Barry Lee Fairchild | Murderpedia, the encyclopedia of murderers

False Confessions

The beating of Barry Lee Fairchild

DeathPenaltyInfo.org

It was the kind of crime that inflames local passions: the kidnap, rape and murder of a 22-year-old, white Air Force nurse described as "a good Christian girl;" a former homecoming queen and cheerleader raped and murdered by one or more African-Americans. It was the kind of crime for which, in the not too distant past, a black suspect might well have been lynched. But in Little Rock, Arkansas, in 1983, things were different. Or were they?

On the evening of February 26, 1983, a state trooper gave chase to a car belonging to Marjorie "Greta" Mason. In North Little Rock, the car screeched to a halt and two black men got out and ran. The following morning, Mason's partially nude body was found near an abandoned farm house. Public outcry was immediate and furious. Tommy Robinson, the local sheriff who would be elected to Congress the next year, went on the air to denounce the crime and promise swift justice. "If you can beat, rape and sodomize a female in our society and get away with it," he told his radio audience, "we're all in trouble... It's imperative that he is picked up."[26]

Six days later, after the media had reported many details of the crime, the police received a tip from an unnamed informant, a man described in police files as inaccurate about half the time, with a tendency to ggerate.[27] The names he gave the police were the brothers, Robert and Barry Lee Fairchild.

Barry Fairchild was arrested outside a house surrounded by Pulaski County Sheriff's deputies. As he emerged, unarmed, 30 to 50 police surrounded him. He fell to the ground and the deputies released their dog, Jubilee. Fairchild was badly bitten on the neck, side and head. It required seven stitches to close the gap on his head. After being treated at the local hospital for the bites, he was taken to the police station for questioning.

Within a very short time, Barry Fairchild, functionally illiterate and mentally retarded, confessed on camera. He told them he had participated in the crime, but did not actually kill Ms. Mason. He said he was outside an abandoned farmhouse sitting in Mason's car when his accomplice raped her and then shot her twice in the head inside the farmhouse. In important details, Fairchild's confession did not add up.

Before the night was over, Fairchild confessed again on videotape. This time, his con-fession, at variance with the first in many respects, was consistent with what the police knew of the crime.

The discrepancies in the confessions were not the only problems with the case. Fairchild, for example, named his accomplice but later maintained that the name was supplied to him by his interrogators. Subsequently, it was learned that the man he named was in Colorado at the time. None of the fingerprints found in the car or on Mason's belongings could be identified as Fairchild's. A local store owner identified a hat found near the body as belonging to Fairchild. Yet, none of the hair found in it was his. Semen found on Mason's body was blood type O, while Fairchild is blood type A. But none of this mattered. The police had a confession and with a confession they could get a conviction. (When Robert Fairchild was questioned, he resolutely said he knew nothing of the crime. He was never charged.)

During the trial, Fairchild recanted the confessions, saying that he had been threatened and beaten by Sheriff Tommy Robinson himself and Major Larry Dill. He testified that when he told the police he knew nothing of the crime, Robinson hit him on the head with the barrel of a shotgun and Dill kicked him in the stomach repeatedly. He said he had been rehearsed for twenty minutes on what to say. (At one point on the videotape, he is asked how many times Mason was raped. He pauses, looks behind the camera, waits with his mouth open, then finally raises two fingers. He looks back at the camera and says, "Two, two times." [28])

The jury believed the sheriff. District Attorney, Chris Raff, prosecuting his first murder trial as an elected official, said he didn't think anything less than death would be appropriate for Fairchild. The jury believed that, too. On August 2, 1983, they sentenced Barry Fairchild to die by lethal injection.

And that might have been the end of it. For seven years, lawyers for Fairchild tried in vain to obtain the evidence to prove his contention that the false confessions were beaten out of him. Finally, they received an anonymous call telling them that they were crazy if they thought Barry Fairchild was the only black suspect subjected to the kind of brutality he alleged at the hands of Tommy Robinson, who was by then Congressman Robinson. The caller gave names. The lawyers investigated. What they found made them sick.

Numerous other "suspects" had been brought in for interrogation one by one before they brought in Fairchild for questioning. They had one thing in common: they were all African-American. All but one "were subjected to horrifying brutality. They were beaten... several were bloodied... they were threatened with guns, often thrust into their faces, and they were kicked. All were pushed and shoved and knocked around. They were terrorized racially, threatened with hanging and with being killed and thrown in the river. They were called 'nigger.' ...And they were all told, 'we know you were involved, we know you raped and killed that nurse, we're gonna' do to you what you did to her if you don't tell us what happened.'" [29]

A petition for habeas corpus relief was filed in the U.S. District Court seeking to invalidate Fairchild's confessions on the basis that they had been coerced. A number of the men subjected to this governmental third degree testified at an evidentiary hearing in August, 1990. Some were too afraid to speak publicly.

Frankie Webb was arrested at his home at 3 in the morning several days after the murder. He testified: "Sheriff Tommy Robinson and three deputies... tried by force to get me to sign a confession that was already written out. They called me 'nigger' and threatened to kill me if I did not sign it. I refused...the three deputies hit me numerous times over the head with a telephone book... Robinson pulled a .38 revolver from his holster. He held it between my eyes and again threatened to kill me if I did not sign the confession. He cocked the gun. I was afraid and was about to sign... when he pulled it back and... I saw that there was no bullet in the chamber, so I again refused. [30]

Five deputies showed up at the home of Nolan McCoy three days before Fairchild's arrest. At the sheriff's office, "[Captain Bobby] Woodward turned and pulled a gun out and jammed it into my forehead. He said 'Nigger, you know you done raped that nurse. Now you better tell the truth or I'm going to blow your fuckin' head off.' I could see his finger on the trigger, and I thought he was going to kill me. I grabbed his arm and got hold of the gun. It was then that I saw the gun was empty." [31]

While they were working Nolan McCoy over, they were also working to get a confession from Randy Mitchell. According to McCoy, "I saw [Mitchell] in the other room. He looked like he had been beaten bad, and he was crying. His eyes were so swollen that they were almost shut." [32]

Mitchell was then placed in a holding cell. Charles Pennington, who was put into the same cell, told the court: "Randy Mitchell was sitting on the bench in the cell. He appeared to have been beaten. His eyes were swollen and his lip had been split and was puffy and had been bleeding. I asked him what happened. He said, 'They whipped my ass.'" [33]

Donald Lewis became the next suspect. "During the course of being questioned," he told the court, "...I was physically, and verbally abused, as well as threatened because I wouldn't confess to a crime that I did not commit. I surrendered samples of blood, saliva, and hair from my body to the police."[34]

Not all the testimony of abuse came from the victims. Former deputy sheriff Frank Gibson testified that he had witnessed choking, beating and threats by Sheriff Robinson against Barry's brother, Robert, shortly before Barry Fairchild's arrest. He testified that Sheriff Robinson drove Robert to a wooded area, threw him on the ground, and threatened to kill him if he didn't confess.

According to the former deputy, "Tommy Robinson and Larry Dill wouldn't come out and say, 'go back out there and whup him,' you know, 'go back there and hit him in the head.' He'd say, 'You know what I mean. Go on and do what you need to do. I want a confession. You know what I mean.'" [35]

But, like the others, Robert Fairchild didn't confess. And finally, they got hold of Barry Fairchild.

The sheriff's department had tried to coerce confessions from at least five other people in the two or three days preceding Mr. Fairchild's arrest. The same kind of coercion directed toward Mr. Fairchild--physical abuse, brandishing weapons and threatening death--was directed toward the other five suspects as well. But, in the words of one of his appellate attorneys, Richard Burr, "Barry Fairchild had a vulnerability that none of the others had, primarily because he has mental retardation."

Fairchild says, "To me it was a life or death situation. That's the way I saw it... They probably would've found my body in some ditch the next morning... I truly believe that." [36]

In June, 1991, the district court upheld the conviction and death sentence of Barry Fairchild.

His attorneys have appealed to the Eighth Circuit Court of Appeals. Attorney Dick Burr, with a nod to the history of Little Rock, Arkansas, wonders whether justice can prevail. "This case is a question about whether black people who have been terrorized and who speak about it with humiliation, with emotion, with tears--whether those people can be believed when the likes of Tommy Robinson say, 'No, they're liars.'" [37]

*****

[26] "Confession At Gunpoint?" produced by Gareth Harvey, "20-20," March 29, 1991

[27] "Questions Remain in Fairchild Case," by Phoebe Wall, Arkansas Gazette, Feb. 12, 1989

[28] Ibid.

[29] Appellant's Motion to Remand to the District Court, in the U.S. Court of Appeals for the Eighth Circuit, Barry Lee Fairchild v. A.L. Lockhart, Sept. 4, 1990

[30] Ibid. at 7

[31] Ibid. at 8

[32] Ibid. at 9

[33] Ibid.

[34] Ibid. at 10

[35] Op. Cit. , ("20-20")

[36] Ibid.

[37] Ibid.

Barry Lee Fairchild

Pulaski County, AR - Feb 26, 1983

VictimsoftheState.org

Fairchild was convicted of the kidnapping, rape, and murder of a 22-year-old Marjorie “Greta” Mason. Mason was a white Air Force nurse and a former homecoming queen. Six days after the rape and after the media had reported many details of the crime, the police received a tip from an unnamed informant, a man described in police files as inaccurate about half the time, with a tendency to exaggerate. He named Barry Lee Fairchild as one of the culprits.

Fairchild, a functionally illiterate and mentally retarded black man, was unarmed outside his house and fell on the ground when surrounded by Pulaski County Sheriff's deputies. The deputies released their dog on him and Fairchild was badly bitten on the neck, side, and head. He required nine stitches to close the gash on his head.

After treatment at a hospital, Fairchild gave two confessions, neither of which agreed with the facts. In one he gave a police supplied name of his supposed accomplice, but that man was later known to be in Colorado at the time. The facts of the crime did not fit Fairchild. Fairchild had blood type A, while the semen found inside Mason showed her assailant had blood type O.

During his trial, Fairchild recanted his confessions, saying that he had been threatened and beaten by Sheriff Tommy Robinson and Major Larry Dill. He testified that when he told the police he knew nothing of the crime, Robinson hit him on the head with the barrel of a shotgun, and Dill kicked him in the stomach repeatedly. He said he had been rehearsed for twenty minutes on what to say. (At one point on the videotape, he is asked how many times Mason was raped. He pauses, looks behind the camera, waits with his mouth open, then finally raises two fingers. He looks back at the camera and says, “Two, two times.”)

Fairchild was convicted and sentenced to death. Seven years later Fairchild's lawyers found out that at least five other “suspects” were brought in to confess to Mason's murder. “All but one were beaten... several were bloodied... they were threatened with guns, often thrust into their faces, and they were kicked. All were pushed, shoved, and knocked around. And they were all told, ‘We know you were involved; we know you raped and killed that nurse; we're gonna' do to you what you did to her if you don't tell us what happened.’” A number of these suspects testified at an evidentiary hearing, but some were too afraid to speak publicly.

In 1990, thirteen men publicly disclosed that, like Fairchild, they too had been detained for questioning about the Mason murder and were tortured. One of these men, Michael Johnson, reported that he heard sheriffs in the next room torture Fairchild into confessing. Two former Pulaski County Sheriff Deputies, Frank Gibson and Calvin Rollins, have admitted that physical assault and abuse were common interrogation tactics at the time of Fairchild's arrest.

Fairchild apparently gave into the brutality and confessed because unlike the others, he was mentally retarded. At a hearing in 1991, Fairchild's conviction and death sentence were upheld. Fairchild was executed on Aug. 31, 1995. After Fairchild's conviction, Sheriff Tommy Robinson became a U.S. Congressman from 1985 to 1991. After Fairchild was executed, Robinson ran for Congress as a major party candidate in 2002.

Barry Lee Fairchild (Trial and Execution of)

EncyclopediaofArkansas.org

On August 31, 1995, Barry Lee Fairchild became the eleventh Arkansan put to death under the state’s modern capital punishment statute, despite controversy over the methods used to extract a confession that was later repudiated by Fairchild.

On February 26, 1983, Arkansas state troopers pursued a car driven by two black males who managed to abandon their car and run away. The car was later identified as belonging to Marjorie “Greta” Mason, whose body was found the next day near an abandoned farmhouse in Lonoke County. Mason, a twenty-two-year-old U.S. Air Force nurse, had been raped and shot twice in the head.

Six days later, acting on information provided by a confidential source, police arrested brothers Robert and Barry Lee Fairchild. (A file in the Pulaski County Sheriff’s Department described the informant as one who “greatly enhances his information to make it look like he knows more than he actually does,” adding that “about 50% of the time information is not correct.”) Robert was questioned but denied any involvement in the crime and was never charged. Barry Lee, after being stitched up and treated for bites inflicted by the Pulaski County Sheriff Department’s dog during his arrest, was questioned throughout the night, during which he gave two conflicting confessions. The first was inconsistent with the facts of the case, leading to a second confession that appeared to eliminate the inconsistencies.

The trial began in Lonoke County Circuit Court on July 26, 1983, with Circuit Judge Cecil A. Tedder presiding. The case was prosecuted by Chris Raff, while a young attorney named Joe O’Bryan was the defense attorney. During his capital murder trial, Fairchild recanted this confession, testifying that when he denied any knowledge of the crime, Sheriff Tommy Robinson and Major Larry Dill beat him and threatened to kill him if he did not confess. Fairchild testified that he was carefully rehearsed by his interrogators before giving his second videotaped confession.

Fairchild’s lawyers attempted to show a pattern of abuse by the sheriff’s office by putting on the stand a number of other African-American men who claimed that they, too, had been interrogated in the days leading up to Fairchild’s arrest and that they had been subjected to Sheriff Robinson’s third-degree tactics. At a hearing in August 1990, a series of these witnesses testified that Robinson and his deputies attempted to get them to sign confessions that were already written out, that they had been subjected to violent beatings, and that guns had been put to their heads while they were told to confess. They testified that they had seen other suspects beaten and had been subjected to racial epithets. Former deputy sheriff Frank Gibson testified that he had witnessed the defendant’s brother, Robert, beaten and threatened by Robinson. According to Gibson, the sheriff told his deputies: “Go on and do what you need to do. I want a confession.”

No physical evidence linked Fairchild to Mason’s rape or murder: no fingerprints in the car or on her belongings could be matched to his; a hat found near the crime scene and identified as Fairchild’s contained strands of hair, none of it belonging to him; and semen found on the victim’s body was consistent with blood type O, while Fairchild was blood type A. However, on August 2, 1983, based solely upon his recanted confession, the jury found Fairchild guilty of rape and murder, and Judge Tedder sentenced him to die by lethal injection.

The complicated history of appeals in this case began with a direct appeal to the Arkansas Supreme Court, which affirmed the jury’s verdict in 1984. There followed four separate petitions for habeas corpus in the federal court, in which the defendant is allowed to argue issues outside the direct record of the trial. Each of these petitions was heard by Garnett Thomas Eisele, Senior U.S. District Judge for the Eastern District of Arkansas.

In the first petition, Fairchild’s attorneys asserted that their client had received “Ineffective Assistance of Counsel” (IAC) at the trial, arguing that his trial lawyers failed to challenge the constitutionality of his arrest and that his confession was coerced and therefore unreliable. Judge Eisele denied these claims in 1987. A second petition for habeas corpus argued that Fairchild could not have made a voluntary waiver of his constitutional rights before confessing because his mental retardation did not give him the requisite mental ability to make a voluntary waiver. This petition, too, was denied by Judge Eisele in 1989. In the third petition, new evidence was introduced giving credence to earlier claims that the confession was coerced by force, and therefore unreliable. Judge Eisele dismissed this petition in 1990, but the Eighth Circuit Court of Appeals ordered the District Court to conduct an “evidentiary hearing” to determine the validity of the claim.

During seventeen days of hearing numerous witnesses testify to the abuse they had suffered at the hands of Sheriff Robinson, in 1991, the court again dismissed the claims, finding that “only a few of the witnesses had probably been abused or intimidated in some manner.” One of Fairchild’s appellate attorneys, Richard Burr, argued that Fairchild had been unable to resist the threats and overt violence because he “had a vulnerability that none of the others had…mental retardation.” Some testimony determined that Fairchild’s IQ was in the low sixties, well in the range considered retarded.

In 1993, in the fourth and final habeas petition, Fairchild finally prevailed. Because the evidence showed, in Judge Eisele’s words, that Fairchild was “not the one who shot and killed Ms. Mason,” but was an accomplice, the state failed in its burden, required under Arkansas law to prove “beyond a reasonable doubt that which is constitutionally required for imposition of the death penalty: that the defendant himself has acted with ‘extreme indifference to the value of human life.’” Judge Eisele ordered that the death sentence be reversed, and that a sentence of life in prison without parole be imposed in its stead.

Fairchild’s victory, however, was short-lived. In 1994, the Eighth Circuit Court of Appeals reversed Judge Eisele’s decision, ruling that four petitions for habeas corpus constituted an “abuse of the writ.” Without refuting the legal conclusion that the Arkansas capital punishment statute had been violated, the Circuit Court held that it was too late to make this argument and that only a showing of “actual innocence” could overcome this procedural roadblock. The Court of Appeals reinstated the death sentence.

On August 11, 1995, the Arkansas clemency board failed by one vote to recommend clemency, their closest vote on record. Three weeks later, Barry Lee Fairchild was executed. No posthumous efforts to exonerate him have ever been undertaken. In 1984, the year following Fairchild’s conviction, Sherriff Robinson was elected as a U.S. representative for Arkansas’s Second Congressional District.

In 2002, the U.S. Supreme Court declared, in Atkins v. Virginia, the execution of the mentally retarded to be an unconstitutional violation of the Eighth Amendment prohibition against “cruel and unusual punishment” based at least in part on the Court’s conclusion that “mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit.”

857 F.2d 1204

Barry Lee FAIRCHILD, Appellant,
v.
A.L. LOCKHART, Director of the Arkansas Department of
Correction, Appellee.

No. 87-2417.

United States Court of Appeals,
Eighth Circuit.

Submitted June 16, 1988.
Decided Sept. 26, 1988.
Rehearing and Rehearing En Banc Denied Nov. 9, 1988.

Before ARNOLD, Circuit Judge, ROSS, Senior Circuit Judge, and WOLLE,* District Judge.

ARNOLD, Circuit Judge.

Barry Lee Fairchild was convicted of the capital murder of Marjorie Mason and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985), and, aside from giving Fairchild a choice between electrocution and lethal injection as the manner of execution, denied post-conviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985).

After Fairchild filed this petition for writ of habeas corpus in the District Court,1 he decided to withdraw the petition and proceed to execution, because he considered death preferable to life in prison without parole, which he thought was the best result he could hope for on habeas. The District Court found Fairchild competent to waive collateral review, but after a court-appointed expert (who is Fairchild's current lawyer) had analyzed the case, Fairchild decided to pursue two grounds which could win him a new trial, as opposed to resentencing, if he prevailed. So Fairchild dropped all claims but the two before us; no one questions the validity of this waiver.

The issues before us are whether Fairchild's trial lawyers were constitutionally ineffective for not challenging the legality of the arrest warrant (for an unrelated charge) on which he was arrested, and whether Fairchild was coerced into confessing to the Mason murder. In a thoughtful and thorough opinion, 675 F.Supp. 469 (E.D.Ark.1987), the District Court rejected these claims. We affirm.

In December, 1982, an arrest warrant for Fairchild was issued by the Clerk of the Municipal Court of Little Rock, Arkansas, in connection with an alleged attempted capital murder of a Little Rock police officer, Joe Oberle. Fairchild had not been arrested by February 26, 1983, the date Mason was murdered. When Fairchild became a suspect in that murder, he fled Little Rock and boarded a bus for California. He escaped from the bus when police stopped it in Russellville, Arkansas, and was arrested there three days later after an intensive manhunt. A few hours later, after having been brought back to Little Rock, Fairchild twice confessed to the murder on video tape and took the investigating officers on a "tour" of places where different parts of the crime had occurred.

Fairchild's trial lawyers moved to suppress this evidence on the ground that there was no probable cause to arrest for the Mason murder. The prosecutor defeated the motion by arguing that the arrest was on the Oberle warrant, not the Mason murder. Fairchild's lawyers did not question the adequacy of the warrant. In his habeas petition, Fairchild argues that this failure amounted to ineffective representation.

As explained in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), to prevail on this claim Fairchild must show not only that his lawyers' representation fell below an objective standard of reasonableness, but also that "his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence...." Id. at 375, 106 S.Ct. at 2583. The District Court rejected this claim. It ruled that Fairchild's arrest did not violate the Fourth Amendment, so the evidence would not have been suppressed, and Fairchild therefore could not establish actual prejudice on his claim of ineffective assistance.

To explain why we affirm this determination, we need only briefly recount the District Court's reasoning. First, the Court held the procedures underlying the issuance of the Oberle warrant constitutionally defective, see 675 F.Supp. at 477-79, and the evidence obtained in reliance on that warrant excludable under the rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), see 675 F.Supp. at 479-87. Second, it ruled that there was no probable cause to make a warrantless arrest of Fairchild for the Oberle attempted murder. Id. at 487-88. But it did find that, at the time Fairchild was arrested in Russellville, there was probable cause to make a warrantless arrest for the Mason murder. Id. at 488-89.2 Thus, the Court concluded that the arrest was valid under the Fourth Amendment and provided no basis on which to suppress evidence obtained in the subsequent interrogations.

Our review of the District Court's factual findings is limited to a determination of whether they are clearly erroneous. Campbell v. Minnesota, 553 F.2d 40 (8th Cir.1977). Under the standards that govern this inquiry, see Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), we must affirm. To the extent that Fairchild's attack on the findings implies that the police were lying about the tips they received, and asserts that there are innocuous, non-criminal explanations for other, apparently damning facts, such as Fairchild's flight from Little Rock at the time he became a suspect, the attack fails because the District Court rejected that version of the events, and its "account of the evidence is plausible in light of the record viewed in its entirety." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. To the extent that Fairchild's attack isolates the various bits of information the police had, and views them separately, it fails because the relevant legal standard is whether all the evidence, in the aggregate, amounts to probable cause.

Nor do we doubt the correctness of the Court's legal conclusion based on these facts, that the police had probable cause to arrest Fairchild for the Mason murder. In addition to the other information set forth in note 2, supra, the police had an informant's tip that Fairchild had committed the murder, and details of the tip were corroborated by other information within the knowledge of the police. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

II.

Fairchild also urges that his conviction be reversed and a new trial ordered because the two videotaped confessions and the testimony regarding the "tour" of the different scenes of the crime (essentially, another confession), which the prosecution introduced at trial, were coerced. At the suppression hearing in the state court, Fairchild claimed that he was beaten and threatened by the police after his return to Little Rock, and forced to tell a story fabricated by the police before the video camera. The state court rejected Fairchild's testimony and found the confessions voluntary. Under Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985), federal habeas courts must presume that the findings of historical fact underlying that ruling are correct.

At the hearing in the District Court, Fairchild reiterated his account of the brutality and threats in Little Rock, and also, for the first time, testified that he had been slapped and yelled at by a police officer and intimidated by police dogs in Russellville immediately after his arrest. A former Russellville police officer corroborated this testimony, but all of the other witnesses, also police officers, and Fairchild's earlier statecourt testimony contradicted it. The District Court discredited the testimony of Fairchild and the former officer. See 675 F.Supp. at 473. It found that the only force used against Fairchild before he confessed was that which "was necessary and incidental to the arrest. No force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility." Ibid. The Court found further that Fairchild was not interrogated about the Mason murder until he arrived at Little Rock, ibid.; that he was not interrogated until after he was given his Miranda warnings, id. at 473-74;3 and that no police officer suggested what Fairchild should say on camera. Id. at 474. It concluded that Fairchild's confessions were voluntary. Id. at 491.

We affirm. Resolution of the factual dispute underlying this issue depends on an assessment of the credibility of the various witnesses involved.4 This task is almost entirely within the province of the District Court, and its findings on credibility "can virtually never be clear error." Anderson v. City of Bessemer City, 470 U.S. at 575, 105 S.Ct. at 1512. On the record before us, we have no basis for rejecting the Court's credibility determinations. And on the facts as they come to us, we agree with the conclusion that Fairchild was not coerced into confessing.

III.

We affirm the judgment. Our mandate will be stayed until the time for seeking a writ of certiorari in the Supreme Court has expired. If Fairchild petitions for certiorari, our mandate will be stayed until we receive notice that certiorari has been denied, or until we receive the mandate of the Supreme Court. We appreciate the diligent service of Fairchild's court-appointed counsel.

It is so ordered.

*****

The Hon. Charles R. Wolle, United States District Judge for the Southern District of Iowa, sitting by designation

The Hon. Garnett Thomas Eisele, Chief Judge, United States District Court for the Eastern District of Arkansas

We quote the District Court's summary of the evidence which, taken together, demonstrated probable cause:

At the time of the arrest, then, police had received various reports that the hat found at the scene of the murder appeared to be petitioner's; that petitioner had a history of sexual assault in the company of his brother; that petitioner and his brother had kidnapped, raped and murdered Ms. Mason; that the pair had escaped from the scene of the crime in a manner identical to that actually witnessed by the police; and that petitioner was actively seeking to evade capture. This combination of evidence gathered from various sources, including the police themselves as parties familiar with petitioner's habits, constitutes a mutually corroborating network of information which, in the Court's estimation, clearly serves to establish probable cause under the totality standard set forth in [Illinois v.] Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ].

675 F.Supp. at 489

The parties informed us at oral argument that the hat described by the District Court in this passage was found not at the scene of the murder, but near the place where two suspects had abandoned Mason's car after having been pursued by the police soon after Mason was killed. We have confirmed this in our review of the record. But this is only a minor discrepancy in the Court's findings and certainly is immaterial to the probable-cause determination. The material points about the hat were that it was found at a place where one of the suspects could have dropped it, and three different people, two of them police officers, independently identified the hat as similar to one Barry Lee Fairchild was known to wear. Thus it supplied the initial clue that Fairchild might have been involved.

The District Court did not state this finding in so many words, but we think it is clearly implied in the cited portions of the Court's opinion. We are bolstered in this conclusion by language in section I.B.3. of the District Court's conclusions of law, where it described a Supreme Court holding that it found to be on all fours with this case: "The Supreme Court has clearly indicated ... that a mere determination that a suspect has been given his Miranda warnings and that the ensuing confessions were voluntary under the Fifth Amendment will not suffice to purge the taint of a Fourth Amendment violation." 675 F.Supp. at 489 (citation omitted)

Fairchild argues that two of his confessions are on videotape, which are "documentary evidence" that we can view for ourselves, and we should therefore not apply the clearly erroneous standard insofar as the tapes themselves bear on the fact issues before us. We are invited to view the tapes in order to assess Fairchild's demeanor and to determine whether he was coached in his answers by the police. Ours is an appellate review, however, and we decline to view the tapes for the purposes Fairchild suggests. This Court is not suited to hearing evidence and making findings of fact. That is a function for the district courts. Rule 52(a) applies to findings of fact based on documents

979 F.2d 636

Barry Lee FAIRCHILD, Appellant,
v.
A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

Nos. 90-2438, 91-2532.

United States Court of Appeals,
Eighth Circuit.

Submitted April 14, 1992.
Decided Nov. 10, 1992.
Rehearing and Rehearing En Banc
Denied Dec. 30, 1992.

Before ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

We have for review a third federal habeas appeal on the guilt phase of this capital murder conviction which occurred over nine years ago. The murder took place on February 26, 1983, in Arkansas. Appellant was apprehended on the night of March 4, 1983, and early in the morning of March 5 made two videotaped confessions. After the first confession and before the second, he led the sheriff's deputies on a tour, showing them where he and his accomplice abducted and killed their victim.

On August 2, 1983, an Arkansas jury found him guilty and sentenced him to death. Petitioner elected to be executed by lethal injection rather than electrocution under Ark.Stat.Ann. § 41-1354 (Supp.1983). This third federal appeal brings into issue newly discovered evidence that these confessions were coerced and unreliable. We affirm the district court's1 fact finding and denial of the writ.

Barry Lee Fairchild was convicted and sentenced to death for the murder of Marjorie Mason, a navy nurse. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 681 S.W.2d 380 (1984) (Fairchild argued, primarily, that the jury selection process was flawed, the trial was held in an improper venue, the Arkansas death penalty was unconstitutional, and certain photographs of the victim should not have been admitted into evidence), cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985). State post-conviction relief was also denied. Fairchild v. State, 690 S.W.2d 355 (1985) (Fairchild sought stay of execution and permission to proceed in circuit court for post-conviction relief).

Fairchild then filed a first petition for writ of habeas corpus in federal district court. The district court denied the petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987) (Fairchild argued that he received ineffective assistance of counsel at trial because his attorney failed to challenge the legality of his arrest, and that his confessions were coerced and unreliable), and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). Fairchild then filed a second petition for writ of habeas corpus which the district court again denied in a 137-page opinion. Fairchild v. Lockhart, 744 F.Supp. 1429 (1989) (Fairchild argued that he is mentally retarded, so that his waiver of his constitutional rights before his confessions was not knowing and voluntary, and Arkansas' failure to discover his retardation rendered its pretrial evaluation of his mental condition inadequate), aff'd, 900 F.2d 1292 (8th Cir.1990).

After the district court dismissed his third petition on August 29, 1990, Fairchild appealed to this court and filed a motion to remand to the district court. We granted the motion to remand with directions to the district court to hold an evidentiary hearing on the issue of whether Fairchild's confessions were voluntary in view of certain alleged new evidence on coercion in the sheriff's office and to certify its findings of fact back to this court. Fairchild v. Lockhart, 912 F.2d 269 (8th Cir.1990).

After a seventeen-day evidentiary hearing, the district court concluded that Fairchild was not entitled to habeas relief. Its findings of fact consisted of 133 pages of oral findings issued from the bench, a 413-page written order on the remaining factual and legal issues, and a 15-page memorandum of law regarding procedural issues. Fairchild v. Lockhart, No. PB-C-85-282 (E.D.Ark. June 4, 1991). These findings were certified to this court. Fairchild appeals several of the findings.

We forego an extensive recitation of the facts because they have been amply set out in prior opinions. The district court found facts related to two constitutional claims during this latest extensive evidentiary hearing--whether Fairchild's confessions were coerced and unreliable and whether Fairchild has a valid Brady claim with regard to certain newly discovered evidence. We discuss Fairchild's assignment of error as to the court's findings on each claim in turn, providing the relevant facts as necessary.

A. Determination That Confession Was Voluntary

As a result of Fairchild's third habeas appeal, we remanded to the district court for an evidentiary hearing based on alleged newly discovered evidence supporting Fairchild's claim that his videotaped confessions, introduced at trial, were coerced and unreliable.2 At this hearing, the testimony of several men who claimed they were beaten and threatened by members of the Pulaski County sheriff's office in an attempt to extract a confession to the Mason murder was introduced. Fairchild also presented witnesses who claimed to have seen or heard others being beaten at the police station, or who claimed that suspects who had been beaten told them about the experience afterward. This evidence, according to Fairchild, shows that there was systematic abuse of suspects in the murder investigation and therefore proves that he was coerced into confessing and that his confessions were not reliable because the police told him what to say. Respondents, on the other hand, presented testimony by the sheriff and deputies of Pulaski County that they had not abused anyone.

The district court carefully considered all the testimony. The court concluded that most of the witnesses presented by Fairchild were not credible due to their demeanor, the numerous contradictions in their stories,3 and the credible rebuttal evidence presented by respondent. The court found that only a few of the witnesses had probably been abused or intimidated in some manner. The court further found, for several reasons, that this evidence did not change its prior finding that Fairchild's confessions were voluntary. First, the evidence did not show that abuse and intimidation of suspects was systematic, i.e., not every suspect questioned about the murder was abused or intimidated. In fact, most were not. Second, the forms of abuse were generally dissimilar to those Fairchild claimed he had undergone.4 Third, there was no direct evidence presented at the hearing that Fairchild had been forced to confess.5

Fairchild argues that the district court erred in its findings of fact and its determinations of credibility on which they are based. We review findings of fact for clear error. Singleton v. Lockhart, 962 F.2d 1315, 1321 (8th Cir.1992). "Under Fed.R.Civ.P. 52(a), we may set aside findings as clearly erroneous if, after reviewing the entire record, we are 'left with the definite and firm conviction that a mistake has been committed.' " Maasen v. Lucier, 961 F.2d 717, 719 (8th Cir.1992) (citing Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). When findings of fact are based on determinations of credibility, we must accord them even greater deference. Id. After careful review of the record, we cannot say that the district court's findings are clearly erroneous.

Fairchild also argues that the district court's fact finding process was erroneous because it made credibility determinations focused on each individual witness instead of looking at the overall mosaic created by the evidence. This argument is fundamentally flawed. It is impossible for evidence that is not credible in itself to form an overall picture that is both credible and convincing. Fairchild is asking the court to add a group of negative numbers together and find that the sum is positive. The district court refused the invitation, and we will not accept it either. We affirm the district court's finding that Fairchild's confessions were voluntary and reliable. The evidence does not support any other conclusion.

B. Brady Claims

Fairchild claims that exculpatory evidence was not revealed to him by the prosecutor in violation of the rule set down in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The most troubling claim that Fairchild makes is that the prosecutor failed to reveal that there was evidence in the sheriff's office investigatory file that two people remembered that on the day of the murder the victim was wearing a gold metal watch very different from the one Fairchild gave his sister.6

Respondent argues that this Brady claim is an abuse of the writ because it was never presented to any court prior to the evidentiary hearing on his third habeas petition. "The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus." McCleskey v. Zant, --- U.S. ----, ----, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). In order to overcome an abuse of the writ defense, a petitioner must show both cause for the default and prejudice resulting from it. Id. at ----, 111 S.Ct. at 1470. If a petitioner cannot show cause, he can still prevail if he can show that a fundamental miscarriage of justice has taken place.7 Id. Fairchild claims that he has met both of these burdens. We disagree.

Fairchild has met the cause prong of the cause and prejudice test. "[T]he cause standard required the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim...." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). We have reviewed the record carefully, with particular attention to the file the prosecutor turned over to Fairchild's attorney for trial. There is nothing in that file that would alert a defendant or an attorney to the existence of the evidence that the victim may have been wearing a gold metal watch rather than a black scuba watch. The prosecution told Fairchild's attorney that he had turned over his entire file,8 thereby leading the attorney to believe that he had received everything that existed. Therefore, Fairchild had cause for not discovering this evidence earlier.

Once the petitioner has established cause, he must show " 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982), quoted in McCleskey, --- U.S. at ----, 111 S.Ct. at 1470. We admit to being somewhat troubled by this claim because the black scuba watch was an important piece of evidence at Fairchild's trial. After careful review, however, we do not believe that Fairchild can show actual prejudice resulting from not having the evidence of the other watch at trial. The district court found that this evidence does not cast doubt on the finding that Fairchild got the black scuba watch from the victim. The record supports this finding. There was a lot of evidence presented at trial linking the black scuba watch to the victim. For example, her parents, who gave her the watch, identified it. Fairchild admitted in his confessions that he had gotten the watch from the victim. Also, there are a number of reasonable explanations for why someone might remember her wearing a different watch on the day of her murder. We find that Fairchild has failed to show actual prejudice resulting from the nondisclosure of this evidence. Therefore, we hold that this claim is an abuse of the writ.

Fairchild raises two other Brady claims, neither of which were raised before this petition. Respondent raises abuse of the writ defenses to both claims. We hold that he has failed to show prejudice in relation to them as well.

The first claim is that there was evidence withheld indicating that the victim was abducted from a site other than the site to which Fairchild confessed. The evidence Fairchild points to is an anonymous phone call. The caller said she had seen a car like the one shown on television with four people in it. She had seen it at about the time of the abduction, but in an area different from where Fairchild said Mason was abducted. When this caller came forward, however, she testified that the car she had seen looked different from the victim's car and the woman she saw in it did not look like the victim. We do not see how this evidence could have helped Fairchild at trial.

The second claim is that the prosecutor failed to reveal that people other than Fairchild and his brother had been suspects and questioned about the murder. The district court found that there was no cause here because "[t]here were, indeed, numerous 'red flags' in the file which, viewed more suspiciously, would have alerted counsel to make inquiry...." The court goes on to say, however, that "in frankness the Court must state that it is doubtful that any but the most suspicious of defense attorneys would have pursued the leads." We agree. Assuming, arguendo, that Fairchild has shown cause, however, we do not believe that he has shown prejudice. The district court found, and we have affirmed, that much of the testimony about abuse offered by other suspects was not credible. We cannot find that a jury would have found Fairchild innocent had it been presented with this testimony, much of which was clearly not credible. Also, there is no evidence that Fairchild would have found evidence of abuse at the time of trial even if he had known about the other suspects. For example, his brother, whom Fairchild knew had been questioned during the investigation and whom his attorney interviewed at the time of trial, said nothing about being abused until much later in the process. Therefore, we also dismiss these claims.9

II.

In summary, we find that the district court did not err in holding that the evidence presented relating to abuse of other suspects did not prove that Fairchild's confessions were coerced and unreliable. The district court did not clearly err by finding that most of the allegations of abuse were not credible. We dismiss Fairchild's Brady claims as abuses of the writ because Fairchild has not shown prejudice. We thus affirm the district court's findings of fact on remand and affirm its previous denial of Fairchild's habeas petition.

*****

RICHARD S. ARNOLD, Chief Judge, concurring.

I agree that we should affirm the dismissal of this third petition for habeas corpus. I set out briefly my reasoning, which differs somewhat (mostly only in detail) from that of the Court.

Fairchild makes two main arguments: that his confessions were coerced, as shown by newly discovered evidence that other suspects in the Mason murder investigation were abused; and that exculpatory evidence about the victim's watch was withheld from his lawyers in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The attempt to relitigate the coerced-confession claim (it was rejected on its merits at the time of the first habeas, in 1988) is barred as an abuse of the writ, in my view. Fairchild has failed to show cause for not having earlier offered the evidence--now characterized as newly discovered--that other suspects were abused. Information available to Fairchild's trial counsel clearly indicated that there were other suspects. These people could have been interviewed before trial, or in any event before the evidentiary hearing on the first habeas petition. The State failed to disclose material in its files that would have described more fully the involvement of other suspects in the investigation. But this failure to disclose in no way prevented counsel from conducting their own investigation of those persons whom they knew, for example, to have furnished hair samples. This investigation, in turn, could well have led to interviews of other suspects whom the Sheriff's Department questioned in connection with the Mason murder.

The way the new evidence of abuse of witnesses came to light bears out this analysis. It was not the uncovering of material previously undisclosed by the State that began this process at all. Instead, publicity surrounding the execution date that was set in September of 1990 caused certain men who had been questioned in 1983 to come forward with claims of coercion. So I do not see that any "objective factor external to the defense," Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), like withholding of relevant information by the State, impeded counsel's efforts to investigate the coerced-confession claim fully. There was a withholding of information, all right, but it was not the cause of counsel's not having earlier uncovered evidence of abuse of other suspects. The absence of cause for not having offered this evidence earlier is dispositive of this argument. It is not necessary to go further and explore the question of prejudice or the merits of the coerced-confession claim as bolstered by the new evidence. As to the actual-innocence exception from the normal rules of procedural bar, this case does not even come close.

I think, though, that the claim based on withholding of evidence about another watch is not procedurally barred. Cause is shown by the withholding of exculpatory evidence, which is a Brady violation. The question of prejudice, in the context of a Brady claim, is really part of the merits. In order to get relief on a Brady claim, one must show not only a failure to disclose exculpatory evidence, but also a reasonable likelihood that, if the withheld evidence had been introduced at trial, the verdict would have been different. United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 3383, 3384, 87 L.Ed.2d 481 (1985). For the reasons given by the District Court and by this Court in Part IB of its opinion, there is no such likelihood.

This is an extraordinary case, for many reasons. I hope it will not be considered amiss for me to venture a few concluding observations.

1. Appointed counsel for Fairchild have performed with great diligence and ingenuity. I do not know of anything they have left undone to challenge his conviction.

2. As to the death sentence itself, Fairchild has been steadfast in deliberately withholding any attack that would gain for him only a reduction of sentence to life imprisonment. He probably did not kill Ms. Mason. The actual killing was probably done by his confederate, and Fairchild may not have intended or even expected this to happen. These facts could have been the basis of a well-founded attack on the sentence of death. Fairchild does not wish to bring such an attack. He has a right to make this decision, and, in my opinion, he is bound by it.

3. The District Court found that officers or employees of the Pulaski County Sheriff's Department did commit some physical abuse of suspects in the course of investigating the Mason murder. For reasons explained at length by that Court and by us, that circumstance does not entitle Fairchild to relief. But it is still disgraceful. The evidence also unmistakably shows a current of racism in the Sheriff's Department of 1983. This is an affront to justice which the citizens should not tolerate. As the District Court aptly put it, "in a democracy there are precious few things which are worse than the abuse of state conferred police powers." Slip op. 412.

4. This case has been more carefully examined than any other habeas proceeding I have seen in 14 years on the federal bench. I am convinced beyond a reasonable doubt that Fairchild's confession was both voluntary and truthful, and that he did abduct and rape Marjorie Mason. The District Court's consideration of this case has been exhaustive. It has also been fair-minded, which is more important. I concur in the judgment of this Court. The third habeas petition was correctly dismissed with prejudice.

*****

The Honorable G. Thomas Eisele, Senior United States District Judge for the Eastern District of Arkansas. Judge Eisele has presided over all habeas proceedings involving Fairchild

The respondents argue that we should not consider this issue because it is a successive petition. Because we believe Fairchild's claim is meritless, however, we will resolve the issue on this basis rather than addressing the successive petition argument. See Green v. Groose, 959 F.2d 708, 710 (8th Cir.1992). We assume arguendo that this is newly discovered evidence that could not have been previously discovered

The district court made special findings on the numerous contradictions between the motion to remand and the supporting witnesses' affidavits upon which we relied to remand for a hearing and the actual testimony presented at the hearing. Fairchild, No. PB-C-85-282, slip op. at 229-33. In at least two of the five cases, the testimony at the hearing was completely different from the contents of the original affidavit. In addition, petitioner failed to show any real similarity between the abuse alleged by the witnesses presented and the abuse alleged by petitioner himself

The court found that the testimony regarding similar forms of abuse, such as being beaten with a telephone book or with other instruments on top of a telephone book so as not to leave marks, was not credible and was manufactured to conform with Fairchild's claims

Fairchild presented his direct evidence (his own testimony) at a suppression hearing in front of the trial court. This evidence was reviewed by the district court under his first habeas petition. The district court held that his confessions were voluntary, Fairchild, 675 F.Supp. at 490-91, and we affirmed. Fairchild, 857 F.2d at 1207

One of the more important pieces of evidence introduced against Fairchild at trial was a black scuba watch, identical to one the victim owned, that police obtained from Fairchild's sister. At the time of trial, she said that Fairchild had "given" it to her for $20 at about the time the murder had taken place. Later, she claimed that he had given it to her before the date of the murder

We find here that Fairchild has shown cause, and we further find there has been no fundamental miscarriage of justice. The district court held, and we agree, that Fairchild has not met this ultimate test. We agree with the district court's comment--we are more convinced than ever of Fairchild's guilt

The prosecutor did not deliberately mislead Fairchild's attorney. The evidence that was not turned over was in the sheriff's office investigatory file, not in the prosecutor's file. There is no evidence the prosecutor knew that this evidence existed. Nevertheless, the representation did mislead Fairchild's attorney, both at trial and on appeal. Brady applies "irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196

Fairchild also raised an argument to this court that has never been raised before. He claims that the fact that participants differed about the order in which they went to the various places involved in the abduction and murder when Fairchild led the deputies on the tour between confessions proves that there was a second tour that occurred before the first confession. He points to one sentence in the first confession as further proof. Although we need not address this because it has never been raised before, see Thompkins v. Stuttgart Sch. Dist. No. 22, 787 F.2d 439, 440-41 n. 1 (8th Cir.1986), we have reviewed the record and find the claim meritless

21 F.3d 799

Barry Lee FAIRCHILD, Appellee,
v.
Larry NORRIS, Acting Director, Arkansas Department of
Correction, Appellant.

No. 93-3325.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 14, 1993.
Decided April 8, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied May 13, 1994.

Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

This petition is Barry Lee Fairchild's fourth for federal habeas corpus relief. The murder of which he was convicted occurred ten years ago, on February 26, 1983, in Arkansas. The police arrested Fairchild on March 4, 1983, and early on the morning of March 5, he made two videotaped confessions. Between the two confessions, he took the police on a tour, showing them where he and his accomplice kidnapped, raped, and killed the victim, Marjorie Mason. An Arkansas jury convicted him of felony murder and sentenced him to death on August 2, 1983. The issue in this petition is whether the evidence before the jury was sufficient for it to sentence Fairchild to death. The District Court held that the evidence at trial was insufficient for a reasonable jury to find that Fairchild possessed the requisite mental state, extreme indifference to human life, to justify the imposition of the death penalty. The District Court directed that Fairchild's sentence of death be reduced to life imprisonment without parole. The State of Arkansas, acting through the Interim Director of its Department of Correction, appeals and argues that Fairchild has not met the actual-innocence standard. We agree, and now reverse.

Fairchild's case has a ten-year history in the state and federal courts. After a jury convicted him in 1983, the Arkansas Supreme Court affirmed Fairchild's conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985), and denied postconviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Fairchild then filed his first petition for writ of habeas corpus in federal district court. The District Court denied that petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987), and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). The District Court also denied Fairchild's second petition for a writ of habeas corpus. Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D.Ark.1989). We affirmed that decision as well. Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir.), cert. denied, 497 U.S. 1052, 111 S.Ct. 21, 111 L.Ed.2d 833 (1990). The District Court dismissed Fairchild's third petition for habeas corpus, and we remanded for an evidentiary hearing. Fairchild v. Lockhart, 912 F.2d 269 (8th Cir.1990). The District Court then concluded that Fairchild was not entitled to relief, and Fairchild appealed that decision. Fairchild v. Lockhart, No. PB-C-85-282 (E.D.Ark., June 4, 1991). We affirmed the District Court's order, Fairchild v. Lockhart, 979 F.2d 636 (8th Cir.1992), cert denied, --- U.S. ----, 113 S.Ct. 3051, 125 L.Ed.2d 735 (1993). Finally, Fairchild filed the petition at issue in this case. The District Court directed that his death sentence be changed to life in prison without parole, Fairchild v. Norris, No. PB-C-85-282, mem. op. (E.D.Ark. Sept. 22, 1993). This Court denied summary reversal and ordered an expedited appeal. Fairchild v. Norris, 5 F.3d 1124 (8th Cir.1993). The District Court entered a later order further explaining its reasoning. Fairchild v. Lockhart, No. PB-C-85-282, Addendum to mem. op. (E.D.Ark. Sept. 24, 1993). We now address the State's appeal.

We forego a complete recitation of the facts in this opinion, because our prior opinions provide them in detail. Instead, in our analysis, we focus only on those facts relevant to the issue on appeal.

II.

The rules governing writs of habeas corpus bar most successive petitions. 28 U.S.C. Sec. 2254, Rule 9(b). Therefore, because this petition is Fairchild's fourth, we must address whether the petition should be barred as an abuse of the writ, before reaching the merits of his argument. Although the government bears the burden of pleading an abuse of the writ, once it does so, the petitioner bears the burden of proving that his petition is not an abuse of the writ. Sanders v. United States, 373 U.S. 1, 10-11, 83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963). Unless the petitioner meets this burden, a court cannot proceed to the merits of his claim. See McCleskey v. Zant, 499 U.S. 467, 477, 111 S.Ct. 1454, 1461, 113 L.Ed.2d 517 (1991). The general bar against abusive or successive claims extends to new claims which could have been raised or developed in an earlier petition, Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), and to successive claims which raise grounds identical to those heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).

Fairchild argues in his present petition that the evidence presented against him at trial was legally insufficient to justify the death penalty. This argument was not raised in any of his previous petitions, though it clearly could have been. We cannot reach the merits of Fairchild's contention unless he qualifies for some exception to normal abuse-of-the-writ principles.

The Supreme Court has carved out two types of exceptions to the general bar against successive writs. To qualify for the first exception, a petitioner must show cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); McCleskey v. Zant, supra, 499 U.S. at 493, 111 S.Ct. at 1469-70. Simply put, this standard requires the petitioner to show cause for failing to raise the claim in an earlier petition and prejudice resulting from that failure. Fairchild cannot qualify for the cause-and-prejudice exception, and he does not argue that he can. Under the second exception, a court may decide the claim on the merits if the defendant is actually innocent of the crime itself or of the death-penalty sentence. Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). A defendant can be actually innocent of the death penalty if the evidence at trial failed to establish the existence of an aggravating circumstance or another condition of eligibility. Sawyer v. Whitley, supra, --- U.S. at ----, 112 S.Ct. at 2522. To qualify for this "actual innocence" exception, the defendant must show "by clear and convincing evidence that but for the constitutional error, no reasonable juror" would have found him eligible for the death penalty. Id. at ----, 112 S.Ct. at 2524. The inquiry is not "whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 861.

The Supreme Court has considered and rejected several proposed applications of the actual-innocence exception, repeatedly emphasizing the narrowness of its scope. See Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989), and McCleskey v. Zant, supra. Moreover, the Court has "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 863, citing Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (plurality opinion).

We consider Fairchild's claim under the actual-innocence exception, because Fairchild argues that he lacked the required mental state to be sentenced to death. The District Court agreed, finding that the evidence at trial was insufficient to support the jury's sentence of the death penalty. Therefore, we must review the evidence to determine whether Fairchild has proved by clear and convincing evidence that no reasonable juror could have found him eligible for the death penalty under accepted Eighth Amendment principles.

Fairchild argues that his conviction violated the Eighth Amendment prohibition against cruel and unusual punishment, because the evidence on which the jury based its conviction was insufficient to support a finding, under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), that the death penalty was an appropriate sentence. The District Court held that Fairchild's Eighth Amendment rights were violated because the trial court's instructions to the jury did not specify that the jury had to find that Fairchild had the mental intent required when imposing a death sentence. More importantly, the District Court specifically held that no reasonable jury could have so found.

Before a defendant can be sentenced to death, our Constitution requires that he be guilty of a certain degree of culpable conduct. In Enmund v. Florida, supra, and Tison v. Arizona, supra, the Supreme Court elaborated on the necessary mental state in the felony-murder context. In Enmund, the Court held that states could not impose the death penalty on an accomplice to a felony murder who "[did] not himself kill, attempt to kill, or intend that a killing take place or that lethal force [would] be employed." Enmund v. Florida, supra, 458 U.S. at 797, 102 S.Ct. at 3377. The defendant in Enmund was the driver of a getaway car whose codefendants had entered a house to commit an armed robbery. Those codefendants shot and killed several people after one of the residents fired on them. Id. at 784, 102 S.Ct. at 3370. Because Enmund was not present when the shots were fired, and the evidence did not show that he had any intent to kill or use lethal force, the Court held that Enmund's death sentence was unconstitutional.

The Court further elaborated on the principle of proportionality in felony-murder sentencing in Tison v. Arizona, supra. In Tison, the Court stressed that two types of cases occur at opposite ends of the felony-murder spectrum. At one end of the spectrum are "minor actor[s] in an armed robbery, not on the scene, who neither intended to kill nor [were] found to have had any culpable mental state," while at the other are felony murderers "who actually killed, attempted to kill, or intended to kill." 481 U.S. at 149-50, 107 S.Ct. at 1684. Tison addressed those cases in which the felony-murder defendants played an intermediate role in the murder. The Court defined that role as major participation in the crimes combined with a mental state of reckless indifference to human life. Id. at 158, 107 S.Ct. at 1688. The petitioners in Tison, two brothers, had armed their father and another convict and helped them escape from prison. Their car broke down, and one of the brothers flagged down a passing car which contained a family of four. They kidnapped the family, one of the brothers robbed them, and, while their father and the co-escapee decided what to do next, guarded the family at gunpoint. Later, while the brothers were occupied nearby, the two escapees shot and killed the family. Neither brother attempted to assist the victims before, during, or after the shooting; instead, they helped the killers continue their planned escape. Id. at 151-52, 107 S.Ct. at 1685.

Although neither brother specifically intended to kill the victims, nor did either actually fire the fatal shots, the Supreme Court found that the death penalty could be constitutionally applied to them. In reaching its conclusion, the Court noted that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." Id. at 157-58, 107 S.Ct. at 1688. The Supreme Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Id. at 158, 107 S.Ct. at 1688.

III.

From the transcript, we know that the evidence before the jury included Fairchild's videotaped confessions, his testimony at trial, and a watch similar to one owned by the victim. In his confession, Fairchild stated that he and his accomplice1 kidnapped Ms. Mason. He told the police that they followed her to her car and that, after she got into her car, they walked up to the car and got in on the other side. Moreover, he stated that his accomplice had a gun and pulled it on Ms. Mason. He also described the gun for the police, telling them that it was a short-barrelled, nickel-plated gun.

After they got into Ms. Mason's car, they drove to Scott, Arkansas, where Fairchild's accomplice got out of the car with the victim and went into a deserted house. Fairchild said that his accomplice raped Ms. Mason, and that he raped her as well. At this point, Fairchild's confession is somewhat inconsistent; however, he did state that after raping Ms. Mason he returned to her car and went through her purse, removing cash.

Fairchild stated in his confession that he did not expect his accomplice to murder Ms. Mason. Instead, on the basis of his accomplice's remarks, Fairchild said that he believed that they were going to leave when it became dark. He returned to the car, and while he was waiting, he heard two gunshots. Then, he ran into the house, saw Ms. Mason lying on the floor, and questioned his accomplice as to what he had done. His accomplice responded that shooting Ms. Mason was the only way out. Fairchild told his accomplice that it had not been necessary to shoot Ms. Mason, and his accomplice told him to forget it. Fairchild then said, "Well, we need to get out of here now" (Tr. 854). They left the house and drove away in Ms. Mason's car.

While driving away, Fairchild and his accomplice were followed by a state trooper. They increased their speed, abandoned Ms. Mason's car, ran across a field, and escaped. Eventually, the police focused their investigation on Fairchild and attempted to find him. Several days later, they caught him trying to take a bus to California.

Fairchild's trial testimony differed considerably from his videotaped confessions. At trial he testified that he did not participate in the kidnapping, rape, or robbery of Ms. Mason. Instead, he testified that he made both confessions only after the police beat him severely and forced him to recite the confessions, which they had made up for him, on tape.2

The physical evidence at trial included a watch which Ms. Mason's family members said was identical to one she had owned. The police found the watch after Fairchild told them in his confession that his accomplice had stolen it and given it to Fairchild, who, in turn, had sold it to his sister. The police retrieved the watch from Fairchild's sister, who told them that her brother had sold it to her. At trial, Fairchild testified that he bought the watch from someone at a pool hall, and sold it to his sister.

To determine whether the evidence presented to the jury at the trial was sufficient to sustain Fairchild's sentence of death, we must determine where on the felony-murder spectrum this case lies. For the purposes of our analysis, we assume, on the basis of his confession, that Fairchild, unlike Enmund, actually participated in the kidnapping, robbery, and rape of Ms. Mason. The jury was entitled to believe the confessions. However, we also assume that Fairchild was not actually present when his accomplice pulled the trigger and, like the Tisons, did not fire the gun himself. On the basis of that evidence, Fairchild's actions fall somewhere in between the accomplice who remains outside in the getaway car and has no other involvement in the crime, and the accomplice who actually killed the victim, intended to do so, or attempted to do so. Thus, we must consider Fairchild's actions in light of the intermediate standard enunciated in Tison, and review the evidence to determine whether it was sufficient to sustain his death sentence. Specifically, we must consider whether Fairchild has proved by clear and convincing evidence that no reasonable jury could have found that he was a major participant in the felonies and he acted with reckless indifference to human life.3

The evidence before the jury revealed that Fairchild, like the Tisons, was an active and major participant in the underlying felonies. He participated in the kidnapping of Ms. Mason, climbing into her car with his accomplice. He personally took the money from her purse. And he raped her. See Lesko v. Lehman, 925 F.2d 1527, 1550-52 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991); Duboise v. State, 520 So.2d 260, 266 (Fla.1988); People v. Jimerson, 127 Ill.2d 12, 53, 129 Ill.Dec. 124, 142, 535 N.E.2d 889, 907 (1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d 796 (1990). He also was aware that his accomplice had a gun, and he was there when his accomplice first pulled the gun on Ms. Mason.

Moreover, Fairchild's conviction was based primarily on direct evidence, his own confessions. Cf. Jackson v. State, 575 So.2d 181, 192 (Fla.1991). Most of the evidence presented to the jury consisted of those confessions and a watch found as a result of the confessions. He testified at trial that the confessions were not true and were beaten out of him, but it was up to the jury to decide whether to believe his taped confessions or his testimony at trial. Obviously the jury believed the confessions, and we do not believe that it was irrational for it to do so. See Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 861. A rational jury could have concluded that Fairchild was a major participant in the crimes leading to the death of Ms. Mason.

Fairchild argues that his actions did not exhibit reckless indifference to human life. For example, he argues that he was not present when his accomplice shot Ms. Mason. We note, however, that the actual presence or close proximity of the defendant is but one factor among many a jury may consider in sentencing a felony murderer to death. See State v. Branam, 855 S.W.2d 563, 570 (Tenn.1993); People v. Jimerson, 127 Ill.2d at 53, 129 Ill.Dec. at 142, 535 N.E.2d at 907. When his accomplice shot Ms. Mason, Fairchild, like the Tisons, did not attempt to assist her. Instead, after hearing the shots and reentering the house, Fairchild stated that they "need[ed] to get out of [there] now." Then, he left the scene with his accomplice, attempting to evade the police for several days thereafter.

Fairchild argues that he did not know that Ms. Mason would be killed, did not expect it to happen, and was, in fact, surprised when he heard the gunshots. These assertions may all be true, but they are not dispositive. The issue is not actual subjective knowledge or intent, but reckless indifference to human life. Fairchild joined an armed accomplice in the kidnapping, robbery, and rape of Ms. Mason. Although Fairchild's confessions refer to the gun's existence only at the kidnapping stage, once Ms. Mason knew of the gun's existence, it represented an implied threat throughout the entire incident. Moreover, Fairchild told the police that he heard Ms. Mason beg him and his accomplice not to hurt her; yet, her pleas did not deter him from further participation in the crimes. Then, after the rapes, Fairchild allowed his accomplice to go back into a deserted house, with a gun, to the room where Ms. Mason had been left. It was highly foreseeable that these events might culminate in death. Finally, the jury could easily have concluded that Fairchild had a motive to want Ms. Mason killed. After all, he had just helped kidnap her at gunpoint, robbed her, and raped her. Other than his accomplice, Ms. Mason was the only witness to these crimes. On the basis of this evidence, we believe that a reasonable jury could have found that Fairchild's actions exhibited reckless indifference to human life.

We hold that Fairchild has failed to prove by clear and convincing evidence that, but for a constitutional error, no reasonable juror could have found him eligible for the death penalty. Instead, we conclude that the evidence at trial was sufficient for a reasonable juror to find that Fairchild was a major participant in the felonies and that he acted with reckless indifference to human life, which culminated in Ms. Mason's death.

IV.

Fairchild does not qualify for the actual-innocence exception, for reasons we have given in this opinion. We therefore are not allowed to reach the merits of his current petition. We respectfully disagree with the District Court's contrary conclusion. The judgment is reversed, and the cause remanded with directions to dismiss the petition.

It is so ordered.

*****

To this day, Fairchild's accomplice remains unidentified. In his confession, Fairchild said that his accomplice was a man named Harold Green. However, at trial, Fairchild stipulated to the fact that Harold Green was in Colorado at the time the crimes took place

In one of Fairchild's previous proceedings, the District Court found as a fact that Fairchild had not been coerced, and that his confessions were voluntary. We affirmed. Fairchild v. Lockhart, 675 F.Supp. 469, 490-91 (E.D.Ark.1987), aff'd., Fairchild v. Lockhart, 857 F.2d 1204, 1207 (8th Cir.1988)

Arkansas law requires a showing of "circumstances manifesting extreme indifference to the value of human life," before a felony-murder defendant may be sentenced to death. Ark.Code Ann. Sec. 5-10-101. The Supreme Court cited this statute as one of those falling into the intermediate category it examined in Tison. Tison, supra, 481 U.S. at 153, 107 S.Ct. at 1685