Execution of Retarded Man Is Fought
The New York Times
August 31, 1995
The best reason that Barry Lee Fairchild should not be executed on Thursday occurred at his clemency hearing two weeks ago, Mr. Fairchild's lawyer said today.
"I'm sitting there arguing my guts out, trying to save his life," the lawyer, Charles Baker, said in an interview. "We're in a room crowded with people and television cameras at 10 o'clock in the morning, and he falls asleep!"
While Mr. Baker argues that his client, a convicted killer, is not guilty of murder, it is the second part of his appeal that he now emphasizes: that Mr. Fairchild is retarded.
What further proof is needed, he contends, when "my client, who's scheduled to be executed in days, can't stay awake"?
A jury sentenced Mr. Fairchild, 41, to death for the 1983 murder of an Air Force nurse, Marjorie Mason, who was abducted, robbed, raped and shot twice in the head in a rural area near Little Rock.
Before his trial, Mr. Fairchild gave a statement to the police in which he acknowledged participating in the kidnapping and rape but denied involvement in Ms. Mason's death. He said he had not known that those with him would kill her.
At his trial, Mr. Fairchild recanted and insisted he had no connection to the crimes.
Prosecutors and defense lawyers agree that the only evidence tying Mr. Fairchild to Ms. Mason's death is his statement to the police, which was the subject of controversy at his trial. The videotaped interrogation shows Mr. Fairchild continually looking away from the camera and appearing to respond to prompting from voices elsewhere in the room.
Mr. Fairchild has refused to say whom he was with the day of Ms. Mason's killing.
On Monday, a former prison chaplain who said he had counseled both Mr. Fairchild and his brother, Robert, said in a letter to Gov. Jim Guy Tucker that he had been told that Robert Fairchild fired the fatal shots. But the chaplain, Dennis Pigman, did not say how he had obtained that information. Robert Fairchild is serving a sentence in an Arkansas penitentiary for an unrelated crime.
For a decade, Barry Fairchild has appealed his case, basing his petitions on his claim of innocence. He has been aided by the NAACP Legal Defense and Educational Fund Inc., and the National Coalition to Abolish the Death Penalty, which enlisted Mr. Baker, who has practiced corporate law here for 30 years.
Only when the Supreme Court refused to rehear Mr. Fairchild's arguments again did he challenge the propriety of his sentence. In 1993, Judge G. Thomas Eisele of Federal District Court here, who had rejected Mr. Fairchild's earlier arguments, blocked his execution hours before it was to take place and voided the death sentence, effectively commuting it to life imprisonment.
Although Arkansas law provides that accomplices to a capital offense may be executed, Judge Eisele ruled that the state's model jury instructions were constitutionally flawed in that they did not specify that a defendant's intentions should be considered in deciding sentence.
The state appealed Judge Eisele's decision. The United States Court of Appeals for the Eighth Circuit, in St. Louis, reversed Judge Eisele's ruling, and the Supreme Court refused to hear the case. On Aug. 11, the Arkansas clemency board declined to recommend a reduction in Mr. Fairchild's sentence to Governor Tucker, although its vote -- 4 to 3 against clemency -- was its closest on record.
Mr. Tucker has said he sees no legal basis for commuting Mr. Fairchild's sentence, which is to be carried out on Thursday at 10 P.M.
Mr. Baker said his client had an I.Q. of 60 to 80, "depending on who gives the test and when." A 1993 Arkansas statute bars the execution of defendants with an I.Q. of 65 or lower.
Earlier this month, Judge Eisele held there was insufficient evidence that Mr. Fairchild had such a low I.Q. and denied a request for a jury determination of his mental capacity. Again, the appeals court declined to hear an appeal.
Today, Mr. Baker was busy preparing a petition to the Supreme Court on the issue. That appeal, he said, will be Mr. Fairchild's last hope of avoiding execution.
Mr. Fairchild has chosen lethal injection over electrocution. For his last meal, he has asked for the same menu that will be served other inmates. He has been moved to an isolation cell near the death chamber.
"He knows why he's there," Mr. Baker said. "He knows they're getting ready to kill him."