Entry for June 07, 2006

The illustration  accompanied Jack Payden-Travers’s eloquent June 5 letter to Fredericksburg Free Lance-Star,  “Is this how we treat the mentally ill in Virginia?  Execute them?”  Jack is the director of Virginians for Alternatives to the Death Penalty.
In this latest round of hearings, on March 9, 2006, the Court  denied Percy Walton’s claim of mental retardation and competency by a vote of 7-6 and set an execution date for tomorrow.  U-S District Judge Rebecca Beach Smith granted a stay of execution today, based to allow a decision in a pending U-S Supreme Court in another case that challenges the way states execute killers.  The Virginia Attorney General, Bob McDonnell has appealed the stay.  Today,  American Civil Liberties Union of Virginia issued an action alert for letters and phone calls to Governor Kaine requesting clemency for Walton.  Here is Kent Willis, the ACLU-VA Executive Director’s  letter, followed by mine. 
RE: Commutation of Percy Walton’s Death Sentence
Dear Governor Kaine:
I write to ask that you commute Percy Walton’s death sentence to life without parole.
As you know, the ACLU of Virginia has concluded through two comprehensive studies-Unequal, Unfair and Irreversible (2000) and Broken Justice (2003) – that the death penalty in Virginia is severely flawed.  Percy Walton is a case in point. To put it simply, there is virtually no disagreement that Mr. Walton was severely mentally incapacitated at the time he pled guilty to three murders in 1996.   Even the now discredited psychiatric report that found him competent to enter the plea concluded that he was a danger to himself and others and that he should be placed in a psychiatric hospital.  Yet there was no mental health testimony presented at the court proceedings.
Subsequent psychiatric examinations have concluded indisputably that Mr. Walton has been actively schizophrenic since he was 16 years-old, two years before the killings of which he is accused.  In 1999, state psychiatrist Dr. Patricia General described him as “floridly psychotic.”   In 2003, Dr. Ruben Gur concluded that Walton was in a psychotic state and did not realize that his execution would mean the end of his life.
While we understand the decision to commute a death sentence is never easy, there is clear precedent in Virginia for such action based on similar circumstances. That occurred in 1999 when Governor James Gilmore commuted Calvin Swann’s death sentence because he suffered from schizophrenia.
There have also been four grants of clemency  in other states based on  mental illness:  Arthur P. Baird II, Indiana 2005; Herbert Welcome, Louisiana 2003; Alexander Williams, Georgia 2002; and Bobbie Shaw, Missouri 1993.  These commutations reflect an understanding of the Supreme Court’s 1986 decision, Ford v. Wainwright, which bars the execution persons too mentally ill to understand the reality of, or reason for, their punishment.
If there is one thing for certain in this case, it is that Mr. Walton does not now have the ability to understand the punishment he is facing.  He has at various times stated that he looks forward to eating hamburgers at Burger King after he is executed  and that he expects everyone, including himself, relatives and the victims of his crime, to be resurrected following the execution.  These are not the observations of a visionary, but the rambling delusions of a man who does not bathe until forced by prison guards, collects salt and pepper packets in his otherwise empty cell, and talks to imaginary visitors.  Prison officials, who have observed him for many years now, call him “Crazy Horse.”
On behalf of the ACLU of Virginia board of directors, staff, volunteers and 9,000 state members, I ask you stop the scheduled execution of Percy Walton and commute his sentence to life in prison without parole.
I thank you for your attention to this important matter.                                                                                                                             
And here is my letter to the governor:
As a Virginian who worked in corrections for over twenty years, I am troubled by the death penalty in this case.
As the Roanoke Times editorialized in 2003, after the 4th U.S. Circuit Court of Appeals, by a 2-1, ruling sent the case back to the District Court in Roanoke for further consideration of both the mental retardation claim and mental competency, Walton’s execution ” would have violated common-sense standards of fairness and justice but have been entirely in keeping with Virginia’s application of the death penalty. Public and official zeal for executions, in combination with arbitrarily limited safeguards for defendants, create a fertile environment for legal injustice….Rather than his death, the case should instead result in a thorough re- examination of the death penalty and the reliability of safeguards for people such as Walton.”
In this latest round of hearings, on March 9, 2006, the Court  denied Walton’s claim of mental retardation and competency by a vote of 7-6. This close vote reflects how problematic the execution remains–it is a tragedy for the victims and their family; it is a tragedy for Mr. Walton.
I know you personally oppose the death penalty on religious grounds.  I hope you won’t bend over backwards uphold this execution in order to prove that you, like I, believe in the separation of church and state.
Percy Walton suffers from schizophrenia and  his illness has gone untreated for over a decade.  He is the second severely mentally ill, African American man from Danville, Virginia to be sentenced to death.  Then Governor James S. Gilmore granted the first – Calvin Swann – clemency in May 1999.
Mr. Swann and Mr. Walton were tried before the same judge, examined by the same experts, and prosecuted and defended by the same lawyers. 
Danville Commonwealth’s Attorney William H. Fuller III, has said, “When I prosecuted Percy Walton, there was absolutely no evidence presented that in any way indicated Walton was mentally retarded or mentally ill. He had no history of mental illness or hospitalization…. On the other hand, the punishment phase of Swann’s trial was dominated by evidence of Swann’s medical records, which spanned over 25 years.”
Mr. Swann was 44 at the time of his offense;  Percy Walton was 18 years and one month old at the time of his crime.  As a child, Walton was described as neat, polite, and popular, but in his mid-teens, he stopped bathing, attending school, and playing sports, and began walking around talking to himself.
Walton plead guilty to all counts.  I have found no explanation for the lack of introduction of mental incapacity, since in pre-trial custody, his lawyer noted Walton’s unusual behavior. In February 1997, for example, Walton claimed to be his father Percy Gunn and also the “King of Hearts”. During a subsequent meeting, Walton told his lawyer that if he closed his eyes he could not be seen. Walton told his court-appointed expert,  Stanton Samenow, that he thought he could go to the electric chair and come back to be on national television; Walton also believed that he could bring his dead grandfather, as well as the victims of his crimes, back to life with him.
In a 1999 affidavit, the trial lawyer recalled how Percy Walton “did not meaningfully assist us in preparing a defense. Often times it was extremely difficult to communicate with Mr. Walton, and there were occasions when we could not tell whether he understood what we were saying to him. Other times it was clear from Mr. Walton’s questions and responses to my questions that Mr. Walton understood little of what I was telling him”. The lawyer recalled that “we were unable to convince Mr. Walton that he would not come back to life” if he was executed.
Tthe Circuit Court for the City of Danville sentenced Walton to death based on the “future dangerousness” and “vileness” factors. Evidence that Walton would be a future danger included testimony from a cell mate who had a well-known reputation for  testifying in other cases with hope of reward for his testimony.
Subsequent to Mr. Walton death sentence,  the US Supreme Court ruled, in 2002, in Atkins v. Virginia, that the execution of the mentally retarded is prohibited as “cruel and unusual punishment.” Since that ruling approximately 50 death row inmates suffering from mental retardation have been removed from death rows across the United States and had their sentences remanded to life in prison without parole.
On May 27, 2003 the U.S. Supreme Court upheld the stay of execution issued by US District Judge Samuel Wilson to hear evidence on Walton’s retardation and mental competency.
 A hearing on July 28, 2003,  state psychiatrist, Dr. Patricia General, raised the issue of Walton’s mental state shortly before he was due to be executed.
Dr. General, had worked at Sussex 1 on  death row and described Walton as “floridly psychotic” and suggested he may have severe mental retardation or a mental illness such as schizophrenia. She also conducted an IQ test on Walton a few weeks before his scheduled execution date of May 28, 2003 on which he scored 66.  She was then removed from the Sussex staff.
Senior Assistant Attorney General Robert Harris told Judge Wilson that he was “very upset” that Dr General had issued such tests so near to Walton’s execution date, but that he had played no part in her removal from Sussex 1 staff.
Two independent psychiatrists, Dr Anand Pandurangi of the Virginia Commonwealth University Medical College, and Dr Ruben Gur of the University of Pennsylvania,  also stated at the hearing that Walton has chronic schizophrenia and did not understand that he has a death sentence.
Asked by his attorney, Jennifer Givens, if he was accused of anything in his original trial, Walton replied “nuthin’…I don’t believe they accused me of nuthin’.” Asked whether he knew what his sentence was, Walton eagerly stated that “I got a piece of paper saying a hearing on May 28 (Walton’s original execution date).” Walton also believed that this date had not yet happened.
Attorney General Harris,  cross examining Walton, asked “We’re going to kill you. Do you know that?” – Walton replied “no”.
The remaining psychiatrist at the prison, Dr Alan J Arikan, gave evidence for the state saying that he did not believe Walton to be incompetent, as answers to various interviews had been too calculating. Some death penalty opponents have argued that such ndermining  and bypass the testimony and opinions of its own officials such as Dr. General indicates the contradictory and malicious nature of the death penalty in Virginia.
Judge Wilson stated that if he decided to credit Walton’s testimony, then clearly Walton was not competent.  The 11 hour hearing adjourned with no decision –  the Judge requested an independent expert to testify on Walton’s mental  state.
Five of the most recent grants of clemency to death row inmates nationally have been based on the inmate’s extreme mental illness reflect a greater understanding of the ravages of severe schizophrenia, its biological cause, and the need for compassion and treatment.  These include Arthur P. Baird II (Indiana 2005); Herbert Welcome (Louisiana 2003, mentally ill and mentally retarded); Alexander Williams (Georgia 2002); Calvin Swann (Virginia 1999); and Bobbie Shaw (Missouri 1993). 
I know you will review this case carefully, and hope that you will grant Mr. Walton clemency.   Please, let this case “result in a thorough re- examination of the death penalty and the reliability of safeguards for people such as Walton.”


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