Dec. 9, 1999 - INDIANA - Impending Execution

Gov. Frank O'Bannon refused to grant clemency to convicted killer D.H. Fleenor on Wednesday, saying it was not his role to "second-guess" years of judicial proceedings. Although Fleenor did not ask for clemency, O'Bannon said he at least considered it because Fleenor also had not clearly stated that he wanted to die.

O'Bannon said suggestions that Fleenor's present mental state rendered him unfit for the death penalty "is refuted by overwhelming evidence that he knows he is about to die; knows why; and appears to have accepted that he is about to face the ultimate punishment for his crimes." "On this issue, I will not substitute my judgment for the courts and the mental health professionals," O'Bannon said in a five-page basis for his decision. O'Bannon's decision meant only the federal courts could stop Fleenor's execution, scheduled to begin Thursday at 12:01 a.m. CST.

Lawyers from the Midwest Center for Justice filed a petition Wednesday with the 7th U.S. Circuit Court of Appeals, asking the court to stop the execution until psychiatrists can establish that Fleenor is mentally competent to face the state's death chamber. Similar appeals to the Indiana Supreme Court and U.S. District Court in Indianapolis this week already had failed, and center lawyers pledged to take their case to the U.S. Supreme Court if necessary in a last-ditch effort to save Fleenor's life.

Fleenor was scheduled to become the seventh person executed in Indiana since the state reauthorized the death penalty in 1977. He was sentenced to die in Johnson County after he was convicted in the murders of Bill and Nyla Harlow of Madison, his parents-in-law. Fleenor has shunned attempts to save his life the last few months and skipped his own clemency hearing two weeks ago, reportedly telling one clemency board member that he was guilty and to show him "no mercy."

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His appeals turned down by the governor and federal courts, convicted murderer D.H. Fleenor chatted with his family and a few prison friends before his imminent execution.

Gov. Frank O'Bannon early Wednesday turned down a clemency request. The governor's office released a 5-page statement saying O'Bannon wouldn't "second-guess years of judicial proceedings" by commuting Fleenor's death sentence. Wednesday night, the U.S. Supreme Court and, earlier, the 7th U.S. Circuit Court of Appeals in Chicago rejected final appeals. That meant Fleenor almost certainly was to die by chemical injection at 1:01 a.m. today Indianapolis time.

Until then, the lawyers -- Tom Schornhorst, Alan Freedman and Carol Heise -- were staying in their offices, pursuing every opportunity to delay the execution despite objections from their former client. "Practicality and his best interests dictate that we stay here and try to stop the execution of someone who is so mentally ill and incompetent that he doesn't even know he's going to be executed," said Heise, who works for the Chicago-based Midwest Center for Justice. "We have to make a choice between litigating his issues or being there with a client who doesn't know he's going to be executed, and who thinks we're working for the state," he said.

Fleenor was convicted of the 1982 murders of Nyla Jean and Bill Harlow of Madison. He shot the pair as their daughter and 3 grandchildren looked on, then came back later and executed Bill Harlow, who experts say could have survived his original gunshot wound.

On Wednesday, Fleenor, 48, spent what probably was his last day alive in a way not much different from every day during his 17 years in prison, according to Department of Correction spokeswoman Pam Pattison. Fleenor also socialized with the 41 other inmates who share Death Row with him, Pattison said. And he telephoned his sister in southern Indiana, Pattison said.

He received a message of forgiveness from one witness to the killings. Angie Harlow was 13 when her grandfather and stepgrandmother were killed. Now living in Anderson with a family of her own, Harlow called the prison Wednesday evening. "I believe in forgiveness," she said. Fleenor didn't ask to see a chaplain. But he did ask that prison staff who have come to know him over the years be allowed to visit him, Pattison said. Those staff members shared "idle chitchat," she added.

Fleenor's case has been an unusual one, according to the attorneys who continue trying to represent him. Heise points to his erratic behavior -- firing his attorneys, claiming to be represented by another, nonexistent attorney, and even trying to schedule interviews months after he is scheduled to die -- to bolster their argument that he isn't competent to face the executioner. According to court documents, for example, Fleenor in November told prison staff that he wanted to tell the media "the truth about how his attorneys, the judge, and others lied." Yet according to DOC spokesman Barry Nothstine, Fleenor tore up a request last week from The Indianapolis Star for an interview.

In yet another twist in the case, O'Bannon found himself Wednesday denying clemency to a prisoner who never even asked for it. In his statement, the governor reasoned that Fleenor also never explicitly said he wanted the state to kill him. O'Bannon rejected claims that Fleenor's mental state was deteriorating. "The suggestion that Fleenor's present mental state renders him unfit for the death penalty is refuted by overwhelming evidence that he knows he is about to die; knows why; and appears to have accepted that he is about to face the ultimate punishment for his crimes." The governor's office has received nearly 400 letters, most opposing the execution, said O'Bannon's spokesman, Phil Bremen.

A small group of death penalty opponents pleaded for Fleenor's life -- and for others to oppose all executions -- with placards outside the Governor's Residence at 46th and Meridian streets Wednesday night. "I think it's disgusting and wrong that it's happening, and I want people to know that," said Claire Morrison, a junior at North Central High School.

About 50 more anti-death penalty protesters gathered outside the century-old prison in northern Indiana, joined by a few people supporting executions. J.B. Shenk and 2 friends drove across the state from Goshen College for a vigil against the execution. Christ's example shows "we don't take life, but we save life," Shenk said.

Tim Blakley of Indianapolis was demonstrating for the death penalty at his third or fourth execution. He interpreted scriptures to say "the state is God's agent to carry out penalties on the wrongdoer." Blakley said Fleenor's mental status was irrelevant and the execution should go forward. That is essentially what courts decided after looking at the final appeals.

The Indiana Supreme Court on Monday unanimously agreed to let the execution go forward, saying Fleenor's attorneys didn't overcome the presumption of sanity. And Tuesday, Judge David F. Hamilton of the U.S. District Court in Indianapolis, also turned down the appeal. "One wonders what public good is served by executing someone who doesn't even appreciate that retribution is being taken," Heise said.

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D.H. Fleenor was sentenced to death for the murders of his mother-in-law and father-in-law in their Madison home. Fleenor killed , Nyla Jean and Bill Harlow in 1982, shooting them in front of their grandchildren. Fleenor was married to Nyla Jean Harlow's daughter, Sandra. She filed for divorce in November 1982.

At trial, his attorneys argued that Fleenor was stressed over the impending divorce and was drinking heavily. Friends of Fleenor's testified that he bought a .22-caliber pistol on Dec. 12, 1982 -- the day of the killings. The friends dropped Fleenor off near the Harlow home. He went in and waited for them to return from church. With the Harlows were Sandra; her son from a previous relationship; and Bill Harlow's 2 grandchildren.

Fleenor shot Bill Harlow in the abdomen. When his mother-in-law went to help, Fleenor shot her in the head. He told his wife to drag her mother's body to another room. Then he left, taking Sandra and the children. Eventually, they returned to the Harlow home to find Bill Harlow still alive. Fleenor shot him again, killing him. Fleenor fled with his wife and the children to Greeneville, Tenn., where police captured him at a relative's home.

At trial in Johnson County, Fleenor was found guilty on Dec. 1, 1983. The jury recommended the death penalty, which then-Johnson Circuit Judge Larry McKinney imposed on Jan 4, 1984.

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On Dec. 12, 1982, D.H. Fleenor bought a gun and used it on his in-laws, killing them both as they arrived home from church. Fleenor was tried and found guilty. He was sentenced to death. His appeals went similarly badly for him.

So here is what the state of Indiana has planned for Fleenor this evening at the Indiana State Prison in Michigan City: "Offender receives shower and new clothing ... at approximately 6 p.m.," according to a Department of Correction memo ("RE: Chronology leading up to execution").

The offender then is transferred to a cell that is adjacent to the execution room. (It seems extravagant to set aside a room exclusively for executions since Indiana does only about one execution a year. But it's the law. People might enjoy having, say, a pingpong table in there the other 364 days, but it would be a violation of Indiana Code 35-38-6-5.)

The law also says, "The death penalty shall be inflicted before the hour of sunrise," which sounds uncomfortable but is no trouble. The deadline is met easily; the execution process begins at 12:01 a.m. Which means Fleenor will be dead in time for the morning news shows, and the anchors will be able to say it happened "today," which in the news business is preferable to saying "yesterday."

Right after midnight, a dozen prison officials -- the "cell extraction team," also called the "execution team" -- present themselves at the offender's cell door. They have with them a gurney. The offender walks out of the cell. He always has gone quietly. Nobody says "dead man walking" the way they do in Louisiana; nobody says anything. The offender is placed on the gurney, strapped to the gurney.

Somebody asks for the offender's last words. Often the offender has thought at length about this and has written something down. (The last one, Robert Smith, Jan. 29, 1998, came up with a two-parter: He apologized for being such a screw-up and then quoted Eleanor Roosevelt: "You gain strength, courage and confidence by every experience in which you really stop to look fear in the face.") The offender is rolled into the execution room. There is a phone there, and the superintendent makes a call. He asks someone at the "prison command center" if there is any word of a postponement from the governor or the courts. There never is.

A member of the execution team searches the offender for a vein, finds one and spikes it with a needle. The superintendent makes the phone call again, gets the same answer. A team member starts dripping sodium pentothal into the offender's vein. The offender goes to sleep.

The superintendent makes a third and final phone call. A team member gets out the pancuronium bromide, a muscle relaxer. Then he gets out the potassium chloride, and that's pretty much that. There is a doctor on hand. It's his job to pronounce the offender dead. What an unusual assignment for a doctor: The patient is dead -- the operation was a success!

A hearse is waiting. The prison has an arrangement with the Michigan City funeral home of Ott Haverstock (founded 1876) to retrieve the bodies of people who get executed. If all goes as planned, when Fleenor exits the prison gates he will still be warm.

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