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Barry Lee Fairchild (Trial and Execution of)

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.”

For additional information:
Kroll, Michael A. “Killing Justice: Government Misconduct and the Death Penalty.” Death Penalty Information Center. http://www.deathpenaltyinfo.org/article.php?scid=45&did=529#sxn4 (accessed June 12, 2007).

Wall, Phoebe. “Questions Remain in Fairchild Case.” Arkansas Gazette. February 12, 1989, pp. 1A, 21A.

Michael A. Kroll
The Beat Within

Last Updated 4/5/2010

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