Ignoring the court system

By WILLIAM H. FULLER III
Published: June 15, 2008

Although Gov. Timothy M. Kaine has the absolute right to commute to life the death sentence of a brutal murderer who killed three people in their homes, I must take issue with his press release which distorted some of the facts in the Percy Walton cases.

While the governor admits Walton was not insane at the time he committed three murders, he states “there are strong indications that his mental illness started prior to the murders.” There was no such indication or allegation made at Walton’s trial because there was no such evidence. In a burglary case that Walton was convicted of some months before the murders, there were no allegations made by his attorney or the probation officer that he had mental problems.

In fact, Walton’s trial attorney in the three murder cases gave an affidavit in federal court which stated that he consulted with Walton’s attorney in the burglary and larceny cases and he “informed me that Walton had done nothing but ‘blow smoke’, i.e., lie to him, throughout his representation of Walton.” It was not until years after the murders occurred that Walton was examined by paid defense psychiatrists who indicated that he had mental problems prior to the murders.

It appears Gov. Kaine has adopted the allegations of Walton’s defense attorneys that were rejected by the federal court that heard the evidence in a public forum where the witnesses were subjected to cross-examination. U.S. District Judge Samuel G. Wilson, who heard the evidence at Walton’s competency hearing, said, “He certainly understood when he took the life of three people what death was. He understood, and he has understood clearly, the concept of death.”

Nor is there any merit to Kaine’s statement that “(s)ince Walton’s conviction and sentencing, separate Supreme Court decisions have placed limitations on executions that very nearly fit Walton’s circumstances.”

This statement is simply not true.

Not mentally retarded

Gov. Kaine writes, “(t)he Court (U.S. Supreme Court) has ruled that the Constitution forbids executing an individual who: commits a capital crime under the age of 18 years old, was insane at the time of the capital crime, or is mentally retarded due to intellectual disabilities evidenced before the age of 18.”

Walton was not under 18 when he brutally murdered three people and even the governor admits he was not insane at the time he committed the murders. Kaine then cited Walton’s Gama IQ test score of 66, …“which is below a standard for mental retardation (70 on an IQ test) set by the Supreme Court of Virginia. …” However, Gov. Kaine conveniently left out that the test was ordered by Patricia General, a prison psychiatrist, on her first visit with Walton.

This test was given to Walton in May 2003, while he was under a sentence of death and was to be used “as a screening device to get more information about Walton.” However, “(b)oth of the Sussex I State Prison psychiatrists, (Alan) Arikian and General, are aware of Walton’s previous test scores under the WAIS test (the IQ testing “gold standard’” administered in 1996 and (1997) when Walton was not under sentence of death … and both have conclusively opined that he is not retarded regardless of the ‘GAMA’ score.”

In his opinion dismissing Walton’s claim of mental retardation dated July 2, 2003, Judge Wilson stated that “(a)fter reviewing Walton’s previous ‘gold standard’ WAIS-R tests, General opined ‘with a reasonable degree of medical certainty that (Walton) is not mentally retarded.’”

Moreover, “Scott Vrana, an associate professor at Virginia Commonwealth University, said ‘it’s very possible’ for someone to purposefully perform poorly on an IQ test.” What better reason “for someone to purposefully perform poorly on an IQ test” than to try to escape the death penalty?

As stated by the 4th Circuit, “Walton can be deemed mentally retarded under Virginia law only if he establishes, among other requirements, that his intellectual functioning would have corresponded to an IQ of 70 or less before he turned 18.” Walton was 24 years old when the “GAMA” test was given.

Significantly, five months before Walton committed these brutal and premeditated murders, he was given an IQ test. (Walton was then 17 years and 8 months old). This test, the “gold standard” WAIS-R intelligence test, revealed a verbal IQ of 86, a performance IQ of 96, and a full scale IQ of 90.

‘Street-wise predator’

On March 14, 1997, almost four months after the murders, when Walton was 18 years and 5 months old (and awaiting trial for capital murder), his court-appointed psychologist, Stanton Samenow, again gave Walton the WAIS-R intelligence test. Walton received a verbal IQ of 71, a performance IQ of 89, and a full scale IQ of 77.

When asked about Walton’s IQ test results, Samenow, testified:

“(H)e’s definitely not retarded. He’s not dull normal. Low, very low average. But then again, for a person who rejected academic endeavors in school, which he largely did, that too can affect an IQ score. So in other words, what I’m saying here is that this full scale IQ of 77 most likely is an underestimate of his intelligence.”

In addition, Dr. Mark Mills, who examined Walton in 2004, “testified that Walton is not mentally retarded and that he would estimate Walton’s IQ at around 80.” Thus, no mental retardation was noted by the examiners.

Moreover, Arikian, who had examined more than 1,000 inmates, and had more exposure to Walton than any other psychiatrist, stated that “when he first met Walton in 1999 ‘he contributed more to the conversation than I did.’” Arikian “considered Walton a ‘mentally limited, street-wise predator’ who misled people into thinking he was crazy.” He further stated “Walton is simply an ‘immature young man’ and should not be labeled schizophrenic.”

Arikian further “testified that Walton uses the phrases ‘I don’t know,’ as a defense when he comes under pressure because he is now beginning to understand the gravity of the situation … .” Arikian believes Walton “plays with us when the spirit moves him.” He believes that Walton’s “behavior is consistent with indifference.”

In his press release Monday, Kaine once again placed more emphasis than is merited on a 7-6 decision by the 4th Circuit Court of Appeals upholding Judge Wilson’s decision that Walton is competent to be executed. Kaine used the dissenting opinion of six judges as a reason for further delaying Walton’s execution. He called it a narrow decision, but the outcome of a case is never decided by the minority. Moreover, the six dissenting judges did not say Walton was incompetent to be executed. Rather, they wanted to send the case back to Judge Wilson and have him make a determination of whether Walton understood that the end of physical life meant his death. The seven other judges ruled that Judge Wilson had already decided that Walton was competent to be executed. The U.S. Supreme Court agreed.

Furthermore, why is the governor even citing the 4th Circuit Court opinion? The final arbiter is the U.S. Supreme Court, which ruled 6-3 to uphold the 4th Circuit Court’s decision that Walton was competent to be executed and refused to hear Walton’s case. The governor did not even mention the Supreme Court decision. If Walton had not met the Supreme Court’s standard of competency to be executed, it would have heard his case and granted him a stay of execution on June 8, 2006. Instead, it removed the last legal obstacles to Walton’s execution. A 6-3 decision is decisive, particularly when considering that some of the most important cases in the last 40 years have been decided by 5-4 decisions.

Playing crazy?

Walton has been on death row now for almost 12 years. Anyone held in isolation in a small cell for that period probably will have some mental problems. But the U.S. Supreme Court held in Ford v. Wainwright that the Constitution “forbids the execution of only those unaware of the punishment they are about to suffer and why they are about to suffer it.”

Before deciding Walton wascompetent to be executed, Judge Wilson had Walton examined by an independent psychiatrist, Dr. Mark J. Mills, a Columbia University professor with degrees in both medicine and law. Not only was Dr. Mills opposed to the death penalty, but he also stated that he wished he could have found Walton incompetent to be executed. In a letter Dr. Mills wrote to Judge Wilson, he stated “(1) (i)t is my belief that Mr. Walton understands that he is to be punished by execution and (2) that his punishment is a result of his conviction in the murder (of) three individuals.” Dr. Mills further stated that Walton’s infamous “I don’t know” response was merely an indication that Walton doesn’t want to answer a question. But Dr. Mills was able to get accurate information from Walton when he “was pressed.” According to Dr. Mills, Walton volunteered information that he did not know before evaluating Walton, including “the number of people who were killed.” Dr. Mills further stated that “(t)here are plenty of people who are schizophrenic but competent to stand trial, competent to make a will, (and) competent to be executed.”

After reaching his decision that Walton was competent to be executed, Judge Wilson’s order “noted the testimony of prison psychiatrist Alan Arikian, who considered Walton a ‘mentally limited street wise person’ who misled people into thinking he was crazy.” According to court documents, Walton told Arikian “I just enjoy playing around with folks.”

Before the trial of his cases, Walton told several inmates that he played crazy when talking to his psychologist. In fact, he said that if the state had enough evidence to convict him, “he was gonna play crazy and if they didn’t he wasn’t gonna worry about it.”

Every issue that Kaine said he reviewed “on terms and conditions prescribed” by him already had been reviewed and decided where they should have been — by an impartial judicial system that is a more competent forum than the governor.

During this judicial process, every witness was subject to cross-examination with an impartial judge presiding who did not have any political bases to cover. Moreover, all the evidence was heard in a public hearing in open court. Contrariwise, Gov. Kaine has conducted his so-called review behind closed doors without allowing any cross-examination of his unnamed sources and outside the public’s scrutiny.

What about the courts?

If Walton’s condition had deteriorated since the federal courts held he was competent to be executed, as Kaine claims, why didn’t Walton’s attorneys take his cases back to the federal court?

I said at the time Gov. Kaine stayed Walton’s execution on June 8, 2006, that the danger of his unprecedented procedure conducted on his “terms and conditions” was that some of the most important evidence he would be considering would have to come from state employees who work under the governor. These employees may not have felt as free to state their views to Kaine as they did in the judicial system.

In fact, the Supreme Court said in Ford v. Wainwright, which Kaine has cited and quoted, “(I)n no other circumstances of which we are aware is the vindication of a constitutional right entrusted to the unreviewable discretion of an administrative tribunal” (i.e. the governor).

Yet, Gov. Kaine has assumed that authority.

No mercy for the victims

Walton’s appeals and petitions have been denied twice by the Supreme Court of Virginia, twice by the U.S. District Court, twice by the U.S. Court of Appeals for the 4th Circuit and three times by the U.S. Supreme Court.

Jessie and Elizabeth Kendrick were in their 80s when Percy Walton shot them in the top of their heads in their own home while they were crying and begging for their lives. The medical evidence indicated they died of contact wounds to the head.

Archie Moore, a highly regarded assistant aviation instructor at Averett University, was 33 years old when he was murdered in his home by Percy Walton while letting Walton use his phone. After shooting Moore over the eye, Walton stuffed his body in a closet, put a plastic bag over his head and poured cologne over him to keep down the odor. Percy Walton told Dr. Mills he would prefer to live out his life in prison. The victims in these cases also would have preferred to live out their lives rather than having been executed in their homes by Percy Walton.

There is no question that Walton knew what he was doing when he murdered the Kendricks and Archie Moore. His sanity was not even questioned at the time of his trial. And he knows now why he was sentenced to death and the state and federal courts have upheld all the issues raised by Walton.

Unfortunately, the governor has given the victims of these horrible crimes the least consideration. Nearly all the consideration has been given to a cold-blooded, sadistic murderer who showed his three innocent, helpless victims no mercy.

Kaine’s decision is not surprising in light of his vetoes of bills in the last two sessions of the legislature which would have strengthened the death penalty.

I have never questioned Gov. Kaine’s authority to commute Walton’s death sentences to life, but it has been brutal to keep the families of the victims in suspense for two years when, in my opinion, he knew on June 8, 2006, what he was going to do.

Kaine’s unprecedented two-year delay of Percy Walton’s execution after the U.S. Supreme Court’s 6-3 decision cleared the way for Walton’s execution on the night of June 8, 2006, has made 10 years of contesting and winning all the legal issues raised in both the state and federal courts an exercise in futility. Gov. Kaine’s final act of commuting Walton’s death sentence to life for killing three helpless people in their homes has prevented justice from prevailing.

• Fuller serves as Danville’s commonwealth’s attorney and prosecuted Walton at trial.