Death penalty cases scrutinized
More hearings are being ordered in Virginia

Apr 09, 2001

Bumps and potholes are slowing the pace of capital cases on Virginia's once smooth road from death sentence to execution.

A national study released last year by the Columbia University School of Law showed that from 1973 to 1995, appeals courts found fewer errors in Virginia death cases than in any other state in the country.

But in just the past month, a federal court and the Virginia Supreme Court - for the first time in six years - have ordered hearings in capital cases. What, if anything, the newfound critical examination of Virginia death cases means is unclear.

Take, for example, the apparently open-and-shut case of triple murderer Percy LeVar Walton.

In November 1996, Walton killed Elizabeth and Jessie Kendrick in their Danville town house. Before she died, the 81-year-old woman was on her knees begging for her life. Nearby, Jessie, 80, was lying face down and crying on the living room floor.

Walton told Elizabeth to shut up. Then he shot her to death. He laughed at Jessie before trying to cut the elderly man's throat.

Unsuccessful, the then-18-year-old put the knife down and placed the muzzle of a .32-caliber handgun against the top of Kendrick's head and pulled the trigger.

A few days later, Walton tricked his way into a neighbor's apartment. Walton shot 33-year-old Archie Moore in the head, sprinkled cologne over his body and stuffed him into a closet behind a suitcase. Police found Moore's body on Nov. 28, 1996.

Walton would later tell a fellow jail inmate that he "wanted to be famous . . . especially in Danville, for killing a bunch of folks." He got his wish.

He was a careless killer and he left a trail of clues a mile wide. The evidence against him was overwhelming. He pleaded guilty to the slayings and received three death sentences from Danville Circuit Judge James F. Ingram.

It was another Virginia death case, much stronger than most that in recent years have sped through appeals courts without a hitch. Yet, last month a federal judge in Roanoke ordered an unusual hearing in the case.

The reasons: Mental illness may have rendered Walton incompetent to stand trial, and his attorneys may have failed to perform to constitutionally acceptable standards.

Walton's is not the first case in the last year or so to be held up on appeal claims.

Last year two killers sentenced to death received life sentences instead after their cases were sent back to Virginia by the U.S. Supreme Court. One involved Terry Williams, also of Danville.

In the Williams case, the U.S. Supreme Court ruled for the first time that lawyers in a capital case had not performed up to constitutionally acceptable standards.

Also last year, the Virginia Supreme Court ordered a new trial for Chauncy Jackson, condemned to death in Norfolk. And a hearing, ordered by the U.S. Supreme Court, was held in the case of multiple murderer Michael Williams.

In the past month, in addition to the Walton case, the Virginia Supreme Court for the first time in six years has ordered a hearing in a capital case. The hearing for convicted killer and rapist Brandon Wayne Kendrick is to determine if his lawyers performed up to constitutionally acceptable standards.

And in a case involving condemned killer Walter Mickens Jr. - scheduled to be executed April 17 - a dissenting opinion was written by three judges on the 4th U.S. Circuit Court of Appeals. Mickens' lawyer said he believes that could mean the U.S. Supreme Court might agree to hear the case.

So why the recent spate of court actions involving Virginia cases?

Opponents of capital punishment believe the appeals courts are finally doing their job since it was shown last year that one nearly executed inmate was innocent. State officials suggest the actions are a coincidence. Others are not sure what it means.

"I'd like to believe it's because the public demands it in light of the Earl Washington case," said Henry Heller of Virginians for Alternatives to the Death Penalty.

Earl Washington, a former death row inmate who came within nine days of execution in 1985, was granted an absolute pardon in October by Gov. Jim Gilmore after a DNA test cleared him of a 1982 rape and murder.

But David Botkins, spokesman for Attorney General Mark Earley, said he didn't attribute any particular reason to the recent spate of court reviews.

"Each case is unique with its own set of facts and circumstances - and the court has full authority to review them," Botkins said. "Statistically, most of the sentences handed down are carried out."

Ronald J. Bacigal, a professor of law at the University of Richmond's T.C. Williams School of Law, said something seems to be happening, but it's hard to draw any conclusions.

"It could just be a coincidence," he said. On the other hand, "you're hearing so much about DNA evidence proving innocence, maybe it is making courts take a harder look."

"It's interesting, but it's [just] so much speculation unless you can get a court to tell you and, of course, I doubt seriously that you would."

Walton is not the first death case out of Danville involving a mentally ill defendant. Calvin Swann was sentenced to die for the Nov. 7, 1992, slaying of Conway Richter, 62.

At the time of the murder Swann was receiving Social Security disability benefits because of his schizophrenia. Swann had been involuntarily committed to psychiatric hospitals at least 16 times before he was arrested for Richter's murder, according to medical and state corrections records.

State employees had diagnosed Swann as having schizophrenia at least 41 times, described him as psychotic at least 31 times and regularly medicated him with eight antipsychotic drugs.

Yet, no competence hearing was set for Swann. In the end, Gov. Jim Gilmore commuted Swann's sentence to life without parole.

Walton's current lawyers say that in the days surrounding his murder rampage he was seen walking up and down the street talking to himself. In the months following his arrest he sat in his cell and in court smiling, laughing and rocking back and forth.

"Every expert who has conducted appropriate testing and an adequate evaluation, and who has been presented with a complete record of [Walton's] mental health history has determined that Walton is psychotic and actively schizophrenic, and that he has been so since he was approximately 16 years old," argues his federal court petition.

"Unbelievably, there was no competency hearing" in his case. "In fact, there was no mental health testimony presented at any stage of the proceedings," said Michele Brace and Jennifer Givens of the Virginia Capital Representation Resource Center.

Lawrence Gott, the lead lawyer for Walton during his trial, said in an affidavit that "throughout my representation of him, Mr. Walton's behavior was bizarre."

"Mr. Walton also told us that he was Jesus. Additionally, Mr. Walton stated that when he closed his eyes, he could not be seen by anyone," Gott said.

But Gott also said that when he was researching Walton's background for mitigating information to help his client, none of Walton's friends or relatives said he was mentally ill.

In addition, two professionals who had evaluated Walton found no mental illness, he said. "In short, Walton's mental state at the time he committed the capital murders was never a plausible defense," Gott said.

But, Walton's lawyers contend Gott and the earlier evaluators are wrong.

A neurologist, neuropsychologist and a psychiatrist have since evaluated Walton and concluded he suffers from "severe chronic schizophrenia, probably of the paranoid or disorganized type," and that he was likely suffering from it when he committed the murders.

Should Walton be put to death, his lawyers warn, "the commonwealth will execute a man who was incapable of forming the specific intent to commit capital murder . . . a man whose guilty plea . . . should ever have been adopted by the court."

Contact Frank Green at (804) 649-6340 or

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