad when it happens.... I
think it’s a tragedy to execute some-
body who had the kind of background
that he has had. His crime was a
tragic crime, but executing him
would only compound that tragedy.
“And I'll also feel bad just because
I think it’s outrageous that there is the
death penalty. It’s not the biggest out-
rage in the world, but it’s one of a
number of outrageous [things] where
people don’t appropriately value the
sanctity of human life,” Kaine said.
“I feel confident that I’ve worked
as hard as I can on it and I think
[Whitley] feels confident, too.
“While I may feel some twinges
and while maybe I'll wake up a year
from now and think, ‘You know, wait
a minute, there’s an argument there I
could have made,’” Kaine said, “it’s
not me that’s killing him. I’m trying
to do everything I can to stop it.
“I felt like there is one way that I
could lose the case and that is if my
client felt like I did not do everything
for him that I could. That, then, is a
loss and I have to avoid that at all
costs.
“He has to know that there is at
least one person out there who really
fought for him,” said Kaine.
“There’s something therapeutic in
that, even for somebody who is going
to be executed.”
Subscribe
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formally ‘accused man ‘shifted into high
gear, with all available detectives joining .
the search. But as time passed it became
apparent that Whitley, using his victim’s .
car and credit cards, had*evaded the
. dragnet, With no fresh: leads to pursue,
Detective Sutherland and his colleagues (fi
turned their attention to other cases and |
hoped for:a break in the Parsons case. If
the fugitive ‘was not apprehended within
60 days of being charged, the FBI would
enter the case on a federal charge—
interstate flight to avoid prosecution.
“As it turned out, the FBI’s help would
not.be needed: On September.10, 1980,
Jesse Sutherland took a call from the
Tampa, Florida, police. It.was the break
he had been praying for. It seemed that
‘Richard Lee Whitley had been Picked :
up.as a suspect-in a triple homicide in
Tampa. ‘While the suspect had been |
cleared of involvement in that case, he
had still been identified as a fugitive
from. Fairfax County, Virginia.
Detectives Sutherland and Johnson _
wasted no time in boarding a flight to -
‘Tampa, Florida, where they were met by '
Sergeant Jerry Feltman of the Tampa po-
- lice. Feltman arranged for the Virginia
lawmen to interrogate Whitley in an in- |
terview room at the Tampa’ Police De-
partment lockup.
From the start, the investigating offi
cers were taken aback by the genial,
friendly demeanor of a man they were —
convinced had committed the most bru- © dead, ** Whitley said.
tal crime they had ever investigated. He ©
was quick to admit that he killed Phoebe -
Parsons although he.denied any-mutila-
.tion of the body with umbrellas.
He related that he had gone. to the °
victim’s home early in the evening on
Friday, July 22; 1980, to use her tele- ©
phone to call his employer. His car.was ©
disabled and there was no way for him to ..
get to work, he explained. But his em- ©
IVD ANISHED
JULIET P AVELDA Pate AUD, 3
Barns 31 August 1983 ~
Manfaheds 8 Jun 87 «ee
’ {enms POMPANO BEACH/FL
Hates. Blonde (ponytail)
Eyeas Blue
Heights 3 feet
Metghts 27 lbs.
Hairline pelvic bone scar.
Wearing light blue T-shirt,
‘yed shorts. No shoes or socks
‘I FL-457-FPS P.E. 88 |
| JULIET was last seen heading toward a neighbor's house in the
$ Spite Sad area of unincorporated Pompano Beach near S.W. 19th
Bidacats She never arrived at the neighbor's home..
On. the ‘afternoon of JULIET!s disappearance, the news was
iacaineed at a general session of the Second Annual Conference
. > fon Missing & Exploited Children which was being held in Chicago/
oo he IL...John Walsh, well known nattonal missing children advocate
“B whose own: six-year-old son was kidnapped and brutally murdered
in 1981, made the announcement to the 1100 attendees, many of.
whom were police officers, representatives of missing children
agencies, and parents of other missing children.
JURISDICTIONAL AGENCY: Broward Co.''S.0./FL
305-765-8900 —
3 1-800-843-5678
- "DEE SCOFIELD AWARENESS PROGRAM, INC.
Serving America’s
‘Children and Thelr Families Since 1976: |
4At 8 Bay Court Avenue
: Tampa, Florida 33611
To Give or Recelve Information, Call: 813-839-5025
| : 62. Inside Detective
ployer was not there. When two hours
had passed, he returned to Parsons’
house to call his employer again.
At the time, he had been on a two-
week drug and alcohol binge resultin-
from a quarrel with family members wh
had left him. As he started to leave Mrs..
Parsons’ house, she stopped him and
- said she wanted to tell him about Jesus
and how everything would be all right if
he would give his heart to Him. <
‘The next thing I knew she was
When Whitley went on to recount de-
‘tails of the crime scene known only to the
police, Detective Sutherland knew that
~ he was not dealing with a wacko who
, was confessing to a heinous crime just to
become famous. Whitley even remem-
bered which credit cards belonging to the
victim he had used to get to Florida, and
where the victim’s car could be found by
Tampa police. Finally, when Whitley
identified the watchband link and neck-
lace found at the crime scene as his,
Detective Sutherland knew that he had -
an airtight case against the outwardly |
genial and unconcerned housepainter.
As for the actual murder, Whitley ad-
mitted he had choked Parsons with his
hands, strangled her with a ligature (the
typewriter ribbon), and. cut her jugular
vein with a Boy Scout pocketknife as shi
prayed. But he could not be budged fron
his denial of any sexual assaults with
umbrellas. . ;
With Whitley’s confession reduced to
writing, signed and witnessed, the law-
men were ready to return to Virginia.
The smiling, ever-obliging suspect
smoothed their path by waiving extradi-
tion proceedings. The Virginia lawmen
returned to Fairfax County with Whitley
in tow and referred their findings. to
Prosecutor Robert F. Horan.
The accused killer was soon to learn
that he had picked a particularly poor
jurisdiction i in which to commit his atro-
cious crime, because Prosecutor Horan
had a solid reputation as an ace
crime-fighter with an excellent record in
prosecuting murder cases. In his opin-
ion, Virginia’s death penalty was de-
“signed for criminals like Richard Lee
Whitley and he served notice on the ac-
cused killer’s lawyer, Warren MacLane,
that he would seek the death penalty
against his client. —,
Nor would there be any plea- -bargain
. arrangement entertained.
The defendant pleaded not guilty ¢ and
asked for a jury trial. It took the jury only
a short while to bring ina verdict of
guilty as charged of first-degree murder.
It took an even shorter time (15 minutes)
q
L
3
patrick ‘would have to show. at the prelim-
inary hearing was that a crime had been
committed and that there was probable
cause .to believe it abe committed ‘by
Brooks.’ ©
With a ‘confession. and eyewitnesses
who could finger Brooks as the gunman, |
Fitzpatrick | had it knocked on the Justice .
~ Court. Jevel.. It, was District Court that
could bea problem.
A’ March trial’ was scheduled - in the.
courtroom of District Judge Earle White”
SJr.:The charge. would simply be open
murder, It would be up to the jury: hear-
‘ing that sentencing.
~ When the day came for it, the defense
emphasized the character of the murder
victim. Judge White appeared moved by
defense’s pleas for leniency. Although
“he did not hand down a minimum sen-
tence of five years in prison, he sa
i well below the maximum.
The judge meted out a 12-year prison
sentence. And then, in an unusual move,
ing the case. to set the degree of murder.
or, under the circumstances, possibly, re- |
turn-an innocent verdict. The panel .
wold be able to find Brooks guilty of ~
first-degree murder, second-degree mur-
der, voluntary manslaughter or in-
voluntary manslaughter. |
Because of the victim’s record and the
additional: ‘facts Hatch had dug up on
him, in ‘contrast to the suspect’s squeaky ©
clean background, the prosecutor had se- ©
rious doubts about just how far he could
take the case. A sympathetic jury might
well come back with a manslaughter ver-
dict or even go so far as to free Brooks
with an innocent verdict. .
he told Brooks he would recommend to
prison and parole officials that he be re-
leased from the. state prison after. the
mandatory five years in. the peniten-
Heinous Mutilation
ee —————esssSs—s—sFS#é
the carnage with which they were now
confronted. Examination of the body re-
vealed the presence of bruise marks
around the neck, which gave mute testi-
" ‘mony to the work of a merciless strangler
who, not content with strangling his.vic-
tim, had. apparently cut her throat at the
jugular vein as well. But this was not all.
.. Umbrellas had been jammed into both
‘The legal wheels were spinning on the "
defense side of the ledger, too.
Brooks’ attorney was every bit as wor-.
ried about a hanging jury as Fitzpatrick _
was about a sympathetic one. It was the
. defense that made the first move,
. though. ~..;,..
. Brooks’ attorney contacted Fitzpat-
rick a' few. days: before. the scheduled
trial, saying he wanted to make a deal.
Fitzpatrick told him he’ was. open toa
plea-bargaining agreement, but that he?
would not go below second-degree mur-
der. The defense attorney reminded the
prosecutor that it was the dead man, not
his client, who, at least on Peper played
the role of the bad. guy.
- But Fitzpatrick ‘refused to g0 below
second-degree murder. He did, howev-
er, agree not to allege the use of a deadly’
weapon in the commission of a crime.
Such an allegation automatically doubles
whatever penalty i iS handed down for the
crime itself...
‘That part. of Fitzpatrick’ s offer
“sweetened the pot just enough for the .
"defense to take the deal. The trial was .
called off and Brooks entered the negoti-
ated plea before Judge White, who
scheduled an April 27th sentencing.
. Second- degree‘ murder is: punishable |
‘by a prison term of five years to life, with
- parole eligibility coming after five full
years have been served. Brooks re-
mained ‘behind county bars pend-
60 - Inside Detective. 3
her rectal and vaginal cavities.:
By now the two detectives had been
joined by criminalistics personnel. All
the lawmen on the scene—detectives,
uniformed officers, and civilian
criminalists—combined their efforts to
come up with an answer to a question
both simple and-complex: What ai
pened.to Phoebe Parsons?
Their first order of business was a
painstaking search of the house for evi-
dence. The sleuths noted that the entire
- house bore signs of a ransacking. Draw-
ers had been pulled out and their contents
‘spilled out over the floor; desks, cabi-
nets, and closets had been rifled. .
Apparently, the killer had i look-
_ ing for something.
Just inside the front door, the lawmen /
found a mass of dried blood, indicating
that the victim had been attacked and
killed at that spot and her body dragged
into the bedroom. In addition, the police
- found a typewriter ribbon (which could
have been used to strangle the victim), a
link from a man’s watchband (found near
the front door) and a mah’s: necklace’
(found near. the body).
As the criminalists biniad themselves
with the processing of the interior crime
scene, Detective Sutherland and a detail
of uniformed officers conducted a door- .
to-door canvass of the neighborhood in
order to come up with somebody who °
might know ens helpful to the i in-
vestigation.
tiary have been served.
Fitzpatrick, eb iinigriting on the case
later, said he was convinced a jury would
have found Brooks guilty of nothing.
stronger than second-degree murder had
a trial been held. He noted there was a
good chance jurors might have dropped
it to manslaughter..
‘It was the best possible deal we
could make when you consider what he
had to work with,’’ said Fitzpatrick. ‘‘If
the judge was moved by the defense po-
sition; just think how a jury would: Haye
feacted: Soe: SHES OUI @
(from page 12)
But this proved to be a fruitless en-
deavor. It seemed that no one in the
neighborhood had seen’ or heard any-
thing suspicious at the Parsons place pri-
or to the discovery of the body.
However, during their canvass, ‘the
officers did glean an impression of the
type of person Phoebe Parsons had been
in life. Apparently, she had been much
loved in the neighborhood. **She could
have been a role model for Aunt Bee,”’
one householder told Detective Suther-
land, in,reference to Sheriff Andy Tay-
lor’s doting aunt in the television show
‘‘Mayberry R.F.D.’’ Another resident
recalled Parsons as ‘‘a really good wom-
an, a church woman, and a mother.’
So why would anyone do such a terri-
ble thing to her? wondered Detective Jes-
-se Sutherland.
One possible motive—robbery—was
indicated by the fact that the victim’s car,
usually parked on the street, was no-
where to be found in the neighborhood.
Also,. the victim’s wallet, containing
cash and credit cards, was missing from
the location where it was usually kept—a
‘hook in the kitchen.
Hearing this, Sutherland issued a BO- ©
LO for the car, a 1978 Volkswagen Rab-
bit, which he figured the perpetrator had
used for his getaway.
After the discouraging neighborhood
canvass, Detective Sutherland’s spirits
were buoyed by a positive note struck by
the fingerprint technicians assigned to .
the investigation. They had found a
plethora of fingerprints, both inky and
bloody, throughout the crime scene.
‘‘I’]] bet my paycheck that some belong
to the perp,” averred one technician.
After several hours of work, the crime
scene was sealed and the body of the
unfortunate woman was removed to the
office of the Virginia medical examiner
MEL TLR Richard Lee, white, elec, VA
. FAIRFAX COUNTY, VA.
‘JULY 7, 1987.
County, Virginia, that Monday, July 28,
1980..A bedroom suburb of the nation’s
capital, Fairfax County shares the un-
godly heat and humidity for which
Washington, D.C., is notorious in the
summer. And this was one reason why a
relative of 62-year-old Phoebe Parsons
_was most disturbed by the failure of the
' spry widow to beat the heat and keep a
date for a nice air-conditioned movie at
“nearby Tysons Corners Mall. It was just
~ not like Phoebe Parsons to stand some-
body up: without calling in ‘an n explana-
tion.
’. After waiting an hour for Phoebe to
ie
H
i
t
t
rae
Ses
F
f oe 3 Richard Lee Whitley (inset) said ‘he went to victim’ s home to use the shone and: for:
| ee some unknown reason milled. ner Police: ood he was 8 truthful because he had vauepitts: the situation. demanded investigation. It
ot “=, took only a few minutes to drive from
Tysons Corners to the! small white frame
house on Lisle ‘Avenue, a neighborhood
of modest homes nestled in the Pimmitt
‘Capital Beltway. Phoebe Parsons had
lived here for 30 years and raised a fami-
ly, here.
‘Entering the front door, which to her
surprise was unlocked, the relative
entered the bedroom, ‘it became readily
apparent why Phoebe Parsons had been
unable to keep her date that. day. For
lying beneath a pile of clothes on the
‘floor beside the bed was Phoebe’s
bloody, nude body.
who responded to the 911 call took one
look at the gruesome sight and called for
the assistance of the Major Crime Squad.
Responding to the scene were Detectives
Jesse Sutherland and Andy Johnson,
investigations to their credit.
But even these two case-hardened
lawmen found themselves shocked by
(Continued on page 60)
Even case- -hardened lawmen found themselves shocked when
"Phoebe Parsons was discovered sexually mutilated with
~ umbrellas. What kind of fi end would resort to such a
_ depraved act? And how fast could police stop him?
2 Inside Delecive. ote January , : 1988
It was typically sweltering | in Fairfax
prey
“show, the worried relative. decided that:
Hills section of the county just inside the .
called out. No response. But when she ~
The Fairfax County uniformed officer’
each of whom had more than 100 murder ;
PTI
2S
~ ley on her prayer list). ..
to Pimmitt Hills.“
CORT ene orsary
A I TTL TE RS TE TRO a
for a postmortem examination.
~ As practitioners of the ‘‘point of the
circle’’ method: of homicide investiga-
tion, Detectives Sutherland and Johnson
would begin their field investigation by
‘conducting exhaustive interviews’ with
members of the victim’s immediate fam-
ye cee i 3 =)
‘: It‘was during one of these interviews
that the name Richard Whitley emerged.
The family member related that there
was a person whom Phoebe Parsons had
expressed fear of in the past, her next-
door neighbor, Richard Whitley. It
seemed the man was the type of person
who was continually experiencing diffi-
culty of one sort or another in life: Dur-
ing the few months that Richard Whitley
and his family had lived next door, Par-
sons had tried to help them. She had
loaned them kitchen utensils for exam-
ple, and had even placed Richard Whit-
With this, Jesse Sutherland decided to
have a little talk with Richard Whitley.
He and Detective Johnson headed back
» When ‘repeated knocks’ at the ‘small
-- frame house located ‘next door to the
crime scene failed to bring any response,
the two detectives queried neighbors in
an‘effort to get a line on Richard Whit-
ley. But no one had seen the man for the
past several days. As for his family, they
‘- had moved out some weeks before after
/hat. appeared to have been a violent
“quarrel.
“Further checking on Richard Lee
me Whitley, w/m/33, disclosed that the part-
time ‘housepainter and: handyman was
currently wanted by neighboring Arling-
ton County as the perpetrator of the sexu-
al assault and robbery of a hitchhiker.
_ Arlington’County Detective Pete Tyler
advised his Fairfax County counterpart
that his investigation had’ disclosed: a
| considerable criminal record for Whit-
ley, with prior arrests noted for thefts,
burglaries, and even an attempted mur-
der; dean |
“By‘now, the sleuths were convinced
they had a viable suspect to focus their
_ attention on in the Phoebe Parsons case.
As a result, an all-points bulletin was
issued for Richard Lee Whitley as
“Wanted For Questioning’’ in the mur-
der of Phoebe Parsons. ek
However, this was promptly revised
‘to ‘‘Wanted For Murder’’ when the fin-
-gerprint technicians reported that the
bloody and inky prints lifted at the crime
scene matched those on file in Arlington
County in. the name of Richard Lee
Whitley. |
With this, the manhunt for the now
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1502 802 FEDERAL REPORTER, 2d SERIES
issues in a federal habeas corpus proceed-
ing.
Although superficially appealing, Whit-
ley’s argument in this regard is ultimately
unpersuasive for it assumes the correct-
ness of the state circuit court’s finding of
procedural default at the trial or on direct
appeal, thereby rendering superfluous the
question whether Whitley defaulted a sec-
ond time by failing to appeal the merits of
his defaulted claims in his state habeas
appeal. Indeed, it is Whitley’s failure to
appeal from the circuit court’s finding of
procedural default on these claims that ex-
poses the inherent weakness of Whitley’s
argument in this regard. If, on appeal, the
Virginia Supreme Court had concluded that
the circuit court had incorrectly found
Whitley’s claims were barred from consid-
eration due to his procedural defaults, then
Whitley would have had standing either to
have the Virginia Supreme Court consider
those claims on their merits in that appeal,
or, more likely, to have the circuit court
consider them on remand.*° Whitley’s fail-
ure to appeal from the circuit court’s ruling
on procedural default, therefore, deprived
the Virginia Supreme Court of the opportu-
nity to rule on the merits of his claims.
We consider such failure to constitute a
violation of the requirements of Rule 5:21,
which applies to appeals of all Virginia
cases, civil or criminal, and conclude that
30. If, on the other hand, on appeal, the Virgin-
ia Supreme Court had ruled that the cir-
cuit court did correctly rule that Whitley
had procedurally defaulted on the majority
of his claims, such default would constitute
a sufficient basis for the application of
the Wainwright v. Sykes procedural bar.
See Frazier v. Weatherholtz, 572 F.2d 994,
997 (4th Cir.), cert. denied, 439 U.S. 876, 99
S.Ct. 215, 58 L.Ed.2d 191 (1978); cf. Hanker-
son v. North Carolina, 432 U.S. 233, 237 n.
3, 238, 97 S.Ct. 2339, 2342 n. 3, 2342, 53
L.Ed.2d 306 (1977) (noting that if state su-
preme court rules on merits of claim on
which habeas corpus petitioner had procedural-
ly defaulted, then federal court may rule
on merits of claim as well).
31. As a corollary to this argument, Whitley ar-
gues that even if Virginia Supreme Court
Rule 5:21 did require him to present his default-
ed claims in his state habeas appeal, along
with a claim the circuit court’s procedural de-
fault ruling was incorrect, the doctrine of proce-
such violation constitutes a procedural de-
fault sufficient to preclude federal court
review of the merits of those claims on
which the circuit court declared Whitley to
have defaulted.*1 See Smith v. Murray,
— US. at —, 106 S.Ct. at 2665-67
(“ {a]llowing criminal defendants to de-
prive state courts of [the] opportunity’ to
reconsider previously rejected constitution-
al claims is fundamentally at odds with the
principles of comity that animate Sykes and
its progeny”) (quoting Engle v. Isaac, 456
U.S. 107, 180, 102 S.Ct. 1558, 1573, 71
L.Ed.2d 783 (1982)).
C. Cause for Whitley’s Failure to Raise
His Defaulted Claims and Prejudice
Resulting Therefrom.
Having concluded that the district court
correctly determined that Whitley did pro-
cedurally default on the majority of. his
claims in his federal habeas corpus petition,
Whitley may still escape the bar of proce-
dural default if he can establish a valid
cause for his default and actual prejudice
resulting therefrom. See Wainwright v.
Sykes, 466 U.S. at 87, 97 S.Ct. at 2506-07.
Thus, as his third, and final, argument with
regard to procedural default, Whitley con-
tends that the district court erroneously
concluded that Whitley had failed to estab-
lish sufficient cause for his procedural de-
dural default is nevertheless’ inapplicable in
his circumstance because the rule is not
so firmly established and regularly followed
as to compel federal deference. See James
v. Kentucky, 466 US. 341, 348, 104 S.Ct.
1830, 1835, 80 L.Ed.2d 346 (1984) (stating
that federal habeas corpus petitioner’s failure
to comply with applicable state procedures
can prevent federal review of petitioner’s consti-
tutional claims only if the state's procedures
are firmly established and regularly fol-
lowed). We have previously noted that the Vir-
ginia courts have consistently applied their pro-
cedural default rules. See Conquest v. Mitch-
ell, 618 F.2d 1053, 1056 (4th Cir.1980). And
our decision in Mason v. Procunier, 748
F.2d 852 (4th Cir.1984), as we have stated, decid-
ed that the doctrine of procedural default
is applicable in the context of a state habe-
as appeal. Consequently, we reject Whit-
ley’s arguments in this regard as well.
WHITLEY v. BAIR 1503
Cite as 802 F.2d 1487 (4th Cir. 1986)
faults to escape Sykes’ procedural bar.*?
Whitley contends, therefore, that if this
court should find, as we have, that Whitley
did procedurally default on the majority of
his claims, then we should remand the case
to the district court for reconsideration of
Whitley’s claims of cause for his procedur-
al defaults both at the trial and on direct
appeal, as well as for his procedural de-
faults in his state habeas corpus proceed-
ing. Once again, we disagree.
The Supreme Court has recently ad-
dressed the definition of cause for pur-
poses of the Wainwright v. Sykes proce-
dural bar. See Murray v. Carrier, —
U.S. —, 106 S.Ct. 2689, 91 L.Ed.2d 397
(1986); see also Smith v. Murray, — U.S.
—, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).
In Carrier, Clifford Carrier was indicted
for rape and abduction. Before trial, Carri-
er’s court-appointed counsel moved for dis-
covery of the victim’s statements concern-
ing her assailants, the vehicle her assail-
ants were driving, and the location at
which the rape occurred. The circuit court
denied the motion. After Carrier’s convic-
tion, his counsel filed a notice of appeal
with the Virginia Supreme Court, which
assigned seven errors as bases for revers-
ing Carrier’s conviction. One of these al-
leged errors was that the trial court erred
in denying Carrier’s motion for discovery
of the victim’s statements. Carrier’s coun-
sel subsequently failed to include this claim
in Carrier’s petition for appeal, however,
thereby precluding the Virginia Supreme
Court from considering it pursuant to Vir-
ginia Supreme Court Rule 5:21.53 See Jd.
at ——, 106 S.Ct. at 2642-44.
After exhausting his state habeas corpus
remedies, Carrier filed a habeas corpus pe-
tition in federal district court. Carrier in-
cluded his procedurally defaulted discovery
32. Whitley contends that his research has un-
covered a valid cause for his state habeas coun-
sel’s procedural defaults, namely that his
state habeas counsel did not present
many claims in Whitley's state habeas ap-
peal because she, being demoralized by a re-
cent decision against her, had the under-
standing that Virginia law did not require
the inclusion in the petition for appeal of
all claims on which the circuit court had
claim in his federal habeas corpus petition.
The district court denied the petition, hold-
ing that under Wainwright v. Sykes, Carri-
er’s procedural default precluded federal
review of Carrier’s discovery claim. See
id.
On appeal, Carrier asserted that his pro-
cedural default should be excused because
his counsel’s failure to include the dis-
covery claim in Carrier’s petition for appeal
had been the product of the attorney’s ig-
norance or oversight, and not a deliberate
tactical choice. En banc, this court held
that oversight or ignorance that was not
deliberately tactical could constitute cause
for purposes of the Wainwright v. Sykes
showing. See Carrier v. Hutto, 154 F.2d
520 (4th Cir.1985) (per curiam) (en banc),
adopting the majority opinion in 724 F.2d
396 (4th Cir.1983), rev’d sub nom, Murray
v. Carrier, — U.S. ——, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986). The Supreme Court
explicitly rejected this holding.
In broad language, the Court stated that
the question of cause for a procedural de-
fault does not turn on whether a habeas
corpus petitioner’s counsel erred or on the
kind of error that counsel may have made.
Rather, the Court held that:
[s]o long as a defendant is represented
by counsel whose performance is not con-
stitutionally ineffective under the stan-
dard established in Strickland v. Wash-
ington, [466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984) ], we discern no ineq-
uity in requiring him to bear the risk of
attorney error that results in a procedur-
al default. Instead, we think that the
existence of cause for a procedural de-
fault must ordinarily turn on whether
the prisoner can show that some objec-
tive factor external to the defense imped-
ruled Whitley had procedurally defaulted in or-
der to preserve those claims for future feder-
al review. Whitley does not raise any conten-
tion in this appeal regarding a valid cause
for his trial and appellate attorneys’ procedur-
al defaults on direct appeal.
33. See supra for text of Rule 5:21.
.
1504 802 FEDERAL REPORTER, 2d SERIES
ed counsel’s efforts to comply with the
State’s procedural rule.
Murray v. Carrier, — U.S. at —, 106
S.Ct. at 2644-46.
The Supreme Court went on to discuss
external objective factors that would con-
stitute cause.*4 These factors included a
showing that the factual or legal basis for
a claim was not reasonably available to
counsel, that government officials inter-
fered with the defense, or that the proce-
dural default was the result of constitution-
ally ineffective assistance of counsel. Jd.
at 4822-23. Finally, to prevent manifest
miscarriages of justice, the Court recog-
nized another narrow exception to the pro-
cedural default bar, stating that:
in an extraordinary case, where a consti-
tutional violation has probably resulted
in the conviction of one who is actually
innocent, a federal court may grant the
writ even in the absence of a showing of
cause for the procedural default.
Id. at 4825.
Because the Court was not certain whether
the victim’s statements actually established
Carrier’s innocence, the Court remanded
the case to the district court for further
_ proceedings consistent with that opinion.
See id. :
In the present case, Whitley has pointed
to no objective factor, external to his de-
fense, either at his trial, on direct appeal,
or in his state habeas corpus proceeding,
that would constitute cause under the Su-
preme Court’s recent definition of that
term in Carrier.> Cf. Smith v. Murray,
— US. at —, 106 S.Ct. at 2665-67 (hold-
ing that deliberate tactical decision not to
pursue particular claim is very antithesis of
kind of circumstance that would warrant
excusing defendant’s procedural default).
Moreover, although the Supreme Court in
Carrier remanded that case for a determi-
34. The Court explicitly noted that this list
of factors was not exhaustive. See Murray
v. Carrier, — U.S. at ——, 106 S.Ct. at 2644-46.
35. For a discussion of Whitley's claims- of
cause for his state habeas counsel's procedur-
al defaults, see note 32, supra.
36. For a summary of our holdings with re-
gard to each issue on which we have conclud-
nation of whether the victim’s statements
could have established Carrier’s actual in-
nocence, thereby exploring another possi-
ble exception to the requirement of a show-
ing of cause for a procedural default, we
do not believe such a remand is called for
in this case. Given the extensive record
below establishing Whitley’s guilt, includ-
ing, among other things, Whitley’s own
admissions, we do not believe that refusal
to consider Whitley’s defaulted claims on
their merits carries with it the risk of a
manifest miscarriage of justice. See
Smith v.. Murray, — U.S. at ——, 106
S.Ct. at 2667-69.
III.
In sum, we hold that the district court
properly found the majority of Whitley’s
claims to be barred from federal review as
a result of Whitley’s procedural defaults
either at the trial level, on direct appeal, or
in his state habeas corpus proceeding.%¢
We further hold that the district court
properly found that Whitley was not denied
effective assistance of counsel at the sen-
tencing phase of his trial.37
In affirming the district court’s denial of
Whitley’s petition for a writ of habeas cor-
pus, we note that the seriousness of the
penalty imposed on Whitley for his crimes
makes us reluctant to dismiss the majority
of his claims on the ground of procedural
default.. Nevertheless, the recent state-
. ments of the Supreme Court on the subject
persuade us not only that further discus-
sion of the merits of those defaulted claims
is unnecessary, but also that such discus-
sion is inappropriate. See Smith v. Mur-
ray, — U.S. at ——, 106 S.Ct. at 2665-67
(stating that although federal habeas court
must at all times retain power to look be-
yond state procedural forfeitures, exercise
of that power ordinarily is inappropriate
unless defendant succeeds in showing both
ed Whitley has procedurally defaulted, see
note 17, supra.
37. See note 13, supra (discussing third corol-
lary issue that Whitley raised in his brief,
but which, for reasons stated above, we
need not address here).
a0 apnea A epeanats “ane Meenas °*
UNITED STATES v. PAHLAVANI 1505
Cite as 802 F.2d 1505 (4th Cir. 1986)
cause for his noncompliance with state rule
and actual prejudice resulting from the al-
leged constitutional violation); see also id.
— US. at —, 106 S.Ct. at 2667-69 (ex-
plicitly rejecting suggestion that principles
of Wainwright v. Sykes apply differently
depending on nature of penalty that state
imposes for violation of its criminal laws).
Accordingly, the judgment of the district
court is
AFFIRMED.
w
° Exey NUMBER SYSTEM
T
UNITED STATES of America, Appellee.
v.
Ali Nejad PAHLAVANI, Appellant.
No. 85-5576.
United States Court of Appeals,
Fourth Circuit. —
Argued June 6, 1986.
Decided Oct. 9, 1986.
Defendant was convicted in the United
States District Court for the Eastern Dis-
trict of Virginia, Albert V. Bryan, Jr., Chief
Judge, of possessing identification doc-
ument produced without authority and he
appealed. The Court of Appeals, Widener,
Circuit Judge, held that a Form I-94 De-
partment of Justice arrival-departure
record was an “identification document”
for purposes of statute prohibiting posses-
sion of identification document produced
without authority.
Affirmed.
Forgery <7(1)
Form I-94 Department of Justice ar-
rival-departure record is an “identification
document” for purposes of statute prohibit-
ing identification document produced with-
out authority. 18 U.S.C.A. § 1028(a)6),
(d)(1).
See publication Words and Phrases
for other judicial constructions and
definitions.
Daniel J. Glanz, Alexandria, Va., for ap-
pellant.
William G. Otis, Asst. U.S. Atty., Alexan-
dria, Va., Justin W. Williams, U.S. Atty.,
Alexandria, Va., John T. White and Scott
Snyder, Third-Year Law Students, on
brief), for appellee.
Before WINTER, Chief Judge, and WID-
ENER and HALL, Circuit Judges.
WIDENER, Circuit Judge:
Ali Nejad Pahlavani appeals from his
conviction in the United States District
Court for the Eastern District of Virginia
of knowingly possessing an identification
document that appears to be a Department
of Justice Arrival-Departure Record (Form
I-94) that was produced without authority,
in violation of 18 U.S.C. § 1028(a)(6). Find-
ing no error, we affirm.
Pahlavani raises one issue in his appeal.
Pahlavani argues that a Form I-94 is not
an identification document as defined in 18
U.S.C. § 1028(d). Section 1028(d)(1) defines
“identification document” as
a document made or issued by or under
the authority of the United States
Government, a State, political subdivision
of a State, a foreign government, politi-
cal subdivision of a foreign government,
an international governmental or an in-
ternational quasi-governmental organiza-
tion which, when completed with infor-
mation concerning a particular individual,
is of a type intended or commonly accept-
ed for the purpose of identification of
individuals; ...
18 U.S.C. § 1028(d)(1) (1982).
Pahlavani contends that a Form I-94 is
not issued for purposes of identification
nor is it commonly accepted as identifica-
tion. We find that I-94 is commonly ac-
cepted as identification and we affirm Pah-
lavani’s conviction on that ground.
During Pahlavani’s trial, a Special Agent
of the Immigration and Naturalization Ser-
vice (INS) testified as to the accepted uses
of Form I-94. The Special Agent testified
that an alien must present his Form I-94
whenever an INS official asks him to do so;
1500 802 FEDERAL REPORTER, 2d SERIES
A. Applicability of Procedural Default
Bar to Claims that Whitley Raised in
State Habeas Corpus Petition, but
Failed to Raise in State Habeas Ap-
peal.
In his argument on this point, Whitley
recognizes, as did the district court, that
this circuit has already decided that failure
to appeal claims disposed of by a state
habeas trial court constitutes a procedural
bar to further federal review of such
claims. See Mason v. Procunier, 748 F.2d
852 (4th Cir.1984). In a brief opinion in
Mason, another Virginia death penalty
case, this court affirmed a federal district
court’s conclusion that the doctrine of pro-
cedural default barred federal review of
any claim that the petitioner had raised in
his state habeas corpus petition, but had
failed to appeal to the Virginia Supreme
Court. Jd. at 853. Relying on the brevity
of the court’s opinion in Mason, and on
dictum in a recent decision from the U.S.
Court of Appeals for the Eleventh Circuit,
see Francis v. Spraggins, 720 F.2d 1190,
1192 n. 3 (11th Cir.1983) (noting that exten-
sion of procedural default doctrine to de-
faults at state habeas corpus level was
undecided in that circuit and that court
thought the question might raise serious
policy questions perhaps best left to Con-
gress), cert. denied, — U.S. —, 105 S.Ct.
1776, 84 L.Ed.2d 835 (1984),??7 Whitley now
argues that our decision in Mason is both
casual and inappropriate. We disagree.
In the first place, the holding of the
court in Mason with regard to the proce-
dural default issue constitutes circuit
precedent which we follow. In the second
place, our conclusion in Mason is supported
by quite recent Supreme Court reasoning.
A State’s procedural rules serve vital pur-
poses at trial, on appeal, and on state col-
lateral attack. See Murray v. Carrier, —
U.S. ——, —, 106 S.Ct. 2639, 2646-48, 91
L.Ed.2d 397 (1986). And, as the Supreme
27. We note in passing that the court in Sprag-
gins explicitly left open the question of the ap-
plicability of the doctrine of procedural de-
fault to defaults at the appellate level in a
state habeas corpus proceeding. See Francis
v. Spraggins, 720 F.2d at 1192 n. 3.
Court has stated in another context, the
concerns of comity and finality which un-
derpin Wainwright v. Sykes and its proge-
ny are virtually identical regardless of the
timing of a petitioner’s failure to comply
with legitimate state rules of procedure.
See Smith v. Murray, — US. —, —,
106 S.Ct. 2661, 2665-67, 91 L.Ed.2d 434
(1986). These concerns cause us to con-
clude, even apart from our previous deci-
sion in Mason, that the doctrine of proce-
dural default should apply in state postcon-
viction appeals.
B. Whitley’s Compliance with Virginia’s
Procedural Requirements
In his second argument with regard to
the procedural default issue, Whitley con-
tends that the district court misinterpreted
Virginia’s procedural default requirements
for the preservation of issues for appeal.
As a result, Whitley further contends that
the district court erred in holding that
Whitley violated state procedural rules by
failing to appeal his defaulted claims in his
state habeas appeal. We disagree.
There are two Virginia procedural rules
that are relevant to Whitley’s appeal in this
regard: Virginia Supreme Court Rule 5:21,
and the rule of Slayton v. Parrigan, 215
Va. 27, 205 S.E.2d 680 (1974), cert. denied,
419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804
(1975). Virginia Supreme Court Rule 5:21,
in effect at the time of Whitley’s trial and
state habeas corpus proceeding,”® provided,
in pertinent part, as follows:
The petition for appeal shall contain as-
signments of error.... Error will not be
sustained to any ruling below unless the
objection was stated with reasonable cer-
tainty at the time of the ruling, except
for good cause shown or to enable this
court to attain the ends of justice. Only
errors assigned in the petition for appeal
will be noticed by this Court and no error
28. Rule 5:21 was repealed effective August
1, 1985. It has been reinstated in substantial-
ly similar form as _ Virginia Supreme
Court Rules 5:17 and 5:25.
WHITLEY v. BAIR 1501
Cite as 802 F.2d 1487 (4th Cir. 1986) “
not so assigned will be admitted as a.
ground for reversal of a decision below.
An assignment of error which merely
states that the judgment is contrary to
the law and the evidence is not sufficient.
VA.S.CT.R. 5:21 (1983).
The Virginia Supreme Court has held Rule
5:21 to be applicable in both civil and crimi-
nal cases. See Peterson v. Common-
wealth, 225 Va. 289, 302 S.E.2d 520, cert.
denied, 464 U.S. 1004, 104 S.Ct. 202, 78
L.Ed.2d 176 (1988) (death penalty case);
First Charter Land Corp. v. Middle Atl.
Dredging, Inc., 218 Va. 304, 237 S.E.2d 145
(1977). This court has held that a federal
habeas corpus petitioner’s failure to comply
with the contemporaneous objection re-
quirement embodied in Rule 5:21 is a legit-
imate ground for the application of the
procedural default doctrine to bar a federal
court’s consideration of the petitioner’s
constitutional claims. Frazier v. Weather-
holtz, 572 F.2d 994, 997 (4th Cir.), cert.
denied, 489 U.S. 876, 99 S.Ct. 215, 58
L.Ed.2d 191 (1978); see also Murray v.
Carrier, — US. at ——, 106 S.Ct. at
2665-67. We have previously noted that
the Virginia courts have consistently ap-
plied this procedural default rule with little
flexibility. See Conquest v. Mitchell, 618
F.2d 1053, 1056 (4th Cir.1980).
In Slayton v. Parrigan, the Virginia Su-
preme Court effectively extended the pre-
clusive effect of Rule 5:21 to Virginia habe-
as corpus proceedings. In Slayton, the
defendant was convicted of armed robbery
and the Virginia Supreme Court affirmed
his conviction on direct appeal. Slayton v.
Parrigan, 215 Va. at 27-28, 205 S.E.2d at
681. In his subsequent state habeas cor-
pus petition, the defendant alleged, among
other things, that his pretrial identification
was impermissibly suggestive and that it
had tainted his in-court identification. On
appeal from the circuit court’s dismissal of
defendant’s habeas corpus petition, the Vir-
ginia Supreme Court declared that the de-
29. The primary exception to the Virginia
courts’ strict application of the Slayton
rule arises in situations in which a state habe-
as corpus petitioner can show that the issue
in question was not raised previously due to
fendant’s failure to object to the pretrial
identification, either at trial or on direct
appeal, precluded the defendant from rais-
ing the issue in his state habéas corpus
proceeding. The Virginia Supreme Court
concluded that:
’ The trial and appellate procedures in Vir-
ginia are adequate in meeting procedural
requirements to adjudicate State and
Federal constitutional rights and to sup-
ply a suitable record for possible habeas
corpus review. A prisoner is not entitled
to use habeas corpus to circumvent the
trial and appellate processes for an in-
‘ quiry into an alleged -non-jurisdictional
defect of a judgment of conviction.
Since the issue of the alleged constitu-
tionally improper pretrial identification
could: have been raised and adjudicated
at petitioner’s trial and upon his appeal
to this court, Parrigan had no standing to
attack his final judgment of conviction
by habeas corpus. :
Id. 215 Va. at 30, 205 S.E.2d at 682.”
Whitley now argues that his state habeas
counsel’s failure to appeal claims that the
circuit court had dismissed under the rule
of Slayton v. Parrigan did not violate any
Virginia procedural rule. Emphasizing the
Virginia Supreme Court’s language in
Slayton to the effect that a state habeas
corpus petitioner lacks standing to raise
claims in his state habeas corpus petition
that he could have raised at trial or on
direct appeal, Whitley contends that the
circuit court’s ruling that the majority of
his claims fell within the rule of Slayton v.
Parrigan deprived Whitley of the standing
necessary to appeal the merits of those
claims to the Virginia Supreme Court.
Thus, Whitley concludes, the absence of
those issues from his petition for appeal in
his state habeas corpus proceeding cannot
be deemed an unwarranted bypass of an
available state remedy that would bar a
federal court from considering those same
the ineffective assistance of petitioner's trial
and appellate counsel. See Slayton v. Parri-
gan, 215 Va. at 29, 205 S.E.2d at 682; see
also Crowell v. Zahradnick, 571 F.2d 1257,
1259, n. 2 (4th Cir.1977).
We rH Mey 17
Zpyeal
WHITLEY v. MUNCY
DO
Cite as 823 F.2d 55 (4th Cir. 1987)
judge is an essential element of the crime
charged against Driggs. The exclusion of
the evidence here involved, which tended to
support that charge, was not reasonably
justified either on the basis of unfair preju-
dice or possible jury confusion. Thus, as to
the evidence involved in this appeal, the
district court’s ruling is inconsistent with a
sound exercise of discretion. Cf McQuee-
ny v. Wilmington Trust Co., T19 F.2d 916
(8rd Cir.1985) (Order excluding evidence
under Rule 403 reversed where district
court underestimated the probative value
of the evidence and misevaluated its preju-
dicial impact); United States v. Clifford,
704 F.2d 86, 90 (8rd Cir.1983) (Rule 403
exclusion reversed where the excluded evi-
dence was relevant and the district court
erroneously concluded that the jury would
be “seriously misled” by the evidence).
Il.
Accordingly, we will reverse the order of
the district court and remand with instruc-
tions to admit the evidence challenged by
the government in this appeal.
KEY NUMBER SYSTEM
ay ra l
Wize Cc ere S Cag
Richard L. WHITLEY,
Petitioner-Appellant,
°
sayms
SOA
v.
Raymond M. MUNCY, Warden, et al.,
Respondents-Appellees.
No. 87-4001.
United States Court of Appeals,
Fourth Circuit.
Submitted July 2, 1987.
Decided July 2, 1987.
Petition for habeas corpus was filed.
The United States District Court for the
Eastern District of Virginia, Richard L.
Williams, J., denied relief. Petitioner ap-
pealed, applied for stay of execution pend-
ing appeal, and applied for certificate of
probable cause. The Court of Appeals held
that petitioner, who had no right to ap-
pointed attorney at state habeas corpus
proceeding, was not entitled to effective
assistance of counsel in that proceeding.
certificate of
and application
Judgment affirmed;
probable cause granted;
for stay denied.
Habeas Corpus ¢90.3(4)
Petitioner, who had no right to appoint-
ed attorney at state habeas corpus proceed-
ing, was not entitled to effective assistance
of counsel in that proceeding. U.S.C.A.
Const.Amend. 6.
Timothy M. Kane, for petitioner-appel-
lant.
Richard B. Smith, Asst. Atty. Gen., Jerry
P. Slonaker, Sr. Asst. Atty. Gen., Rich-
mond, Va., for respondents-appellees.
Before WINTER, Chief Judge, and
WIDENER and SPROUSE, Circuit
Judges.
PER CURIAM:
Our previous opinion in this case, Whit-
ley v. Bair, 802 F.2d 1487 (4th Cir.1986),
affirmed the denial of federal habeas cor-
pus relief. Certiorari was denied in that
case by the Supreme Court on March 30,
1987, —- U.S. ——, 107 S.Ct. 1618, 94
L.Ed.2d 802 (1987). On June 20, 1987,
Whitley filed in the district court his
present habeas petition which is now on
appeal. The district court denied relief and
dismissed that petition on June 380, 1987.
The case now comes to us on appeal upon
Whitley’s application for a certificate of
probable cause, upon his application for a
stay of execution pending appeal, and upon
the Commonwealth’s response. We grant
the certificate of probable cause, but we
deny a stay of execution, and we affirm the
judgment of the district court.
The sole question presented in this ap-
peal is whether, in view of the case of
Giarratano v. Murray, —— F.Supp. —,
Box a. 78, Exec. {ayers Of GOV. Hinthes
SLAVE.
Chesterfield County, Va., a man slave of John
Heavingshan, valued at 35 lbs. Certification of
value dated 2-9-1797. sShetiff attests that he
was executed in April, 1795, exact date not giv-
en.
A rchives of Virginia, Auditor's Bffords, Item
153, Box 1, 1797 envelope. -
ths case as that of Mgr Wil’. Executed on R-17-I7
for the mmardar Abhay Smit
1 Slave (Will)
A slave was hanged Prince George Cosy Vasey Dece 8,
1773, for an unspecified felony. Ltr. dtd. 3-27-1985
from Philip Schwartz, Virginia Co:monwealth University,
Richmond, Vae His source was LEXSISLATIVE JOURNALS OF
THE COUNCIL OF VIRGINIA, ed. H. Re McIlwaine KEXRX
(3 volse, Richmond, 1918-1919) Volume III, page 1600,
Ltr. fm. Schwartz, l-23, states name Will and owner John
Bannistere Kecords / pyr
Peer rere
Slave WILL, hanged * Rockingham Cosy Vaey 6=18-1778,.
304 VIRGINIA HISTORICAL MAGAZINE.
At a Court of oyer and Terminer held for Rockingham County, on the
Tryal of Willa Negro man Slave belonging to George Kessel, ac-
cused of feloniously murdering Hans Cloverfield, Miller, of the said
parish & County.
[Note.—No date given, but it is between the terms held 26th May,
1778 and 22d June, 1778. ]
PRESENT:
Dantel Smith,
John Gratten,
John Thomas,
Henry Ewing,
Wm. McDowell.
The said Slave Will, being brought to the Bar & arraigned, pleaded
he was not guilty, whereupon several Witnesses being examined touch-
ing the fact wherewith he stands charged, it appeared to the Court that
the said Will gave a blow with a hogshead stave, which fractured the
scull of the said Hans Cloverfield, of which he died that night, & there-
fore do judge him guilty of the murder with which he is charged and do
accordingly Order the said Criminal to be hung by the neck until he is
dead on Thursday, the 18th Instant, at the Courth’o of this County, &
that his head be severed from the dead body & stuck upon a poll at the
Cross road leading from this to Felix Gilberts & his body buried and in
the meantime that the said Criminal be kept in Irons well secured & a
Guard of four men to keep Centinel over him untill he is executed, and
that the Sheriff do put the above Sentence in Execution, and the Court
do value the said Slave Will to two hundred and twenty five pounds,
which is ordered to be certified to the next Session of Assembly, &
then the Court did rise.
DANIEL SMITH.
In the clerk's office of the County Court of Rockingham county, Vir-
ginia, December 8, 1898.
I, C. H. Brunk, deputy for J. S. Messerley, clerk of the said court, do
hereby certify that the foregoing is a true copy from the County Court
orders, as shown by the record of my office.
Given under my hand, this 8th day of December, 1808.
Co Me BRUNE, D.C.
CAPTAIN WILLIAM EDMONDS’ COMPANY, 1761.
FRANCIS PAVDOUTIER, sq; Wis Majesty's Licutenant-Governour,
and Commander in Chief of the Colony and Dominion of VIRGINIA:
To William Edmonds, Gent.:
sy Virtue of His Majesty's Royal Commission and Instructions, ap-
pointing me Lieutenant-Governour, and Commander in Chief, in and
over this his C:
thority to appo
I, reposing «
duct, do, by th
tain of a Com
Harrison is Co
by duly exerci:
ing particular |
as the Laws ©!
And you ar
Time to Time,
Officers, acco!
the Trust rep:
Seal )
of the
Colony. }
— —
The follow
Virginia trooy
in Fauquier
pany were fro"
Martin
Wilhan
Willian
Simon
Edmot
Thos.
John B
Jos. Sn
Samuc!
Edwar:
Hum)!
Joseph
Wim. |
Win. 5
John Vi
Thos.
Wm. |
Herm.
Henry
|
78 THE ROCKINGHAM RECORDER
Willian, Paine being appointed a Lieut. of the Militia
took the Oath according to Law which is order’d to be certi-
fied. i
Ordd that!Tohn Bear be Overseer of the Road from
Daillys ford down the River to the Line of Shanandve County
& that the usual Tithables work thereon.
Order’d that Andrew Andes be Overseer of the Road
from Chas Daillys ford under the No. Mountain to the Line
of Shanandoe & that the usual Tithables work thereon
Order’d that Rees Thomas be overseer of the Road from
Daillys ford to. Thos Gordons & that the usual Tithables work
thereon.
Order’d that Thomas Fulton be Overseer of the Road
from Thos Gordons to the Line of Augusta & the usual Tith-
ables work thereon.
Order’d that Thomas Bowen be Overseer of the Road
from the fork:of the Road above Thomas’s Mill to the Pine
Tree between Francis Greens & Thos: ie & that the
usual Tithables work thereon.
Order’d that John Herdman be Overseer the Road
from the sd pine tree to Harrisons Mill Pond & that the usual
Tithables work thereon,
Order’d that William Herring be Overseer of the Road
from Harrison’s Mill Pond to the forks of the road below
Jno Fowlers & that the usual Tith: &c.
Ordered that Gawin Hamilton be Overseer of the Road
from Rices Cabin in Dry River Gap to Benja: Harrisons &
that the usual Tithables work thereon.
Whereas it is represented to this Court that Elizabeth
pennirey Wife of Thomas Pennirey a Soldier in the Army of
the United States has been lying a considerable Time in the
small pox in a very distress‘d Condition, Order’d that the
Treasur:r of this Commonwealth pay to Abram Smith Gent
Twenty Pounds for the use & Support of the said Elizabeth
pennirey.
Order’d that the Court be adjourned to the Court in
Course.
af
i (Signed) Daniel Smith
Pale At a Court of Oyer & Terminer held for Rockingham
ey ~ County on the Tryal of Will a Negroe Man Slave belonging
to George Keesel accused of feloniously murdering Hans
[nigrat omer FROM THE FIRST nniur SB OOK
OO LET MOLE LS, A LENGE LGA IA COANE 2 TLE:
?
Sp Pe a emee oe a
MA OS m:
SOE RR IR Tete tee rR mR TINY RY SESE ca ne MR te
'
vi
pie Reokinz @
rh Ayn
Am COMTY GURT
FIRST COURT RECORD : 79
Cloverfield, Miller, of the said parish & County
Present
Henry Ewing
William Mcdowell
Daniel Smith
John Gratten
John Thomas
The said Slave Will being brought to the Barr & arraign-
ed pleaded he was not guilty, Whereupon several Witnesses
being examined touching the fact wherewith he stands charg-
ed, it appeared to the Court that the said Will gave a blow
with a hogshead Stave which fractured the Scull of the said
Hans Cloverfield & of which he died that Night, and therefore
do judge him guilty of the murder with which he is charged
and do accordingly Order the said Criminal to be hung by the
Neck untill he is dead on Thursday the 18th Instant at the
Courtho: of this County & that his head be severed from
the dead Body & stuck up on a poll at the Cross road leading
from this to Felix Gilberts, & his Body burried, and in the
meantime that the said Criminal be kept in Irons well secured
& a Guard of four men to keep Centinel over him untill he is
executed and that the Sheriff do put the above Sentence in
Execution And the Court do value the said Slave Will to two
hundred and five pounds which is ordered to be certified to the
next Session of Assembly & then the Court did rise.
(Signed) Daniel Smith.
At a Court held for Rockingham County the 22d June 1778
present
Henry Living
William Mcdowell
Danl Smith
George Boswell
Thomas Hewitt
William Cravens acknowled his Deed of Bargain & Sale
to Willian Megill & a recpt thereon endorsed O to be re-
corded,
Deed of Bargain & Sale from Elisha Estes & Gabriel
Long to Geo Boswell was proved by the Witnesses thereto &
order’d to be recorded O for Dedimus to take privy Examna
of Lucy Long wife of sd Gabriel Long.
Absent Geo Boswell, present John Gratten
On the Complaint of John Carthrae against Simon a Mul-
attue Slave the property of George Boswell for a breach of the
peace on several Witnesses being sworn & examined the
Court are of the Opinion that the said Negroe Simon should
‘pote Pronounced Bacal os
“Minutes After the Trep Feithe
‘Mistory of Thelr Crimies—A terrt-
i ble Charneter..
NORFOLK, VA, January &—(Special.)—
Charles Williams and William Downing
(both colored) were hanged in the yard of
the clty jall at 818 o'clock this morning.
' Both men died game, each declaring that
he felt aure he was going to ‘a blessed
‘hereafter, ‘
Throuxhout the night, at the request of
‘the condemned, the inmates of the jail,
or many of them, gathered in front of
, the cells in. which the murderers’ were
confined, and all night long sang anda
prayed with them. Rev. Father Riley,
Downing's spiritual adviser, camo to see
Downing, and spent some time with him,’
administering ‘the last consolations of
the Church, Rev. Charics Sparks (col-
/ored) came in a few minutes Inter, and
remiulned Ul a little after 8-o'clock, ex-
horting and praying with WHUlIams.
Abowkt this hour Solomen Bridgeforth
(colored) sent to each of the negroes a
neat bouquet and a bundle of cigars, both
of which were appreciated. the negroes
smoking with evident enjoyment‘,
THEY ATE LIGHTLY. ;
They ate Mgntly about o'clock, nnd
n few minutes later, when they had been
dressed (in neat sults of clothing, Ser-
wweant) Lawler proceeded with the read-
ing of theedeath warrant. When he be-
gun, Downing, for the first ‘time, showed,
stzns|of wenkening, and began to weep.
He bfaced up, however, and when, a few
minutes Inter, the men were handcuffed,
and, Gonder the escort of the Sergeant and
three policemen, started for the seaffold,
they each walked tirmly, They. aseended
the fifteen steps ofsche gallows without
a falter, and took their placeg, on the
traps, A number of citzens an officials
were assembled in the jail-yard.
THE TRAPS SPRUN
The traps were sprung at 8:18. The
‘bodies shot downward. Downing's body
quiyered Uke an aspen Icaf, Williams's
hed convulsively, and then both were
still.
Just eight minutes later, Dr. Baker, the
City Physician, pronounced them. dead.
Their necks were broken.
Dr.. Maurice, of the Richmond Medleal
College, arrived to take charge of the
esa of Downing, which was taken to the
morgue and then to Richmond, *for ‘the
State Anatomical Board.
The body of Williams was taken ‘to
Princess Anne county by relatives for
Interment. ab ;
The execution, under the direction of
City Sergeant Lawler, was as neatly done }
as-possible. There was not a’ hitch.
WILLIAMS, Charles, Black, hangedNORFOLK, VA, 1-5-1897
2
Wut LIAMS'S CRIME,
The crime for which Williams died was
the murder. of George Bess (¢olore), on
hoard the oyster schooner Caroline’ D:;
inothis port on the. night of April 18.
I, According to a confession, under
exth, made hy Williams to the Coroner's
jury, he and the murdered man fell out
oyer a game of casino,
und he ran up to the deek, still pur-
fied by Bess, When-he reached the deck,
re saw near the ral an: axe, which
he seized, and then warned his antago-
nist to keep off. The warning was not
heeded, according to Williams, and when
Bess rushed forward to-attack him he
‘struck him over the head with the axe.
intiicting am instuntly fatal wound, the
bedy faliing overbourd. Williams made
his escape and remeincd at his home in
this city ull arrested. about ai week
later, when he made the confession above
aiven.: He afterwards sought to retract
tris, claiming that it was extorted by
force, but the testimony. all went to
establish it, amd ta show that the
killing was not in self-defence, but
for the purpose of robbery, as tne
privoner had a great dent’ of — the
‘fleets of the deal negro in his
possession. ineluding a suit of cloth-
ing, The body of bess wae attired only
in a suit of underwear when found, andl
it is thought that Willlams stripped the
bouy of the ciothing found in his pos-
session. Williams was convicted In the
“Corporation “Court: “or-thts’ cttr; and the
case Was trken to the Court.of Anpeals.
but the latter court. refused to interfere.
The Governor was then -askel to extend
‘Exeeutive clemency, commuting the sen-
tence; to life. imprisonment, but beyond
granting one reprieve he also refused to
interfere in the case.
Witiiims was born in this county, and
the jail officials have taRen a great deal
of interest ‘in his oid mother, who has
frequently visited him at the jail. She
is a typteal old mammy, and her sincere
xrief over the terrible end of h
Was pathetic in the extreme, ;
Was a model prisoner, and ded
he ded oa. Christian. During tt
ment he joined -the Baptist Chard <%
Vesa attacked him :
WILLIAMS, Henry, black, hanged Roanoke, VA, on 3+18=190),
"Roanoke, VA, Mar. 18, 190)-Henry Williams, a negro, was hanged here today, The
execution was witnessed by several hundred persons assembled in the jailyard, while
thousands thronged the streets about the prison, There was no demonstration, but
as a precautionary measure, Acting Mayor Johnson held a local military company in
their armory during the néght and until after the execution, The crime for which
Williams was hanged was committed January 30 last. He entered the house of George J,
Shields, a well-known young business man, and after assaulting Mrs, Shields, cut her
throat. 4e then struck Mildred, the three-year-old daughter of the couple over the
head with a hatchet and robbed the house, After his capture he was taken to Rich=
mond for safekeeping, and during his trial was guarded by eighteen companies of
state militia, He confessed to the Sheilds crime and also confessed to having mur-
as dered a woman in Ohio, and another in Penhsylvania, Shortly before being hanged he
confessed that he had committed numerous assaults on women but had always escaped,
The capture, trial and execution of Williams cost the state $15,000," ARKANSAS
GAZETTE, Little Rock, Arkansas, March 19, 190) (5:5.)
TIMES-DISPATCH, Richmond, 2-17-190l, page one reports trial. The following, not
covered in accounts already in possession, are extracted:
"THE TESTIMONY.
"The first witness of the Commonwealth was H. W. Greenwood, who was a lodger at th
Shields home, He identified some of the stolen property found in the prisoner's
possession as his own. He created something of a sensation by identifying the ves
which the defendant wore in court, and wore when he was arrested, as a part of his
suit of clothese
"Drs, George S. Luck, Ae Le “olfe and J. N. Lewis, physicians who attended Mrs,
Shiefds and the child, testified as to the character of the wounds, Dr. Lewis was
more definite in describing Mrs. Shields's wounds about the head than the others,
using a young man to demonstrate to the jury the location of the head wounds, In-
cidentally, she doctors showed that here had been criminal assault.
"George Je Shields, the husband of the injured woman, Alice Louis Sheilds, was the
next witness. He described the location of the premises and the arrangement of
the house, “4e told in a painfully pathetic way of his arrival at home for the
noon meal to find his wife and child weltering in their blood, Mr. Shields confin
himself to the plain facts, and told the pathetic story in a subdued tone, finding
it hard to control his feelings and keep down his emotion, In the large crowd
the witness had no more attentive listener than Henry Williams, the prisoner at
the bar, who kept his eye on the witness all the while he was on the s tand.
"Chief of Police Dyer gave briefly some immaterial testim@nly and then Dectective
Baldwin took the stand, He was followed by his assoctiate, Detective Folz, both
of whom related the story of the running down of Williams, his confession, and
the recovery of the stolen property.. The Commonwealth heze rested its case and
the alleged defense offered no testimonyeeeeThe judge's charge to the jury was
brief and glittering in generalities. The jury took the case and kept it just
four and a half minutes when they came in and said: ‘We, the jury, find the priso-
ner, Henry Williams, guilty, as charged in the indictment.... When asked if he had
2 anything to say why sentenceshould not be pronounced, he said: 'I am not satis-
fiedeteee"
, TIMES-DISPATCH, Richmond, 2-13-1908, gives account of capture and his being rushed
to Richmond to prevent lynching. Gives his confession in which he denied rape
as did Mrs, Sheilds, Confession in such small, faded print that it is almost
impossible to transcribe, However, one sentence was: 'I was sent to the peniten=
tiary from Roanoke in 189], for two years for knocking a man named Scott on the
head with a base-ball bat,.'!
Account of crime and description of assailant, giving age as "twenty-five to
thirty" in TIMES-DISPATCH, Richmond, Vae, 2=2-190) (1°h.)
Initial account of crime, TIMES-DISPATCH, Richmond, Vas, 1+31-190l (1:7.)
/) As oh Va Va 3/¢71904 - Mawr, ae es rege bree
ies: “T2 TAR we ne ops LAs Pb naiks ar
pee Veveeure: it ko A DAA Ata Lc 36 lac. Lbs nae
he, m1 Ce Leroi bridede, a Well broom
Yo Wow Re Gf tA aay ae Wo. Str tu, not he
RW BUY!
Huvedly
thas Oley
uf,
re Then tuk My ss > “YUM cae
Pts! )
NAME
DOE & MEANS
Henry Wis las Cele of Wight CH. Vincwia | 2-22-1878
DOB OR AGE
R
B
e
OCCUPATION Eee
plas Louis Hull
DATE OTHER
AGE METHOD
SYNOPSIS
Obscure at this pot. Verbatim newspaper extract as follows :
"he negro Merry Williams alias Low/s Hilt, Iaaviing beers
fired Tatar Hog (51a on Aartnes Bivers Tas
hevight out ob jal dt Isle of Wight Courthouse today
at toon and executed in the presence of a large farang
hei Pmaks. Mo Ceryymen were tt aMendance.
Ld
Williams SNe A dying Seehiration acKowsedg lng
He Died tn few sminuates, the neck being broken 1ear
the Skill, Ad was Luried sear the jaityard, subject
ar? To /,
te the dspustt Of fr: dd: Deak tor aissecrog
purposes *
TRIAL
APPEALS
LAST WORDS
EXECUTION
SOURCE
She Richmond Dispatch _2:23-1878 _ 3*b
FRANK NEWTON OFFICE SUPPLY-DOTHAN eo
2-14-1878 3?
WILLIAMS, John
John Williams, black, hanged Warrenton, Va,, July 11, 1879
for murder of Howard Holzcraw, acting railroad agent and
telegraph operator at Warrenton: Junction in Feb., 1879,
Was first hanging in Virginia fter law passed requring
private exedutions. ‘
RALEIGH OBSERVER, Raleigh, N. CG., 7-12-1879, page one
GALVESTON DAILY NEWS, Galveston, Texas, July 12, 1879
WP 6 YES? USD) 10-7 FOF OP) FL FUP 9 CLES
He and Payne first two to be executed under new Va, law
requiring private: executions, :
——
Crime occurred on Feb. 6, Holtzclaw gas walking home
from work, at 9:30 in evening when Williams shot him from.
ambush as he was crossing a stile, Body found next day
MAME pockets rifled of money, keys and watch, Williams
tracks led to his home and he was later arrested at Mel-
rose Junction, Williams a former janitor at depot
Lynching threatened and.he was removed from county for
safekeeping, He was respited because court had inadver~
tantly sentenced him to hangron holida Sman
Daye ‘NATIONAL POLICE GAZEITE, July 26, 1879 (ay
The City of Lynchburg, Virginia
October 16, 1984
Page 2
™=
4 identified as Heswood Shepherd, he pulled a
handgun, caliber unknown, and shot Ware and
a Civilian passenger, who was also killed.
Shepherd was later arrested and committed for
life to a state mental hospital for the
criminally insane. Ware had approximately
30 years service at the time of his death.
I hope this information will be of help in your work.
Very trul yours,
LO GM bel War
C. Michael Glass
| . Commander III
ch sonlertalites culprits being
_ two noegroes—John Williams, who :
‘murdered © Howard: : Haltzclaw,.
: eoting railroad. agent and tele
_ @teph operator at | Warrenton |
‘ @anction, on the Virginia Midland
“goad, in February last, and Winter
“Payne, for killing an old negro
~ namiod James Adams, near Salem,
~ Werguson county, in April. The
. exécution took placein the yard
3 the Fauquier county jail, in the
'Ypresence of the officers of the
*:eourt and: jail, two preachers
“one white and the othercolored—
and about twenty-five others, in-.
"eluding the guard. This guard
--er@oraced the reprosentatives of
_ the press, it having been decided ©
that their only ‘means of admis ©
@ion was becoming s part thereof,
» Several hundred people. gathered.
Outside the jail, in the hope of
gaining admittance, but the
“eheriff wasinexorable. At there:
markably early hour of six-fifteen |
ds M.,—=their sentences fixing the
execution between five and seven |
a M.——theprisoners were brought. -
from their cells and made to ss ©
“cond the scaffold, the ministers .
“and Sheriff Robert Whittaker and»
his doputy, EB. .F. Gray, accomie ©
-panying them. Both men show-
- ing. considerable nervousness..: .
< When questioned by ‘the sheriff”
as to whotherthey had anything
to ssy neither answeted, and the:
/ officers proceeded to pinion their
arms and lege, the ~ministers
meanwhile speaking comforting
“ words and offoring prayct ‘for
mercy. During this Williams re-~
matnod silont, but Paynoat inter. -
vals uttcrod appeals for mercy in
slow tonc. At siz twenty-alz the
trap wassprung, giving them «
fall of nearly fivo fect, Their
struggles wero brief and not vio
Jont. Payno’s pulse coased to
beat in nine minutos and thatof
- Willams’. in eighteen, After
banging noarly twenty-five min-
“tes the bodies wero lowered into
rudo pino coffins, that of Payne
- being turned over to his. friends, -
while that of Williams was burioed ©
--4{n a neighboring field, .Upon ex.
‘amination. a = physician pro
‘pounced that both had died of atrangulation, . This
_ fa the first execution in this county ainco cone) di
e
‘WILLIAMS, John H., black, 27, elec. Va. (Lynchburg) on 3-5-1921,
ae City of Lynchburg, Virginia
THE CITY OF SEVEN HILLS
PUBLIC SAFETY BUILDING
DEPARTMENT
OF POLICE
October 16, 1984
Mr. Ronald C. Van Raalte
Post Office Box 584
Arlington Heights, Illinois 60006
Dear Mr. Van Raalte:
Regarding your letter of October 6, 1984, please be advised
that the Lynchburg Police Department has lost two police
officers in the line of duty. The following explains the
circumstances behind each death:
On March 24, 1920 around 8:00 p.m., Detective
Arthur Lee "Jim" Mann was shot in the head at
the corner of Eighth and Main Streets in the
City of Lynchburg while trying to arrest John
Henry "Slim" Williams. Mann died at 7:45 a.m.
the next morning. Detective Edgar C. Wheeler
was shot in the neck, but recovered from his
wound. Mann was shot by a handgun, caliber
unknown, which Williams had concealed under
his coat. The detectives were seeking to
_arrest Williams on a misdemeanor charge.
It was later determined that Williams was
wanted in Greenville, South Carolina for the
murder of two police officers in that sity.
Williams escaped and was arrested in Toledo,
Ohio on April 24, 1920. He was tried in
Lynchburg and was electrocuted in the State
of Virginia on March 5, 1921. Detective Mann
had approximately 15 years service with the
department at the time of his death.
On the afternoon of August 10, 1933, officer
George M. Ware was shot in the chest and killed
° instantly while trying to investigate a domestic
call. Ware was in his patrol car and spotted
the suspect at Twelfth and Taylor Streets.
When he pulled along side the man, who was later
International
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Thank you for your encouragement of further historical
scholarship and writing on my part. I am now working on my
master's degree in administration of justice at Virginia Com-
monwealth University, and perhaps when I start working on my
master's thesis in a few more years (I'm only taking a course.
a semester on a weeknight) I might be able to write on some
worthwhile topic pertaining to criminal justice.
I certainly hope that this finds you in better health
and that you will be able to continue your interesting and
valuable studies on the executed felons of this country.
30) ede
Gary Williams
Clerk
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‘A COPY TreTT
GARY M. WILLIAMS, CLERK
-* SCE
Slave WILLOUGHBY and slave pane, CMm@r SWE L,
At Westmoreland County, Va., Court of Oyer and
“erminer, August 9, 1798, Willofghby, the slave
of Thomas Beale Cole of Richmond County, and
Daniel, the slave of Martha Turburville of Hest-
moreland, convicted of murder of George Baber
and each valued at $300, Both hanged on Sept,
21, 1798. Execution attested by Dep. Sh. Gor-
don.
Archives of Va., Auditor’ s Records, Box 4, Item
153, 1799 Envelope.
Also mention, Item 153, Box h, 1798 envelope.
A letter trom Westoneland Courrty ry Box [05
of Exec. Fears of Gov. mentions these WUISCIEAITS
Wd tolls Hat they were the first capital pomishments
:
Ay beeSten there ter thirty years.
WILSHIRE, William #. Pibothut Li MUL
"Lexington, Vae, 8/3/1906-William #f Wilshire was hanged
today for the murder of Harry J. S mith in August last,
Death was instantaneous,"
The NewS, Birmingham, Ala., 8/3/1906
Lexington Gazete $f §/8 106 Gives Srraawse as Wr WHER. Ji YS Shar
he WS AAS jaca dd white Wer
pew f "Sa ue , Le aed fae 7 av |
CNet A Lette tent 0b os Lz lz2¢ Aen!
Koc ae fbf ud pox fice Zt
Fhe Cag oe Gooey
(bas cat Pana (Wo ale Gerrn J T/2s~ —
Bika nil, Abe Ff 26/' FGO
PLACE — CiTY OR COUNTY
VA. STATE PRISON (RICHMOND CITY)
RESIDENCE
MAME
SHIRLEY “INNINGHAM :
oce OR AGE RACE OCCUPATION
25 Black
ODQE & MEANS
elec. 1-25-1928.
GEN
DATE
L0-1Lh-1927,
OTHER ,
METHOD e
Hilda Barlow
SYNOPS!IS
"vith last minute appeals for clemency denied by Gov, Byrd, the execution this morning of Shirley
“Innlucham, isle of Wight Negro, in the electric chair at the “tate ‘rison appears certain.
“inningham, who was convicted in Richmond Hustings Court last fall of attacking and murdering
=youns white pirl, has been pronounced sane by a-speciat commission of atienists appointed by
Judze B, 2, “hite, Governor Eyrd pointed out yesterday, Previous to his conviction in Hustings
Court, “inningham had been pronounced sane after he had been held to be insane hy a local lunacy
cormission in Isle of “XXX Wight. The commission which found Yinringham mentally sound was come
posed of Dr, Hugh C, Henry, supt,, Central State Hospital, Petersburg: Dr, J. & DeJarnette,
Supt.e, “estern State Hospital; and Dr, George “, Brown, Supt., Eastern State Hospital, “illaams-
curge The findings of the commission appear to be conclusive, the Governor said yesterday, and
stated firmly that he had no intention of giving clemency to the convicted Negro, He also called
attention to the fact that certain parties who hate been urging clemency in the press are apparent
ly unaware of the fact that ““inningham was found to be sane by these distinguished-attenists.*
RICHMOND TIMESeDISPATCH, Richmond, Virginia, January 25, 1928,
"The Old Dominion exacted a 'life for a life’ late yesterday morning when Shirley Winningham
a_young Negro diced in the electric chair at the state penitentiary for the mirder of a young
white girl in the Isle of Wieht County on October 1h, Major Rice M, Youell, superintendent of the
penitentiary, stated that the execution went through as scheduled, The condemned man maintained
his calm to the end, penitentiary officials stated to the Times-Dispatch," RICHMOND TIMFS-NIS-
PATCH, January 26, 1928,
"Suffolk, Vas, 10-15-1927-Charged with murdering a lheyearsold girl after attacking her on the road
near Smithfield yesterday, a Negro believed by Isle of Wight authorities to be Shirley Winnegan,
was spirited out of the county HX today and lodged in jail at Portsmouth when feeling was reported
running high—in the hom iris Samegen Seantget caine, son etter Negro youth nasied-—-
Godwin informed Sheriff W. M, Chapmaw that Winnegan had been seen near the seene of the cirme, one
j le-of Wight—Count: 5 :
outcry from the young girl, but when David Godwin, father of the youth ka who had seen Winnegan clos
to the Barlow home, went to Sheriff Chapman and told him, he tht there was something wrong. An in-
vestigation disclosed the dead body of the # girl, At the scene of the crime there was every evi-
dence of a terric struggle, it being the theory of those who were there that she was unconscious
when attacked and then was choked to death. Dr. Rae Parker, county coroner, issued a statement
after the body had been found that there was no doubt of the double crime and that the girl-had put
up a terrific fight for her honor and life. He also was of the Opinion that the girl had been
attacked in the roadway leading to her home and dragged into a comnfield, The Negro had been employ
a—O aYr-tnat—o ba :
avdnou r= ie S, a id Tit Ua U G a i] "
le was about 25-years-old, He had lived in the community all of his life, it was saidessese"
t i i y_Winnegan,
Negro, who was arrested this week-end, was rushed to the Richmond City Jail from Petersburg ear}y
yesterday after a masked mob threatened Sheriff H ty, forcing him
tae 28 WiileT CaADOUtS Ta Kern ays OU 3 ?
they were from Surry County threatnedn to lynch him, he was moved to Petersburg, Threats upon
; anily—eliceited+he—informtion—as+tohis_whereabouts,—A—sm Dp of the
then started for Petersburg, but in the meantime the authorities there had been warned and he was
transferred to Richmond City Jail. From TD of10-19=1927: Trial to begin in Isle of Wight on ll-l,
From” TTMES-BISPATCH of 11-5=1927: Declared sane by a commission composed of Dr, High C, henry, Supt
of Central State Hospital, Petersburg; Dr, J, S, DeJarnette, Supt. Western State Hospital, Staunton;
and Dr. G. W. Brown, Supt., Eastern State Hospital, Willaimsburg, Trial set for ll-/, From TD of
11-9-1927: Both Sheriff W. H, Chapman and Commonwealth Attorney George Whitley defeated for reelec-
tkereyy independents nominated in a mass meeting of persons who objected to their handling of the
case in removing Winnegan to safety. From TD of 11-12-1927: Granted a change of venue to Richmond
° -l/= z et for Il=30,
"Stolid, unemotional, his dark co
From TD of 11=30-1927:
e, ULS y S Udy
a Ga r oe ? r - tr oar, = =, by +} CP oy a4. 33
and a lone lawyer waitled for his life. Remained like a statue as witness after witness called.
attorney—soucht to_prove_insane, but _alienisis tes sane _b above aver
intelligence, Had been declared insane by lunacy commissi of Wight County in August,
but _men employing him afterwards as webb as the doctors testified he was sane, Had been committed
FRANK NEWTON OFFICE SUPeLY—COTHAN
to State Hospital at Petersburg on August 6, Members of family told of weird antics b werful
young black man but became confused as to dates, They stated that in had Ee had attenbted £5
isi i he lay on
leave a home he was visiting through a closed window and #(@MUXWiXNdiii XuauOGMmonKaat
floorin a peculiar stuporwhen he discovered his suitcase would not passthrough theglass.
They also said he had attemted to jump in a well adjacent to the house and when restrained, he %
~ran off across fields, returning only under mother's persuasion, Several witnesees testified oF
as to having seen him within 50 yards of the victim on the road near the bridge at Great Spring
Run,’ James Marvin Godwin, 18, black, testified he saw at-scene of crime, Prosecutor showed he
completed his job a& work hauling gravel on bridge construction job about 12:30, As he stood in
a roadside gatweway, theXXX#X{XHXKKXX young girl, with a newspaper and a loaf éf bread, strolled s
slowly toward her home a little after 5 o'clock; that “innigham followed her, attacking and mr-
dering, after which he sought to auit neighborhood, Defense contended his wife and 2 children
were in Richmond and he sought a ride only to join them.
From TIMES-DISPATCH OF Dec. 1, 1927: Sentenced to die on January 25, The girl was daughter of
a white farmer near Smithfield, “hen verdict pronounced, he preserved his calm and only remark
was to say: "You will be killing an honest man" when sentence pronounced,
ee
Associated Press
} JARRATT, Va., Sept. 14—Joe
Louis Wise was executed in the
jos. electric chair tonight for the
ewe
983 robbery and murder of a
uithside Virginia man.
Wise, 31, was pronounced dead
at-11:12 p.m., said Wayne Brown,
perations officer at the Greensville
rrectional Center here.
+ Brown said Wise made no last
Statement and that clergy and fam-
ily members visited him on his final
day. ,
* Wise was convicted of killing Wil-
iam H. Ricketson, a building and
grounds employee at the Mecklen-
gurb Correctional Center.
: Ricketson, 43, was found covered
with dirt and cinder blocks in a shal-
low privy hole in Mecklenburg in
Décember 1983. An autopsy indi-
cated that he had drowned, but he
also had been beaten and shot in the
eye and chest.
vA) 4. Cc a Pe nt 2.
Fost stp. 15, ITI 3
Virginia Man Dies by Electric Chair for 1983 Robbery, Murder
Wise was arrested that day as he
as putting oil in Ricketson’s pick-
ip. He acknowledged involvement
in the slaying. ;
Gov. L. Douglas Wilder last week
rejected Wise’s request that he be
granted clemency because his trial
attorney and two other lawyers ap-
pointed to represent him on appeal
Wise, who was
black, was —
convicted in 1984.
in a racially
charged trial.
failed to handle his case properly.
“Nothing else can be done,” Wil-
liam H. Wright Jr., one of Wise’s
attorneys, said Monday. ~
Wise, who was: black, was con-
victed in 1984 in a racially charged
trial that observers described as a
courtroom mismatch between a
veteran prosecutor and an inexpe-
rienced court-appointed defense
attorney. —_ -,
Ricketson, the victim, was white
and well-known in the community.
During the trial, Wise’s attorney, -
William’ Bryant Claiborne, who is
black, received death threats and
required:a police escort to enter
and exit the courtroom.
Claiborne, of Halifax County, had .
never before faced a criminal of.
civil jury and spoke to jurors for just
two minutes during the ‘sentencing
phase of the trial.
Wise later complained that Clai-°
borne, who has not commented on
his role in the case, was nervous _
throughout the trial and had im-
plored Wise not to take the witness
stand.
Barry A. Weinstein, one of sev-
eral lawyers who petitioned Wilder
to grant clemency, noted that Clai-
borne did not bring up Wise’s trou-
bled childhood during the sentenc-
ing phase of the trial, and he called
Claiborne’s efforts the worst he had
seen in 15 years of capital litigation.
When Wise’s case was up for ap-
peal, two other court-appointed at-
torneys failed to file appeal docu-
ments ‘before the deadline. The
Wise case helped lead the General
Assembly to pass legislation requir-
jing that Virginia defendants who
face the death penalty be repre-
sented by lawyers with experience
in such cases.
Wise spent much of Monday and
today visiting with his family, said
Wayne Brown, operations officer at
the Greensville prison.
Until he was moved to a cell next
to the electric chair at Greensville
last month, Wise was held at the
Powhatan Correctional Center.
Wise was the 21st person exe-
cuted in Virginia since the state
resumed executions in 1982, and
the fourth this year.
Across the country, 220 people
have been executed since 1976,
when the Supreme Court allowed
states to resume the death penalty.
JOE LOUIS WISE
. governor would not grant clemency
Rg Heth Becca cet ee
ies
~
wo
o«
Hay ci: TU
GAMA: :
»
oe
Wish, Joe Louis elec. VA( Mecklengurg) sept 14,1993:
’
N.C. man is executed
‘in Southside slaying
G~1S -F3.
BY FRANK GREEN
AND WES ALLISON
TIMES-DISPATCH STAFF WRITERS
JARRATT — Joe Louis Wise, a bor-
derline-retarded North Carolina man
who bludgeoned, shot and drowned a
- Boydton man, died at 11:12 last night
in the electric chair, nearly 10 years
after the slaying.
Wise, 31, visited with relatives,
lawyers and supporters during his
last hours yesterday in his cell at the
Greensville Correctional Center.
There were no last-minute court ac-
tions yesterday, and Gov. L. Douglas
Wilder had rejected his plea for clem-
ency last week.
Wise was convicted of the Dec. 1,
1983, capital murder of William H.
Ricketson, a father of two and an
employee at the Mecklenburg Cor-
rectional Center.
Inside the prison, the sound of
people. singing in the room where
Wise was being held drifted over the
speaker in the witness booth 10 min-
utes before he was led into the exe-
cution chamber: “On a Hill Far Away
Stood An Old Rugged Cross.”
Shortly after, a door opened and
Wise, smiling and laughing a little,
was led to the chair by several
guards. His head was shaved and the »
PLEASE SEE WISE, PAGE B3 >
FILE PHOTO
GUILTY. Joe Louis Wise was found
guilty of the 1983 murder of
Mecklenburg Correctional Center
employee William H. Ricketson.
V WISE FROM PAGE B1
right leg of his denim pants was cut
to the knee. Thick leather straps
_ were tightened across his chest, up-
per arms, wrists and ankles. A nun
and a priest read from the Bible and
Wise closed his eyes and was quiet
when he was asked if he had anything
to say.
At 11:01 p.m., the leather helmet
and face mask were secured and the
electrical cords were applied to the
helmet and Wise’s right leg. A heavy
electrical hum filled the room, and
the witness booth was quiet.
When Wise got the first jolt, of
electricity — 1,825 volts at 7.5 amps
— he surged forward, then his back
arched away from the padded back of
the wooden chair and his head
pressed against it. His body relaxed,
then the second jolt. was applied.
After the required five-minute
- wait, a guard opened Wise’s light
blue shirt. Dr. B.L. Kapil placed the
stethoscope on his chest and told the
warden, “Mr. [Ellis] Wright, this man
has expired.”
There were perhaps a dozen peo-
ple gathered around their cars in a
field outside the prison by 10 p.m.
Among them were David and Patricia
td
Gregory, of Richmond, who said they
were there to see “justice done”
even if “it is 10 years’ too late.”
Patricia Gregory is the sister of
Ricketson’s widow, Barbara. “He
was a nice guy, an extremely nice
guy,” Gregory said of his late broth-
er-in-law. “He went through tor-
ture.”
Also on hand were capital punish-
ment opponents such as_ Jerry
McCaffrey, of Fairfax, a member of
Amnesty International.
Other friends and family members
of Ricketson contacted in recent days
agreed that last night’s execution
was long overdue. “I wish I could pull
the switch myself,” said David Wal-
drep Sr., a friend of Ricketson’s since
boyhood.
“It’s about time that they, went
ahead and executed the man. That
won’t bring back Bill, of course, but it
will ease the suffering of the family
and what have you,” he said.
Ricketson’s youngest brother,
Jack Ricketson of Boydton, said the
execution would have been easier on
his family if it hadn’t taken 10 years.
“Tt brings up old, bad memories fast,”
he said.
Wise’s most recent lawyers ar-
gued that his trial lawyer, William
ee ed a a
a A
Claiborne, was too inexperienced to
adequately defend Wise, against
whom there was overwhelming eVi-
dence. In less than an hour the jury
sentenced him to death.
Claiborne presented. no evidende
on behalf of Wise in the sentericing
phase of his trial, though eviderice
was available about Wise’s abused
childhood, among other things.
Then two lawyers appointed by
the court to handle Wise’s appeal
failed to meet a court deadline fore;
closing any chance Wise had for ar-
guing that Claiborne had been const
tutionally ineffective.
Ricketson was white and racisth
was also suggested as a motive for
Wise’s sentence. But Claiborne, one
_ of the two lawyers who botched ‘his
appeal, and two of the jurors’ who
sentenced him to death were black.
Wise’s execution was the 257th:in
Virginia’s electric chair since 1908,
the 21st since the 1982 resumption
of executions, the 10th since the
electric chair was moved to- -the:
Greensville Correctional Center ..in
1991 and the fourth this year.
Jack Ricketson said he also would
prefer that executions be carried.out
in public. “Let the public see it. May-
be it would deter more crime,” ” ~ BE
said.
~ oF
Wednesday, September 15, 1993 B3
a
TST Vine SsS— i
“Di — Krchmond, Vergt aia.
Thursday, Sept. 16, 1993
Houston Chronicle
a
9A 4
Smiling Virginia inmate executed in electric chair
JARRATT, Va. (AP) — An inmate
went to his death in the electric chair
with a grin, executed for bludgeon-
ing, shooting and drowning a man in
1983.
Joe Louis Wise Sr., 31, was pro-
nounced dead just. after 11 p.m.
Tuesday at Greensville Correctional
Center. After being strapped into the
chair, Wise was asked if he had any
last words. He gave no response, not
even shaking his head.
“He had a smile on his face, sort of
a grin, almost a playful smile. It was
not something you would expect,”
said Victoria Edwards of radio sta-
tion WEVA in Emporia, a witness.
Wise was executed for robbing and
killing William H. Ricketson, a 43-
year-old building and grounds em-
Berns
ployee at a prison. Ricketson was
found covered with dirt and cinder
blocks in a shallow privy hole. He
had been beaten, shot in one eye and
the chest, and drowned. Wise was
arrested the same day as he was
ee oil in Ricketson’s pickup
truck.
He admitted involvement in the
crime, - . 7
eee
After exhausting his appeals, Wise
sought clemency from Goy. Doug
Wilder, saying his lawyers had not
handled his case properly. Wilder
rejected the request last week.
Wise was the 21st person executed
in Virginia, and the 220th nationally,
since the U.S. Supreme Court in 1976
allowed capital punishment to re-
.sume,
VIRGINIA
RICHMOND — The NAACP and
other. supporters. of deathrow in-
mate Joe. Wise asked Gov. Wilder to
‘commute Wise’s sentence to life. A
clemency petition claims Wise had
.—. shoddy legal representation. Wise,
scheduled to be executed Sept. 14,
was convicted in the ’83 death of
William, Ricketson.
QRER Set 8880 8 ews
USA TODAY » THURSDAY, SEPTEMBER 2, 1993 * 9A
yer ee
Chee
ve
* JARRATT, ‘yal Sept. ee (AP) =
tric chair on ‘Tuesday night for bludg-
eoning, ’ shooting’ ‘and drowning a rob-
bery victim in 1983.
~The inmate, Joe Louis Wise’ Sr., 31,
was pronounced dead at 11:12 P.M.,
said officials at.the Greensville: Correc-
tional Center.
Mr. Wise was sentenced to death for
robbing:and killing-William H. Ricket- |
son, a maintenance..worker :at the’
jand two other: lawyers appointed to
represent him on appeal had failed to.
Mecklenburg Correctional Center, in
1983. Mr. Ricketson, 43, was found cov-
ered with dirt and cinder blocks in a
, oe: ‘? /
Losey ‘
‘ }
\ Se iaty
ge
wie | sg
‘al \3 N¥\ a
Virginia Executes a 1 Man Who Robbed and Killed
— "An
inmate ‘was executed in Virginia’s elec:
tee
shallow ” privy” hole in Mecklenburg
County.’'An ’ autopsy showed’ he had}
rdrowned after being beaten and shot i in
the’ eye and chest. wet
Mr. Wise was arrested that day as he
was putting oil in Mr. Ricketson’s pick-
up. He admitted involvement in the
crime.~ ;
Wise sought clemency from Gov. L;
Douglas Wilder, saying his trial lawyer
siandie his case properly. - Governor
After “gochuisting” his ‘appeals, Mr, .
Wilder rejected Mr. Wise’ Ss request last
week. |
As Mr. Wise’s execution approached,
'|nearly 20 people gathered outside the
prison, some carrying: candles and
praying. Others, like David and Patri-
cia Gregory of Richmond, said they
had come in search of a sense of finali-
ty. Mrs. Gregory was Mr. Ricketson’s |
sister-in-law. ;
‘It’s like you get on with life,’’ she
said. “You start getting over it and |
then there’s another appeal or another
article. We’re not here to celebrate.
We’re just here to sée justice.”’
THURSDAY, SEPTEMBER 16, 1993.
Prisoner rights advocate |
to miss execution of Wise
Executive director cannot lend support
to inmate because her group is broke
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Marie Deans, a 53-year-old prison-
er rights advocate present at 18 of
Virginia’s 20 executions since the
state resumed executing people in
1982, does not plan to attend the
scheduled execution of Joe Louis
Wise Jr. tonight.
She won’t be lending Wise support
as she has other death row inmates,
because her organization, the Virgin-
ia Coalition on Jails and Prisons, in-
strumental in obtaining clemency for
two condemned men in recent years,
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_ “We reached the point where we
can’t rely on the small contributions
alone anymore. I think we need some
support” from foundations, possibly
in New York or Washington.
Wise, 31, is scheduled to be exe-
cuted at 11 tonight at the Greensville
Correctional Center for the 1983
slaying and robbery. of William H.
Ricketson of Boydton.
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Lawyers for Wise sought clemen-
cy from Gov. L. Douglas Wilder, con-
tending that Wise’s trial attorney and
two other lawyers appointed to rep-
resent him on appeal cost Wise any
chance he had of fighting for his life
in court. .
Wilder, however, said Friday that
he saw no evidence in Wise’s petition
that would warrant his intervention.
“Nothing else can be done,” Wil-
ham H. Wright Jr., one of Wise’s -
current lawyers, said yesterday. He
said he saw Wise on Sunday and that
“he’s holding up very well.”
Greensville spokesman Wayne
Brown said that Wise spent much of
yesterday visiting with his family.
Virginia has executed 256 people
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Bich mond, Virg J a
Wise appeal
for clemency
turned down
Execution scheduled for Tuesday
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Gov. L. Douglas Wilder yesterday
turned down a clemency appeal from
Joe Louis Wise Jr., facing execution
Tuesday night for the savage beating,
’ shooting and drowning of a Boydton
man during a 1983 robbery.
Wise, himself the son of a convict-
ed murderer, is a borderline-retard-
ed, 31-year-old black man from North
Carolina.
He was. convicted in 1984: of the |
capital murder of William H. Ricket-
son, a father of two and a well-known,
white employee of the Mecklenburg
Correctional Center. It took the jury
less than an hour to impose the death
sentence.
A thorough review
In a brief statement, Wilder said
that while he had completed a thor-
ough review of the Wise case, he
found no evidence convincing
enough to warrant clemency.
“T have spoken to Joe. He was just
silent,” said Barry Weinstein, one of
his lawyers. He said he reached Wise
by telephone in his cell at the
Greensville Correctional Center,
home of Virginia’s electric chair.
“Gideon’s trumpet doesn’t blow
very loudly in Virginia,” said William
H. Wright Jr., who works with Wein-
stein at the Virginia Capital Repre-
sentation Resource Center.
The reference was to the landmark
U.S. Supreme Court case, Gideon v.
Wainwright, which held that indigent.
felony defendants were entitled to
legal representation.
Lawyers, supporters
Wise’s lawyers and supporters, in-
cluding the National Association for
the Advancement of Colored People,
argue that he had been denied a fair
sentencing trial in Mecklenburg
- County. because the young lawyer
appointed to represent him was so
inexperienced.
The job was taken by William Bry-
ant Claiborne, a young black lawyer
who had no murder or jury trial expe-
rience. He presented no evidence on
behalf of Wise in the sentencing
phase of his trial.
Wise’s supporters pointed out last
week that Claiborne received a death
threat from a white caller and had to
be escorted by arnied authorities to
and from the court each day.
Claiborne’s alleged incompetence
could not be pursued in appeals court
because another set of appointed
lawyers, Bruce Robinson and Robert
Hawthorne, both white, failed to
-+—
“*T have spoken to Joe.
He was just silent. 7”
. BARRY WEINSTEIN
LAWYER FOR JOE LOUIS WISE JR.
meet a filing deadline after Mecklen-
burg Circuit Court rejected the
claim.
In effect, say Wise’s current iw:
yers, their client never got a chance
to fight for his life with, among other
things, ample evidence of a aeprNee
and abusive childhood.
Commuted two sentences
Since taking office, Wilder has
turned down all but two such appeals
from condemned men. He commuted
Joseph Giarratano’s sentence to life,
in February 1991, and Herbert Bas-
sett’s sentence to life without parole,
in; January. 1992;.:
OE am. Shocked dismayed. Tam
saddened,” said Weinstein. . “Joe’s
case cried out for intervention. Of all
the cases that I’ve litigated in the 15
years I’ve been doing this work, I
have never seen such poor represen-
tation.”
“T felt in my heart. ... that this case
cried out for intervention” by Wilder
because appeals courts were barred
from considering any mitigating evi-
dence on Wise’s behalf, said Wein-
stein.
Wright and Weinstein said they
would meet with Wise and discuss
the possibility of other actions, but it
PLEASE SEE WISE, PAGE BS ~
RUE TRA OMB CNT
a
Port
ay Mi ‘ i
By. Federal Judge Merhige
‘Wise's claims’. * > Fis %
‘
A Clipping From
Virgnia Press Services
News Clipping Bureau
P.O. Box C-32015
Richmond, VA 23261-2015
The News-Progress
Clarksville, VA
Circulation: 5,997
es ‘An. appeal: “Of 3a capital murder
conviction ‘and death sentence by a
’ North Carolina‘man who ‘killed a
Boydton residént in 1983-has been
rejected by a federal judge.
Joe Louis Wise, a former resident
of Spring:. ‘Hope,. ‘N.C.,: has been
_pursuing appeals since 1984, when
he was convicted of capital murder,
grand larceny, robbery and use of a ©
firearm in the commission of a
“Wise said his right toa fair trial
had been prejudiced because his
dawyer did not present.evidence to
‘the jury of his “abusive family: en-
vironment and background," »-
If jurors had heard that evidence,
Wise said, “they would. have im-.. -
posed a life sentence rather than
death." But the federal judge dis-
agreed, tuling that "mere specula-
felony in connection ‘with the Dec..-:
1, 1983, slaying: of” ‘William H. :
Ricketson of Boydton.: 5
-In a. ruling .made public: last
week, U.S. District Judge ‘Robert
R. Merhige Jr. dismissed all six of -
tion .3
With or without Wise’s family
history, the jury had more than psspsqsonssadeanns
sufficient cause to find the crime
was wanton or vile enough to war-
sete
+is insufficient to demon--
“strate actual prejudice."
rant th
“The evidence reveals that the
victim. was shot at close range
‘through the eye, beaten over the
head with a blunt object with suffi-
cient force to fracture the skull and
tear blood vessels from brain tissue,
‘drowned and buried in a sewage-
*, filled hole which once seryed as an.
“Outhouse and. fi nally shot in ‘the
7.
; chest and side," the ae moied
During the trial, the prosecution -
argued that the crime was “one of
the most violent, more heinous
killings and armed robberies that
the human-mind could imagine."
Ricketson's body was found a day.
after the slaying, covered with dirt
and cinder blocks in a shallow privy:
hole just outside of Chase City. .
ne a bee eer a ohpanannsonpannaanadannnsnnnnnsanniynengy ean go nnreneamDnany reese AUER RRM easHOnenngeagmAnss
FBP ot CLA AIT He ORL hee
“Wise v was arrested later that day
on Interstate 95 as he was adding
oil to Ricketson's pickup truck. He
‘also was carrying the gun used to
_ shoot Ricketson in the eye. _
In his appeal, Wise also raised ;
claims about the alleged denial of :
his right to psychiatric assistance _
and the alleged ineffectiveness of :
his lawyer. ;
ter (dee
33
eb adress oy
RES Ei eeg
ee a ee ore ee es eee oo
Wise’s appeal
for clemency
down
i.
A ¢-/l- 73
V WISE FROM PAGE BI ‘
~
appeared unlikely there would, or’
\ could, be any.
,o Meanwhile, Wright said yesterday.
€ that Robert T. Vaughan, law partner;
| 2 of former state Del. Franklin M. Slay-
£ ton, was the judge who ‘appointed
Claiborne to represent’ Wise. ‘
mn - Earlier this week, Slayton wrote a
~~ letter strongly criticizing Wright,
Re Weinstein and others for attacking
the quality of the representation pro-
7 vided by Claiborne.
__ Inhis own letter yesterday, Wright
suggested that Slayton’s letter — in
which he said Claiborne could not
overcome the facts in the over-
g whelming case against Wise — was
| prompted more by concern for the
_“\ “reputation of his partner than Clai-
borne’s.
“We understand. that Mr. Clai-
borne could not have altered the facts
of the case,” wrote Wright.
Q
\
"i Claiborne, ‘could, however, have
VU tried to save [Wise’s] life, which was
NY his duty. As anyone who has actually
“\ troubled himself. to read [Wise’s]
Sentencing trial can tell you, Mr.
Claiborne did not do that,” added
sis turned
. was in response to those letters.
borne is not a competent attorney in
Wright.
Slayton said yesterday that if
Vaughan, once a general district
court judge, ‘‘appointed him, then-I
didn’t know about it. It’s the first I
heard of it.” Slayton, who has both
prosecuted and defended capital’
murder suspects, said Vaughan’s in-
volvement had no bearing on his let-
ter.
Claiborne, a 1981 graduate of the
University of Virginia law school, has
declined to comment on the case
until after the scheduled execution.
Slayton and Halifax County col-
leagues have come to his defense in
letters written to the editor of The
Gazette-Virginian, in South Boston,
and made available to The Times-
Dispatch. Wright’s letter yesterday
“We have never said that Mr. Clai-
non-capital cases,” said Wright.
' “The most revealing thing about
Mr. Slayton’s letter is its utter failure
to justify what Mr. Claiborne did ‘in
defense’ of [Wise’s] life at the sen-
tencing trial. That Mr. Claiborne did
nothing of course makes it hard to
defend him,” Wright added.
ACilpping From
"ERVICES
UREAU
015
News Proar_——eila
wy ln 2 1988
Anes tities
: ** udp 't bi.
urde Sia!
ase
" sa of:
mee
aoee
aercit & Sree a ne
attorneys Guring jthe, trial which
estimony told, ow ‘poem a
= ony: Fi oeuserae a
UT Ccrs aye
id en ns was a
Eee Lepte Wise ie ceed the eonedehhaatel dow the
i'December of 1984 to jury-recommended. death sentence,
. took-undervadvisement the motion
3 éketson, “¢ filed by Wise’s attorneys. In a bill of
nee penne Wise’s- current: counsel
30: Wise accused of killing
tson.: "The credibility. of. that,
saad mentioned in‘ the pill of
; filed with the court..’
Pise3 ‘and * three ‘others > were
Lien, pecennbir, 2, 1983 in
rine ole + c P
oe een
: at Boydtor b
‘-beries that the human mind could
‘ sior plant outside Chase City. He had
. attorney, William Bryant Claiborne,
STATANAANGS
PMRRAR SMT HENNE nator
J ury convicts
Wise in trial
Times-Dispatch state staff’: Th4/8
BOYDTON — Joe Lewis Wise was
convicted last night of capital murder
in the slaying of.a Boydton man after
a Mecklenburg County: Circuit Court |
jury deliberated for 5% hours. =|
The jury will decide today-whethep !
Wise, 22, of Spring Hope, Ngs shout
be sentenced to death. ;
Wisé:alsa was convicted of art
robbery. and sentenced ;to, life, of
grand larceny and sentenced to 20 |’
years in jail and of felonious use of a
firearm ‘and sentenced to two ered
The verdict came in the fifth
the trial. PAA
Earlier yesterday,’ rae nD;
wealth’s Attorney Frank Harris !
called the Dec. 1 slaying of William H.:
‘Ricketson “one of the most violgjt,
more heinous killings and armed rob-
imagine.”
Ricketson was found Dec. 2 cov-
ered with dirt and cinder blocks in a
shallow privy hole near an old excel-
been drowned, but “police said he had
also been shot twice and beaten.
. Wise was arrested on Dec. 2 on
Interstate 95 near Dunn,-N.C., while
pouring oil into’ Ricketson’ 's white
pickup truck.
Wise did not testify yesterday as
some had expected. He told a report-
er during a break that he wanted to
testify, but did not on the advice of his
G-Sewl, PUOWYO!Y
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| But Harris, the former prosecutor, defended the
| job done by Claiborne. “William Claiborne hadn’t
been practicing for a long time, but I think he
_ worked very diligently.” ~ ree ;
“T remember the case very vividly. I would have
to say that was one case where I used as much
“caution and diligence as I could to make sure that
he got a fair trial,” Harris said Friday.
_. After Wise was convicted and sentenced to
death, the Virginia Supreme Court unanimously
| upheld the verdict and sentence. Then in April
1988, Wise’s lawyers argued in Circuit Court that
Wise deserved a new trial because he was not
represented adequately by Claiborne during his
first trial.
The judge denied the request, and Wise’s law-
_yers at the time failed to appeal the ruling within
the 30-day period required by law. Consequently,
no state or federal appeals court has considered
| the issue because it has been procedurally barred.
Sentencing phase transcript ;
Wise’s current lawyers argue that one of Clai-
-borne’s major failures occurred in the sentencing
phase of the trial, in which the jury decides be-
| tween life or death.
_. According to the trial transcript, the prosecutor
finished his argument to the jury with a fiery plea
for the death sentence. ~
“Now, after he shot him, he didn’t have to beat
him. After he shot him and beat him, he didn’t have
to drown him. And after he shot him and beat him
and drowned him, he didn’t have to beat him
again,” Harris said.
think of anything more depraved, more wicked,
more vile or more inhuman, more torturous than
‘ what was done to Bill Ricketson, I don’t know how
you can do it.”
the jurors to look again at evidence already heard.
“After you look at it, you [will] have to make
your decision. And I ask that you spare this man,”
-he told the jury.
“You know the facts. Nobody else has to say
all. Just think about. it and examine yourselves.
' Thank You,” said the trial transcript.
- . But the jury did not learn about Wise’s traumatic
childhood. Such information is presented to jurors
in the sentencing phase of capital trials when the
- defendant’s life is at stake.
“Joe comes from an absolutely depraved and
horrible family background, but the jury never
heard word one about that background, and that is
_ contrary to the way our capital system is supposed
to work,” Wright said.
Alleged abuse as child
Wise’s lawyers have assembled affidavits from
witnesses who could have testified on his behalf
about alleged physical and emotional abuse he and
"his siblings suffered as children. His father, Ray, is
a convicted murderer, Weinstein said.
But no jury will ever hear about that and no
appeals court will ever hear arguments on Clai-
'“And.I simply say to you in closing, if you can
In response, Claiborne presented no evidence. —
His brief closing argument concluded by asking .
anything. We sat up here and we went through it |
borne’s competency. Wise “cannot get back into
court. He is not in court now. The case right now
lies with Governor Wilder,” Weinstein said.
“There is just no way, whatsoever, that any-
body, any Virginian can say that Joe Wise had his
day in court. ... Joe Wise did not because of the
gross failures of his attorneys. Gross failures,” he
said.
A spokesman for the attorney general’s office
said there would be no comment on the clemency
effort. “We don’t take an advocacy position when it
comes to a clemency petition for the governor. It’s
his decision to make.”
The National Association for the Advancement
of Colored People and the Catholic Diocese of
Richmond, among others, are supporting Wise.
But unlike some other recent Virginia death row
cases, no celebrities have tossed support Wise’s
way. | re
“A young African male, 21 years of age, in
Mecklenburg County, in 1984, was tried and con-
victed without a proper‘defense,” said Linda Byrd-
Harden, executive secretary of the Virginia Con-
ference of the NAACP.
‘Gross injustice’
“Most people are complaining about the fact that
most death row inmates receive too many trials. In
this case, Joe Louis Wise never received even the
first fair trial.”
State Sen. Benjamin J. Lambert III, D-Rich-
mond, said, “Joe Wise should not have to lose his
life because there was no one to present a fair
defense on his behalf.”
Lambert pointed out that a law passed after
Wise’s trial would ensure he would have received
competent’ representation. “I am compelled to
speak out under the gross injustice that Joe Louis
Wise has suffered under the old system,” he said.
Among’ other things, the law now requires at
least two lawyers with a minimum of five years of
experience each to defend clients charged with
capital. murder. :
Wright likened a lawyer’s job defending a capital
case to that of heart surgery.
“Tf this were an open heart surgery, you’ve got
to have four years of medical school, four years of
internship. You’ve got to be a full-fledged doctor
practicing medicine and then you’ve still got to
have more training.
Lawyers missed appeal deadline .
“Well, Joe’s lawyer held his life in his hand and
‘he had none of the qualifications and none of the
training to do that job right. He messed it up from
‘beginning to end.
“Joe had a chance to get a new trial because of
that ... [but] a different set of lawyers failed him
again” by not adequately pursuing the claim and
then failing to note an appeal on time.
Wright said that “right now I think there’s a
misconception among the public that clemency is
supposed to be reserved for people who did not
commit the crime. That is absolutely wrong.
‘Tt has to do with mercy,” Wright said, “the fact
that somebody did the crime, does not end the
question of whether justice has been done or not.”
Seeman
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