Louisiana: Dalton Prejean, executed 1990-05-18, 1991

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DEBEVOISE & PLIMPTON

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ROSWELL B. PERKINS
ROBERT B. VON MEHREN
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BARRY R. BRYAN

ASA ROUNTREE
GEORGE B. ADAMS
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ANDREW C. HARTZELL, JR.
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PAUL H. WILSON, JR.
RICHARD GOODYEAR
WOLCOTT B. DUNHAM, JR.
JEFFREY S. WOOD
STEVEN M. ALDEN

Professor Victor L. Streib
Cleveland State University
Cleveland-Marshall College of Law

1801 Euclid Avenue
Cleveland, Ohio

Re: Dalton Prejean

Dear Professor Streib:

44115

JOHN H. HALL

JOHN G. KOELTL
RALPH C. FERRARA
JAMES A. KIERNAN III
ROBERT R. BRUCE*
HANS BERTRAM-NOTHNAGEL
MARTIN FREDERIC EVANS
STEVEN R. GROSS
ROGER E. PODESTA
MARIO L. BAEZA
WOODROW W. CAMPBELL, JR.
MARCUS H. STROCK
RALPH R. ARDITI

DAVID A. DUFF

LOREN KIEVE

BRUCE G. MERRITT*
JONATHAN R. BELL
ALAN H. PALEY
ROBERT J. CUBITTO
ERIC D. ROITER
ROBERT N. SHWARTZ
ROBERT J. STAFFARONI
DARIUS TENCZA

JOHN M. ALLEN, JR.
FRANC! J. BLASSBERG
JOHN B. BRADY, JR.
STEVEN KLUGMAN
RICHARD D. BOHM
PETER L. BOROWITZ
BARRY MILLS
DEBORAH F STILES
ANDREW N. BERG
MARCIA L. MAC HARG

*NOT ADMITTED IN NEW YORK

STEVEN OSTNER

ROBERT F QUAINTANCE, JR.

MICHAEL E. WILES
DANIEL M. ABUHOFF
BRUCE P KELLER
JOHN S. KIERNAN
DAVID W. RIVKIN

BURT ROSEN
CHRISTOPHER SMEALL
WILLIAM B. BEEKMAN
MICHAEL W. BLAIR
JEFFREY RP CUNARD*
JOHN T. CURRY, lil
SETH L. ROSEN

EDWIN G. SCHALLERT
LAWRENCE K. CAGNEY
JOSEPH P MOODHE

ELI WHITNEY DEBEVOISE
1899-1990

FRANCIS T.P PLIMPTON
1900-1983

HAROLD H. HEALY, JR.
RICHARD D. KAHN
GEORGE N. LINDSAY
JAMES B. WELLES, JR.
OF COUNSEL

January 28, 1991

Enclosed, as requested, are selected materials

on Dalton Prejean.

please do not hesitate to call me.

Enclosure

Sincerely,

7 : ;
[if ‘ b sxe
/ ¢ a
Seren -
/
Jacobs

Anne F.

I hope that these are helpful to you,
and if you have any questions or need anything else,

Gill:

Dalton:

Gill:

Dalton:

TRANSCRIPT OF MAY 3, 1990 INTERVIEW
BETWEEN JAMES GILL AND DALTON PREJEAN

Um, *** before we start is there anything, before I ask

you any questions, is there anything you want to say,
did you have in mind when you said you wanted to talk

to me, is there anything you want to say first off? Do
that, okay?

Just, just, there’s nothing ***

Well, let me ask you some questions, you have a lot of

time to think around here, can you tell me what you
think about during the day?

Ah, it’s most a lot of things, you know, time has
healed *** just what they’re going through, just as
you’re going, and mostly you think of the family and
mostly my son because I’m wondering how he’s growing up
and *** goes so fast, you know, and those times I have
with him, you know, I cherish, but I wish I was there
more to be a father to him like a father should and
that takes a lot out of me, you know? *** I give great
thoughts to my mistake that I made in life -- something
I can’t bring back, you know, and I think about
Cleveland children’s, you know, they don’t have a
father either -- and that there mistake I have made ***
can’t turn that around either -- and makes you go back
and forth, you know, trying to figure out if something
had been done earlier it could have all been avoided,
you know -- the state would a did something that should
have been years ago, my life wouldn’t be hanging in the
balance and Mr. Cleveland would be alive and nobcdy |
told nobody, my family *** records that had been there
for years and they were just there, and .

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

You mean the records, you’re talking about when you
were held at LTI?

Right.

So what do you think the state should have done to
Spare you and Trooper Cleveland?

If they would have gotten (me) some help and at least
told the family of those records -- or at least
informed the probation department down in Lafayette or
even in Texas of this problem back then -- then I could
have been dealed with then at a younger age ***

You say you shouldn’t, you say you shouldn’t have been
on the streets at that time, or you should have been
under some supervision -- (or some kind of treatment?)

Not necessarily have to be on the streets but could
have been dealed with either by a hospital or by a
clinic -- where if a *** find out about this problem
instead of pushing it back in the files and leaving it
there without telling anybody that it was there.

Were you aware of this at the time?
No. I haven’t been aware of this until now.

You didn’t know what your problem was?

Dalton:

Gill:

Dalton:

Gill:
Dalton:
Gill:

Dalton:

Gills

Dalton:

No. *** I had saw a doctor but never knew the reports
that come about from seeing a doctor -- no one ever
told me until now of this problen.

Let me just continue on then -- what you think about.
Do you think about God all the time?

Well He plays the biggest part of my life because He’s
brought me a long way and He’s given me more faith and
understanding, you know, to understand people more and
what has grow is (doomed) to grow and His faith as well
and with that I am able to understand you know things

that I didn’t understand back then that I can

understand now. Things might upset me back then, don’t

upset me now, but yet, I can understand and deal with
it in a more human way.

Were you a Christian when you arrived?

I’m sorry . .

Were you a Christian when you arrived here?

No, I went to church, but I wouldn’t say I was a full
Christian then. I tried to get baptized years ago, a,
but unfortunately my aunt wouldn’t let me.

This is the aunt you abused you?

Right. Well, I still went to church and all and I
believed in God *** but right now I believe stronger in

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Him and more or less in His faith and He’s a given me a
more better outsight on life itself.

What about on death, did He help you to prepare for
what may be happening to you?

Well, we all have to die, and I, I have always thought
about death before even I come to prison, but then I
knew we all have to die, and I don’t, I don’t fear
death, you know, ’cause I know one thing that if I do
die, my troubles are over, my pain is over, you know,
but personally what I worry about most is my family and

people that love me and what they have went through
because of me and I

Your death will upset them?
Huh? [Noise]
Your death will distress your family?

My family and a whole lot of people who have stood by
me, you know and who believes in me and not just took
one side of the story, but looked at the issues and the
person and I don’t fear death, ’cause I like I’ve said,
you know, I’1ll go to a better place than here, you
know, my journey is not over with yet.

keke Apart from your family, are you saying that you
would rather die than spend the rest of your life here?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

No, because if I live, I will live with the mistakes
I’ve made and that’s really what it’s all about -- I

think prison was actually about living with your

mistakes and that being in pain with your mistake and
that way could you learn ***

So [you’re saying you’ve learned? ]

You learn and-you educate, because if you stay here

[noise] *** your family, but you educate other people
that’s come along -- just like we make mistakes since
you were younger and you can teach them, you know, I’m
not saying that everyone is -- will change, but you can
make a difference and you can give a thought to what’s
being taught.

In what way did you change? -- -You were baptized?
December 10th ’83.
Sorry, what was that?

December the 10th ’83

‘83 -- What other changes would you say have come over
you in your time here? |

Well, I’ve learned to be patient, you know, far as
listening, you know, and being aware of what’s going on
around me. Taking notice in other people’s problems
and not just my own, you know.

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Other inmates?

Other inmates, family, whoever, it could be a stranger,
because we all have problems in life and we can’t just
think of just yourself in life, there’s other people
around you and other people with problems. You’re not
the only one who has problems in life so you have to

try to *** might be a small hand but at least try give
a effort anyway.

***x The Cleveland family has problems, of course. Have

you ever sent any kind of message to them?

No, I didn’t do it -- the simple fact that I didn’t
know if I was doing more -- bringing more pain than I
would be doing good and I feel that it wouldn’t be
appropriate for me to do it *** cause I feel it would
just bring more pain -- bring back memories of what
actually happened, you know. But like I say, I have
sympathized concerning different thoughts.

What about, what if I say what message would you, would
you send to Mrs. Cleveland and the son?

That would be the same as I spoke to the pardon boards
on, please do not hate me for the rest of their life,
you know, ‘cause that hatred would soon destroy then,
‘cause if it stays in them, sooner or later it will
come out and the way it come out might not be a way in
which themself even like. That’s about keeping things
inside you -- holding things inside you, but eventually

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

it will come out and no one knows who’s on who or what
about.

Well, as you know, they, they want to see you executed
and they say that their problems won’t go away until
you are. What do you say about that?

Well, I don’t believe that. ‘Cause I mean the problem
still lies in their heart, because even though I’m dead
their problems and their memories still won’t go away
even though I’m dead. When you look at the kids, I’m
still dead, their husband’s still dead. I can’t
believe Mrs. Cleveland actually means this from her
heart, ‘cause I don’t believe she’s that kind of lady.

Get back to daily life here. How, how often do you
have visitors? Who comes to see you?

Well, my mother, my son and my sister and them tries to
come up here as often as possible, when they can get a
ride. They try to come twice a month if they can, you
know. And my girlfriend, Jennifer, comes. They all
try to come when they’re able to come as much as
possible, which we writes one another.

Are you on good terms with your mother?
Yes.

Do you blame your mother for any of your problems?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

No. That’s a -- I couldn’t do that because I didn’t
know it was more or less not understanding. And that’s
why I say in my time well being here, I have learned to
understand and patient has been more understanding to
me -- where as God and with that I talk a lot and I got
a basic understanding of it all and you can’t change
what happened so why dwell on it. ‘Cause if I hate
Someone, how can I ask for forgiveness for something
I’ve done?

What about ***

I speaks with them too, and *** as well

kak

kkk

What about your son, you are very close to your son,
you are very fond of your son -- do you, do you spend
much time thinking about the problems he has as Dalton
Prejean, Jr.

I give that great thought, but I believe him growing up
and him taking life as I do one day at a time and just
live for today, you know. I’ve told hin, you know,
there will be problems in life, you know, some that we
don’t agree with, but some we have to live with and if
you can well, just adjust and be yourself, you know,
and don’t let nobody change you, use your own mind -- I
feel you will be a better person yourself. Where is if
something is wrong and you need to talk to me about it,
Fg

please do. Don’t feel afraid to come to me to talk to
me about anything, because I am here. And he’s come
along well, you know, so far his problems as being
Dalton Prejean, I don’t actually believe he has a
problem with his name because I’ve said he should be
proud of his name. I don’t believe ***

Gill: I’m not saying that, but children can be cruel to each
other.
Dalton: Yes, well he has little ways to ***, I guess he has

dealt with it. We talk about it *** but I believe he
has adjust to that and don’t let it bother him like he
did when he was a little bit younger.

Gill: What will happen if you die? How will he handle that?
Dalton: I can’t give you an answer to that ’cause I don’t know.
Gill: When he was born you were already in here.

Dalton: No, I was in the parish

Gill: You were in the parish when he was born? You were in

custody when he was conceived? Did you ever think that
maybe the best thing for him would be just for his
mother to say your daddy’s dead and not tell him where
you were?

Dalton: No, because that would be the same as -- that would be
telling him a lie and that’s something that I don’t
never want to tell him. Why should she tell him

Gill:

Dalton:

Gill:

Dalton:

something like that because I am alive, you know,
‘cause no one, like I said, no one knows the future.

Now, a lot of folks didn’t figure we could get this far
in life.

Right.

But, I am here. So, we never know what tomorrow holds
so we live just for today.

Okay, you say that spending the rest of the time in
prison would require you to live with the consequences
of what you did, but what const<uctive things can you
see about spending life -- what makes you prefer life
here over the death that you dc not fear?

Because in time, I’m hoping anc yDraying that the system
can put people such as myself 1 ‘th *** younger people
before they reach this stage i: life with problems such
as mines, because kids are sensitive and they wants to
be heard, you know, a lot of parents are here and don’t
hear and don’t give them assurance that they are loved
until something happens. But I believe the parents
should tell their kids they’re loved before something
happens, tell them that they’re loved and be able to
talk to them, where as ***,. You know, most parents --
well -- kid do something or one that’s older tell the
parents the kids done something instead of *** the care
out, they will always take the *** boy over the kid,
and I don’t agree with that because I believe a kid has
the right to speak out and be heard you know *** as an
adult.

- Gills:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Well you seem to be saying that your own childhood
didn’t have ***

No it didn’t.

Can you tell me, tell me what you remember about
growing up from the earliest time you can recall.

**k many years ago, I lived with my Auntie at the time
and it was always a up and down struggle. It’s ***
now, but at the time I didn’t know that she was my
Auntie, I always thought she was my mother. I wasn’t
aware of my real mother or father at the time. So

that’s why I had to live with them, you know. Mostly
my Auntie was ***, though my Auntie. I don’t know if
she was trying to bring me up as my grandmother or
father brung them up or what but, it was always chaos
when she come from work or something it was always,
always a bad time for me because she always take her

frustration out on me.

You’re talking about beating you up?

Yea.

How often?

Very often, any problems she had it was always took out
on me, you know. I don’t know it was a time I wondered

if she took it out ’cause I was around my uncle he
brung her up one time, always took it out on me, but it

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gills:

Dalton:

Gill:

wouldn’t have done any good ’cause everyone around the
house knew I didn’t do what was happening and saw what
happened, couldn’t get any help.

Nobody did anything, nobody tried to help you?

No. Only person I actually talked with, you know, was
a close friend I have in ***, you know. But, I just
have to live with it you know, and after I did find out
about my grandmother and them, you know, I would turn
and I could tell a lot of times when I did come down

xxx IT could see a change and mood in her, you know, but
eventually I stayed.

*xkke Your aunt was, she drank or
She was an alcoholic -- still is.
Do you ever see her these days?

I haven’t saw her since ’83.

Okay, so how did you find out who your mother was.

With my real mother, I found out when I come down for a
summer and I was at my uncle house and my mother came
by there with my two sisters and my grandmother. She
told me who she was but it still didn’t sink in until
my uncle and them told me, but still it was just -- it
just didn’t kick in. They talked about it.

How old were you at this time?

Dalton:

Gill:

Dalton:

Gill:
Dalton:
Gill:

Dalton:

Gill:
Dalton:

Gill:

I’d say about 11 or 12. Might have been maybe younger
than that about 10 -- 11 or 12.

So it didn’t sink in. Did you go back to Houston then?

No, I was definitely sent to stay with my uncle, but my
mother came and got me. And he had told me who she
was, you know. So, she took me to her house and I
stayed the rest of the summer with her and my
grandmother and them.

And then went back to Houston?
I went back when school started again.

And how was your Aunt *** then?
She was like the same pérson she had always been, you
know. See I was, actually I was really caught on
between love and despising her at one time because of
what she’d done and not understanding it. That’s what
made me more or less angry because I didn’t understand
why it was all happening, but yet I was still caught up
as a a

Why all this abuse was happening, you mean?
Yea,

And you loved your aunt nevertheless?

Dalton:

Gill:

Dalton:

Gills:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Zwicker:

Gill:

Yea, because when she wasn’t drinking, she can be kind

but you never know spur of the moment how she’1ll turn.

But she was drinking most of the time?

Yea, definitely

What about the other kids in town.
friends there or what?

Did you have good

At school, I had a few at school. It was mostly around

the neighborhood that I had my friends: -- that was
mostly (Lori) and Glenn,

(Lori’s) bro":her and (Billy).
How did you do at school?
So, so

(laughter)

Were the other kids *** The other kis in Houston were
kind of mean to you is that true?

Yea, that was because of my ears.

Your ears?

Yea

You’ve got ears some under there somewhere.

A roach.

Oh, a roach,

Zwicker: Do you want roaches from New York. Our roaches eat
your roaches.

Gill: So how much longer did you stay with your Aunt, what
was her name? T you said?

Dalton: Mary.
Gill: Yea, oh Mary.

Dalton: I went back and forth actually, ’cause I came back here
then I went back to Texas that summer and that’s when I
**x*x I find out about my mother and them and actually
liked being around my brother really, your know, it was
good to know that I did have brothers and sisters and I
actually didn’t want to stay after I find out that I
did have brothers and sisters and a mother somewhere

else, you know.

Gill: But how did it affect you to find out that you’d been
under a misapp-- being someone else’s mother all this
time -- did you feel you’d been rejected or deceived?

Dalton: I just couldn’t understand it really. I just couldn’t

put it all together the reason why. Actually I didn’t
get that fully understanding of this since I been up
here that me and my mother actually have sat down and
had a talk concerning this. I just at times I did want

to talk about it when I was still out there but I never
brung it up. |

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Giii‘

kkk

Well, me and my *** friends ***, we used to speak about
a lot of things, you know, but this had never came up.
I felt this was something I would have to deal with on
my own and I guess in my own time and it did come about
Since I come up here that I was able to talk about it
and got a clear understanding of it and believed in
what she had told me, you know. She did go through a
hard time after she had kids, which I found out that I
wasn’t the only one she had give for someone to keep
until she got well. She had came back from *** in
plenty of time -- she said, you know, that *** bad for
my Auntie to keep me and she let her. She knew my
Auntie drunk, but she wasn’t aware how much she drank
and how she turned once she started drinking that much.

Is Aunt Mary your mother’s sister?
No it’s my daddy’s sister.

Your daddy’s sister. You became very close to your
brother

Yes.

When you were growing up did you know you had a
brother?

No.

So you were living there as Aunt Mary’s only child?

Dalton:

Gill:

Dalton:

Giil:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Right.

Okay, so when did you leave there and when did you quit
school?

I left *** ’72 -- ‘72 -=- because I had skipped myself
in the 5th to 7th and my friends went to the high

You excused yourself, you say?

Yea. And I went to the 7th grade and I stayed there a
few days actually because someone called Aunt Mary and.
told her that they saw me at the high school and she
called me at home and inquired about that and I just-
told her yea

I’m sorry, at the hospital?

Uh uh, At home, she called me at home and I just told
her yea, you know that I had been to the high school so
that afternoon she got off a work, you know and she
just took me back to Lafayette that night. She used to
always threaten me with that--taking me back to
Lafayette--but I never -- I ain’t paid it no mind
really, you know. So when she took me back I stayed.

That wasn’t a bad thing then, huh?

No, but she didn’t know that at the time.

So, you went back to your mother’s then?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:
Dalton:
Gills:

Dalton:

Gills:

Right.

But you had already discovered that she really was your

mother, before that?

Right.

So what age are you now, when you went back, you went

back to Lafayette to live you were how old?

13. About 13 about 12 -- 13 at the most.

And what about school? Did you go to schoc
Lafayette?

No, I went to school a few days there, I c-
‘cause of fighting ’cause me and the princ:

not get along -- see eye to eye and *** I
reform school for ***

Well, who were you fighting?

Another dude that went to school there.

And you had to go to reform school for thai:?

ut out
. could
to

Yea, because I didn’t go back because the principal was

putting more things that happened that dicn’t happen

Okay.

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

And I saw it so I just told my mother I wasn’t going.

So we tried to switch schools but they wouldn’t do it -
- I just didn’t go.

What school was that?

Lafayette Elementary.

Mr. Gray, that was the principal name, Mr. Gray.

Mr. Gray? Okay. So how long were you in reform
school?

I think it was six or seven months.

And then when you got out, you got in trouble again
pretty soon?

No, I got out the first time, came back, Aunt Mary came
and got me again.

After your abuse?

Yes, she came back and got me again, but I didn’t stay
because I had to be returned because I was still on
parole and I came back to Lafayette and I didn’t

graduate reform school until ’74. ***

Wasn’t ’74 when you shot the cab driver.

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

’74 right.

And how long were you out of reform school when that
happened.

I had got more than 2 or 3 years.

So what had you been doing, were you working, going to
school or what?

Well, I tried, tried to find work. I was working
different odd jobs, but nothing significant.

You were only 14 when that happened, right?

I think I was 13 -- 13-14

When you shot the cab driver?

Yea.

Tell me how, tell me about that, how did that happen,
or why did that happen?

‘Cause more or less, kids getting out -- trying to make
a hustle and don’t know what they’re doing actually --
and doing something for the first time like that and
panic, I more or less panicked.

What made you panic? You were trying to rob the cab
driver, right?

Dalton:
Gill:

Dalton:

Gill:

Robinson:

Gill:

Dalton:

Robinson:

Dalton:

Gill}

Dalton:

Gii13

Dalton:

Right

And he wouldn’t cooperate?

It wasn’t so much that he wouldn’t cooperate, just
saying kids being scared .

Sorry, sorry, sorry -- is that okay?

kkk

Is that okay?

Yea

It’s always a pleasure when I ***. That’s all I get on
the phone. And I don’t get mail so ***

**x* Andrea.
So let’s get to that *** The question was why, why did
you do it *** two kids you and some other kid trying to

hustle some cab driver and, and for some reason you

panic.

I was already scared, scared from jump street and
feeling that he was going for a gun...

So you all were inside the cab at the time?

No, we both had got out from each side (actually)

Gill:

Dalton:

Gill:

Dalton:

Gills

Dalton:

Gill:

Dalton:

Gill:

So, you hired a cab, and rode somewhere and got out and
then stuck him up?

Yes.

And he told you, I’ve got a gun?

From under the seat.

And how did that make you feel?

You know, it’s a scary feeling, ‘cause *** still --
what I had said -- kids doing something they don’t kn
nothing about. I still leave the scene at the time
because I was a (kid) and the same person *** I migh~
have done something doesn’t mean I don’t hold no
concern behind my actions and I was there, matter o-
fact I’m the one *** matter of fact, and... That
night it was a strange feeling ’cause you do someth .
and sit back and think and realize what you have don
you do things out of reaction, come back to sit down
and realize what you have done, you understand and yu
don’t understand what you done. What have it all
accomplished.

Did you get any money?

No.

So what did you do after you shot him, like what d:d
you do *** Did you run?

Dalton:
Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

We ran, but I came back

To see how he was -- to check on him?

Yea, ‘cause I ran -- I don’t know if I ran around the
corner, but I came back, you know -- I didn’t go in the
lot where he was at. I looked from a distance, you
know, and I just stood there, you know I *** go into
another, another feeling

Did you think to call an ambulance or anything?

Well, the lady on the street had called the police and
*** ambulance car, ‘cause I was still there when they
came, you know. ‘Cause I don’t know it’s just hard to
actually describe the feeling that, you know, knowing
that you’re the one that caused it. Something you have
to deal with

Were you surprised that you had done it?
Surprised, more or less at my, my own self -- shocked

actually, ‘cause something I don’t know why *** done

before and gotten in deeper trouble, you know, that was
kkk

Well had you, before that, had you thought yourself
capable of (killing)?

No. Never have.

Never wanted to?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Didn’t want to.

So this was something, this was a reaction to his
reaching, as you thought, for a gun?

kkk

**x* take him to the hospital?

They took him -- the ambulance -- just laid in the seat

of the car for a while. After that I just walked off,

you know?

And you went home?

No. I didn’t go home that night.
auntie house that night.

I stayed over my

In Lafayette?

Yes.

Were you scared?

Yes, very. Just kids got one way of doing and they
realize what you got yourself caught up in -- it’s like
being alone all awhile all over again and you really

don’t have but one alternative.

What did you think you were going to do?

Dalton: Think about it, you know. Just tried to sit down and

put thoughts together, you know, but still come up with
the same thing. You made a big mistake.

Gill: What about, what do you remember about the cab driver,
did you know what his name was?

Dalton: I know it was Albert E. -- I can’t remember. .
Gill: kkk

Dalton: I’m not sure.

Gill: Was he married? Did he have kids?

Dalton: I’m not aware, but I know he was from Church Point I

believe, Church Point, Louisiana.

Gill: You don’t know anything about him?

Dalton: No.

Gili: Then you -- You were arrested pretty soon after?
Dalton: Arrested next day.
Gill: How come they found you?

Dalton: Oh, they didn’t find me, I found them.

Gill: You went, you turned yourself in?

Dalton: Yes.

Gill: And you pleaded guilty in court?

Dalton: Mmm hmm.

Gill: To what, manslaughter ***

Dalton: Actually, I don’t, I don’t -- like I say, I was a kid,
I didn’t know anything about the law and... ***

Gill: SO, anyway they certainly jailed you up, right?

Dalton: Right.

Gill: At that time in your life did you have any *** to think

you had a particular problem *** result in your
childhood ***?

Dalton: No.

Gill: Did you think you were dangerous to the community?

Dalton: No, not as much a danger to society or anything like
that because I was just this kid, you know, and all I
felt was reaction to --him going-- thinking he was
going for a gun, but you have to look at it -- you
don’t think of yourself having a problem, see that’s
the biggest thing you have to do is realizing and
facing up that you do have a problem .

Gill: But did you think you had one?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

And kids -- No. See, but you see doctors, at LTI you
see doctors. They give -- they had me on medication,
but you don’t know what the medication’s for.

Right.

See, you know something’s wrong, but *** is knowing
what is wrong, see? ‘’Cause I had to get myself took
off medication while I was at LTI because it kept me
drained and I, I couldn’t move around -- like I was
always sleepy.

Do you know what medication that was?
I found out later that it was thorazine and another

kind of, another kind of medication -- liquid
medication.

But the, the affect was to make you drowsy and ***
It kept me sleepy all the time.

Did you, at this time, spend much time thinking about
the cab driver?

I thought about it, you Know, (every) time we went back
to the place. When I got out I went back, you know, it
seemed like it just was unreal it was like it all
happened again, you know, just looking at it. ‘Cause
as a matter of fact we lived right around the corner,

Gill:

Dalton:

Gill:

Dalton:

Gill:
Dalton:
Gill:
Dalton:
Gill:
Dalton:

Gill:

Dalton:

when I come back I realized we lived right around the
corner from that ***

(Where) ?
St. Charles Street *** I had to pass the street every
day, so it’s hard not to think about it, plus you

always think about it -- a human life, you know, even
if you young or not.

So it was on your conscience?

Yea, because you never know, I didn’t know the man and
I believe anyone should have to die like that, you

know. It was hurting more to realize that he wasn’t

going for a gun and that made *** more worser.
He didn’t have a gun in his cab?

No. To realize he didn’t have a gun.

What did he reach under the seat or something?

Mmm hmm.

Yea *
So, how long were you in LTI for that?

Two years and a half.

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

So, what did you do when you got out?

I went and stayed in Houston for a while, I *** for a
while, you know. And things started taking a downfall
‘cause first, actually first my brother and my Auntie
had an (argument) *** I watched my brother *** my daddy
and -- I guess -- as I explained earlier my Auntie when
she get to drinking and you in her home, you know, she
wants to put everybody out and it’s all crazy
everybody, which I wasn’t there, I was at my girlfriend
house at the time and she called me over there and tell
me not to come home and I don’t even know the reason
why. So I did come home realizing what had happened.

Your brother was there?
No, my brother had gone when they got in the fight.

So he was. .

He had left. She told me her side of the story and I
left and went to a friend of mines and called my
brother, you know and talked to hin.

Where was he?

Oh, he was staying with his father inlaw...

In Houston?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

In Houston. And he was telling me about it, you know
**x* she had stabbed him, you know and she tried to stab
my sister in law, which she was pregnant at the time.

So, you didn’t stay with Aunt Mary very long then, this
time?

No, I didn’t stay that long.
So, you came back to Lafayette?

Yes, came back to Lafayette, but I didn’t leave right
then at that particular time, I talked to my brother
and I say about a week or two weeks later I come home
from work and my uncle it just so happened hadn’t come
home for about three days ‘cause actually somebody had
pick pocketed him and the reason why he never came home
-- but he had promised to buy me a car, which when I
walked in I saw it sitting in the driveway, you know,
but I didn’t know he was in there at the time and I
went in the house and I took my bath and I asked her
did I have any phone calls so she told me I had and she
said something about April had told her something smart
or whatever and I just said well you must have told her
something for her to tell you something smart. We had
changed words and left it like that. So I asked her
where daddy was and she didn’t say anything so I went
out to the car and daddy was in the car, you know. And
I told him, you Know to come in the house he could
sleep in my room, you know and *** between her and hin.
So he had came in the house after a while -- came in my
room and I assume she realized that he was in the

Gillis

Dalton:

house, you know, ‘cause in the room messing around with
him, you know. I was actually, she didn’t leave him
alone, but he wasn’t doing nothing, you know just
trying to get somewhere for work as well as myself
‘cause I had to get up at 5 every morning, you know, to
go to work, and she got mad went into the kitchen and
got a butcher knife and *** the house. And knowing she

had done this, you know I give my clothes -- I don’t --
seem like from that moment on *** all the rage *** the
years that she had mistreated me -- seem like it all

came up then. And *** she come after me with the knife
outside when I left and went outside. I picked up a
jack, jack hammer and I hit her with it and before ny
uncle had stopped us from fighting, my friend Glenn ***
and I left and I stayed there, you know, and she put
all my clothes outside, you know. (My friend would
have to go) So I *** go back there anymore. I went to
work the next day. I went and stayed with my daddy for
a while maybe a week or two weeks before I left, ‘cause
I was waiting for my next check so I could come back to
Lafayette, you know. I never, never did see her

anymore until ’78 or ’79 -- ’78 when she came to court,
you know.

She came to court in ’78?

Yea, she came with my father, my daddy, but she was
more like this she do something and come back to you
just like it just like it never happened. See you
gotta realize *** brother and sister *** used fight in
the house -- I mean this was every Friday and Saturday
night they was fighting in the house.

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Now, this is when you were at your mother’s house in
Lafayette?

No, this is my Auntie house when I was living there.
Okay.
They both, they all drank, you know. Get full of it

and wind up fighting one another. This was every

weekend. She, matter of fact, she *** her twin brother
one time.

So, you never lived there again, right?

No.

So you, what’d you do, quit your job and left town?
Yea.

And came back...

to Lafayette.

To Lafayette. What’d you do then?

Well, first I got a job helping a dude who was fixing
concrete like patios. That was an odd job and then I

finally got a job off shore. ***

Make some money, huh?

Dalton:

Gill:
Dalton:
Gill:
Dalton:
Gill:

Dalton:

Gill:
Dalton:

Gill:

Dalton:

Gill:

eke 8But that didn’t last either because *** to get a

job and not realizing what age I had told the man, you
had to be 18 or older. I wasn’t but 17.

But you told him you were 18, huh?

No, I told him I was 25.

Okay!

They found out eventually when I came back in...
They found out through your brother?

Yea, ‘cause he asked me when I came in how old was I,

you know, ***, I told him my real age, you know, so he
told me he couldn’t keep me because of that age, you
know, but he said once I’m 18 he will rehire me again,
you know.

But you never made it?
No.

So was there anybody, well how long was this before
Trooper Cleveland?

Oh, it was a couple months, about two months before
because I came to Baton Rouge looking for work too.

Did you find any?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

No, I hadn’t found any yet, I was trying -- I had put
the applications in Baton Rouge, matter of fact a
counselor of mines in LTI *** cause he was like a big
brother to me when I was at LTI, I stayed with him and
his family and he helped me try to find a job, matter
of fact, he’s the one who *** trying to help me find a
job, you know -- down in Baton Rouge.

Well, were you still living with this counselor looking
for work when the Trooper Cleveland .

I had just come back from Baton Rouge -- matter of fact
-- one or two days before, matter of fact I came back,
no I came back that Monday and that happened Friday.

Why don’t you tell us a little more about the day. You
were with Joe, right?

Yea.

How did it start off, you went out on the town?

No, I was, me and my brother, we just, I went to his
house that night, see I used to go there most of the
time cause if you didn’t see one with the other, I
wasn’t too far behind -- he wasn’t too far behind. And
that time of the morning I’m real sure we was a home

with his wife. So, I had went over there, you know.

Were you married at this time?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

No. I wasn’t married yet. And, I went to his house
and we, like always, clowning *** we always do. We
left and started drinking, you know,

At his house?

Yea. We left and just riding around town. Gone back
his house, between my mother house and his mother in
law house, you know. Just riding around cause in the
summer time going down to the park.

Going around drinking or something?

Yea.

You had a gun?

I didn’t have a gun on me, no. I didn’t have a gun on
me, no.

Did Joe?

No. I didn’t have a gun on ***,. And that, like I say
*** clown around this and that. But we came down like
night fall and we came, he had dropped me off early at
my mother’s house so and he came back and got me. ***
tell me about something and we had left again and
everybody was at his mother in law’s house that day
‘cause they had a card game going on there and that’s
where everybody was at so we left to go over there. We
stayed there for a little while and just drinking and
just clowning with the family and we had left and went

-- I left, I left I had to go see Diane about

something.
Gill: Diane’s your girlfriend, or ?
Dalton: Yes. And we talked and *** come back, come back and we

was standing by the car to drinking, you know that’s
when Mike and George came along, my cousin, you know,
and like I say it was Friday night just having a good
time. Then we left and went down the block at the
Harlem Club.

Gill: What club?

Dalton: Harlem

Gill: Harlem?

Dalton: It’s on Washington.

Gill: kee

Dalton: And we went in there, sitting around there *** Joe

mentioned to me about something, about some girl or
something. We was at the club drinking because Mike
knew, the I think the lady or the dude who was behind
the counter, you know. We didn’t have to pay for our
drinks. We was just sitting there. We stayed ‘til --
for a good little while.

Gill: What were, what were you drinking, beer or ?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Beer, I had drunk -- I think I had some vodka somewhere
in there too, but it was mostly beer and ***

How many?

(shrugged shoulders]

A lot?
Yea, I can’t give you an estimate on that there. Plus
we had mixed it, you know -- ‘’cause lot of times we

mixed in a cup.

You were drinking ***
Mmm hmm. We mixed...

What drugs did you have?

Huh?

Did you have drugs too?

Yea, that was, that’s was when we got to ***, you know,
we had smoked some weed -- like I say I don’t too much
like weed but I like angel dust

Okay.

And there was some angel dust there, mostly we had done
it, but it was mostly done at *** night club.

Gill:

Dalton:

Gill:

Dalton:

Gills

Dalton:
Gill:

Dalton:

So, what ***

Yea, we come back, we come back we stand outside of the

Harlem club and it just so happens Michael Brousard was
standing outside and I knew...

kkk

Yea. I know him through his brother, you know, ***.,
He wanted to go to the Roger’s and we could catch a
cab. So I asked Joe would he take me, which I knew he
would, you know ***, I was very fond of his mama. His
brother *** used to always look out for me, you know
**k*k, you know. So, Joe agreed to take me to the
Roger’s night club. So we left and came back to Joe
mother in law house. And we picked Chicken (Joe’s
wife) up -- we picked my sister up and we all rode,
went to Chicken house. And first we dropped Chicken
off and we left and went to my mother’s house for some
reason I went to my mother’s house and didn’t realize
where it was at the time when I was actually into ny
mother’s house, but...

And who’s all there, it was you, and Joe, and Michael

Brousard .. .
Michael George

*#xk so there were five of you?

It was Michael George, me, my brother, Mike Brousard,
my brother’s wife and my sister.

Gill:

Robinson:

Gills

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Okay.

If you’re wondering why he keeps referring to Chicken,
that’s what they call ***

kkk

We left and went to my brother’s place and we dropped
Chicken off and we dropped my sister off. Then we left
and went to ***, First we went to *** house and we
came back around to get some gas. Place that had gas
they sold liquor in there as well -- that’s when we
bought some White Bull out of there

Some what?

White Bull -- wine.

Oh, White Bull wine, okay.
And, just drank that ***

And what time is it now?

| Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Might be after midnight. It was after midnight I’d

say. Then we went to Roger’s night club and we stayed
there oh, till about 4 or 5 o’clock.

When you were there, did you or your brother say
anything about planning to go shoot a cop that night.

No. We just actually going in there to have a good
time, you know. Wasn’t about hurting nobody...

It had been suggested that there was *** in the car and
though you said ***. So you left there about 4 or 5
o’clock.

4 or 5 o’clock.
And you got on the road, who was driving?
I was driving.

kkk

Pulled along the road and I assume we were 100 feet
from the club and the cop *** us, you know had me pull
over, hollered for us to get out of the car, which me
and Joe had to switch places because I didn’t have a
driver’s license...

So, Joe switched with you?

Yes. I was driving cause Joe was...

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Drunker than you?

Yes. Actually, I had threw up already, he hadn’t threw
his up yet. So, I slid under. So, anyway, we switched
places. The police still hollered at us to get out for
Joe to get out of the car I was still in the car. And
him and Joe started arguing, you know, and *** same
time he was telling me to get out of the car, but I
still hadn’t get out of the car yet.

Why not?

Because I still don’t know the reason he would actually
want me to get out of the car ‘cause I feel that all he
had to do was a ticket and let us go or whatever, we
drinking, you know, he would just took us to his jail
**xkx license though. I couldn’t see no actual reason
for me to get out the car. So he kept on hollering for
me, you know, but at the same, same token *** he had
Joe pushed down on the hood of the car. Joe was trying
to raise his head up, you know, before I actually
realized that I was I *** and the Trooper looked up at

me and I shot hin.

What did you shoot him with?

38.

xx*x Where did you pick up the gun?

From *** at another girlfriend house of mine.

41
Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Robinson:

Gill:

Robinson:

Gill:

Dalton:

Do you pick up the gun on the course of this long day?

Time -- Picked it up when we came to this club here,
because this particular club is the only club that’s

open when all the rest of the clubs is closed down and
***x that I did have and all the kinds of things that
goes down at the club and that’s the reason why I did
get a pistol.

*#x* protection?

Right.

You weren’t supposed to have a gun, right? Were you
out on, were you released on -- When you were released
from LTI were you on parole or what?

No. I was discharged.

But you were still, you weren’t legally *** to carry a
gun, right? Were you, were you a convicted felon?

No, ***
As a juvenile or something?
*kk clean release.

Okay. So this little game, this was a quick reaction,
you shot him ***?

Yes.

Gill:

Dalton:
Gill:
Dalton:
Gill:
Dalton:
Robinson:
Dalton:
Robinson:
Dalton:
Zwicker:
Robinson:
Dalton:
Robinson:

Dalton:

And he had your brother’s head down and you got out the
car and he looked at you

Yes.
And you shot him (in the face)?
Yes.

And how, what did you, how did you feel when ***?

Honestly, you know, it

How you doing? How you doing?

Alright.

You want a drink or something.

kkk

Here, we’ll split it.

Do you need to go to the bathroom or anything?
No, I’m alright.

Almond Joy break?

No, I gotta eat my Almond Joys slow.

Gill:

Dalton:

Robinson:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Hmm?

Gotta eat my Almond Joy slow.

Eat your Almond Joys slow.

Do you want to rest or carry on?

Carry on.

kkk

[Break ?]

Trooper had your brother on the car. You got out of
the car and he looked at you and you shot him twice --
now what, this is something you did with a quick
reaction. How did you, did you realize straight away
what you had done or were you too drunk?

Being, actually, I just stood there because I still
today *** see my brother wining and hollering ***
noticed he had passed me at the same time, you know,
cause everything happened all at once and ’cause
Michael Brous-, Michael George had drove off.

Were they witnesses?

Michael George?

Did they see ***?

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

I assume, I don’t even know. I really don’t know.
They was in the car though.

Did you know *** Did he know you killed a cop of the
state?

I think he heard the shots. I don’t think he knew if
he was dead or not, but he heard .

What about you, did you know what you had done?

I *** had the gun in my hand, you know. *** I don’t
know, my brother was telling me something, you know. I
still don’t remember actually what he said, you know,
to this day, but *** everything, everything I say
happened at once. It all didn’t fully register to me
until moments before we were arrested.

How long before you were arrested?

A couple hours later.

So you took off?

Right.

And how did they catch you -- where did they catch you?

We was at my brother’s house.

How did they find you.

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

I don’t know. They went to my mother house first. I
think they went to Chicken mother house too. I don’t
know how they actually found the address.

So here we’re talking somewhere around 6 or 7 in the
morning. They took you to jail and put you away?

Yea.

Okay, well tell me about the criminal justice system in
Lafayette. How do you feel you were -- you got your --
an attorney was appointed for you, right?

Yes.

That was Mr. Gilbeau?

Yep.

Do you think you got a fair deal?
No.

Tell me why, tell me what -- any particular complaints
you have about the way the trial was handled here, the
whole, the whole system --

Like I say, I don’t so much blame Gilbeau in a sense,
you know it was his first trial plus I’m unaware of how
the system worked at that time so it be hard for me to
know just what’s going on really cause at the time I
would feel that he had done everything possible that

Gill:

Dalton:

Gill:

Dalton:

Robinson:

Gill:

Dalton:

could be done but now when I look back at it I have to
wonder, you know after having lawyers that I have now
who put in every effort, you know.

Do you remember the process of selecting a jury?

Right.

And how did that go?

I don’t know ‘cause we had so many people that come in
that day and seem like everybody either had got robbed
or something had happened on that jury when they came
there that day and I listened at so many juries, you

know and I was actually found guilty, you know before I
went on trial.

James, can I just, I don’t know if you’re aware of
something

(Break ?]

**k were all white. Can you recall black candidates
being questioned?

Ms. Taylor in particular, Ms. Taylor. *** It was a lot
of blacks that come through there but it mostly whites
that was actually put in *** of the jury, but I had ***
that it was because I had been in Monroe before and it
was the same Monroe that I always remember, you know.

Gill:

Dalton:

Gill:

Dalton:

Gill:
Dalton:
Gill:
Dalton:
Zwicker:
Gill:

Zwicker:

Well at the time, did you or Mr. Gilbeau say to each
other that black people were being excluded from the
jury because they were black, was that an issue at the

time or ***, Mr. Gilbeau did he say to you that blacks
were being excluded.

He tried to get it stopped in the middle of it but the
judge wouldn’t allow him to get the evidence of proving
it -- a motion that he filed at the time.

So objections to that were overruled and the trial
proceeded with an all white jury and ***, How long did

it take the to find you guilty. Were the facts ***

The whole process took to be tried and convicted and to
be sentenced took a three days.

That includes the sentence?

Yes.

I’m sorry but how did you plead?
I pleaded not guilty.

He had to.

kkk

There’s also a Louisiana statute which prevents murder-
one people from pleading guilty. He had to plead not
guilty

Robinson:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

What you ought to know is that *** challenged this ***
he didn’t testify

*kx*x T didn’t take the stand.

Okay, what about, so now, after you had been found
guilty there is a second trial where they decide what -
- the sentence you’re going to get, right?

Right.
Now this time you didn’t, you weren’t aware of what was
in the LTI files, right? You didn’t know of any

problems you might -- anything that might force you

No, I wasn’t aware of this until I *** the claims being
brung up -- I had a chance to look at the files myself

Your attorney didn’t seek his appeal on these files?
No. It wasn’t any of that. I never.
It was in the files at LTI?

Yea, I never have saw nothing that told me was ever
filed. Only time I had ever got anything from a file
was the attorneys I have now. Anything they told me
was filed I have never saw.

What is the *** prosecute *** long time?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

(Break ?]

I assume it was an hour or two hours something I
believe if I’m not mistaken.

What was your reaction when they came back with the
death penalty? Were you surprised or scared or both?

Pretty of both you know, ‘’cause you never think of
yourself getting sentenced to something like that. I

couldn’t figure out just how this come about, you know.

Were you still 17 at this time, by the time you were
sentenced or had you turned 18?

I was 18 then.

But, you were 17 at the time of the offense?

Yes.

Then they put you in the parish jail here, initially?

Yea, I stayed in Monroe jail for about a month then I
was transferred back to Lafayette parish.

When did you get married in all of this?
‘79

While you were in -- where were you then?

Dalton: Lafayette parish jail.

Gill: And that’s where young Dalton was conceived?

Dalton: Right.

Gill: kk

Dalton: kee

Gill: Alright. And you came here in 1980?
Dalton: Yea.

Gill: Was Mr. Gilbeau still your *** attorney?

Dalton: Right.
Gill: Okay. Well then, how did you settle in here? When you
first came here, how did you cope with it, what was on

your mind?

Dalton: Well, mostly things, I tried to cope with it by I used
to do a lot of writing.

Gill: Writing?
Dalton: Yea, do a lot of writing.
Gill: What sort of writing?

Dalton: More or less writing home, you know?

Gill: Letters?

Dalton: Yea.
Gill: Okay. And, then you started to go to Bible classes or
something?

Dalton: They didn’t start the Bible classes up here until, I
think either ’86 or ’85 or ’86 -=- start Bible class,
we just go once a year and we just started that a

couple years ago, ‘cause other than that, the preacher
come on the cell if you want to take communion or
something like that, but now every year they have a
seminar in September or October for three days and you
allowed to be in a room something like this, you know
but other preachers *** inmates that’s the only time
you allowed around *** inmates an individual period,
without the handcuffs on and to do as you please, far
as walking around and stuff like that.

Gill: So it’s a relief quite apart from any spiritual... .?

Dalton: Yes. You have to more or less learn it on your own and
have the will to learn it on your own and you know they
have volunteers and stuff that come around too and you
can spend time with then.

Gills What else do you do. Are there other things that the
inmates are allowed to participate in?

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

*** about anything. We get to go in the yard three
times a week that’s if the weather is alright and got
T.V. sets in about *** that sits in the hallway. You

can write or draw or something like that, make cards or
something like that.

How much do you know about the outside world. I mean
do you know what people what they’re saying about

Prejean?
Yes, I think -- I hear some talk against me, but I can
understand it and -- or mostly agree with it in a to an

extent, but I say they’s talk about me in this way like
that because they don’t know me, they know what they
have read on paper,

About Dalton?
And not actually know Dalton Prejean and

Do you think if people knew you they would be less
inclined to want to see you die?

I believe they would. Because I believe I have come a
long way from changing and understanding and I. believe
if people could see me as a person not just somebody
they read in the newspaper or something or saw on T.V.,
but see a person, you know, a person can change you
know, but you gotta have the will to change and my
biggest inspiration is my little son because with him I
have put a lot of thought into -- and see myself in him
and he have taught me a lot more than he’1ll realize

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gills

Dalton:

because I see him doing things that I used to do or

even ask the same questions almost I have asked one
time or another, and

Do you see yourself in him?
Yep.

Does that alarm you in any way? Do you feel concerned
about his future?

Very, but see, kids going to be kids. And he’s not a
bad child. I don’t consider myself as a bad child, you
know. I don’t agree with what I have done in my life,
but things that happened in my life that I don’t want
to happen to him, you know. See where the difference
come in between me and him is that I’m going to always
reassure him that he is loved and cared for and that he
can be talked to and can talk to me and don’t have to
worry about being whipped or worry about being fussed
at regardless of what itis...

The things that happened to you?

No, just

You don’t have to worry about -- You want him to have
the bond as if you didn’t have with your ***,

Right. And with that, you know, I believe I was a kid

over the years *** who *** come to his parents and talk

to them without being come down on hard, you know. I’m

Gills:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

not at all saying that I’m going to agree every time
with him, you know if he had done something, but I’m
going to talk to him and I’m not going to chastise him
every time he do something either, you know. With that
I mean, you know, I will understand him just like he
must understand me. And he understand his schooling
better -- he gotta worry about somebody putting
pressure on him ‘cause I don’t want him to do anything
that he don’t want to do or feel comfortable with.
‘Cause if someone don’t feel comfortable in doing
something, they not going to do it anyway, you see.

So, therefore I want him to feel comfortable in doing
things in his own little life in coming up. And I feel
strong and proud of him and he will be a great person
once he grow up. I’m very proud of him

When’d you last see him?

Last Friday.

So he comes up here whenever he can?

Yep, supposed to come up Saturday, I believe.

Well, what exactly do you think your problem is?

My problem?

Yea, I mean we know about your background *** and you
Say you didn’t think you were a bad kid. *** Dalton,

you killed two men which is a serious thing, I mean
what is it that made Dalton Prejean do this. What is

your problem? Are we talking about a medical problem?

How do you see the impulse that made you commit these
crimes?

Dalton: *** Both medical and back then I didn’t understand
myself and not being able to really cope with life
itself, you know. But in the time that I’ve done, I’ve
grown and with my growing I’ve learned about patience
and *** like I said God’s a help and *** deal with a
lot of the problems, you know. I believe if I was
allowed the chance, I can become -better, a better
person because with time you can become better and I
believe I can become better in life.

Gill: Yea, *** So you find *** this great big change since
you came here?

Dalton: Right.

Gill: Well, could you *** on the outside? Or would you be a
menace to society?

Dalton: I couldn’t actually give you an honest answer on that
there because I would have to live here first, you
know. I’m in a cell right now I’m around people but I
want to be around people here first and adjust to this
world first and with that if I’m able to adjust to
being around that and see my own self better myself
maybe some day I probably could but I believe at this
time it would be better for me to stay here and get the
education that I need and I think I. have to give back
something to society, you know to really live in it.

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gils?

Dalton:

Gill:

They don’t educate you on death row, right?

No.

What do you expect to happen, I mean you’ve got another
date in a couple of weeks, are you optimistic?

I *** just live for today, you know. I can’t predict
the future, you know, I don’t even try, you know.

Well, as you say, we all die, which is true, very few
of us know in advance when and how. *** How do you
prepare for a thing like that?

So far as myself, I’m at peace. I don’t fear death ***
cause I don’t believe it’s going to solve anything.
They said capital punishment forces people to be deter,
but I don’t see no kind of deterrent in crime.

Didn’t deter you did it?

No, and it didn’t deter a lot of people, see a lot of
people, they spend more time, they spend more money
trying to kill them than trying to find the problems
behind my actions. And I always wonder do I have to
take the blame by myself when they knew the problems
kkk years ago but yet they never done anything about
it. The same system that trying to kill me today.

You’re mad at the system right?

Dalton:

Gill:

Dalton:

The system work for some people. It don’t work for all
people. It depends on who you are and who your victim
are. Because I’m a always feel that if it had been me
or my brother had been killed it would have been a shut
case and we wouldn’t a heard any more about it. But
it’s not, it’s me -- I’m poor, you know, don’t have the
finance to find people when you needed them and you
caught up in it and don’t know what you doing and don’t
know anything about the system at the time and you put
all your trust in the system, and the system fail you
like it done before, but you don’t realize that as a
youngster, you know. It took me a lot of thought, a
lot of time to look into this and see it. It took the
lawyers I have right now they had to come clean out of
state, you know. You have to wonder, you Know people
right here in this state won’t give you help, you know
or turn their heads on you and always looking for a
dollar bill, you know. You don’t have a dollar bill or
know the right people, you stuck out, you know. I
don’t know makes you feel like a person can’t change,
you know he’1ll always be the person that he is just
because a person made a mistake in their life, you
know, a person can change, you know. And I’m proud of
myself if ain’t nobody else proud of myself that I have
and I have come a long way, you know and I’m a always
believe that regardless of what happens to me.

If you had been a white kid with a lot of money, where
would you be today?

I wouldn’t be in prison

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

*#e* that’s right.

At least if I did have to come to prison, I wouldn’t
see death row period.

When you shot the trooper, did you have any thought in
your head as to what might happen to you? I mean
obviously *** capital punishment. Do people who
commit homicides have time or inclination to think
about the electric chair when they do it?

No.

Do you think capital punishment would deter anybody
from a homicide?

No.
Do you think it does any good at all?

No. Capital punishment is not going to solve anything
to no one in society. It’s not capital punishment that
going to solve it, it’s people that get caught up in
**x* that don’t have *** get out there and trying to get
it and find themselves in deeper trouble and don’t have
the money to put a defense up and you find you got
juries and judges don’t get a personal interest in --
no matter what you do you going always fall flat.
Capital punishment is for who? Who do we see on death
row is nothing but the poor. Not just black, white --
you find poor you don’t find no rich, you know. That’s
how its always been and going always be. And I can’t

Gill:

Dalton:

Gill:

see how that actually happened and carry these things

out, you know and well even the executioner himself
makes some pennies off how to kill a human being in
this way and feel proud about himself by doing it.
They say in their own law how to kill is capital
punishment, but they pay him $400 to kill us.

$450 I think it is actually. Well the people in favor
of it, they’re outside don’t say it does any good, they
just say society has a right to punish its worse
criminals and if somebody were to get off, its too bad,
but the *** do you think society has the right to
punish people who have taken other lives?

No, cause it’s still not going to solve, it’s not going
to bring the victim back and I don’t see where one kind
is worse than another, as far as murder is concerned a
life is a life and that’s another thing I don’t
understand that they have put more value on a police
life is like he’s more than a human being but he’s just
like me and you, you know, but to put more value on his
life that makes me think that’s prison in itself, you
know and *** make it out to be. I’m not saying they’re
all like that but there are some like that. Who cares
nobody ever challenged them, they always challenge ***.
They try to challenge them but still find themselves

beat out.

Let me ask you this, there are 34 people here on death
row. Since you’ve been here a few of them have been

executed, how much contact do you all have a *** like
you’re in the same boat? Do you feel ***

. Dalton:

Gill:

Dalton:

Gill:

Dalton:

Gill:

Dalton:

Guill:

Dalton:

Gill:

Dalton:

Gill:

You feel a very bad feeling when you spend time with
*k* on death row you spend years with them and some
like your whole family You talk about your family his
family you know like you friends, you talk to them
about it, you know and consult with them and you love
them just like a family.

Do you get a chance to talk at all and how often?

The cells are right next to each other

But isn’t it a straight row, I mean you can’t talk to
the guy who’s 10 cells down?

You come out of the cell for an hour a day.

xxx Which execution affected you the most?

It was Robert Wayne Williams.

Why?

Because, me and him was real close and he favored my
uncle in Houston matter of fact we just

He what your uncle?

He favored my uncle.

Oh, he favored your uncle, he looked like your uncle?

Dalton: And he was a real fun person, you know, and Alvin
Moore, you know Southstein being buried and all they’ve

all took their toll on my life, you know you can see
just how the system is more or less.

Gill: Sorry,
Robinson: Joe, it’s a two hour tape
Zwicker: It says one hour and 37 minutes

Robinson: I’1l keep my mouth, you know how Joe gets when I give
him advice

Gill: Can you start that last part again about Robert Wayne
Williams. How its affected you, you were talking about
the people you know.

Dalton: Just how funny life is really. Here today - gone
tomorrow. You know and people spend their lives around
You get to know them you get to know them better than
the system actually know them. you know they’ve been

given a bad deal and its actually hard to understand
how can it be.

Gill: Did you see all these man prepare themselves for death.
How does each of them handle it?

Dalton: Some handle it in different ways, you know some have to

read, some do more writing to just try to pass the
time. It’s more or less want to be by their self or

Gill:

Dalton:

Gills

Dalton:

Gill:

Dalton:

Gill:

Dalton:

someone closer to them will go talk to them, they

looking for an answer how this has happened, you know.

They claim to hope to the end.

I believe that everyone should. I don’t believe you
should put yourself in the grave before it’s time.

Are you aware that people gather outside demonstrating
execution night?

Sister Helen and them?
Well, yea, Sister Helen on one side

I was always aware of Sister Helen, I’m sure other

people was too, you know, and I can’t say anything
about the other side cause I don’t that there is

something they are doing out of revenge so far as to

**x* I forgot the name I know they’re parents of the
victim of Robert uh,

Hathaway.

It’s more of a revenge thing that *** I wish the
Clevelands wouldn’t hate me for the rest of their life,
it brings such a toll, hate, but I give great respect
to Sister Helen and them and all they have supported me
because they have saw me a person and not just look on
one side of the issue, but on both sides of the issue
and give me a chance you know it’s not going to solve
anything by killing me, you know I don’t understand it

and I probably never will, they say there’s a
deterrent, but I don’t see no deterrent. They’1ll hear
one side of the story *** hear one side of the story
but close their eyes to the other as if it don’t exist
but it very much exist, but this is just for some
people, you don’t do it to all people sometimes you ***
it’s good for others but not good for me. It’s always
puzzled me how can it be. Cause a life is a life, a
human being is a human being, and how can you cut short
those claims when a man’s life is at stake? It’s a
whenever come to see or understand that point in life
but our system I’m glad there are good people who can
analyze these facts and realize just what’s happening.

We need more people to stand up and make a statement
and say something about what they feel and not be
afraid to speak their own mind and what they feel, you
know. I believe there would be no capital punishment.

Cause we got so many people who are afraid to speak out
just don’t want to speak out because of their

colleagues or someone is going to say, you know. Why
do you have to go by what someone else say, be your own
person and speak what you want to speak, you know,
cause don’t wait ‘til you find your family member or
somebody close to you in a predicament before you
decide to speak out, you know. You’re not doing them
no good, you know. *** Capital punishment can never be
good because to kill an innocent person, you could
never bring him back and you can’t file anything else
on that.

Gills

Dalton:

Gill:
Dalton:
Gill:
Robinson:

Dalton:

What kind of man do you hope your son will become and
how can he and other kids avoid the sort of trouble you
got into? That’s two questions really.

First thing is that be patient and understanding and
finish their schooling and if they can finish their
schooling they’re moving up in life and getting an
education field and whatever they pick in the field
keep with it not let someone distract them you know and
if something’s wrong don’t be afraid to ask someone
That’s something that I as a kid was afraid to do, to
reach out and ask, but I found out there’s nothing
wrong with asking for help and if something you don’t
understand, ask. Cause if you don’t ask, you’ll never
understand it and you’ll never go forward you’1ll always
be at a stand still. So I believe he stay in school
and just be him and not let his direction in life you
know in what he want not me or his mother but what he
wants, not what we want, you know. You school your
kids so far up and down the road, but he’s going to
have to live his life, not us.

So it’s up to him, right?

Right.

Give me a chance for a second

(What does your brother mean to you?)

My brother, you know, he means a great deal to me.

Gill:

Dalton:

Gill:

Dalton:

Robinson:

Dalton:

Robinson:

Zwicker:

Dalton:

Robinson:

How old is Joe, now?

He’s 31 -- 31 now. *** He schooled me in a lot of
things, you know, taught me in a lot of things make me
understand. At the time we was kids you know I might
do something, he’d jump in my case about it, but and
I’d get mad, but as I’ve grown you know I’ve understood
just why his reasons behind it. Because as *** as he
had got in trouble he didn’t want me to fall in the
Same path, you know and I love him for doing that you
know, because I love him you know, very much..

Does he still write to you.

Mmm hmmm.

He come Friday . . . (tears run down his face).

You’re doing great kiddo.

I’m alright.

You okay?

Mmm hmm.

Have a chance to talk to Nancy?

Dalton:

Robinson:

Dalton:

Zwicker:

Dalton:

Robinson:

I spoke to her Tuesday. I think she’s supposed to come
tomorrow not tomorrow, Saturday, she’s supposed to
bring D.J. up here.

What does she mean to you?

She’s a sweet lady, she’s my godmother, you know she
always come through, stuck by me ever since we met you
know. And ever come along way herself. She always got
*k*k so she’s always there to listen, you know. Give a
helping hand. She always does what she can, you know.
I will respect and love her for that, you know.

What about Jennifer?

She’s a person who I am grateful for. You don’t find
many sister *** I’m glad to have her in my life and her
happiness means more to me than a lot of things in life
because she’s deserving of that, you know and I wish I
had many years to go, you know *** think about someone
in life you dream of someone in life but you never
realize that one day you could actually meet this
person that you always wanted. Be your friend *** and
companion and she have been that, you know and like I
said I love her a great deal because she’s her and she
tries to better me and push me to be better, you know
and she’s crazy about D.J. too and he’s crazy about her
and I just want her to be strong and hold up because
she’s held me up a great deal, more than she know.

Dalton, what do you want your family to remember about
you?

Dalton:

Gill:

Dalton:

I guess just remember me as me, you know as the person
that I am, the person that they know is the real me not

just someone who assumes they know me but actually know
me with that I mean, you know, love me for being me and
I’m going to always be there regardless of what
happens, I’m going to be there, you know either in my
spirit or the things we have done together, I’m going
to be there you know. I’m going to be the person they
always have good thoughts, you know that’s why for my
son to always *** just as far as he know, not what
someone else have told him, but him knowing me and

being a memory just like that. I’m sure he’1ll survive
any test come before him, you know, and I’ll be there.

He can always call on me through his own actions and
things he might do in life so.

Do you have anything ***

No, I had to put that *** behind me because being angry
is not going to solve my problem it’s not going to make
things any better for me you can *** this and that but
it’s not going to make things any better or solve
anything, but I believe the ones that know and saw my
case and who actually know my case know what they have
done and they going to have to live with it because I
believe that anyone who have actually read my case and
know the facts of it, they’ll realize I’ve been given a
bad deal, you know. *** find someone who would
actually listen and read it and see for themselves,
like I said the wrong person is hard to make a human
being at times, you know, but eer,

Gill:

Zwicker:

Dalton:

Gill:

Dalton:

Is there anything else you want to say ***

Dalton, do you want to say anything to Governor?

I would just like to more or less meet him and talk to
him person to person, you know and put politics aside
and just be a person you know, and talk to me you know,
**x* they say he was a Christian man and *** just what
I’m coming from, you know and I have tried to better
myself you know. The board have heard and give a
recommendation, you know. All I want is, I’m not
asking to get out of prison, I was just asking to live
with the mistake, you know and I was hoping that he
would be man enough to do that to give me the chance to
spend my whole *** since I been born and being able to
live has always been *** and able to live and
understand and *** someone else holds your life and he
got the power to give you life or death if it was his
kid *** I don’t believe they would be here *** but who
am I to tell *** his judgment, you know. I can’t do
anything but ask him to give me a chance at life.
That’s the only thing I can do.

Good luck to you.

I appreciate that.

TIMES-PICAYUNE,

New Orleans,

Louisiana,

May 419,

B290.,

Roemer called Prejean, said death served society

By JONATHAN EIG
Staff writer

ANGOLA, La. > Gov. Roemer
phoned Dalton Prejean less than
two hours before Friday morn-
ing’s e tion and told the con-

victed Bir he must die to “serve
vocietyme rejean’s altorney said
Friday. +

“The governor said he thought
his executgon was the only thing
that 4 serve society and give

we at

the proper message back to peo-
ple who were thinking about kill-
ing police officers,” atturney
John Hall said.

Prejean, convicted of killing
State ‘Trooper Donald Cleveland
in 1977, told Koemer more crime
could be deterred if he were alive
to tell his story to troubled young
people.

“Dalton spoke of his remorse
and the sorrow and pain he had
caused others and said he
thought he could reach people,

that people could learn trom
him,” Hall said.

The phone call took place
about 10:30 p.m. an hour and
a half before Preyean was put to
death and lasted about 10
minutes. Roemer called Prejyean
at the condemned man’s request.

Roemer’s spokesman, Rusty
Jabour, confirmed that the con-
versation took place, but would
not discuss details.

Despite his disappointment,
Preyean seemed determined to

die with dignity, Hall said

“The governor told Dalton he
should serve as a model, and |
think that’s how Dalton accepted
it,” he said.

In his final statement, Prejean
expressed frustration that his ex
ecution would be in vain, and
sent a message encouraging lis 9
year-old son to be strong.

Prejean, shackled around the
hunds, feet and waist, stood at a
microphone in front of the clec-
tric chair. He stared through a

window at the execulion’s wit
nesses and spoke soltly

“Nothing is going to be accom
plished,” he said. “TL have peace
with myself. Pd lke to thank all
of those who supported me all
these years.

“Pd also like to thank my loved
ones for being strong. ... My son
will be a better person for not let-
ting something like this bring
down his life. Keep strong,
keep pushing, keep praying ”

He also spoke to the Cleveland

famuly: “They said it wasn’t for
the revenge, but it’s hard for me
to see, to understand. | hope
they're happy

“So | tortent my life. | give my
love to all God bless.”

With that, Preyean turned and
walked to the chair. ‘The execu-
tioner administered four jolts of
electricity, Five minutes later, at
12:17 aan., the prison’s doctor de-
clared Prejean dead. He was 30.

Prejeuan spent the past 10 years
on death row and had 10 stays of
execution. Despite his youth, he
became known as “the old man
of death row, becuuse he was on
it the longest.

Prejean killed Cleveland on
July 2, 1977, during a routine
traffic stop, after a night of
drinking and drug use. Prejean
wus 17. When he was 14, he
killed a Lafayette cab dnver in @
holdup attempt.

‘The Supreme Court cleared
the way for the execution Fnday
by rejecting a request for an 11th
stay

Preyean spent most of the day
with his fumuly, including his sen,
Dalton dr, conceived during a
conjugal visit ta the Lafayette
Parish jail, and with his attorney
and spiritual adviser. ‘The only
time Prejean lost control of his
emotions was when he said good
hye to his son, Hall said.

Htis last meal was a seafood
platter with French tries, stlad,
chocolate cuke and two OFADKE |
solt driuks. '

THE DAILY ADVERTISER,

Lafayette,

Louisiana,

May 19, 1990.

Prejean calm, collected

Two-time murderer Dalton
Prejean’s electrocution at 12:17
a.m. Friday ended years of court
litigation and waiting, but for
Tommy Guilbeau, Prejean’s attor-
ney since July 1977, it also meant
the loss of a personal friend.

Guilbeau, who was a witness to
the execution, said Prejean was

calm and composed during his last
moments.

‘‘He showed compassion for his
family and the Cleveland family
(family of the officer he killed in
1977), he talked about his son, he
talked of a woman who was very
close to him — who had visited him
on Death Row and studied the
Bible with him, he thanked all
those who had fought so hard for
his life,’’ Guilbeau~said. ‘‘There
was no bitterness or hatred. He
was a gentle person. It was a hall-
mark of what he had always stood
for.”’

Prejean had spent the last 12
years of his life on Death Row for
the murder of Trooper Donald
Cleveland of Lafayette in 1977.
During that time, his execution had
been stayed 10 times.

Three months prior to the Coo-
per slaying, Prejean had been
released from the Louisiana Train-

ing Institute where he had been
incarcerated for killing a

Lafayette cab driver on June 3,
1974 during the course of an armed
robbery.

At the time, he was only 14.

‘‘T have mixed feelings (about
the execution),’’ said Margaret
Keiser whose first husband was
that cab driver. ‘‘When the murder
happened, I felt more pity and sad-

ness for Prejean than hatred
because he was so young. Even to
this day, I hold nothing really
against him. I didn’t really want
him to be executed, but... It’s hard
to put into words. I just feel sad
about the whole situation.”’

District Attorney Nathan
Stansbury, who prosecuted Prej-
ean in the Cleveland case, how-
ever, Said earlier this week that a
Jury had decided Prejean’s fate,
and it was time that the case be
ended. He could not be reached for
comment Friday night.

At the time of Friday’s execu-
tion, about a dozen death penalty
supporters stood outside the
prison, voicing support for the
action. Earlier, a number of death
penalty opponents protested at the
State capital.

Guilbeau said he hopes this con-
troversy will one day end with the
elimination of the death penalty.

He is currently actively
invoived in the defense of three
people who could face the death
penalty in Louisiana — Troy Shel-
vin in Lafayette, Joseph ‘‘Floyd”’
Carmouche in and Joan
Benoit in Cameron.

“I absolutely could have no
more resolution than I have now
about overturning the death pen-
alty after what I saw (Friday
morning) ,’’ Guilbeau said. ‘‘I plan
to stand before the legislature on
this eventually.”’

Guilbeau said the first step to
eliminating the death penalty is to
change the law so that a life sen-
tence actually means life with no
chance for parole.

“I do not believe for a second
that the majority of the American

pee are for the death penalty,
ut I do believe that the majority of
Americans do want to feel safe in
their homes,’’ Guilbeau said.
“That is why it’s crucial that we
change the law.”’

When asked how the defense in
death penalty cases has changed
since he first took on Prejean’s
cause in 1977, Guilbeau said that
things have greatly evolved.

‘In 1978, when we first tried the
Prejean case, it was like a man fly-
ing an airplane at Kittyhawk,”’ he
said. ‘“Today when we try a death

nalty case, we have the equiva-
ent of space age technology. With
the Prejean case, we were pioneers
in the real sense of the word. We
introduced forms of mitigation that
hadn’t been used before in this
State — we showed his youth, his
mental capacity, his intoxication.”

In his official statement to the
press Friday, Guilbeau said:

“Last night, the state, after 13
years, executed Dalton Prejean, a
person who was brain damaged,

mentally retarded and was 17-
years-old at the time of the execu-

tion of the crime.

‘The execution was wrong and
an injustice as it only fostered
habitual fear and prejudice among
us as a people. The true Christian,
the true Christian-like example in
this terrible affair of Friday morn-
ing was Dalton Prejean, who
showed love and compassion for all
concerned including his family and
the Donald Cleveland family. The
dignity and courage shown by Dal-
ton in his last hours was an inspira-

tion to all of us priviliged to witness
it.”’

JOURNAL,

Shreveport, Louisiana, May 25,

1990.

Shreveport Journal
Ritual murder

It’s wrong to execute retarded juvenile offender.

LET IT NEVER be said that Louisia-
nians are not trailblazers — even if the
path wends its way through medieval
immorality. Upon the execution of
Dalton Prejean at midnight Friday, the
State will have entered into a new era in
judicial barbarity. ;

The Supreme Court, having umcons-
cionably declared the execution of:men-
tally retarded persons legal, cleared the
way last summer for the execution of
Prejean, who has an I.Q. of 76 and the
mental age of 13. Similarly, the Court
ruled that juvenile offenders — Prejean

was 17 when he killed trooper Donald
Cleveland — could be put to death.

This ruling places the United States in

ity. :

Governor Roemer is the only person
who can save Louisiana and Prejean
from this tragic fate. Unfortunate! _ itis
unlikely that Roemer will save much of
anything before Prejean‘s execution —
not the retarded man’s life, not time

another reprieve is likely), net money

and certainly not Louisiang’s tmage-

in the rest of the nation. =
State officials recently paid

The Wall Street Journal for three
advertisements promoting the “Roemer

revolution” in an attempt to boost the
State's national reputation. Every ane of
the $250,000 paid for that ad; was
rendered useless Sunday night when the

CBS news am, “60 Minutes,” ran a

20-minute story on the trials and tribu-
lations of Dalton Prejean.

Add to that Richard Cohen of The

Washington Post: “Dalton Prejean is no

victim of a frame-up. He’s a killer —
doubly so. He himself thinks he ought to
spend the rest of his life in jail, and he is
right about that ... He is a duly ad-
judicated killer but also a crippled mess
of a person. Retarded and brain-damag-
ed — abused by a relative, neglected by
both his parents and the state — he wil]
die unless the governor intervenes.”
The Prejean case grows in importance
every time a reprieve is granted. If the
state Carries through with the execution,
this case will explode into mythical
proportions — an allegory for our times.
Rather than entrenching the image of
Louisianians-as-barbarians further in
the nation’s mind, Governor Roemer
should do the right thing, and commute
the death sentence of Dalton Prejean.

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Pe ae TN ee MATTHEW 2:2

God rest you merry, gentlemen;
Let nothing you dismay,
Remember Christ, our Saviour.

Was born on Christmas Day,

To save us all from Satan’s pow r
When we were gone aStray.

O tidings of comfort and joy!
Ler (near Sr

—

a a a a ee a a ee a a a a a ee a a ee a a a a a ee ee ee ee

FOR PLAINTIFF

KRREKEEKKKEKKKEKKEKREKRKEKEKEKKKEK KEKE KK EKER KEKE KK RRR KEK KEKE KR KKK KKK KEKKEKEKEKEEKEEK

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IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

a a a a a a a a a ee ee a a ee 2

CIVIL ACTION
NO. 81-0632

DALTON PREJEAN

versus

FRANK C. BLACKBURN, ET AL

x kK kk

U. S. wipin:wr COURT

WESTERN DISTRICT OF LOUISIANA

FILED
AUG 2 1983

ROBERT H,/SHEMWELL, CLERK

THOMAS E. GUILBEAU

C P. O. Box 3331
aN Lafayette, LA 70502
A JOHN CHARLES BOGER

DEBORAH FINS
Suite 2030

gta Stanford, Cali
rast ¢ ’

(
R DEFENDANTS

10 Columbus Circle
New York, New York 10010

ANTHONY G. AMSTERDAM
Stanford University Law School

fornia 93405

J. NATHAN STANSBURY

District Attorney

P. O. Box 3306
Lafayette, LA

NAUMAN S. SCOTT

7eova

CHIEF UNITED STATES DISTRICT JUDGE

OPINION

1. BACKGROUND

Dalton Prejean, a 17 year old black male, was
convicted by a jury in the Fourth Judicial District Court,
Ouachita Parish, Louisiana, of first degree murder for the
Shooting death of Louisiana State Police Officer Donald
Cleveland. At the sentencing phase of the trial, the jury

I
found one statutory aggravating circumstance, and after

~ -

considering the mitigating circumstances,unanimously recommended

the death penalty--a verdict binding upon the trial judge.

See La.C.Cr.Pr.art.905 et.seq.

Prejean's conviction and sentence were appealed to
and affirmed by the LouiSiana’ Supreme Court. State v.
Prejean, 379 So.2d 240 (La. 1979), rehearing dented January 28,
1980. Petitioner then sought relief from the United States
Supreme Court by writ of certiorari which was denied.
Prejean v. Loutstana, 449 U.S. 891, 101 S. Ct. 253, 66
L.Ed.2d 119, rehearing dented 449 U. S. 1027, 101 S. Ct.
598, 66 L.Ed. 2d 489 (1980).

Petitioner next sought post-conviction relief by
filing an application for a writ of habeas corpus in the
Fourth Judicial District Court, Ouachita Parish. After
hearing on April 9, 1981, said application was denied.

Thereafter petitioner filed an application for a stay of

execution and for review of an application for post-conviction

relief which were denied by the Louisiana Supreme Court.
State of Loutstana, ex rel. Prejean v. Blackburn, 397 So.24d
517 (La. 1981).

-Petitioner immediately sought a stay of execution
and filed an application for writ of habeas corpus before
this court. 28 U.S.C. §§2251, 2254. Considering the time
constraints and the facial substantiality of the claims

presented, we stayed the execution pending our determination
fe -
of the merits. 28 U.S.C. §2251. See Rosenburg v. United

States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953)
(per curtum). See also eiane v. Bennett, 440 U.S. 1301, 99
S. Ct. 1481, 59 L.Ed. 2d 756 (1979); Shaw v. Martin, 613
F.2d 487 (4th Cir. 1980). | .

Subsequently, petitioner filed a motion seeking
abatement of our consideration of his Section 2254 motion,
pending disposition by the United States Supreme Court of
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct 869, 71 L.Ed.
2d 1 (1982), alleging that the Zddings case presented a

question of constitutional law, the answer to which would

undoubtably pertain to the instant case. Due to the prerequisite

of exhaustion of remedies found in 28 U.S.C. §2254(b) and
(c), we dismissed Prejean's application for writ of habeas
corpus without prejudice and ordered a temporary stay of

execution, to expire on October 15, 1981, to afford Prejean

an opportunity to present his unexhausted claim which was

based on iddings to the Louisiana Supreme Court. On October 13,

1981, we extended our temporary stay of execution until

November 6, 1981.

Petitioner reapplied to the Louisiana Supreme
Court for supervisory writs. The application was denied
On November 27, 1981, and that court granted a stay order
to permit Prejean to apply to Federal Court for further
relief. State ex rel Prejean v. Blackburn, 407 So.2d 1189
(La. 1981). ~ -_

Again considering the time constraints and the

facial substantiality of petitioner's claims, we stayed the

execution pending our determination on the merits. Petitioner's

application for habeas corpus relief under Section 2254 is

now before this court.
a STANDARD OF REVIEW

In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66
L.Ed.2d 722 (1981), the United States Supreme Court elucidated
the review guidelines of the federal habeas court, under
28 U.S.C. §2254(d). There is a presumption of correctness
in a State court's factual findings unless one of the seven
conditions specifically set forth in § 2254(d) is found to
exist by the federal habeas court. See Williams v. Blackburn,
649 F.2d 1019 (5th Cir. 1981); Germany v. Estelle, 639 F.2d
1301 (5th Cir. 1981); Thomas v. Estelle, 582 F.2d 939 (5th

Cir. 1978). So long as there are "written findings, written

Opinion, or other reliable and adequately written indicia,"

the court's findings are sufficient. Sumner v. Mata, supra
at 546-47, 101 S.Ct. at 769, 66 L.Ed.2d at 730-31.

Petitioner has exhausted his State remedies regarding
the many claims presented to us. In our review of the State
court record, we have found that many of petitioner's claims
have been factually determined, as evidenced by an opinion of
the trial judge, written findings by the Louisiana Supreme
Court, and findings by the State court in its review spol iettion
for post-conviction asks The petitioner's burden of
proof is not as great where no written findings support a State
court's habeas decision. For both categories of claims we have
endeavored to thoroughly investigate the record of the case.
However, our disposition of the latter group of issues
necessarily entails a more independent degree of findings
under Sumner and the language of § 2254(d). We then are
guided by the dictates of Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). Based upon the record and
the nature of petitioner's claims, no evidentiary hearing at

which testimony iS introduced is necessary.

III. CLAIMS

Petitioner has raised eleven separate claims for
us to consider: (1) the admission of gory photos, (2) the

systematic exclusion by the prosecutor of prospective black

Be EE

. -.

Jurors, (3) the exclusion from the jury venire of a certain
socio-economic class, (4) the death qualification of the
jury, (5) the exclusion of a prospective juror in violation

of Witherspoon, (6) the illegality of the sentencing
instructions, (7) the prospective rebuttal of mitigating
circumstances, (8) the intentional racial discrimination in
the imposition of the death sentence, (9) the limiting of |
mitigating circumstances, (10) the denial of due process in

the affirmance of the death sentence, and, (11) the excessiveness |
| and disproportionality of the death sentence. Due to either
their factual or legal similarity, we have combined several
of these claims in our discussion below.

Prejean contends that his rights to a fair trial

under the Sixth Amendment, as applied to tHe states through
| the Fourteenth Amendment, and his rights to due process
under the Fourteenth Amendment were violated by the introduction

into evidence of two photos of the victim, alleged to be

| gruesome and inflammatory to the jury. The standard to be
utilized by the Federal Court in a habeas corpus case in
reviewing the state trial court's actions in admitting

i evidence was recently discussed by the Fifth Circuit in

Nettles v. Watnwrtght, 677 F.2d 410 (5th Cir. 1982):

As a general rule, a federal court in a habeas
corpus case will not review the trial court's
actions in the admission of evidence. Ltsenba v. |
Californta, 314 U.S. 219 228, 62 S.Ct. 280, 286, |
86 L.Ed. 166 (1941); Gebhart v. Beto, 441 F.2d

| 319, 321 (5th Cir. 1971). While it is true that

| an evidentiary ruling which deprives a state court
! defendant of fundamental fairness iS cognizable

On habeas corpus, see Barnard v. Henderson, 514 Fd
744 (5th Cir. 1975), the federal court will make
inguiry "only to determine whether the error

was of such magniture as to deny fundamental fairness
to the criminal trial." Atlls v. Henderson, 529 F.2d

397, 401 (5th Cir. 1976). The admission of prejudicial
evidence justifies habeas corpus relief only if the

evidence "is material in the sense of a crucial, critical,

highly significant factor." aAtlls, 529 F.2d at 401

(quoting Corpus v. Beto, 469 F.2d 953, 956 (5th Cir. 1972),

cert. dented 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed. 2d 162
(1973)). Id.at 414-415.
The prosecution introduced the photographs for

the purpose of showing the exact location of the body after
4/ ~ a

the shooting and the identity of the decedent. The manner
of the shooting and the decedent's identification as a
police officer are relevent to the crime of first degree
murder with a sentence of Seath end although these facts may
have been able to be established by other méans, we find
that upon reviewing the photographs we can not conclude that
the admission of the photographs constituted an abuse of
discretion of the magnitude Tye to deprive petitioner of

a fair trial or due process.

The next group of claims, numbers two through five

in the above list, deal with alleged violations of petitioner's

Sixth and Fourteenth Amendment rights allegedly occurring
due to the jury's composition and/or the manner in which the
jury was selected.

Prejean alleges that at his trial the prosecutor,
in a parish with alleged historical racial prejudice, used

peremptory challenges to exclude all prospective black jurors

resulting in petitioner's trial before an all white jury.

This contention without more, is not sufficient to support a

constitutional claim for habeas corpus relief. See

generally Aduffman v. Watnwrtght, 651 F.2d 347 (Sth Cir. L9Si).

However, under Swain v. Alabama, 380 U.S. 202, 85 S. Ct.
824, 13 L. Ed. 2d 759 (1965), followed by the Fifth Circuit

in Untted States v. MeLaurin, 557 F.2d 1064 (5th Cir. 1977),

if there is a showing that over a period of time the prosecutor

used peremptory challenges for the systematic exclusion of
blacks from jury service, then ao equal protection claim is
raised under the 14th Amendment. The petitioner has had
ample opportunity in the past to introduce the evidence
needed to substantiate this claim, and has failed to do so.
At trial, Prejean objected to the jury panel but offered no
evidence in support of his claim of systematic exclusion.
Again on motion for new trial and at the hearing on post-
conviction relief, Prejean had an opportunity to substantiate
his claim and failed to do so. In petitioner's memorandum
before this court no evidence is offered that would support
an inference of any constitutional violation. Conclusory
allegations such as those in petitioner's memorandum do not
state a basis for relief. See Sumner v. Mata, 449 U.S.
539, 101 S. Ct. 764, 66 L.Ed. 2d 722 (1981); Easter v.

Estelle, 609 F.2d 756 (5th Cir. 1980). We agree with the

state courts that this contention 1s without merit.

Prejean's second basis for relief in this group of
claims is that his Sixth Amendment right to a fair and
impartial jury drawn from a cross-section of the community

was violated when the commissioners in charge of jury

selection intentionally excluded all doctors and lawyers
from the general venire. Under Louisiana Code of Criminal
Procedure Article 532(9) a Motion to Quash is the proper
method for challenging the composition of the jury venire.
State v. Ramos, 390 So.2d 1263 (La. 1980), rehearing dent gd,
Dec. 15, 1980; State v. Durr, 343 So.2d 1004 (La. 1977). No
Motion to Quash was filed on behalf of petitioner at trial.
Due to principals of federalism and comity, a defendant's
failure to follow this state procedure actS as a waiver of

his right to raise a constitutional claim at a later federal
erpossittinic ienkaien the petitioner shows there was cause for
failing to utilize the proper state procedures and there was
resulting prejudice affecting the outcome. Watnwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 249, 53 L.Ed. 2d 594 (1977);
Bass v. Estelle, 696 F.2d 1154 (5th Cir. ie Huffman v.
Watnwritght, 651 F.2d 347 (5th Cir. 1902)

Petitioner's contention that "cause" in this case
derives from his counsel's ineffectiveness in failing to
investigate and raise the issue pretrial is without merit.
The Fifth Circuit standard for constitutionally affective

assistance of counsel is "not errorless counsel, not counsel

judged ineffective by hindsight, but counsel reasonably

likely to render and rendering reasonably effective assistance."

Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974).
Having examined the performance of counsel and considering the
totality of the circumstances and the entire record, we
conclude that petitioner's representation was more than adequate
to pass constitutional standards. In fact, counsel had
previously filed a Motion to Quash the venire, alleging the
Same constitutional violation alleged here, but with
different facts as to who had bees sLlegetiy unconstitutaonally
excluded from the general venire. There was a change of
venue, however, from Lafayette, Louisiana to Monroe, Louisiana,
and subsequently a new jury venire. Counsel's previous
challenge to the composition of the jury venire indicated
his awareness as to the proper procedure for objecting to
the jury panel. This court will not scrutinize counsel's
decisions in choosing to pursue a particular course of
action. Nor will we judge such experienced counsel by
nindsight=~ Lovett v. Florida, 627 F.2d 706 (5th Cir.
1980). We thus find there is no adequate cause for failing
to object as require by state law.

Even if adequate cause for failing to object had |

been established, the second requirement for waiver would

not have been established in that sufficient prejudice has

not been shown. Under Louisiana Supreme Court Rule 25,
the Supreme Court of Louisiana has found as a matter of law

that it is in the public interest to exempt from jury duty

Such occupational classes as doctors and lawyers. There is

an inadequate foundation to hold that these court mandated
exemptions deprived this defendant of a fair trial. The
record indicates an extenSive voir dire by defense counsel,
ee eee existence of a fair and impartial jury. The |
mere fact that two particular occupations were not represented
on petitioner's jury did not deprive him of a fair trial.

t There being no adequate cause for counsel's

failure to object, and also no resulting prejudice, we fend |

that petitioner's failure to object to the composition of

the jury in accord with the proper state procedures, acted

| aS a waiver of his right to assert the claim for federal

habeas relief.

| Next, petitioner alleges that the death qualification |
of his jury--that is, the process of excluding those jurors
who could not under any circumstances vote for a death

penalty because of religious or conscientous scruples--

I violates his right to a fair and impartial jury drawn from

a cross-section of the community, aS required by the Sixth

and Fourteenth Amendments. The Fifth Circuit has held that —

| "unalterable opposition to the death penalty is a legitimate |

disqualification and that the exclusion of such disqualified

jurors does not violate the fair cross-section principle
of the sixth amendment." Smith v. Balkcom, 660 F.2d 573, |

583 (5th Cir. 1981), modified 671 F.2d 858 (5th Cir. 1982),

677 F.2d 20 (5th Cir. 1982). To raise the same issue here is

frivolous, and without merit. :

Finally, the last claim alleging violations of

petitioner's Sixth and Fourteenth Amendment rights with
respect to jury makeup, 1s that a prospective juror was
excused for cause because of her general opposition to the
death — in violation of Wrtherspoon v. Illinots,

391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed. 2d 776 (1968).

Witherspoon and its progeny establish that a member of the venire

may not be excused for cause if he expresses only a general
objection to the death penalty. However, a prospective afiror
may be excused for cause if he states that he would automatically
vote against the imposition of capital punishment’ that is,
that he would be unable to follow the law in assessing
punishment. The trial transcript reveals that the prospective
juror challenged, Ertha Taylor, voiced more than a general
objection to the death penalty. Initially, the question
addressed to the jury panel was:

"With regard to the question of this being a

capital offense, are there any of you that have

scruples against capital punishment to the point

where you would, under no circumstances, be able

to find the defendant and impose that penalty,

even if it were justified by the facts?
Transcript, page 368.

When Eretha Taylor was called for the next

panel she was asked about her beliefs concerning capital

punishment with respect to the initial question posed to

prospective jurors.

Q: O.K. Not at all?

A: I don't believe I could do it.

Q: Not at all.

“A: No “EE
Transcript, page 398.

Taken into conjunction with the prosecutor's first
question, in which the entire jury venire was present, the
follow-up questions to Miss Taylor elicited responSes thet
indicated her unequivocal opposition to the death penalty.
See Wrlltams v. Maggto, 679 F.2d 381 (5th Cir. 1982). We,
thus, find no violation of the Witherspoon rules and petitioner's

12/
claim iS without merit.

Petitioner's remaining six claims, claim numbers
6 through 11 outlined above, deal with the imposition of the
death sentence.

Petitioner alleges violations of his Eighth and
Fourteenth Amendment rights with respect to the court's
instructions to the jury. Specifically, Prejean contends
a constitutional flaw resulted from the trial judge's
failure to clearly communicate in his sentencing instructions
the role of mitigating factors, and the requirement to

return a life sentence if there was not a unanimous finding

for the death sentence.
The trial judge must clearly instruct the jury

about mitigating circumstances as well as the option to

recommend against death. Sprivey v. Bant, 661 F.2d 404,

470 (5th Cir. 1981); Chenault v. Stunehcombe, 581 F.2a 444,

448 (Sth Cir. 1978). In order to determine whether a defendant
has been accorded his constitutional rights, the trial

court's instructions are accorded reasonable interpretation.
Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450,

61 L.Ed. 2d 39 (1979); Washington v. Watkins, 655 F.2d 1346, |
1369 (5th Cir. 1981). This interpretation must not be |
accomplished in piecemeal fashion, but rather by examining
the entire charge to determine its adequacy. Davis v. “

McAllister, 631 F.2d 1256 (5th Cir. 1980). Furthermore, a

deficiency, if found, must have violated some right guaranteed

by the constitution, and it must so infect the entire trial

that a resulting conviction or sentence violates due process.
Kupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L.Ed.
2d 368 (1973).

The trial judge clearly instructed the jury pursuant
to Louisiana Code of Criminal Procedure Art. 905 that if
aggravating circumstances were found, all mitigating factors
must be considered before recommending the sentence of

death:

"Even if you find the existence of an aggravating
circumstance, you must also consider any mitigating
circumstances before you decide a sentence of

death should be imposed. The law specifically
lists certain mitigating circumstances. |

Trial transcript, page 858.

The trial judge then proceeded to outline the mitigating
13/
circumstances which are provided for by statute. |

Petitioner's allegation that the trial judge
failed to inform the jury that if they should fail to agree
On a death sentence then life imprisonment without probability
of parole would be imposed is not true. The trial judge

instructed the jury:

"B. Before you decide that a sentence of death
Should be imposed you must unanimously find,
beyond a reasonable doubt, that at least one
statutory aggravating circumstance exists. yi

C. If you find, beyond a reasonable doubt
that any of the statutory aggravating circumstances
existed you are authorized to consider imposing
a sentence of death. If you do not unanimously
find beyond a reasonable doubt that any of the
Statutory aggravating circumstances existed, then
life imprisonment without benefit of probation,
parole, or suspension of sentence is the only

sentence that may be imposed.

Transcript, page 857. Later in the instructions the trial

judge explained the verdict forms:

"The first forms reads - - the first form of
the verdict reads:

‘Having found the below listed statutory
aggravating circumstances or circumstances beyond
a reasonable doubt and, after consideration of the
mitigating circumstances offered, the jury recommends
the the defendant be sentenced to death.'

In the event that you unanimously decide the
death penalty should be imposed, a space is provided
to write out the statutory aggravating circumstance
or circumstances you unanimously find to exist.

The Foreperson must sign the form.

The second form of the verdict reads:

'The jury unanimously recommends that the
defendant be sentenced to life imprisonment without
benefit of probation, parole or suspension of

sentence.

If the jury decides that a life sentence without
benefit of probation, parole or suspension of sentence
Should be imposed, the Foreperson need only sign
that form of verdict. No listing of aggravating
or mitigating circumstances 1S required.

Transcript, pages 859-60.

Taken in their entirety, the instructions and
verdict forms, as explained by the trial judge, informed the
jurors that failure to reach a unanimous decision for a
death penalty would result in a life sentence, without benefit
of Probation, parole or suspension of sentence. See Baldwin v.
Blackburn, 653 F.2d 942, (5th Cir. 1981), cert. dented 456,

U. S. 950, 102 S.Ct. 2021, 72 L.Ed.2da 475, rehearing dented
0.8; , 102 S.Cts 2928, 73 L.Ed 24°1323 (1982).

Petitioner's allegation that the jury charges,
during the sentencing phase of the capital case, must contain
a charge that the aggravating circumstances must outweigh

the mitigating circumstances, beyond a reasonable doubt, is ill-

founded, Ford v. Strickland, 676 F.2d 434 (llth Cir. 1982)%

"While the existence of an aggravating or mitigating
circumstance is a fact susceptible of proof

under the reasonable doubt or preponderance
Standard, . . . the relative weight is not. The
process of weighing circumstances is a matter

for judge and jury, and, unlike facts, is not
susceptible to proof by either party."

Id. at 442 (emphasis in original). See also Zant v. Stephens,
51 U.S.L.W. 4891 (1983); Gray v. Lucas, 677 F.2d 1086 (5th

Car, L262) «

Petitioner also calls into question the constitutionality

of the statute because it fails to provide the guidelines
requested above, and because the Louisiana Supreme Court has

not instituted procedures to cure the defects. We find this

contention to be without merit. Zant, supra; Blackburn, supra;

and Gray, supra.

Petitioner next alleges error by the trial court
in allowing the prosecution, during the penalty phase of the
trial, to put on evidence prospectively rebutting mitigasrng
factors, because this was not the correct order of procedure.
Louisiana Code of Criminal Procedure Art. 905.2 provides, in

pertinent part, that "Evidence relative to aggravating or

mitigating circumstances shall be relevant irrespective of
whether the defendant places his character in issue" and
that "The jury may consider any evidence offered at the
trial on the issue of guilt." The statute clearly indicates
the relevancy of aggravating and mitigating circumstances,
in addition to the ability of the jury to consider evidence
introduced at the guilt determination stage. Consequently,
it was permissable for the prosecutor, at the penalty phase,
to offer evidence to rebut the intoxication defense, which
had been raised at the trial stage. The order in which

evidence is admitted is within the discretion of the trial

court. This discretion will not be disturbed unless there

is a showing of extraordinary circumstances. United States v.

Leaman, 546 F.2d 148 (5th Cir. 1977). Considering the

record as a whole and the LouiSiana Code of Criminal Procedure

Article 905.2, we cannot find any extraordinary circumstances

which would justify our intervention into the matter, and,
thus, this claim is without merit.

Petitioner alleges intentional racial discrimination
in the imposition of the death penalty in violation of the
Eighth and Fourteenth Amendments.

Nothing in petitioner's brief suggests that he is
going beyond conclusory allegations of racial discrimination
in the imposition of the death penalty. The statistics

wilt
ye
offered to show discriminatory application of the death

penalty would purport to demonstrate that defendants who |
murdered whites have received the death penalty when other
defendants who have murdered blacks have received a life
sentence. The Fifth Circuit has made it ctkear that we need
must venture on a case by case comparison to ascertain the
truth or falsity of petitioner's claim. "We need not repeat

the myriad of difficult problems, legal or otherwise,

generated by such federal court intrusion into the substantive

decision making of the sentencing process which is reserved |
to the .. . state courts. .. ."Spinkellink v. Wainwright, supra.

Consequently, "if a state follows a properly drawn statute

in imposing the death penalty, then the arbitrariness and

capriciousness - and therefore the racial discrimination-

condemned in Furman have been conclusively removed."
14/

Id. at 613-14.

17
Louisiana Code of Criminal Procedure Articles 905 et seq.,

require the jury to find at least one aggravating factor
before it may impose a death sentence. AS mentioned above,
it must also consider factors in mitigation. This channeling
of discretion prevents any freakish imposition of the death
penalty. In addition, the automatic Louisiana Supreme Court
review of each sentence, to determine if it 1S 1S exceSSive,
in relation to similar crimes, is a further safeguard against
an arbitrary imposition of a death sentence based on nothing
more than race. Just a resulting disproportionate impact on
blacks, therefore, does not raise an equal protection claim.
Id. See also generally washington v. Davis, 426 U.S. 229,

99 S.Ct.2040, 48 L.Ed 2d 597 (1976).

The statistical data that petitioner intends to
rely on, to show discriminatory intent, are similar to
those proffered in Smtth v. Balcom, supra. Nothing in
petitioner's brief suggests that the evidence he would

introduce would be more probative than that in Smith. The

Smith court's conclusion that Smith did not consider "countless

racially neutral variables" which led to its finding of
unsupported assumptions, applies equally to the case at bar.
The mere conclusory allegations in petitioner's brief

is not the type of evidence of racially disproportional
impact which would compel us to infer racially discriminatory

intent.

For all of these reasons we find that petitioner

waS not the subject of racial discrimination in the imposition
of the death penalty violative of the Eight and Fourteenth
Amendments.

Petitioner next alleges that the Louisiana
Supreme Court considered only that mitigating evidence which
would excuse criminal behavior as a matter of law in violation
of the Eighth and Fourteenth Amendments as defined by the
courts in Eddtngs v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869,
71 L.Ed. 2d 1 (1982), and Lockett v. Ohio, 438 U.S. 5869798
S. Ct. 2954, 57 L.Ed. 2d 973 (1978). In Eddtngs, the United
States Supreme Court held that the sentencing authority
could not restrict its consideration of mitigating circumstances
to only those that create a legal excuse.

In the case at bar, the jury, which was the

sentencing authority, was instructed to consider specific
mitigating circumstances aS enumerated in Louisiana Code of
Criminal Procedure Article 905.5 as well as "any other
relevant mitigating circumstance." Transcript, page B59.
Furthermore, the jury waS given a written list of the
mitigating circumstances, as listed in Louisiana Code of

Criminal Procedure Art. 905.5. Subpart (h) of this article |

reads "Any other relevant mitigating circumstance." Consequently,
this is not a case where the sentencer was restricted only

to certain delineated mitigating circumstances upon which to

impose a death sentence. See Lockett, supra. Also, this

is not a situation as in Eddings, where the sentencing

authority did not consider mitigating evidence which would

not excuse criminal behavior as a matter of law. The jury

was instructed to consider all possible mitigating circumstances

in the penalty phase of the trial. Even though the defense |

was unable to pursuade the jury on the intoxication defense,

the jury was in no way precluded from considering the intoxication

evidence in mitigation of Prejean's actions. |
The Louisiana Supreme Court was not the sentencer

but only a reviewer of the sentence to determine if it eas

imposed according to the statutory procedures and was not

imposed in an arbitrary or capricious manner or as the result
of passion or prejudice. Louisiana Code of Criminal Procedure
Article 905.9.1 requires that the Louisiand Supreme Court
review every death sentence to determine if it is excessive.
The reviewing court ascertains whether or not the sentence
resulted from prejudice or passion, whether the evidence
supported a finding of an aggravating circumstance, and

also compares similar cases, including cases with similar |
mitigating circumstances. Because the function of the
Supreme Court is that of review, and not imposition of
sentence, it need not make an independent determination of |
the mitigating circumstances. It must only decide if the
sentencing authority adhered to the statutory guidelines in
imposing sentence and whether or not it is excessive. See
Louisiana Code of Criminal Procedure Art. 905.9.1; Ford,

—

supra; and Spinkellink, supra. The Louisiana Supreme Court

does not impose the sentence. The lLockett/Zddinzs ryle applies

to sentencing authorities. As a result, petitioner's argument

must fail.

Petitioner next alleges that in its review of the

propriety of the death sentence, the Louisiana Supreme Court
considered evidence outside we severe, in violation of the
Eighth and Fourteenth Amendments. The trial judge had

deemed inadmissable evidence of a prior offense committed by
the petitioner while a juvenile, which had not resulted jn a
conviction but in an adjudication of delinquency. Since the
Louisiana statute properly confines evidence of prior criminal
activity to actual conviction the judge precluded any

mention of the prior offense at trial. The offense was part

of the secret pre-sentence report which wa provided to

the trial judge and which was submitted under seal to the
Louisiana Supreme Court in its review of the matter. The
Louisiana Supreme Court's opinion contains a detailed discussion

of petitioner's past history. As part of his history, the

Louisiana Supreme Court mentions the offense and discusses the

~pyschiatric evaluations of petitioner which resulted from the

court procedures for the offense. State v. Prejean, supra.
The imposition of sentence and subsequent review

are two distinct phases of a capital trial. Petitioner's

allegation relates to the review phase. Material outside

the record can have no effect in the imposition of sentence.

Jatnurt~snt, 392 So.2da 1327 (La. 1981); Ford ».

Strickland, suvra. The Louisiana Supreme Court followed the
review guidelines set out in LouiSiana Code of Criminal
Procedure Article 905.9.1 in reviewing and affirming the
death sentence. Petitioner does not substantiate his claim
that the sentence was affirmed through the use of outside
evidence. Mere mention by the Louisiana Supreme Court of this
aspect of petitioner's history does not indicate that the

Supreme Court relied upon this fact to affirm the death

sentence which was imposed by a jury which had no evideias |

as to the commission of the offense. The overwhelming evidence
is that the death sentence was imposed and affirmed to the

cold blooded manner in which Prejean killed a peace officer
engaged in his lawful duties. Petitioner's claim is without

17/
merit.

Finally, petitioner presents an Eighth Amendment
claim, alleging that the imposition of his death sentence

was excesSive and disproportionate.

Petitioner first contends that death is an excessive
and inappropriate punishment per se when imposed on a
person under the age of 18. Although the Supreme Court
granted certiori in Eddings to consider the issue of whether
imposing the death penalty on a person under 18 years of age
waS unconstitutional, this matter was not addressed in the
final opinion. Eddings v. Oklahoma, supra. Petitioner
appears to rely on Civil Statutes which make him a "major"

at 18 years of age.

ade

We first note the differences in the Eddinas case

4
ve

and in Prejean's situation. The petitioner in Eddings was
16 years of age and was considered a juvenile when he
committed the murder; he was subsequently certified to stand

trial as a adult. See Oklahoma Statutes Annotated, Title 10,

§1112. Under Louisiana law, however, Prejean did not have

to be certified as an adult. He was 17 years of age and an adult

for purposes of criminal court jurisdiction. Art. 4, §19,
La. Constitution of 1974; LSA-R.S.13:1570; State ex rel

Coco, 363 So.2d 207 (La. 1978). Louisiana feviee® seocdic
14:30 constitutes a legislative classification that the

crime of murder, in certain instances, iS a capital offense.
State v. Whatley, 320 So.2d 123 (La. 1975), rehearing

dented, 1975. This classification, along with the policy of
adult treatment of juveniles over a certain age convicted of
that crime, indicates a legislative intent to punish persons
such as petitioner, to the full extent permitted by the
Constitution. Smith v. Johnson, 458 F.Supp. 289, 296 (E.D.La.
1977). "Therefore in assessing a punishment selected by a
democratically elected legislature against the Constitutional
measure, we presume its validity." Greg v. Georgia, supra.
at 174, 96 S.Ct. at , 49 L.Ed. 2d at 876. See also
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. 2d
982 (1977). We must also consider the importance of the

prohibition on federal courts from imposing their own

subjective preferences upon the judgment of the state and

the community, aS enunciated in Greg, survra, and Coxer,

Supra. To compare the severity of a punishment with the
evidence proferred by the petitioner with regard to age

we would be succumbing to reliance on our own subjective
Opinion as to the propriety of the punishment for the
petitioner in question. Martin v. Blaekburn, 521 F.Supp.

685 (E.D.La. 1981). Traditionally, the primary purpose of
the Eighth Amendment's cruel and unusual punishment provision
has been directed towards the kind of punishment or on the

aa =
Severity of the punishment in relation to the type of the

crime. See Solem v. Helm, U.5. , 51 USLW 5019, 5021;
Powel. ov: Texas, 392 U.S. 514, 20 L.Ed. 2d 1254, 88 &. Ct.
2145 (1968)= It generally is not directed to the propriety
of the punishment on a particular person, @s long as it is
not imposed as the result of bias or passion. Through proper
sentencing and review procedures any bias and prejudice has
been remoed here. This petitioner's Eighth Amendment claim
that the death penalty iS unconstitutional per Se as app; ree
to individuals under 18 years of age is without merit. |
Petitioner further argues that whether or not
death is per se excessive and disproportionate when inflicted
on a defendant who was under the age of 18 at the time of
the offense, it is excessive and disportionate in this case
due to improper review of petitioner's case by the Louisiana

Supreme Court. The purpose of review by the supreme court is

to make sure that death sentences are being imposed fairly,

rationally, and without discrimination throughout the state.

Proff~tt v. Florida, 428 U.S. 242, 260 (1976).

Louisiana Code of Criminal Procedure Article
905.9.1 requires the Louisiana Supreme Court to review all
first degree murder cases within the same district being
reviewed. The Louisiana Supreme Court considered the relevant
first degree murder convictions in the district where the
offense occurred,and where the trial was held. We cannot

conclude that this review violated any Constitutional prohibition.
a

Williams v. Maggto, 679 F.2d 381, 394-95 (5th Cir. 1982) (en

—_

bane).

For the foregoing reasons, petitioner's application
for habeas corpus relief, pursuant to 28 USC 2254, is hereby

denied, and it is hereby ordered that the stay of execution

x
previously rendered by this Court expires on Sep. [= r

1983 at /D.ooAKM ‘clock.

Thus done and signed in Alexandria, Louisiana, on

this the S day of August, 1983

ITED STATES DISTRICT JDUGE

FOOTNOTES

The victim of the crime was a peace officer engaged in
his lawful duties. La.C.Cr.P. art. 905.4(b).

Findings are included in the Transcript of the hearing
which as part of the record may be used by the District Court

to determine if there was a full hearing. Thomas v. Beto,
452 F.2d 1072 (5th Cir. 1971).
af

Also, see Sptnkeltnk v. Wainwright, 578 F.2d 582 (5th Cir.
1978), in which claims similar to some of those presented by
the petitioner herein were presented. The court found them to
be of a legal nature only, and subsequently, there was fio need
for an evidentiary hearing on those claims.

The prosecutor showed Trooper Legendre the pictures in
order for him to testify as to where the victim was found.

Trial Transcript, p. 565.

5/ .
7 La.R.S. 14:30(2) defines first degree murder as the

killing of a human being where the offender has the specific
intent to kill or to inflict great bodily harm upon a Fireman

or Police Officer engaged in the performance of his lawful
duties. As noted previously, one of the aggravated circumstances
which can be found in order to consider imposition of the

death sentence is that the victim was a Peace Officer engaged

in his lawful duties. See n. 1, supra. The photos showed

that it was evident Cleveland was a Police Officer and that

he was dressed in full uniform.

A review of the record indicates that the overwhelming
evidence presented by the prosecutor was the basis of the
guilty verdict and the imposition of the death sentence
rather than any inflammatory effect the photographs may have

had on the jury.

Prejean argues that while systematic exclusion of blacks
through the use of preemptory challenges is one way to meet the
Swatn burden, the use of discriminatory practices generally
thoughout the parish is also sufficient. This contention is

without merit.

This failure to object does not act as a waiver if the
State does not raise the waiver issue, and addresses the issue
directly on the merits. In this case, the State did raise the
issue of waiver.

— Petitioner's argument that the ordinary waiver rules of

Watnwrtght v. Sykes, supra, do not apply in a capital case is
without merit. In spite of petitioner's arguments, there is

only one system of justice in this country and it does not

Change if an individual is charged with a capital crime. The

difference is that there are added safeguards to be applied in the

sentencing phase to insure that the sentence is imposed in
accordance with constitutional requirements.

10/ 7 a
In the motion to quash the jury venire petitioner alleged
that he was deprived of a fair and impartial jury because there

were more men than women on the panel. See Trial Transcript,
p. 109.

11/
_ The record indicates defense counsel's trial experience,

specifically ten years of general legal practice. Trial
Transcript p. 187.

i2/

- - Petitioner's reliance on Ganviel v. Estelle, 655 F.2d
673, (Sth Cir. 1981) is misplaced. There the questions asked
by the prosecutor were not the type to elicit unequivocal
responses:

Ot The defendant in this case is charged with capital
murder. There are only two punishments for the
offense of capital murder and that is either death
or life in the penitentiary. Now do you have any
conscientious scruples against the infliction of
the death penalty as a punishment for crime?

13/

The judge instructed the jury, in accordance with Louisiana
Statutory law, that the following were mitigating circumstances:

(a) the offender has no significant prior history of
criminal activity;

(b) the offense was committed while the offender was under
the influence of extreme mental or emotional dis-
turbance;

(ic) the offense was committed while the offender was under
the influence or under the domination of another person;

(da) the offense was committed under circumstances which
the offender reasonably believed to provide a moral
justification or extenuation for his conduct;

(e) at the time of the offense the capacity of the offender
to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was
impaired as a result of mental disease or defect or
intoxication ;

(f) the youth of the offender at the time of the offense;

(g) the offender was a principal whose participation was |
relatively minor;

<_<

(_h) any other relevant mitigating circumstance.

See Trial Transcript, p. 858; LouiSiana Code of Criminal
Procedure, art. 905.

In Sptvey, supra, the instructions failed to mention factors |
to be considered aS mitigating. Hence, it is inapposite. |

14/ ‘

See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.
346 (1972). See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,
49 L.Ed. 929 (1976); Woodson v. North Caroltna, 428 U.S. 280,

96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 47 L.Ed.2d 859 (1976); Proffzt v. Florida,

428 U.S. 242, 96 S.Ct. 2690, 49 L.Ed. 2d 913 (1976); Roberts v.
Loutstana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

15/

The Supreme Court mentioned petitioner's juvenile record.

16/

In Ford v. Strtekland, supra, the Fifth Circuit stated:

"We reject the contention both generally and speed Tina tg
as made for Ford. The function of the Supreme Court of
Florida in these cases 1S to review sentences for proce-
Gural regularity and proportionality. The court does
not ‘impose’ sentence, and for that reason there cannot
exist a due process violation under Gardner v. Florida,
430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1980).

As the Florida Supreme Court aptly stated:

|
|
|
}
|

necessarily frame our determinations in sentence

|
The record of each proceeding, and precedent, |
|
review. Our opinions, of course, then expound our |
analysis. Factors or information outside the record
play no part in our sentence review role. Indeed,
our role is neither more nor less, but precisely

the same as that employed by the United States
Supreme Court in its review of capital punishment
cases. Illustrative of the Court's exercise of the
review function is Godfrey v. Georgia, 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

a a a a a ee a a ee a a a a a a ee ee a ee ee ee

It 1S evident, once our dual roles in the
capital punishment scheme are fully appreciated, that
non-record information we may have seen even though |
never presented to or considered by the judge, the |
jury, or counsel, plays no role in capital sentence
'review'. That fact is obviously appreciated-By the
United States Supreme Court, for it very carefully
differentiated the sentence 'review' process of |
appellate courts from the sentence 'imposition' Function
of trial judges in Proffit and Gregg v. Georgia, |
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)." :

Id. at 444. In Louisiana, as in Florida, the Supreme Court
only reviews sentences; it does not impose tthe sentence.

17/

—_ It would have been incredible for the probation officer
to omit known past criminal behavior of petitioner, including
his arrest for the killing of Doucet. This occurrence
accounts for his incarceration in the Louisiana Training
Institute and his subsequent psychiatric examinations. This
information had been available to the trial court, and was
necessary for the Louisiana Supreme Court's review of petitioner's
Sentence. That reviewing authority was certainly aware of |
the fact that this information was not in evidence, was not |
considered by the jury in its deliberations on the sentence,
and therefore, could not be considered by that authority in
reviewing the sentence.

18/

——

In Solem, the Supreme Court enumerated three objective
criteria to aid a court in its reivew of a sentence under |
the Eighth Amendment: (1) the gravity of the offense and |
the harshness of the penalty; (2) the sentences imposed on
other criminals in the same jurisdiction; and (3) the sentences
imposed for commission of the same crime in other jurisdictions. |
Solem, supra at , 51 USLW at 5023. None of these factors lend.
Support to petitioners contention that the death penalty is per
S2 unconstitutional when imposed against a person who was under |
the age of eighteen years at the time of the offense.

19/
—_ Youth is specifically mentioned by the trial judge as
a mitigating factor under Louisiana Code of Criminal Procedure,

art. ¥YUS.5-42}%

IN THE UNITED STATES DISTRICT COURT FOR
U. ds. WIDiN:wt COURT

THE WESTERN DISTRICT OF LOUISIANMESTERN DISTRICT OF LouIsIANA
FILED

MONROE DIVISION

DALTON PREJEAN

}

CIVIL ACTION NO. 81-0632

-Vs- :

FRANK C. BLACKBURN, ET AL.

JUDGMENT

For written reasons assigned this date, it 1s
ORDERED, ADJUDGED AND DECREED that petitioner's

application for habeas corpus relief be and-it is hereby

DENIED; it is further

ORDERED, ADJUDGED AND DECREED, that the Stay of
Execution previously rendered by this Court expires on
September 1, 1983 at 10:00 A. M. o'clock.

Thus done and signed on this the 5th day of

August, 1983, in Alexandria, Louisiana.

Hf
\7
ix/
4 LL,
UNITED STATES DISTRICT JUDGE

APPENDIX I
ANALYSIS OF EVIDENCE WITH RESPECT TO
REASONS FOR STRIKING BLACK POTENTIAL JURORS

A. Potential Juror Cole

The District Attorney offered three allegedly
racially neutral reasons for excluding black potential
juror Glendell Cole: his large number of traffic
violations, his drinking habits, and the fact that he had
a six-year-old child. (App’x E, Hearing Tr. at 265) The
first two factors cannot be considered legitimate given
that white jurors exhibited the same characteristics and
were nonetheless acceptable to Mr. Stansbury. The third
factor cited by the District Attorney must be pretextual
inasmuch as the victim’s children were approximately the
Same age as Mr. Cole’s child. (Affidavit of Glendell Cole
("Cole Aff.") §F 6).

Mr. Stansbury testified that in picking the jury
he was looking for people with respect for the law.
(App’x E at 34) Concerned that a person with a history of
traffic violations would not be sympathetic to the shoot-
ing of a state trooper, Mr. Stansbury obtained police
records for members of the venire. (App’x E at 36) The
records he utilized in picking this jury are no longer in
his files and thus have not been examined by Petitioner’s

counsel. Mr. Stansbury’s files do contain other police

records of the venire members, but Mr. Stansbury tes-
tified that he did not review these records. (App’x E at
172) According to these police records, potential black
juror Cole was cited for speeding on three occasions.
(App’x E at 194) Mr. Stansbury never questioned Mr. Cole
about his traffic record. (Cole Aff. 4 5).

Mr. Stansbury posed no questions as to the
police records of white jurors, despite the fact that
police records obtained from the prosecutor’s files show
that white juror Howell had been cited for speeding and
for driving without a license (App’x E at 201); that white
juror Austin had been cited for driving with an expired
license (App’x F at Ex. B); and that white juror Linder
had been cited for speeding (App’x F at Ex. B). White
venirepersons Reininger, Wright and Young also had
histories of traffic violations including drunk driving
and speeding. (App’x E at 199-200; Trial Tr. 221).

Mr. Stansbury found the police records of each of these
six white people acceptable, yet he struck black potential
juror Cole because of his virtually identical traffic
violation record. Explanations of this type do not
deserve to be credited. ee State v. Butler, 731 S.W.2d

265, 269 (Mo. App’x 1987); Gamble v. State, 357 S.E.2d

792, 795 (Ga. 1987).

In response to a question by Mr. Guilbeau,
Mr. Cole testified that he drank alcoholic beverages.
(Trial Tr. 261; Cole Aff. ¢ 4) Mr. Stansbury did not
question Mr. Cole regarding the extent of his drinking.
(Cole Aff. ¢ 4) At least nine white venirepersons also
told Mr. Guilbeau that they drank: jurors Linder (Trial
Tr. 161); Richardson (Trial Tr. 176); Belton (Trial
Tr. 425); Austin (Trial Tr. 408); Johns (Trial Tr. 408)
and Bell (Trial Tr. 275) and potential jurors Duke (Trial
Tr. 381); Gorn (Trial Tr. 385); and Young (Trial Tr. 358).
Mr. Stansbury posed no questions to these whites
concerning their drinking habits, although Mr. Duke
admitted "I do drink quite a bit of beer myself" (Trial
Tr. 383), and Mr. Young had been arrested for drunk
Griving. (App’x E at 200) None of these white drinkers
troubled Mr. Stansbury: he passed on them all. His
contention that Mr. Cole’s drinking was objectionable to
him is thus not a sufficiently racially neutral explana-
tion under Batson. See Gamble, 357 S.E.2d at 795.

Finally, the prosecutor expressed some dis-
pleasure that Mr. Cole had a six-year-old child. (App’x E
at 46, 165) Mr. Stansbury testified that he was looking
for married people with children to serve on the jury.

(App’x E at 34) He was seeking people who would

sympathize with the victim, who was survived by a wife and
two young children. Given this goal, it is incredible
that the prosecutor found Mr. Cole objectionable on this
point. Mr. Cole was married with a six-year-old child.
(Trial Tr. 259-61; Cole Aff. | 6) Objectively, he was
exactly what Mr. Stansbury testified he wanted.

Mr. Stansbury asked no questions of Mr. Cole concerning
his family life to suggest otherwise. The fact that

Mr. Stansbury struck a black juror with the
characteristics he testified he was searching for
certainly destroys any racially neutral explanation for

excluding this juror.

Bs Potential Juror Watson

Mr. Stansbury offered four allegedly neutral
reasons for striking black potential juror John Watson:
Mr. Watson was divorced; he belonged to a religion that
was unfamiliar to the prosecutor; he looked at defense
counsel while Mr. Stansbury questioned him; and he struck
Mr. Stansbury as not very bright. (App’x E at 265-66)
Because Mr. Stansbury did not strike white jurors
exhibiting the same characteristics and failed to
establish clear and specific reasons supported by the

record, his explanation is not sufficient to meet the

requirements of Batson.

Mr. Watson testified that he was divorced with

two children, aged eleven and nine. (Trial Tr 395; 400)
No questions were posed as to whether his marital status
would have any bearing on his ability to be an impartial
juror. According to Mr. Stansbury, however, Mr. Watson
did not meet his objective to place family-oriented people
on the jury. (App’x E at 54) Mr. Stansbury’s explanation
is undercut, though, by the fact that he did allow white
juror Cain to be seated. Mr. Cain was no family man: he
had been arrested for criminal neglect of family and his
wife had filed suit for separation. (App’x E at 171)

Mr. Stansbury testified that he had never heard
of Mr. Watson’s religious denomination and that he was
therefore reluctant to put him on the jury. (App’x E at
54) Mr. Watson testified that he was a member of the
Church of God. (Trial Tr. 400) Mr. Stansbury’s reluc-
tance did not extend to white members of the Church of
God: he passed on white venirepersons Duke and Wright,
although they too testified that they were members of the
Church of God. (Trial Tr. 219, 381). These facts expose
the illegitimacy of Mr. Stansbury’s explanation. Gamble,
357 S.E.2d at 795.

Mr. Stansbury testified that Mr. Watson was

inattentive during voir dire, looking at the ceiling

during the proceedings. (App’x E at 52) He further

testified that Mr. Watson looked at defense counsel while
he questioned Mr. Watson. (Id.) Mr. Stansbury’s tes-
timony is contradicted by Mr. Guilbeau, who testified that
Mr. Watson did pay attention during the voir dire and
looked at Mr. Stansbury when questioned by Mr. Stansbury.
(App’x E at 228) Mr. Stansbury’s explanation is further
called into question by papers he filed during the appeal
of Petitioner’s conviction, in which he claimed that black
juror Cole, not black juror Watson, had looked at defense
counsel while questioned by the prosecutor. (App’x E at
168-169; App’x H) 1 He admitted that he could not recall
whether either Cole or Watson had looked at defense
counsel during voir dire: "I’m not sure whether they did
or not, no... I don’t recall that either way." (App’x
E at 169-70) The premise that a juror who looks at the
ceiling is unfit has been held inappropriate. Butler, 731
S.W.2d at 272. Furthermore, Mr. Stansbury’s explanation
is undermined by the fact that he conducted only a cursory
examination of Mr. Watson, asking him only three

questions. (Trial Tr. 395, 399) Engaging black jurors in

2 Mr. Cole has provided an affidavit in which he
testifies that he paid attention during voir dire and

looked at the prosecutor while being questioned.
(Cole Aff. ¢ 3)

only minimal questioning has rightly been held to render
a prosecutor’s reasons suspect. People v. Turner, 726
P.2d 102, 111 (Cal. 1986); Butler, 731 S.W.2d at 272.

Finally, Mr. Stansbury stated that he formed the
impression that Mr. Watson was not very bright. (App E.
at 52) Mr. Watson was a custodian; his educational
history is not in the record. (App’x E at 154; Trial Tr.
395) Given the lack of any foundation in the record, Mr.
Stansbury’s impression cannot be considered a clear and
specific explanation of the type required by Batson.
Evidence of low intelligence must be clear in the record
to support its use as a factor supporting a peremptory
challenge under Batson. Gamble, 357 S.E.2d at 796. Mr.
Stansbury asked just three simple questions of Mr. Watson;
his answers were direct and responsive. (Trial Tr. 395,
399). Nothing in Mr. Guilbeau’s interrogation of Mr.
Watson indicates that Mr. Watson was of less than average
intelligence. (Trial Tr. 400-403)

This is in contrast to white juror Correro, who
testified that she felt she could not sit on the jury
because she didn’t understand the questions being asked.
(Trial Tr. 291-92) Mrs. Correro was a housewife with a
tenth grade education. (Trial Tr. 242, 281) Mr.

Stansbury himself wrote in his notes during voir dire,

introduced as State Exhibit No. 1, that Correro "doesn’t
understand question." (App’x E at 160; App’x G)
Similarly, Mr. Stansbury found white veniremen Reininger,
Young and Duke acceptable as jurors. Mr. Reininger was a
sewer worker with a ninth grade education (Trial Tr. 138-
39); Mr. Young was a retired furnace operator (Trial Tr.
375); and Mr. Duke worked for the highway department
(Trial Tr. 379). Although Mr. Stansbury wrote in his
notes during voir dire, introduced as State Exhibit No. 1,
that Young was "not too smart," he did not challenge this
white venireman. (App’x E at 164; App’x G)

On this record Mr. Stansbury’s explanation
cannot be considered the clear and specific explanation
required by Batson. The district attorney did not develop
any evidence of Mr. Watson’s facilities during voir dire.
His unsubstantiated, subjective impressions (even if
truthfully reported) cannot meet the Batson standard given
the evidence regarding other jurors and the totality of
the circumstances of the jury selection here. See People
v. Turner, 726 P.2d 102, 110 (Cal. 1986) (prosecutor’s
explanations were insufficient to establish neutral
grounds for exclusion of black juror when black juror

answered all questions directly and appropriately and the

prosecutor seated a white juror who had been confused by

the questions).

C. Potential Juror Gipson

The District Attorney offered three neutral
factors for his decision to exclude black potential juror
Gipson. (App’x E at 266) Mr. Stansbury testified that he
found Mrs. Gipson objectionable because she drank, she
gave more weight to the youth of Petitioner than to the
fact that the victim was a peace officer, and she was
hostile to him. As discussed above, many white members of
the venire drank and they were acceptable to Mr. Stans-
bury. In such circumstances Mr. Stansbury’s first
proffered explanation cannot be considered legitimate.
Gamble v. State, 357 S.E.2d 792 (Ga. 1987); State v.
Butler, 731 S.W.2d 265 (Mo. App. 1987).

Mr. Stansbury’s second contention is not borne
out by the record. Mrs. Gipson initially told Mr. Stans-
bury that the petitioner’s youth would have an effect on
her opinion of capital punishment. (Trial Tr. 455) When
asked whether the fact that the victim was a police
officer would make any difference, she replied that his
being "a human being" was what mattered most. (Id.) When
the District Attorney told Mrs. Gipson that the judge

would instruct her that the killing of a peace officer is

an aggravating circumstance, she testified she would

consider it as such. (Id. at 456) The substance of her
testimony is not different from that of several white
venirepersons who testified that the fact that the victim
was a police officer carried no extra weight with then.
White venireperson Vines, for example, testified that "the
fact that a life’s been taken would mean more than him
being a police officer." (Trial Tr. 441) She further
testified she would be willing to accept youth as a
mitigating circumstance. Seated white juror Howell also
testified that the fact that the victim was a police
officer would not affect him. (Trial Tr. 431) White
jurors Cain (Trial Tr. 362), Koontz (Trial Tr. 449),
Linder (Trial Tr. 167) and Thompson (Trial Tr. 298) as
well as white venirepersons Holloway (Trial Tr. 195) and
Wright (Trial Tr. 224), all testified that they would not
give extra emphasis to the fact that the victim was a
police officer. Because Mr. Stansbury struck Mrs. Gipson
while passing on at least eight similarly situated white
members of the venire, his explanation cannot be con-
sidered a racially neutral.

Finally, Mr. Stansbury testified that he felt
that Mrs. Gipson didn’t like him. (App’x E at 56) His

testimony is contradicted by that of Mr. Guilbeau, who

stated that nothing in Mrs. Gipson’s tone of voice or
mannerisms indicated that she was hostile to the district
attorney. (App’x E at 230) The alternate juror seated in
the case also felt that Mrs. Gipson was not mean or
hostile to the prosecutor. (Affidavit of John Turner, Jr.
{ 3) Mr. Stansbury questioned Mrs. Gipson but briefly
(Trial Tr. 454-56); it is difficult to believe he could
have sensed any hostility from her in a period of seconds.
Given this record, Mr. Stansbury’s explanation cannot be

considered the legitimate clear and specific explanation

required by Batson.

D. Potential Juror Burks

The District Attorney stated four "neutral"
factors supporting his decision to exclude black potential
juror Earl Burks from the jury; Mr. Burks was single; he
was "wishy-washy" on the issue of capital punishment; his
nephew had been murdered and he had waived an exemption
from jury service. (App’x E at 264) Because similarly
situated white jurors were approved by Mr. Stansbury with
regard to the first three factors, and because the fourth
factor is not supported in the record, the proffered
explanation for the challenge was not sufficient.

(Affidavit of Earl Kay Burks ("Burks Aff.")

Mr. Burks testified that he was single. (Trial
Tr. 373; Burks Aff. § 3) He further testified that he was
29 years old, was a repairman for South Central Bell, and
held a commission as a second lieutenant in the National
Guard. (Tr. 373; 376) Mr. Stansbury excluded Mr. Burks
without questioning him about his family life or respect
for the law. (Burks Aff. ¢ 3) White venireman Howell
also testified that he was single. (Trial Tr. 431) He
further testified that he was 22 years old and worked as a
meat cutter. (Trial Tr. 412) Mr. Stansbury allowed Mr.
Howell to be seated on the jury. The District Attorney’s
failure to strike similarly situated white jurors calls
his explanation into question.

Mr. Stansbury also failed to strike white
venirepersons who had similar views regarding the death
penalty. When asked his feelings on the death penalty,
Mr. Burks testified "I’m not for nor against it." (Trial
Tr. 377; Burks Aff. ¢ 5). His testimony was not
substantially different from that of white juror Koontz
(Trial Tr. 448) or white venireperson Wright (Trial Tr.
224), who both stated they had no strong feelings about
the death penalty. The prosecutor’s failure to strike
these whites undermines the legitimacy of his explanation.

(App’x E at 177)

Mr. Burks expressed "some apprehension" toward

the criminal justice system because his nephew had been
murdered and the murderer had received a suspended sen-
tence. (Trial Tr. 375) He added that it would not affect
his conduct as a juror: "I could separate the two."
(Id.; Burks Aff. 4 4) Mr. Stansbury testified that he
struck Mr. Burks for this reason even though he didn’t
know whether it would cut in favor of the prosecution or
against. (App’x E at 206) This is hardly the clear and
specific reason required by Batson. Furthermore, Mr.
Stansbury did not strike a white juror whose house had
been broken into by a black man the weekend before.
(Trial Tr. 144) This man, who had stolen the venireman’s
money and threatened his family, was still at large.
(Trial Tr. 144) The District Attorney did not even
question the venireman as to whether this incident left
him with any apprehensions about the criminal justice
system. (App’x E at 207) In this situation, the failure
to treat similarly situated jurors alike negates the prof-
fered explanation.

Finally, the District Attorney contends that he
was unhappy with Mr. Burks because he had waived an
available jury exemption. (App’x E at 38) At the

beginning of voir dire, Judge Brunson asked the all

venirepersons who had been called for jury duty within
the past two years to identify themselves so that they
could be excused (Trial Tr. 15). Mr. Burks was eligible
to be excused and so informed the court. (Trial Tr. 17)
Judge Brunson was about to excuse Mr. Burks (Trial Tr. 17)
when Mr. Stansbury intervened, asking Mr. Burks whether he
desired to be excused. (Trial Tr. 18) Mr. Stansbury
asked him if he would agree to serve on the jury if
picked, to which Mr. Burks answered yes. (Trial Tr. 18)
Mr. Stansbury noted that he wished he had asked the same
question of the two veniremen who were excused (Trial Tr.
18) Had Mr. Stansbury not initiated this episode it is
clear that Mr. Burks would have been excused. Because Mr.
Stansbury intervened to prevent Mr. Burks from being
excused and expressed his wish to ask other veniremen to
Waive their exemptions, his testimony that he was put off
by Mr. Burks’ desire to waive his exemption rings hollow,

to say the least.

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Containers:: Box 2 (1-Case Files), Folder 9
Resource Type:: Document
Rights:: Public Domain Mark 1.0
Date Uploaded:: September 10, 2024

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