Nevada death row inmate dies of natural causes at age
Monday, July 27, 1998
CARSON CITY -- Nevada death row inmate
Julius "Jimmy" Lee Neuschafer, who three times had his date with the
death needle canceled within hours of his execution, died Sunday of
Department of Prison spokesman Glen
Whorton said Neuschafer, 45, was pronounced dead at 12:41 p.m. at the
Regional Medical Facility at the Northern Nevada Correctional Center in
Neuschafer was transferred to the
facility about a month ago from the state prison in Ely, where death row
inmates are housed.
The cause of death was obvious, Whorton
said, but details were being withheld pending notification of relatives.
Neuschafer was sentenced to two life
prison terms without parole for raping and killing two Carson City teen-agers.
Shawn Hofer, 15, and Lorie Woodruff, 13, were shot in the head in 1974
during a time when Nevada did not have the death penalty.
He later was convicted and sentenced to
die for strangling another inmate, Johnnie Johnson, also known as
Willard Taylor, in August 1981.
On three occasions, he came within hours
of being executed. He twice said he didn't want to continue with appeals,
only to change his mind at the last minute.
His last execution was scheduled for
December 1990, when he told District Judge Mike Fondi his death would be
a nice Christmas gift.
"I just want it over with as soon as
possible," he said at the time. "I think it would be a nice Christmas
present for the city of Carson City.
"I have no desire for any further appeals
nor do I have any desire to remain in prison," he said. "I'm not going
to play any more games with you."
But six hours before he was to die by
lethal injection, he decided to challenge his conviction, arguing errors
by his defense attorney kept him from getting a fair trial.
Neuschafer came within four hours of
execution in 1987 and 11 hours in 1985 when he won federal court stays.
He once told a reporter during a 1985
prison interview that he would prefer to be executed by firing squad or
guillotine, saying death by lethal injection is "the way they kill mad
Las Vegas Sun
On Nevada's Death Row, Jimmy Neuschafer was the
master of delays - and gastronomical gamesmanship.
Twice Neuschafer told authorities he was giving up
his appeals and was ready to die. In 1987 he was placed in the "last
night cell" and ordered steak and lobster as his final meal. He then
called his attorney to get a stay of execution.
He used the same gambit in 1990, eating a final meal
of fried chicken, chocolate chip ice cream and chocolate milkshakes -
and then having his attorney launch a new appeal.
The warden vowed Neuschafer would not get a third
last meal, but the condemned convict still managed to outmaneuver
justice again - by dying in prison before he could be executed.
816 F.2d 1390
Harol Whitley, Warden, Nevada State Prison, and Brian Mckay,
of the State of Nevada, respondents-appellees
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 1987.
Decided May 11, 1987
Appeal from the United States District Court for the
District of Nevada.
Before CHAMBERS, KENNEDY and HALL, Circuit Judges.
KENNEDY, Circuit Judge:
The appellant Neuschafer seeks a writ of
habeas corpus from the United States courts after the Nevada judicial
system has reviewed and affirmed his conviction and sentence.
Neuschafer v. State, 101 Nev. 331, 705 P.2d 609
(1985). Neuschafer killed a prison inmate and
was convicted of first degree murder with aggravating circumstances as
defined by Nevada law. He received the death sentence.
Neuschafer's crime was committed while he was serving two life
sentences for the rape and first degree murder of two young women. The
United States District Court for the District of Nevada denied
Neuschafer's petition for writ of habeas
corpus, and after we heard oral argument on appeal from that decision,
we issued an order of limited remand to the district court for further
findings. Neuschafer v. McKay, 807 F.2d 839
(9th Cir.1987). The district court held an evidentiary hearing and made
further specific findings of fact and conclusions of law, and we have
reconsidered the appeal upon further oral argument. We now reject
petitioner's constitutional arguments and affirm denial of the writ by
the district court.
Neuschafer's first argument, and the one
that led us to remand the case for further proceedings, is that the
prosecution used a confession obtained in violation of the standards set
forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981). Edwards bars the use of any confession obtained after the
suspect has requested a lawyer, unless the suspect has initiated the
interview leading to his confession and has knowingly and intelligently
waived his right to counsel before confessing. Id. at 484-85, 486 n. 9,
101 S.Ct. at 1884-85, 1885 n. 9.
As explained in our first opinion, the issue before us involves
Neuschafer's statement on August 21, 1981,
which was the third of three confessions or admissions that were
introduced in evidence. 807 F.2d at 840; see 705 P.2d at 612. Before
making the August 21 statement, Neuschafer had
written two incriminating notes, which were admitted at trial and which
can be characterized as confessions.
Still another statement, made after the notes were written but
before the August 21 statement, was obtained in violation of the
petitioner's Miranda rights. On August 18, officers Ricards and Forrest
questioned Neuschafer in a maximum security
unit of the prison. Despite Neuschafer's
request for an attorney, the officers did not provide him with counsel.
Instead, they continued the interview until they elicited an
incriminating statement. This statement was not admitted in evidence.
On August 21, officers Ricards and Forrest, joined this time by
officer Efford, again interviewed Neuschafer
and obtained the incriminating statement here in issue. We remanded for
further findings, noting that counsel was requested at the August 18
interview, so that the Edwards rule must have been satisfied before the
statement from the August 21 interview could be admitted in evidence.
The district court found that the August 21 interview was initiated by
Neuschafer and that the confession was made
after a waiver of the right to counsel. Those findings are fully
supported by the evidence.
The district court's findings were as follows:
Sometime just prior to 8:15 p.m. on August 20, 1981, Petitioner
handed a note to correctional officer Stahl who was on duty in Max Unit.
Stahl in turn handed this note to correctional officer Glen Blomgren who,
as senior correctional officer on duty, was in charge of the unit.
Blomgren who was stationed in the security office of the unit, examined
the note. Blomgren cannot recall verbatim the specific contents of the
note, but he does remember that the note indicated Petitioner's great
desire to see somebody in a "position of authority" to talk about why he
was in the Max Unit. Blomgren also remembers that the note indicated an
intimate knowledge of the murder weapon used, describing the material of
which it was made and the way it was knotted. To Blomgren the note was "confessionary"
and involved an inmate murder.2
Blomgren took the note and proceeded to Petitioner's cell with the
intent to determine the "importance" of it. When he arrived at
Petitioner's cell, Petitioner told Blomgren that the Johnson death was
not a suicide. He asked Blomgren if the note would get attention.
Blomgren cannot recall the exact date of these occurrences regarding
this particular note, but specifically confirms that the note was
received around 8:15 p.m. The prison's daily log makes clear, however,
that Petitioner's note requesting a meeting with the authorities was
delivered to Stahl and Blomgren on August 20, 1981.
After the discussion with Petitioner about the note, Blomgren
notified the Shift Commander for the prison, Lt. Francis Smith. Lt.
Smith (in his own handwriting) documented the receipt of the note in the
daily log for that shift of the watch at the prison (Exhibit F):
"8:15 P M Phone call complete in Max unit.3
Also c/o Blomgren received a note from Inmate Neushafer (sic) which is
being sent to investigations."
The preponderance of the evidence is that the note was then sent
directly to the Investigation Division of the Prison and then on to the
Carson City Sheriff's office, which (with the assistance of the
Investigation Division) investigated major crimes at the prison at that
Sometime after the note reached the Carson City Sheriff, officer
Ricards of the Investigation Division arranged for an interview between
Petitioner and Detective Michael Efford of the Sheriff's office. Ricards
had been told that Petitioner wanted to talk to the police. Ricards told
Efford Petitioner had asked to talk to Efford. Efford was not told that
Petitioner had previously been interviewed and requested an attorney.
At approximately 2:30 p.m., on August 21, 1981, Petitioner was taken
from Max Unit to another area in the prison for an interview with Efford,
Ricards and Ed Forrest. At the interview Efford read Petitioner his
Miranda rights. Petitioner indicated he understood his rights and did
not request an attorney. (See Exhibit B.) He proceeded to give another
incriminating statement. This statement was read into the record at
trial over objection of defense counsel.
Neuschafer's claim that he did not initiate
the interview is refuted in the record by documentary evidence, by the
testimony of officers Smith and Blomgren, and by inconsistent statements
of Neuschafer in the remand hearing itself and
at the criminal trial. The trial judge said also that
Neuschafer's testimony was discredited by his demeanor. Though we
must sustain the findings of fact upon the mere conclusion that they
were not clearly erroneous, we are led to say here that the evidence in
support of the court's findings is compelling.
Based on the explicit findings of the district court, the conditions
of Edwards v. Arizona were satisfied, and the August 21 confession was
admissible. It is unnecessary for us to consider the issue of harmless
error, although, as the dissent in our previous disposition makes clear,
that alternative argument by the state of Nevada is far from
In our previous opinion, we did not address
Neuschafer's other contentions, and we now turn to those matters.
The jury found that one of the aggravating factors of the crime was that
it was a murder which "involved torture, depravity of mind or the
mutilation of the victim." Nev.Rev.Stat. Sec. 200.033(8).
Neuschafer contends this is an arbitrary
standard, both as a general matter and in the particular circumstances
of his case. We need not address this contention, however, for it would
be of no avail to the petitioner. The jury found additional and specific
aggravating factors which, under both Nevada law and controlling
constitutional principles, justify imposition of the capital sentence.
The jury found, beyond any reasonable doubt, that the murder had
been committed by a person under sentence of imprisonment, and that it
had been committed by a person who was previously convicted of another
murder, both of which are aggravating circumstances under Nevada law.
Nev.Rev.Stat. Sec. 200.033(1), (2). The jury found no mitigating factors.
In the absence of mitigating factors, the presence of either of the
aggravating circumstances, standing alone, would have permitted the jury
to impose the death sentence under Nevada law. Nev.Rev.Stat. Sec.
The presence of one valid aggravating circumstance suffices to
support a sentence of death against the contention that another
aggravating circumstance is insufficient, standing alone, to support the
sentence. Zant v. Stephens, 462 U.S. 862, 880-84, 103 S.Ct. 2733,
2744-47, 77 L.Ed.2d 235 (1983) (upholding death sentence, in spite of
presence of invalid aggravating circumstance, for murder committed by
escaped convict who had previously been convicted of capital crime.)
Neuschafer offers no distinction between his
case and the circumstances in Zant v. Stephens, and we can find none.
The aggravating circumstances found by the jury are unchallenged, namely
commission of the murder by a person under sentence of imprisonment and
by a person who was previously convicted of another murder, and are
sufficient to support the sentence. There is no contention that details
of the strangulation should not have been brought to the jury's
attention in the sentencing phase, nor could there be such an argument
under Nevada law. This was a circumstance relevant to the offense which
bore on the jury's determination whether to impose the death penalty
even assuming it was not in itself an appropriate aggravating factor.
Nev.Rev.Stat. Sec. 175.552. Zant v. Stephens is squarely applicable here.
Neuschafer argues that his sentence was
disproportionate, apparently on the premise that the death penalty has
not been decreed in other strangulation cases, and he claims the
district court should have provided an evidentiary hearing on this point.
This argument ignores the proposition, explicit in the jury's findings,
that the sentence was enhanced on two statutory grounds not related to
the means of the killing, grounds which, as we have held, are sufficient
to support the imposition of the death penalty.
Neuschafer committed the crime while in prison and he had
previously been convicted of other murders. There is no showing that
Neuschafer's sentence was disproportionate to
sentences received by other offenders in these circumstances. The minor
premise of Neuschafer's argument, that there is
a factual basis for a showing of disproportionality, could not be
established, therefore, within the framework
The major premise that a factual showing of disproportionality would
require issuance of a writ of habeas corpus is also flawed. To the
extent that Neuschafer's argument is based on
Nevada law, he cannot obtain relief in a federal habeas corpus
proceeding. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71
L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197-98 (9th
Cir.1983). We note for the record, however, that the Nevada Supreme
Court conducted a proportionality review of Neuschafer's
sentence, as well as a determination that the sentence was not
influenced by any arbitrary factors. See 705 P.2d at 613 & n. 5. Finally,
constitutional principles do not require a state court, or the federal
court in habeas corpus proceedings, to engage in any comparative
proportionality review, at least where a state's capital sentencing
process contains checks on arbitrariness such as the mitigating and
aggravating circumstances in the Nevada statute. Pulley v. Harris, 465
U.S. 37, 50-51, 104 S.Ct. 871, 879-80, 79 L.Ed.2d 29 (1984). There is no
valid constitutional or federal objection to the imposition of the
CHAMBERS, Circuit Judge, concurring:
I concur in Judge Kennedy's opinion affirming after the remand. I
still adhere to the proposition in my original dissent that the notes or
"kites," the contents of which were before us, were enough for
affirmance on round one.
Officer Richards of the Investigation Division of NSP
recalls the note as saying that Petitioner "wished somebody to clear up
his trouble." There is no credible evidence to support Petitioner's
present contention that the note sought an attorney to represent
This statement referred to a telephone call that had
been arranged for another inmate, Hartman, by the chaplain and Lt. Smith.
Exhibit E also mentions this telephone call. Exhibit E is the log which
records movement of inmates, visitations to the unit, doctors calls,
officers on duty and unusual incidents for Max Unit for August 20, 1981