Barry Fairchild was executed by the State of Arkansas for the murder of Marjorie Mason
According to court documents Barry Fairchild would kidnap Marjorie Mason who would be sexually assaulted, robbed and shot twice in the head
Barry Fairchild would be arrested, convicted and sentenced to death
Barry Fairchild would be executed by lethal injection on August 31 1995
According to Fairchild lawyers their client was mentally retarded and unable to read. The lawyers have also claimed that the confession given by Fairchild was beaten out of him by the Little Rock police
Barry Fairchild Photos
Barry Fairchild Case
On his videotaped confession, Barry Lee Fairchild, a black man, is flanked by three white lawmen. His head is wrapped by a thick bandage covering a scalp wound made by a police attack dog.
Periodically, he glances off camera and listens to the whispered voice of someone else who seems to be directing the proceedings in the room. But to his on-camera interrogators, he answers quickly, almost eagerly, despite a poor command of English and a slight stutter.
Yes, sir, he says on the March 5, 1983, videotape, he helped kidnap the young white woman, Marjorie “Greta” Mason, whose body was found near an abandoned farmhouse. And yes, he raped her, as did another man. But the other man was the one who killed Mason, Fairchild says. He describes his surprise at hearing the gunshots.
“Well, after he shot two times, I run up in the house and when I run up in the house, I asked him, I said, ‘What you done did?’ ” Fairchild says.
Fairchild did not confess to killing the woman, indeed was never asked that question as authorities grilled him. It turned out that the man he named as the killer was imprisoned in another state at the time of the murder. No one else was charged.
In the absence of forensic evidence, the prosecution case hinged almost completely on Fairchild’s videotaped confession. A Lonoke County Circuit Court jury of 11 whites and one black convicted Fairchild and sentenced him to death in August 1983 as an accomplice in Mason’s murder.
But as often happens in capital cases, the sentence was only the beginning of a protracted battle for life. For nearly 11 years, his case has wound through state and federal courts, raising a plethora of legal issues that surround the national debate over the death penalty and how it is administered.
“It’s a sad thing. A woman got killed and the way she got done and I feel bad about not just her but anybody like that getting killed,” Fairchild, now 39, said in a recent death row interview at the Arkansas maximum security prison at Tucker. “But I’m just not the one that did that.” The case against him, he said, was “fixed up” by police. He says he was not involved with any of the crimes against Mason.
As seven execution dates have come and gone, interest in Fairchild’s fate has grown far beyond the boundaries of Arkansas, where Bill Clinton, as governor, refused to grant clemency to Fairchild. It has forged an unlikely defense coalition linking, among others, the New York-based NAACP Legal Defense and Educational Fund with politically well-connected Little Rock lawyers from the Rose Law Firm where First Lady Hillary Rodham Clinton once practiced.
To Fairchild’s supporters, his case represents the capriciousness with which capital punishment is administered. That is one reason death penalty opponents say condemned prisoners need to have wide latitude for appeals: so that mistakes made at sentencing can be corrected
IN ARKANSAS, A DEATH ROW STRUGGLE AND DOUBT
By Lynne Duke
January 9, 1994
PULASKI COUNTY, ARK. — On his videotaped confession, Barry Lee Fairchild, a black man, is flanked by three white lawmen. His head is wrapped by a thick bandage covering a scalp wound made by a police attack dog.
Periodically, he glances off camera and listens to the whispered voice of someone else who seems to be directing the proceedings in the room. But to his on-camera interrogators, he answers quickly, almost eagerly, despite a poor command of English and a slight stutter.
Yes, sir, he says on the March 5, 1983, videotape, he helped kidnap the young white woman, Marjorie “Greta” Mason, whose body was found near an abandoned farmhouse. And yes, he raped her, as did another man. But the other man was the one who killed Mason, Fairchild says. He describes his surprise at hearing the gunshots.
“Well, after he shot two times, I run up in the house and when I run up in the house, I asked him, I said, ‘What you done did?’ ” Fairchild says.
Fairchild did not confess to killing the woman, indeed was never asked that question as authorities grilled him. It turned out that the man he named as the killer was imprisoned in another state at the time of the murder. No one else was charged.
In the absence of forensic evidence, the prosecution case hinged almost completely on Fairchild’s videotaped confession. A Lonoke County Circuit Court jury of 11 whites and one black convicted Fairchild and sentenced him to death in August 1983 as an accomplice in Mason’s murder.
But as often happens in capital cases, the sentence was only the beginning of a protracted battle for life. For nearly 11 years, his case has wound through state and federal courts, raising a plethora of legal issues that surround the national debate over the death penalty and how it is administered.
“It’s a sad thing. A woman got killed and the way she got done and I feel bad about not just her but anybody like that getting killed,” Fairchild, now 39, said in a recent death row interview at the Arkansas maximum security prison at Tucker. “But I’m just not the one that did that.” The case against him, he said, was “fixed up” by police. He says he was not involved with any of the crimes against Mason.
As seven execution dates have come and gone, interest in Fairchild’s fate has grown far beyond the boundaries of Arkansas, where Bill Clinton, as governor, refused to grant clemency to Fairchild. It has forged an unlikely defense coalition linking, among others, the New York-based NAACP Legal Defense and Educational Fund with politically well-connected Little Rock lawyers from the Rose Law Firm where First Lady Hillary Rodham Clinton once practiced.
To Fairchild’s supporters, his case represents the capriciousness with which capital punishment is administered. That is one reason death penalty opponents say condemned prisoners need to have wide latitude for appeals: so that mistakes made at sentencing can be corrected.
In a series of habeas corpus petitions, Fairchild’s attorneys have asserted that his confession was the product of coaching and coercion by abusive police. Fairchild was susceptible to such pressure, they said, because he is mentally retarded. Two police officers would testify, years later, that they saw and heard lawmen hitting Fairchild the night of his confession. Thirteen other black men would testify that they too were abused when they were picked up as suspects in the Mason murder.
These kinds of questions about guilt, innocence and reasonable doubt arise routinely in death cases. Nonetheless, 76 percent of Americans support the death penalty, according to a recent Gallup Poll. Many supporters think the penalty deters crime, though that is the subject of dispute. Last fall, the Senate voted a huge expansion in the number of federal crimes for which death can be sought, from two to 52. That federal penalty can be sought even in the 14 states that do not have death statutes.
Fairchild’s case also fits a pattern of racial disparities in death row sentences that has raised grave concerns in the legal community. Supreme Court Justice Harry A. Blackmun said recently in a televised interview that racial disparities in death sentences leave capital punishment open to questions “as to whether it squares with other provisions of the Constitution . . . and the Bill of Rights.”
Studies from eight states, including Arkansas, show on average that people who kill whites are 4.5 times more likely to be sentenced to death than people who kill blacks. Although blacks and whites are murder victims in roughly equal numbers, 84 percent of the 227 inmates executed since 1976 were sentenced for killing whites, while 12 percent were executed for killing blacks. Since 1932, only one white man has been sentenced to death for killing a black, and in that 1991 South Carolina case the black victim was the mass murderer’s 10th.
To former Arkansas Supreme Court justice Perlesta A. Hollingsworth, who dissented when his fellow state justices upheld Fairchild’s conviction in 1984 and now is on his legal team, old-style southern justice sealed Fairchild’s fate. “I don’t think the jury needed to know anything but that this white woman was raped” by a black man. “He’s committed the cardinal sin in America,” Hollingsworth said.
But Chris Raff, the prosecutor, said it was the evidence, not race, that led the jury to vote for death. “Remember, there was a black juror in the case,” Raff said. “I saw no indication that race played a part {in the police investigation} and I think federal judges agreed with that.”
Death penalty supporters want justice to come more swiftly in cases such as Fairchild’s, with more limits on opportunities for condemned prisoners to appeal. Arkansas Attorney General Winston Bryant, who contends Fairchild’s guilt was firmly established at trial, said the state considers his numerous appeals “an end run around the system.”
All four of Fairchild’s federal appeals have been decided by U.S. District Judge G. Thomas Eisele of the Eastern District of Arkansas. He has spent the better part of a decade foreclosing possibilities for a Fairchild retrial by ruling that Fairchild was not wrongfully arrested, was not coerced into confessing and is not retarded.
Then last September — after years of refusing to challenge the penalty phase of his case — Fairchild allowed his lawyers to appeal the death sentence
The challenge gave Eisele cause to view Fairchild’s videotaped confession in a new light, and the judge decided that the state did not prove a critical element of its case: intent to kill and knowledge that a killing would occur. Eisele ruled the death sentence unconstitutional and converted it to life without parole.
Bryant has asked the 8th U.S. Circuit Court of Appeals to overturn Eisele’s ruling and allow Arkansas to kill Fairchild by lethal injection. A ruling is expected soon. Meanwhile, Fairchild, his supporters and his legal observers wait to see whether the same videotape that convicted the condemned man ultimately may be what saves him.
Air Force Nurse Is Found Raped and Murdered on Farm
The woman’s body, nude from the waist down, lay sprawled on the ground behind an abandoned farmhouse in a rural area of pecan trees and cotton fields. It was 10 miles east of Little Rock, just inside Lonoke County. Her white nurse’s dress was open; her bra and slip partially torn off. She had two bullet wounds in her head. The contents of her purse were scattered around the yard
Mason, 22, a Florida native and Air Force nurse posted at Little Rock Air Force Base for less than two weeks, had been raped and sodomized. Her body was discovered on Feb. 27, 1983, a Sunday.
A day earlier, her stolen Toyota had been chased by a state trooper. Two unidentified black men bailed out. The men escaped, but one left behind a cap that said, “CAT Diesel Power.”
Soon after the discovery of Mason’s body, Officer Wayne Chaney of the North Little Rock Police Department told Pulaski County sheriff’s officials that the “CAT Diesel” hat resembled one worn occasionally by one of his informers, Barry Lee Fairchild.
Since he was 16 and stole a horse, Fairchild had been in and out of prison for theft and robbery. He drank a bit, hung out a little at gambling clubs and split his time between his mother’s house and his girlfriend’s. He picked up a little money working as Chaney’s police informer on street drug deals, and also worked part time loading grocery trucks or busing tables
Fairchild grew up in North Little Rock, a heavily working-class city just across the Arkansas River from more affluent Little Rock, in a poor black neighborhood of small wooden houses next to an old train depot. His boyhood environment remains largely segregated, with small houses and shoestring businesses in the black section, and a sparkling new shopping mall in the white section.
In school, Fairchild did not do well and was recommended for special education. By ninth grade, he dropped out. He remains a functional illiterate, according to court records. His raw IQ scores fall in or near the range of mental retardation. His mother said he always was “slow.”
His father died 31 years ago and Fairchild took it hard. “He went out there in the graveyard and got some dirt from his father’s grave and put it in his room,” said his mother, Merdine, who grew up picking cotton, had six children, and now works two minimum-wage jobs.
At the time of Mason’s death, Fairchild was a wanted man. Police had been around his haunts looking for him. He and a street buddy, Harold Green, were named in a Little Rock arrest warrant in which a police officer claimed Green had fired a gun his way. They were wanted, in other words, in connection with the alleged attempted murder of a cop.
When Chaney went looking for Fairchild, he told Fairchild’s mother, “They was gonna shoot him on sight ’cause he was considered armed and dangerous,” she recalled. She testified that she did not know about the Mason murder at that time. She said in an interview that she thought police were after him for a robbery. After Chaney’s visit, she gave her son $200 from her $212 paycheck and put him on a bus to California.
Crime Investigated by Sheriff With a Flair for Publicity
Pulaski County, which includes the city of Little Rock, assumed jurisdiction for the Mason murder investigation because her body initially was thought to be in that county. Sheriff Tommy F. Robinson led the probe.
Robinson, who had been state director of public safety in Bill Clinton’s first term as governor, had a reputation for using flamboyant and abusive law enforcement techniques, some local lawyers say, during his four years as sheriff.
When a state prison refused to help relieve the county jail’s overcrowding, Robinson, to generate publicity, took a group of his prisoners to the state prison and chained them to a fence. Robinson once was quoted as joking that he treated his black prisoners well, fed them “watermelon and chicken,” according to the National Journal.
The county jail that Robinson ran was under court order to be upgraded. A federal judge ruled that overcrowding and brutality against prisoners rendered the jail unconstitutional. When Robinson failed to follow the order, a federal judge jailed him for two nights for contempt of court.
A year after Fairchild’s conviction, Robinson went on to become a tough law-and-order Democrat in Congress, then switched to the Republican Party in a ceremony with then-President George Bush. In 1990, after three terms, he retired to a soybean farm in eastern Arkansas, only to make headlines yet again — this time, as the worst abuser in the House Bank scandal in 1992. He wrote 996 overdrafts. He was not charged.
Robinson refused several recent requests to be interviewed about the Fairchild case. From other interviews and court records, however, it is clear that he led an intense search for Mason’s killer that included using officers from three other jurisdictions. Investigators stayed awake nights tracking down leads and questioning informers. The investigation focused on black men, because black men were seen in Mason’s car. Thirteen men were picked up as possible suspects. One man, visiting from out of town, simply answered the door at a friend’s house and was taken in.
On Bus, Suspect Eludes Police By Donning a Wig and a Dress
Police later would assert during Fairchild’s trial that he was their early and primary suspect. They based this, they said, on a witness besides Chaney who could link Fairchild to the “CAT Diesel” hat. They had also gotten a tip from Fairchild’s girlfriend that he intended to flee by bus to California. And two informers provided secondhand street talk linking Fairchild and his younger brother, Robert Fairchild, to the crime.
Pulaski County sheriff’s officials intercepted Fairchild’s bus in Russellville, more than 80 miles northwest of Little Rock. But Fairchild pulled on a woman’s wig, slipped into a dress that he was carrying and exited the bus with the crowd.
On Friday, March 4, with pictures of him splashed across television and newspapers, Fairchild knocked on the door of a Russellville house and asked the residents if he could use a phone. They called the police, who surrounded the house and stormed in to arrest Fairchild.
Police testified that Fairchild ran from the house in an attempt to flee, although one officer would later testify that as many as 50 officers surrounded the place and that Fairchild was shoved out the front door. In any event, Fairchild ended up in the front yard, at which time Jubilee, the Pulaski County sheriff’s attack dog, was sicked on him. The dog chomped down on Fairchild’s head, causing injuries that required seven stitches at a Russellville hospital. He then was taken to the Pope County jail for processing, and from there driven to Pulaski County sheriff’s headquarters, where he arrived at 2:30 a.m. on March 5, 1983.
Officers Say Fairchild Confessed Without Coaching
Sheriff Robinson and several of his men were waiting for Fairchild and later described their meeting with him as amicable. He was given aspirin for his headache, one officer later testified, and another went out and bought doughnuts. And without prompting, coaching or preparation, these officers testified, Fairchild confessed before the video camera.
The scene on the tape is slightly out of focus and poorly lighted. Cramped behind a desk between Pulaski County sheriff’s Lt. Tom Waggoner and North Little Rock Officer Chaney in a barren police office, Fairchild sits erect and at times answers questions in a manner that suggests a student taking an oral exam.
With Waggoner asking strategic questions in a seemingly offhanded way, Fairchild tells how he and Harold Green abducted Mason and took her to the farmhouse and how he was outside rifling through her purse when he heard the gunshots. The two men then fled in Mason’s car, with Fairchild driving. They split the $70 they found in the victim’s purse, he says. Green gave the woman’s watch to Fairchild, who sold it to his sister, Irene, Fairchild says.
Waggoner asks if Fairchild had seen Mason’s hose and panties. Fairchild says he saw them in a cabinet in the farmhouse. Waggoner asks if he threw anything out the window during the getaway, and Fairchild says yes, a pair of gloves he had worn during the crime.
At the time of the interrogation, those two questions were key. Several officers had failed to find Mason’s panties when they searched the scene. A day later, however, an officer asserted that he found them in a low, open kitchen cabinet. Fairchild’s lawyers and his mother believe the panties may have been planted. And the mention of gloves helped police explain at trial why none of Fairchild’s fingerprints was found at the crime scene or in the car or on the steering wheel. No gloves ever were found.
And police learned several weeks later that Green could not have been involved in the Mason murder because he was jailed in Colorado at the time.
Sheriff Hit and Threatened Him, Fairchild Testifies
Fairchild testified at his trial that Robinson hit him in the head with a shotgun and threatened him if he did not confess. He asserted that the officers coached him over and over about details of the crime, even wrote some key words on a piece of paper so he would remember specifics such as panties and gloves.
Asked in an interview why he brought Green’s name into the confession, he protested, “That’s the name they wanted me to use. That’s the name they kept bringing up and kept bringing up and kept bringing up.”
On the stand, Robinson and others denied Fairchild’s allegations, and Joseph H. O’Bryan, Fairchild’s attorney, had no evidence to back up Fairchild’s claim.
The case involved an odd mix of evidence. In addition to the absence of Fairchild’s fingerprints, the state could not forensically prove that Fairchild raped Mason.
The semen found in her vagina was from a carrier of Type O blood, but Fairchild is Type A. A small amount of Type A semen was found on her slip, but that could not be linked conclusively to Fairchild because 41 percent of the U.S. population is Type A. No semen was found on the panties.
The hairs taken from the hat Fairchild allegedly wore were of the Negroid variety, but could not be more precisely linked to Fairchild.
But one piece of physical evidence apparently swayed the jury: Police officers testified that they retrieved Mason’s black diver’s watch from Fairchild’s sister, Irene, and Mason’s parents testified that it was indeed the watch they had given their daughter. Later, when appellate attorneys would uncover a police file that had not been turned over to the defense at trial, they would discover that witnesses from Mason’s job had told police that she wore a shiny metallic watch, not a black one, the day she disappeared. But at trial, the Lonoke County Circuit Court jury heard no such evidence.
Perhaps one of the turning points of the trial, according to John Wesley Hall, Fairchild’s first appellate attorney, was when Fairchild appeared to be caught in a lie.
Fairchild testified that the bandage on his head was put there at the Pulaski County sheriff’s headquarters after Robinson hit him, not at the Russellville hospital. Prosecutors seized on the inconsistency, calling the hospital nurse who treated Fairchild. She testified she dressed the dog bite with a bandage.
“That really hurt,” Hall said.
That August, the jury convicted Fairchild of capital murder after three hours of deliberation. Based on his confession — that he participated in a crime in which a murder occurred — he was charged under the state’s capital murder law in which an accomplice can be found culpable for a death, even if he did not pull the trigger.
Gov. Bill Clinton Set Most Of the Execution Dates
Fairchild entered death row in September 1983 to face an execution date of Nov. 10. But the Arkansas Supreme Court granted a stay of execution pending its review of the conviction.
Over the next decade, Fairchild’s life centered on execution dates set and executions stayed while appeals were heard and dismissed. Gov. Clinton set most of the execution dates and deferred to the courts to settle the legal issues. That meant deferring to U.S. Judge Eisele, who controlled Fairchild’s fate for most of a decade.
Eisele, 70, a Nixon appointee who is the senior judge of his district, is praised, even by adversaries, for his thoroughness. To familiarize himself with Fairchild’s case, Eisele at one point toured the Mason crime scene, walking through the abandoned, ramshackle house where the rapes occurred. But the floorboards gave way and Eisele crashed through, slightly injuring his knee.
He first became intimate with the details of Fairchild’s crime in 1985, when Fairchild filed his first petition for a writ of habeas corpus, which means that he asked the court to give him standing to challenge his imprisonment.
Soon, however, the first of many twists and turns in the case landed on Eisele’s desk. It was June 1986, nearly three years into Fairchild’s residence on death row, and the prisoner had decided to give up.
“One way or another he will die in prison, whether now or 50 years from now, and he would rather it be now,” said the letter Eisele received. It was penned by an inmate authorized to write for Fairchild.
Eisele decided he wanted to hear Fairchild’s change of heart for himself and called for the defendant to appear in court. “Just like I said: I have this death sentence and I’m ready to get it over with,” Fairchild told the judge.
Eisele ordered a state psychiatric exam for Fairchild, and it found him mentally competent to withdraw his petition. Eisele also ordered Hall appointed to the case as expert legal counsel to evaluate Fairchild’s appeals prospects.
Hall, along with O’Bryan, persuaded Fairchild to fight to live, but Fairchild stuck to his guns on one point: He would mount the legal challenges that would win him a new trial, not those that would only yield another sentence. “He didn’t want to do life without” parole, Hall said.
Hall filed an amended habeas corpus petition that asserted police had no probable cause for the arrest and that Fairchild’s confession was involuntary. That petition also stated the provision on which Fairchild’s fate now hangs: “Prisoner expressly waives any grounds for habeas relief pertaining to the imposition and application of the death penalty,” meaning that he was surrendering his right to challenge the death sentence.
On Appeal, Witnesses Talk About Police Hitting Suspect
“Back 10 years ago or 15 years ago, I’m not saying ass whuppings didn’t take place. It was a regular routine,” Bobby Woodward, a former Pulaski County sheriff’s captain, said in a recent interview. “You get somebody who’s uncooperative and gonna cuss at you, you might run upside his head.”
But Woodward, who was fired from the sheriff’s department because he was convicted of skimming money, described Fairchild as “scared” and “docile” the night he was apprehended. “I can honestly say nobody laid a hand on him,” he said.
Allegations of police brutality, the subject of two of Fairchild’s habeas petitions, have swirled through the case for years. Robinson and his deputies have denied the allegations, but Fairchild’s lawyers found three police witnesses who told a different story of that night. Their testimony was given in hearings in 1987 and in 1990 that extended into 1991.
At the 1987 hearing, Hall produced a former Russellville police officer, Larry Dalton, who testified that he saw an unidentified Pulaski County deputy slap Fairchild so hard that his head hit a wall at the Pope County jail. Dalton also testified that the police dog was ordered to attack Fairchild after Fairchild was in custody.
During a 1990 hearing, after Fairchild’s defense team had expanded to include the NAACP legal defense fund and others, former Pulaski County deputy Calvin Rollins testified that he was at sheriff’s headquarters the night Fairchild was brought in. He said he heard Pulaski County Maj. Larry Dill yelling at Fairchild, using racial epithets. He said he heard what sounded like open-handed blows hitting skin.
One of the officers operating the video camera for the confession that night called Rollins into a room to help fix a problem with the equipment. Rollins said when he looked through the viewfinder, he zoomed in on Fairchild’s face and clearly saw that his lips were swollen. The swelling was not visible without the zoom, he said.
In the same hearing, former Pulaski County deputy Frank Gibson testified that it was common knowledge at the sheriff’s office that Fairchild was beaten into confessing.
In each case, Eisele found these former lawmen lacking in credibility or said that their accounts did not jibe with the testimony of others. Rollins, who quit the force in 1984, had had a long-running feud with Dill. Gibson, who left in 1989, had secured immunity from prosecution for his testimony. And Dalton had been fired from the Russellville police force from blowing the whistle on brutality and therefore might have “animus,” Eisele said.
But Fairchild’s attorneys, led by Steven Hawkins and Richard Burr of the legal defense fund, who had taken the lead in the case from Hall, also had testimony they thought would show a pattern of abuse involving not only Fairchild but also the 13 other men who were picked up for questioning, including Fairchild’s younger brother, Robert.
Robert Fairchild, who by 1990 was serving 40 years in an unrelated kidnap and rape case, asserted that Dill choked him with a wet towel, a technique intended not to leave scarring. He claimed he lost consciousness and defecated on himself. His mother said he returned home from his visit with police wearing an orange jail jumpsuit and carrying his original clothing, wet and soiled, in a plastic bag. Ex-deputy Gibson testified that he witnessed the abuse of Robert Fairchild.
Eisele, while branding Robert Fairchild as someone with “no respect for the truth,” conceded that some of his testimony “may be true.” But the judge could not decide definitively and did not affix blame.
That was Eisele’s finding in response to some other witnesses, be they police or alleged victims: Abuse appeared likely, but it was not clear who did it. Eisele said in most of the cases that he felt the black men were lying and appeared to be tailoring their stories to conform with Fairchild’s claims. Both he and the state found it suspicious that the men had not made their claims sooner.
One of the allegedly abused men, Frank King, 34, today a Little Rock construction worker, said he did not offer his testimony earlier in the Fairchild case because, “I was scared. You can’t call the police on the police. . . . They whupped us down there and they know they did.”
Eisele dismissed the allegations of abuse as insufficient to establish a pattern that included Barry Lee Fairchild. And he wrote that even if the abuse had occurred, it would not change the fact of Fairchild’s guilt.
“It was simply a matter of black people not being believed when they go into court claiming abuse,” Hawkins said.
Federal Judge Dismisses One of Fairchild’s Petitions
Eisele also simply did not believe Fairchild’s claim of mental retardation. In a 1989 habeas corpus hearing, Hawkins argued that Fairchild’s confession should not have been admissible in court because he is mentally retarded and did not understand the Miranda rights he waived when he was arrested. Those rights include the right to remain silent and to have an attorney present.
Several experts testified about Fairchild’s development and education deficits. George Baroff, a mental retardation expert from the University of North Carolina at Chapel Hill, said Fairchild’s speech development was “extraordinarily delayed.” Baroff also said that Fairchild could recognize such words as “I,” “am,” “have” or “and,” but that his reading and writing abilities were severely limited.
On the two standard IQ tests widely used to determine intelligence, Fairchild scored at 63 and 60. An IQ score of 70 is generally considered the lowest point of normal intelligence.
But Fairchild had scored 87 in a previous state psychiatric evaluation, and one of the six experts who testified at the hearing said that an evaluation of Fairchild showed he had greater intellectual ability than was reflected in the raw scores.
Fairchild also took tests to rank his understanding of the rights he waived when he responded to the Miranda warning. The experts found that although he had difficulty understanding the concept of “waive,” he had a general understanding of the concept of giving up one’s rights. He had done it many times in his criminal history.
“All parties to this controversy acknowledge that Mr. Fairchild is of below normal intelligence, is a functional illiterate, and that he had a disastrous academic experience,” Eisele wrote in his 137-page opinion after the hearings.
The judge concluded, however, that “Fairchild is not now retarded and was not in 1983.” Eisele dismissed the petition.
Although a law that became effective last year prohibits the execution of the retarded, the state Supreme Court rebuffed Fairchild’s attempt to use it to his favor, saying the issue of his retardation was settled in federal court. The results of a fuller appeal are pending.
In September, Eisele Rules Death Penalty Unconstitutional
The judge once called Fairchild a “con man,” and in his writings in the case offered backhanded compliments to the tenacity of Fairchild’s defense.
And so it was begrudgingly that Eisele ruled on Sept. 22 — with Fairchild already in the death chamber — that the death sentence in his case was unconstitutional.
Returning to the words of Fairchild’s confession — that he “run up in the house” when he heard the gunshots and asked his partner “What you done did?” — Eisele said that Fairchild was expressing “both great surprise and disapproval” of the murderous turn of events.
He said the state had failed to prove, as the 1987 U.S. Supreme Court ruling in Tison v. Arizona said it must, that Fairchild had a culpable mental state and intended for Mason to die.
Eisele, however, was clearly angry at the circumstances of his ruling. He felt that Fairchild had abused the legal process by not making this clearly legitimate challenge sooner.
Fairchild had tied his lawyers’ hands for years with the 1986 waiver of his right to challenge the death sentence and his fear of doing life in prison. But in September, with another execution date approaching and no other grounds on which to appeal, Hawkins and others convinced Fairchild that at least life without parole would buy him time.
His mother also pressed him to change his mind, telling Fairchild during death row visits that, “life is hope. Long as you living, there’s hope you getting out of this place,” she recalled saying.
Bryant, the attorney general, has argued to the 8th U.S. Circuit Court of Appeals that Fairchild sealed his own fate with the 1986 waiver. And anyway, Bryant argued, legal procedure prohibited Fairchild from challenging the sentence in his fourth habeas corpus petition when he could have done it in the first.
But a 1992 high court ruling in Sawyer v. Whitley says that exceptions to procedural rules can be made if failure to do so would “constitute a miscarriage of justice.” Eisele ruled that Fairchild’s case was such an exception.
“A man who was not eligible for the death sentence under the Constitution as interpreted by the U.S. Supreme Court would have been executed by the state of Arkansas. . . . ” Eisele wrote in his Sept. 22 order. “That is a chilling and sobering thought.”
But if the 8th Circuit overturns Eisele and reinstates the death sentence and if the U.S. Supreme Court refuses to intervene, Fairchild could be executed with serious unanswered questions about his guilt, Hawkins said. “Innocent people do get executed,” he said.
For Fairchild, Life Proceeds on Death Row
So Fairchild waits. He watches television. He collects news clippings about his case, which other inmates read to him as they have read and interpreted his legal papers for him all these years.
His mother visits once in a while, and a nun from Memphis, Sister Francita, sometimes comes to offer spiritual help. A newspaper reporter who wrote some years ago about the disturbing questions in the case sends Fairchild letters periodically to see how he’s doing.
Fairchild says he is no longer afraid to approach death’s door. The last time, on Sept. 22, he came within a half-hour of the end.
Asked what he had for his last meal, he calls that macabre ritual “a joke. It’s just like putting gas in a car that don’t have no motor.”