On this date in 1928, seventeen-year-old Floyd Hewitt was executed in Ohio’s electric chair for the horrific murder of a farmer’s wife and five-year-old son.
Floyd grew up in rural area outside Conneaut, Ohio. Although at 6’4″ he had the body of a grown man, he was mentally disabled, callously described by his defense attorneys as “a moron with a ten-year-old’s intellect.” One newspaper portrayed him thus:
He is not considered of normal intellect, his drooping mouth, dull eyes and appearances contributing to the opinion. He was not bright in his classes at school.
On the evening of February 14, 1927, he visited a local farm belonging to the Brown family. He was a frequent visitor there; he loved listening to jazz music on the radio and the Browns were the only family in the area who had a set at home. Celia Brown’s husband, Fred, was away in town and she was home alone with their son Freddie.
This news column and this article describe what happened in detail. Floyd got “stirred up inside” by the music. Feeling “an overpowering love,” he made sexual overtures towards Celia, who slapped him. He hit back, and she grabbed the fireplace poker to defend herself, but he tore it from her hands. In the ensuing fight Floyd hurled Celia down the stairs and struck her repeatedly with the poker until she was dead. Then, afraid the little boy would tell on him, Floyd chased Freddie into the basement and beat him to death with a baseball bat, too.
Then he went back upstairs, washed his hands, walked the short distance home and sat down to read the newspaper.
Fred Brown got home a little after midnight, found his wife’s body on the porch. There was blood everywhere. Fred summoned neighbors and the police. After searching the rest of the house, the neighbors found little Freddie’s body in the basement.
Floyd rapidly came under suspicion; he literally left a trail of footprints right to his front door. The next morning he was arrested, wearing the same bloodstained sweater he’d worn the night before. One of the buttons had been torn off and was left at the crime scene.
Within hours, Hewitt had made a full confession. He even went so far as to take the police on a tour of the Brown house to point out what had occurred and where. The next day, however, he retracted his statements and would maintain his innocence until his death.
The press bluntly christened him “the boy clubber.”
On the first day of his trial, as he was taken into the courtroom, Floyd remarked, “This is certainly a beautiful day, isn’t it?” One reporter described him as “like a big overgrown boy, who did not realize the seriousness of the crimes with which he is charged.”
He was indeed an overgrown boy, only sixteen years old at the time of his crime, but the prosecution demanded the death penalty.
Although indicted for two first degree murders (mother and son), he was tried only for the first degree murder of the five-year-old boy.
During the three week trial, the state relied heavily upon Hewitt’s signed confession while the defense stressed Hewitt’s mental disabilities. On April 26, the jury returned a verdict of guilty without a recommendation of mercy.
Hewitt appealed, and his execution was postponed for a time, but the appeals process wore down in less than a year and the board of clemency refused to recommend a commutation to the governor …
Hewitt’s chronological age at execution was seventeen, but his mental age remained forever fixed at ten.
Floyd Hewitt might have been the youngest person ever executed by the state of Ohio, and he was the first from Ashtabula County. A “bedraggled figure … with his long black hair hanging low over his face,” and clutching a photo of his family, he died in the electric chair at the Ohio State Penitentiary Annex at 7:43 p.m.
Out on probation for an armed robbery conviction, this avatar of the classic middle name robbed a convenience store at gunpoint, then shot and killed a deputy who pursued him.
Georgia somehow didn’t have a state public defender system until 2003, a system presenting to the counties who were supposed to appoint indigent defense counsel on a local and ad hoc basis a fine opportunity for callous graft dovetailing the interests of the prosecutor’s office in winning its cases with court’s interest in pinching its pennies.
Accordingly, Baldwin County stuck Holsey with a man to test appellate courts’ standards for minimal representation, an alcoholic attorney named Andy Prince* who was rock-bottoming during the trial to the gobsmacking reported tune of a quart of vodka every night. Prince was disbarred shortly after Holsey’s conviction for robbing another client of $100,000.
According to a tragic Mother Jones profile, Prince, who was white, also happened to get in a dispute around this same time with a black neighbor and hurled some racist invective, which doesn’t seem ideal when your day job consists of trying to keep a black defendant off death row.
The late Prince — he died in 2011 — told an appeals court in 2006 that he “shouldn’t have been representing anyone,” but appeals courts, which must generally find that such “shoulds” clearly “would” have changed the trial outcome, have much less scope to act on the determination.
It’s a massive systemic cheat still in widespread use, albeit not always in such egregious fashion: use some underhanded means to get a death sentence on the books, then argue to every higher court that the deficiency can’t be proven certainly decisive vis-a-vis what might have happened in a fair fight. Do you know Holsey wouldn’t have received a death sentence? He did shoot a cop in the course of committing a violent felony, after all.
There are many general reasons why a robust defense might mitigate a sentence, but the specific reason of interest in Holsey’s case — a reason not litigated by Prince, an omission that likewise foreclosed appeals avenues — was that Holsey was severely mentally disabled.
With a testing IQ around 70, just at the border of the conventional definition for so-called “mental retardation,” Holsey had at the minimum a very strong card for the mitigation phase of the trial — if not an outright bar to execution.** Prince failed to play that card … and as of this date in 2014, American jurisprudence and the state of Georgia determined themselves content to leave it permanently face-down.
* The Guardian article cited in this post calls him Andy Price. As all other media citations I find call him Prince, I’m going with that — but as it’s likely that everyone is copying from the last story instead of doing original reportage, I’m not completely confident that it isn’t Price after all.
** Georgia was actually among the first states to bar the execution of mentally disabled prisoners — although paradoxically its early standard thereafter became one of the nation’s weakest as other states implemented their own over the years. The Supreme Court theoretically bars executing the mentally disabled, but as it has enforced no coherent standard the executing states themselves generally get to decide who qualifies.
Julius was the Matthews family’s only slave and was apparently mentally disabled; Rebecca said he had “but half sense” and John said he “had just sense enough to be a good negro.”
Both John and Rebecca emphasized that Julius was docile, obedient and apparently quite attached to his owners, who had three small children. They were baffled when he brutally assault Rebecca and tried to kill her.
On the day of the attack, John was absent. Julius went out corn-shucking with Littlebury Fallin and his uncle William Fallin, both of them white men. He came home at 6:00 p.m., drunk, did some household chores and made a large fire in the fireplace.
At 7:00, Rebecca heard some whistles outside the house and asked Julius what was going on. He said he didn’t know. He went outside and returned with an ax, saying he would use it to defend Rebecca if they were attacked. Rebecca locked the doors and windows, then sat at her spinning wheel for awhile.
When she bent over to pick something up, Julius grabbed her by the throat and said he was going to kill her, take all the money in the house and run away to a free state. He tried to throw her into the fireplace, saying he’d made the fire to burn her body.
There followed a fierce struggle and Rebecca put up a good fight. She was able to wrestle the ax away from her attacker, unlock the door and run outside. Julius tried to brain her with a large rock but he dropped it when she grabbed his arm. He then tried to stab her with a pocketknife but wound up accidentally cutting his own throat instead. Rebecca wrapped her hands around his neck and choked him until she felt him lapse into unconsciousness.
Then she grabbed her youngest daughter, age three, and legged it for a neighbor’s house. As she ran she noticed Littlebury and William Fallin right behind her.
In the state of Tennessee, even a slave was entitled to a lawyer at a criminal trial. John Matthews refused to appoint counsel for Julius, so the state appointed two lawyers to defend him. (One of them, Alfred O. P. Nicholson, would later serve two terms in the Senate and, after that, on the Tennessee Supreme Court.)
Julius expressed great remorse for his crime, saying he would never have done it sober and he wished Rebecca had killed him. At his trial, he confessed everything and implicated the Fallins, saying that they’d gotten him drunk during the corn-shucking and urged him to rob and kill his mistress.
William, who lived in Kentucky, promised to help him get to a free state. The whistles, Julius explained, had been signals from the Fallins that they were outside the cabin waiting for him to kill Rebecca.
Littlebury testified and denied everything. William did not testify. Neither man ever faced charges for their alleged role in the crime.
The jury convicted Julius after deliberating overnight, but they recommended mercy on account of his youth, his prior good character and the suspicion that he had been lead astray by others. Nevertheless, the sentence was death.
As Julius was awaiting his execution date, help came from an unlikely source: John Matthews, his owner and the husband of the victim. He wrote to the governor, Newton Cannon, asking that the errant slave be pardoned so Matthews could sell him. He listed the following reasons:
The negro is shown to have had a most excellent character.
He was quite young.
He was proved to have but a very limited portion of intellect.
He was shown to be in liquor and the circumstances raised a strong presumption that he was induced by white men to drink for the very purpose of being instigated to commit the murder.
The circumstances rendered it certain that he was instigated by white men, and with his already-impaired sense, and in liquor, that he was almost a passive instrument in their hands.
He was the only slave of his master.
That last might have been the nub of it. Matthews emphasized that if Julius were hanged and his owners got no compensation — and the state of Tennessee never compensated an executed slave’s owner for the economic loss — the family would suffer greatly. This created an odd confluence of interest between the condemned slave and the one-slave family whose matron he had attempted.
John Matthews expressed confidence that Julius “was not himself when he did the act” and added that it seemed unreasonable “to take away a life when no murder had been committed.”
Going against Matthews’s letter was a petition from the citizens of Maury County, asking that justice take its course and Julius be executed. Julius had had a fair trial, the petition said. Sparing his life and merely selling him on would not only endanger public safety but would also set a bad example for other slaves: “For what is to restrain the slave from imbuing his hands on his masters’ blood, with whom he is incensed, if he had good reason to believe that his punishment, if caught, is to only be a change of masters, and a chance that the may be for the better?”
The governor ignored John Matthews’s plea and upheld the rule of law: Julius was hanged at 2:30 p.m. on March 1, and his master was not reimbursed. On the scaffold, the young slave “confessed his guilt, and deplored his error; spoke of his mistress with much tenderness and warned the colored persons present to remember his fate.”
On this day in 2010, at 10:38 a.m., at the Southern Ohio Correctional Facility in Lucasville, convicted arsonist and quintuple murderer William L. Garner got the needle for the crimes he had committed eighteen years earlier.
Garner had burglarized the Cincinnati, Ohio apartment of Addie F. Mack on January 26, 1992, after he stole her purse and keys while she was being treated in a hospital emergency room.
After taking some electronics, Garner set three fires within the residence, although he knew there were children asleep inside it. Markeca Mason and Richard Gaines, both 11, Denitra Satterwhite, 12, Deondra Freeman, 10, and Mykkila Mason, 8, all died of smoke inhalation. Addie Mack’s oldest child, 13-year-old Rodriczus Mack, escaped through a window; he was the only survivor.
Rodriczus, Denitra, Deondra and Mykkila were siblings, and Markeca was their cousin. Richard was a friend of Rodriczus who happened to be spending the night.
Thanks to a tip from an observant taxi driver, Garner was arrested the next day and quickly confessed. He considered the children’s deaths to be “accidental” because he only set the fires to obliterate his fingerprints and he believed the children would smell the smoke and be able to get out in time.
Unfortunately, the apartment’s smoke detector was inoperable.
Garner was nineteen years old at the time of the murders. He had a criminal record dating back to age eleven, and following his January 1992 arrest he racked up thirteen behavior infractions in prison … including a fire-setting incident.
A psychologist who interviewed him said he functioned at the level of a 14-year-old, and his IQ tested at 76, barely above the juridical cutoff mark for mental retardation. When asking for clemency, Garner’s attorneys cited these factors as well as his “extremely violent and dysfunctional” upbringing, and also argued that he was brain-damaged due to lead poisoning.
In June 2010, the parole board voted unanimously to reject Garner’s clemency request, stating in its report, (pdf)
Considerable weight was afforded the considerable mitigation presented. It is clear that Mr. Garner suffered developmentally and was raised in an exceptionally and horrendously abusive environment. However, we cannot conclude that the mitigating factors are significant enough to outweigh the aggravating circumstances of an offense resulting in the death of five innocent children.
Garner was executed a month later, using Ohio’s recently-adopted “one-drug” lethal injection protocol (most states use, as Ohio had previously, a cocktail of three). It didn’t go smoothly.
A Toledo Blade article provides a detailed account of his last moments. The prison had to open a second viewing room to fit all the people who came to watch him die.
A quarter-century ago this date, a “scared” mentally disabled prisoner named Jerome Bowden was electrocuted in Georgia for a crime many think he did not commit.
Bowden drew a death sentence for a robbery-murder on the strength of two very suspect pieces of evidence:
the accusation of a juvenile co-defendant who might well have been the real murderer; and
a signed confession Bowden could barely understand
While present-day DNA exonerations are fortunately forcing reconsideration of the ubiquitous problem of false confessions, Bowden’s was understandably doubted even before his execution.
Asked to explain his signature on a document obviously beyond his capacity to compose himself, he gave a confused answer that seemed to indicate he’d been led to sign it by a suggestion that it would keep him out of the electric chair.
“Detective Myles had told me this here … Had told me about could help me, that he could, you know, which I knew that confessing to something you didn’t take part in was-if you confess to something that you didn’t do, as if you did it, because you are saying that you did.”
Bowden’s assent to this fatal “admission” sadly evokes the characteristic eagerness to please one often encounters in the developmentally disabled — sometimes, as with Joe Arridy, to their own destruction.
It’s noticeable, too, in Bowden’s incongruously ingratiating last statements, recordings of which were taken and subsequently leaked publicly. This and others are available at SoundPortraits.org.*
Bowden had been evaluated with an I.Q. of 59 at the age of 14, the examiner reporting him “functioning at the lower limits of mild retardation. He has little or no insight into his situation … He is easily distracted and has a tendency to act on impulse regardless of the consequences.”
And even though the authorities hustled through a test the day before his execution that reckoned Bowden with an I.Q. of 65 — still solidly below the conventional threshold for mental disability, but good enough for the Georgia Board of Pardons and Paroles — the whole affair shook the state. It “unsettled more than a few persons in government and law enforcement,” the Atlanta Constitution later editorialized.
Its [the state’s] reasoning was grievously faulty. Whether Bowden understood his fate or not, whether he knew right from wrong — he was indisputably handicapped …
Most states have progressed beyond the dated right-wrong standard in weighing such cases … and ask: Could the defendant help himself? There is compelling evidence that Bowden could not …
brute whimsy was given full sway. For the state of Georgia, it was a willful lapse of decency.
-Atlanta Constitution, July 1, 1986 editorial**
This lapse of decency rippled over the months ahead until Georgia in 1988 became the first state to enact a law barring the execution of the mentally disabled.
While that decision was reversed in 2002, the putative ban on executing the mentally disabled in the United States remains very far from a bright line. It’s up to the states themselves to decide who falls under that definition,† and at least some have given ample indication that they’re prepared to exploit any expediency necessary to get a fellow onto death row, or keep him there. Earlier this very week, Texas (of course) put to death a man of dubious competence, Milton Mathis, essentially by cherry-picking its data and having federal appellate review barred on a technicality.
A quarter-century on, those ripples started by Jerome Bowden still have a way to go.
“Granting a posthumous pardon is an extraordinary remedy. But the tragic conviction of Mr. Arridy and his subsequent execution on Jan. 6, 1939, merit such relief based on the great likelihood that Mr. Arridy was, in fact, innocent of the crime for which he was executed, and his severe mental disability at the time of his trial and execution. Pardoning Mr. Arridy cannot undo this tragic event in Colorado history. It is in the interests of justice and simple decency, however, to restore his good name.”
-Gov. Bill Ritter
On this date in 1939, Joe Arridy “walked to his death with the faith of a child” (Los Angeles times, Jan. 7, 1939) up “Woodpecker Hill” — where the victims of Canon City, Colorado’s gas chamber (since retired) were buried.
Shortly before execution, Joe Arridy gives away the toy train he received from warden Roy Best to a fellow prisoner.
A young Syrian-American with the mental age of a six-year-old riding the rails during the Depression, Arridy was picked up for a teenage girl’s rape-murder in a literal lynch-mob environment: he was nearly pulled from his cell for summary punishment.
Instead, the good citizens let justice run its course to the same conclusion.
The damnable thing — well, the other damnable thing — is that we have about as much reason to believe Joe Arridy committed the crime as we do you or I.
He was linked to the murder by nothing but an evolving series of unreliable confessions fed by the sheriff to his suggestible prisoner (and, later, a single “matched” hair with a suspicious chain of custody; matching hair without DNA is still an unreliable forensic technique today). The real murderer was even in custody, and was executed for the same crime while Joe Arridy’s appeals ran their futile course.
“Believe me when I say that if he is gassed, it will take a long time for the state of Colorado to live down the disgrace,” Arridy’s appellate lawyer pleaded to a deaf court.
This post is an edited version of Perske’s affidavit to the governor’s office in support of the pardon.
On March 28, 1992, Sociologist Richard Voorhees sent me a poem from an out-of-print book that described a warden weeping as he watched a man in a death row cell playing with a toy train before being walked to a gas chamber (“The Clinic” (.doc) by Margeurite Young in Moderate Fables, 1944).
“The man you kill tonight is six years old,
He has no idea why he dies,”
Yet he must die in the room the state has walled
Transparent to its glassy eyes.
I sent a copy of the poem to Watt Espy, Director of the Capital Punishment Archives, in Headland, AL. Espy researched and responded with information that tied the poem to the life and trials of Joe Arridy who at age 23 was executed on January 6, 1939.
During the next two years after receiving the poem, I traveled up and down the Eastern Slope of the Rocky Mountains from Cheyenne to Pueblo, and to Grand Junction on the Western Slope. News stories were discovered from the reading of old microfilm rolls in The Pueblo Chieftain, The Denver Post, The Rocky Mountain News (Denver), The Daily Sentinel (Grand Junction) and Wyoming Tribune (Cheyenne). Archivists and historians were interviewed at The Regional History Division of Western Colorado (Grand Junction), Wyoming State Archives (Cheyenne), District Archives of the Pueblo Public Library, Local History Center of the Cañon City Public Library, and the Colorado State Archives (Denver).
Joe Arridy’s Earliest Years
Joe Arridy was born to non-English speaking Syrian immigrants in Pueblo, Colorado on April 29, 1915. He attended the first grade in Bessemer Elementary School. At the beginning of his second year, the principal called on the Arridy family and told them that their son could not learn and asked them to keep him at home. The parents reported that for the next four years, Joe stayed around the house. He was a passive but happy child. According to his parents he was the happiest when he was alone playing all by himself. His favorite pastime was making mud pies.
Intelligence Testing and Institutionalization
At age 10, Joe was committed to the Colorado State Home and Training School for Mental Defectives, in Grand Junction. He was administered the Binet-Simon Test. The results showed that he was unable to repeat four digits (4-3-7-9). When shown the color red, he said it was black and that green was blue. He usually spoke in incompete two or three word sentences. As the questions became harder to answer, he remained silent. The examiner listed him as “an imbecile with an IQ of 46.” Later his institutional records showed no critical incident reports. For the most part he was a shy and quiet loner.
Nine months later, Joe’s father missed his son. He asked for his son to be returned home. The request was granted. Upon his return, he tended to take lonely walks all over town. These walks continued for three years.
At age 14, the walks came to an end when a probation officer caught a gang of boys performing sexual acts on him. The officer wrote an angry letter to the court, labeling Joe as “one of the worst mental defective cases that I have ever seen.” The court ordered his immediate return to the institution in Grand Junction.
During the next seven years at the institution, his records show that he was incapable of working on the farm crews or sitting in classrooms. Therefore, he was given a “day activity,” working side by side with a kindly kitchen worker, “Mrs. Bowers.” The worker reported that Joe was only capable of “Tasks of not too long duration, can wash dishes, do mopping of floors, can do small chores and errands. He depends on others for leadership and suggestions.”
Railroad Boxcar Riding
At age 22, he and a few other inmates watched men riding on top of railroad boxcars that passed the institution. So together they wandered off the institution grounds and also jumped on boxcars. They took the 24-hour ride through the mountains to Pueblo. Later they took the trip back. Joe was last seen in Grand Junction on the evening of August 13, 1936. He was believed to have jumped onto a boxcar either that night or on the next morning.
After that, Arridy disappeared from sight until he walked up to the kitchen car of a railroad work gang on August 20, in the East Railroad Yards of Cheyenne, Wyoming, dirty and hungry.
Rape and Murder in Pueblo
On Saturday evening, August 15, 1936, slightly before or after midnight, Dorothy Drain, 15, and Barbara Drain, 12, were bludgeoned about their heads while sleeping together in the same bed, at 1536 Stone Avenue in Pueblo. Dorothy was raped and beaten to death. Barbara was near death, but survived. Later, she identified Frank Aguilar as the attacker at his trial. She was not present at Joe Arridy’s trial. She did not even identify Joe Arridy as a co-attacker.
Sheriff Gets a Confession from Arridy Even Though the Real Killer is Already in Custody
On August 26, 1936, Joe Arridy was arrested by two railroad detectives and turned over to Sheriff George Carroll. Carroll, like all law officers in all of the towns up and down Colorado’s Eastern Slope, was actively picking up suspects and interrogating them regarding the attacks on the Drain girls in Pueblo.
After an hour and a half of questioning, Carroll called a reporter and told him that he had just received a complete confession for the Pueblo crime from Arridy. He recited to at least one reporter a long series of wordy, complete sentences that Arridy purportedly uttered. According to Carroll, Arridy was the lone killer and he committed the crime with a club.
At first, when Pueblo Police Chief J. Arthur Grady received news of the confession, he was shocked. The real killer, Frank Aguilar, a former WPA worker who had been supervised by the Drain girls’ father, had already been arrested for the crime.
Aguilar had been arrested during the funeral of Dorothy Drain. The Pueblo police had even recovered the weapon used in the crime. It was the head of a hatchet with nicks that matched the wounds on the girls. The Pueblo police kept all this evidence in silence because Aguilar vehemently denied committing the crime.
Following that, Sheriff Carroll changed his story. After conducting another interrogation, he then reported to the press that a hatchet—not a club—was used in the crime. He also claimed that Arridy did not do the crime alone. According to Carroll, Arridy said he did it “with Frank.”
Sheriff Carroll was a famous but loquacious individual who was known to talk long and loud about being in the posse that finally caught up with and finished off the notorious Barker gang.
Now with his regular announcements to the press he remained at his long-worded best. Carroll had been so totally verbal in his interrogations of Arridy, nothing was written down on paper. Nor was any confession signed. Consequently the confessions and changes in them were dictated daily to reporters.
Later, in the trial of Arridy, Sheriff Carroll became the star of the case. He spoke in his heroic, over-wordy style. According to the press, he did not speak from a single note. He simply testified from memory.
Frank Aguilar is Quickly Convicted
Aguilar’s trial came quickly, starting on December 15, exactly four months after the crime. It ended seven days later. His executed came quickly, too: on August 15, 1937, just two days short of the anniversary of Dorothy Drain’s murder.
Aguilar Identified as Lone Murderer in an Identical Crime in the Same Neighborhood
After the death sentence, Aguilar was brought face to face with Mrs. R. O. McMurtree, 58, who identified Aguilar as the lone attacker in a similar crime that happened two weeks earlier and just three blocks away from the Drain crime. She and her aunt, Sally Crumply, 72, were sleeping in the same bed when Aguilar attacked. He beat them on the heads as he had done in the Drain home. Like Dorothy Drain, Sally Crumply was bludgeoned to death.
Sheriff Carroll Assumes Leadership in all Aspects of the Arridy Investigation
After announcing Arridy’s first confessions to reporters and Chief Grady, two Pueblo detectives sped through the night to Cheyenne. The next morning, they joined in an added interrogation with Carroll leading it. Then they drove back to Pueblo.
Later that day, Carroll drove Arridy to Pueblo. He was present at the Pueblo Police Station when Arridy and Augilar may have been brought together. He took leadership when Arridy was taken to the Drain home and the crime was reenacted. He was present at the prison in Cañon City when Aguilar gave a signed confession that marginally included Arridy’s initials in a lower left column. That confession was printed in its entirety in the Pueblo Chieftain but was withdrawn and was never heard in a court.
Sheriff Carroll Became Chief Presenter of Evidence Against Arridy
During the prosecutor’s evidentiary presentations, Sheriff Carroll took the stand five different times. The transcript shows how Carroll was allowed to launch forth as a riveting story teller. He testified that Arridy was in complete control of his thoughts, and speaking in clear sentences that described the colors on the walls in the bedroom and the colors of nightgowns that the girls wore, and even the colors of the dresses the girls would be wearing when they went to the Sunday church services.
The Joe Arridy that Carroll described was a far cry from the Arridy who often spoke in unfinished sentences and did not know who Franklin Delano Roosevelt was. Nor did he know what a hatchet was or that his own father was present in the courtroom.
The Defense Loses in a Sanity Hearing, and Eschews an Evidentiary Defense
The defense argued at a pre-trial sanity hearing that Arridy was “Not Guilty by Reason of Insanity”. The question before the court: “Does Joe Arridy have the capacity to tell good from evil and right from wrong?” If not, he should be found to be insane and not guilty. Three psychiatrists testified that Arridy did not know right from wrong, but they hedged by saying that he was not insane. According to them, one needed to be normal first before ever being insane, and they claimed that Arridy had never been normal.
The jury deadlocked at six to six, but an hour later, voted that Arridy would have to go on trial for murder.
As strange as it may seem today, the defense attorney had conducted no investigation in the case. At the beginning of the trial he announced that he would not present an evidentiary defense and would only cross-examine witnesses for the prosecution.
He then requested that the judge set aside the earlier sanity trial verdict and that he be given permission to argue a sanity case one more time. He furthermore requested permission to make his opening argument only after the prosecution had completed with its evidentiary case. The judge agreed to all of these conditions.
The same three psychiatrists (joined by a fourth) gave the same testimony once again.
But Sheriff Carroll voiced his views unchallenged. After touting his 30 years of experience and claiming that he interrogated Arridy for “six or seven hours,” the prosecutor asked him, “Based on your experience [is] Joe Arridy capable of distinquishing right and wrong?” Carroll responded, “I think there is no doubt, whatever, but what he is”.
A verdict of “guilty” was rendered on April 17, 1937, and Arridy was sentenced to death.
On August 13, 1937, Frank Aguilar was executed, and on the same day, Sheriff Carroll and two railroad detectives received a $1000 reward for making the arrest of Joe Arridy in Cheyenne.
For a year and a half, a pro bono “Citizen Lawyer” Gail Ireland fought valiantly to save the life of Joe Arridy. During that period, Ireland managed to win at least six stays.
On January 6, 1939 at 6:15 p.m., the Colorado Supreme Court voted 4-3 to deny the last petition. Governor Teller Ammons called the warden at 6:30 p.m. and ordered that the execution be carried out.
The chaplain administered the Roman Catholic Church’s “Last Rites for a Child.” It called for the Chaplain to recite each phrase of “The Lord’s Prayer,” one at a time with Arridy repeating it, all the way to the “Amen.”
Joe Arridy’s rusty motorcycle plate served as his grave marker for 71 years, until it was replaced with a headstone reading Here Lies an Innocent Man
This volume by Perske addresses the criminal justice system’s (mis)handling of the developmentally disabled. He’s written a number of other books, fiction and nonfiction, humanizing this.
Robert Perske also graciously agreed to address a few additional questions that we had for him.
ET: How did you come to this case?
RP: It’s almost a magical thing to me. Back in 1991, I got a poem from a valued colleague of mine who is a professor, a sociologist. He was digging through some old books in Greenwich Village, and he found a poem about a warden weeping before the pellets were dropped and all of that, and how the warden cried, and how he complained about how this man playing with a toy train would die.
And I got ahold of it and went down to my buddy Watt Espy [of the Espy file -ed.], and he found it. He really dug for me, what a guy, and he found it and I headed for Pueblo and dug and dug and dug from 1991 to 1995.
What motivated me was that after coming out of World War II, I went to school and became a chaplain at an institution for mentally disabled people in Kansas. I worked my ass off to be a good pastor to them, and so when I found this much, I really started digging.
Did they lead him into the confession?
Oh, yes. He was arrested in the railyard by Sheriff George Carroll. And Carroll was a swashbuckler. He was a hero, and he was a mouthy sonofagun, and he pretty well set up the case.
As soon as he got the so-called confession, he [Carroll] didn’t call the police chief first — he called the press. He said he had the guy who did it.
But they already had the guy in Pueblo, Frank Aguilar.
Was there outright misconduct by the investigators here? Did they realize, or should they have, that they might be railroading someone?
Here’s the deal. People with so-called mental retardation were seen as nobodies in those days. They didn’t have community services, so they all went like Joe, to the institution.
Carroll knew he had somebody like that in Joe. There was a lynch mob starting to form in Pueblo, because this head of the WPA was a good solid citizen, and when his daughters were hit, and one killed and raped, there was a lot of hiding of people.
I’ve known a lot of Joes. And he’s lovable, and he’s trusting, and he’s naive, and he’s concrete-thinking, so half of the things he says, he doesn’t really understand. But on the other hand, very dependable, and very lovable. Nobody in Pueblo saw that, but [Warden Roy] Best picked it up, and then the inmates in prison picked it up too.
In their hearts of hearts, yeah, they knew. But they figured he wasn’t worth anything. He was retarded, mentally defective was the word they used. They knew they had the real killer, but they go back and get Joe to amend the confession and now he was there “with Frank”.
If you’ve got a serious mental limitation and you’re facing a capital charge in the criminal justice system today, what’s going to happen to you?
In the year 2002, Atkins v. Virginia, they banned the death penalty in those cases. And they played around with the IQ number, but in some states they’re going farther than that because you have all kinds of other disabilities. I’d say by and large, except for Texas, people are looking at these people — not more kindly, but not looking at them as people who should be executed.
If we would have had that for Joe, he would not have been executed.
Can you give us a lay definition of developmental disability?
The most prominent one I’ve seen when I worked in the institution, and yet today when I work the streets and agencies and group homes and that sort of thing, is the inability to abstract from concrete things. For example, I’ve had guys say to me, I’d say, “why did you waive the right?” and they say, “you’ve got to waive it the right, you can’t waive it the wrong.”
Barry Fairchild, down in Arkansas — Barry thought that the reading of the rights was some kind of opening prayer.
These people survive on the basis of having abstract thinkers as their friends and protectors, so consequently guys like Richard LaPointe had cops as their friends, because they leaned on authority figures. And of course the police department are committed to secure the safety of the neighborhood, but then if there’s a terrible murder and somebody starts to blame them, they’re going to cooperate with that.
I’ve got one where, on a tape recorder, they’re saying, “if you tell us, we’ll all go home”. So that’s concrete thinking that my guys usually have.
Richard Lapointe is still in prison, not on death row. He has hydrocephalus, it’s called Dandy-Walker syndrome, so he’s a guy with all kinds of disabilities. He’s not athletic at all and gets dizzy when he stands up or stops suddenly, and yet they got him to confess to a highly athletic murder of a woman with multiple violent stab wounds and moving the body.
Minutes after midnight this date in 1989, Alabama’s executioners electrocuted a developmentally disabled murderer. Nine minutes later, after rewiring the chair, they finally managed to kill him.
Alabama’s fifth execution of the “modern” era initially made the headlines as the nation’s first execution of a mentally impaired prisoner after the Supreme Court’s controversial Penry v. Lynaugh decision (since overturned) green-lighted the death penalty for developmentally disabled defendants.
Horace Franklin Dunkins, Jr. and an accomplice had raped a mother of four, tied her to a tree, and stabbed her to death, an unquestionably horrific crime. A black man with a white victim deep in Dixie … well, his IQ in the high sixties wasn’t going to help him do anything but waive his right to remain silent. The jury at his trial didn’t hear about his borderline mental retardation — Penry would require that juries get that information in the future — and at least one juror later said that little tidbit would have made the difference in Dunkins’s case.
At any rate, the buzz in this morning’s papers wasn’t about the circumstances of Dunkins’s entry into the criminal justice system, but his clumsy exit from it into the great hereafter.
According to the account of a Dr. John Vanlandingham:*
I saw Dunkins in the electric chair and I heard the generator start…. After a short period of time the other doctor … and I were called into the execution chamber. I could see that Dunkins was breathing…. I checked his peripheral pulse, in his wrist, and it was normal. I listened to his heart and his heartbeat was strong with little irregularity…. I told an official that Dunkins was not dead. Dr. – and I returned to the witness room…. I again heard the generator begin.
From 12:08 to 12:17, Dunkins sat motionless and seemingly unconscious while the execution team went all MacGyver on Yellow Mama. Once they’d fit Tab A into Slot B into Lethal Electrode C, they were finally able to try again. The doctors pronounced death 19 minutes after the switch had first been thrown.
”I regret very very much what happened,” the Alabama Prison Commissioner, Morris Thigpen, said at a news conference after the execution. ”It was human error. I just hope that he was not conscious and did not suffer.” (The New York Times)
* Dr. Vanlandingham was participating in the execution despite an injunction by the American Medical Association, which considers it a violation of the Hippocratic Oath. Physicians’ involvement (or not) in executions is a thorny ethical issue of its own; Vanlandingham, however, is not the only doctor to break the taboo.