By Candace Rondeaux
Washington Post Staff Writer
Thursday, June 8, 2006
Virginia death-row inmate Percy Levar Walton has said he knows exactly what will happen if the state executes him tonight for killing three people a decade ago. He believes, his attorneys say, that his execution not only will bring the victims back to life, but it might also secure him a spot on national television, raise his grandfather from the dead and earn him a trip to Burger King on a motorcycle.
Walton's attorneys say that Walton, 27, who experts agree is mentally retarded and schizophrenic, has spent most of his time on death row pacing his cell, collecting piles of salt and pepper packets and babbling nonsensically to himself.
But J. Martin Tucker, a spokesman for Virginia Attorney General Robert F. McDonnell (R), says Walton is "competent to stand for execution."
Walton won a reprieve yesterday after a federal judge in Norfolk halted his execution pending a U.S. Supreme Court decision about the constitutionality of lethal injection. But the U.S. Court of Appeals for the 4th Circuit in Richmond granted McDonnell's request to vacate the stay, and Walton is scheduled to be executed at 9 p.m.
In a May 22 appeal, attorneys for Walton said his "mental illness and severe cognitive defects" make it unlikely that he could alert his executioners to problems with the lethal injection procedure.
U.S. District Judge Rebecca Beach Smith issued a restraining order the next day and extended a full stay of execution yesterday. Her order was vacated by the appeals court in a matter of hours.
In April, attorneys for Florida inmate Clarence E. Hill argued before the Supreme Court that the three-drug combination used to execute death-row inmates would cause unnecessary pain, violating the constitutional prohibition against cruel and unusual punishment. A decision in that case is expected before the end of the month.
The decision late yesterday by the Court of Appeals for the 4th Circuit will not end efforts to keep Walton from the death chamber, his attorneys said.
"Walton's case will come back up," said attorney F. Nash Bilisoly. "The fact remains that a man with an IQ of 66 will be scheduled to be executed."
Prosecutors and psychiatrists have debated for years whether Walton's mental illness should bar him from being executed. That debate could come to an abrupt end without intervention by the U.S. Supreme Court or Virginia Gov. Timothy M. Kaine (D).
A spokesman for Kaine said yesterday that the governor is reviewing Walton's case.
Jennifer Givens, co-counsel on Walton's case, said that in recent days, she and Bilisoly have repeatedly explained to Walton that he could soon die. But they believe he cannot comprehend that.
"There's nothing that registers with him. He simply does not know that this will mean the end of his physical life," Givens said.
Psychological experts on both sides agree about Walton's mental state. But in March, the appeals court affirmed a three-year-old lower federal court ruling that Walton's mental condition does not interfere with his ability to comprehend that his death sentence is punishment for three killings in 1996.
The 7 to 6 decision forced Walton's attorneys last month to ask the U.S. Supreme Court to take up Walton's case and to file a clemency petition asking Kaine to commute his sentence to life in prison.
Walton's scheduled execution would be the second test this year of Kaine's public resolve to uphold the death penalty despite his stated personal opposition to capital punishment. In April, Kaine, a Catholic who as a young private lawyer defended two death-row inmates, allowed the execution of Dexter Lee Vinson to go forward.
Walton pleaded guilty in 1997 to shooting Jessie and Elizabeth Kendrick, an elderly Danville couple, and later killing his neighbor, Archie Moore, stuffing his body in a closet and sprinkling it with cologne. No competency hearing was held before the death sentence was issued.
Barbara K. Case, the Kendricks' daughter, says she has forgiven Walton. Raised Catholic and now a Baptist who lives in Mississippi, Case said she grieved deeply for her parents but was taught to believe the death penalty is wrong.
"If right now he is insane and he doesn't know right from wrong and he doesn't know diddly squat, what purpose would it serve? I'd get no satisfaction out of watching him die," Case said.
The Supreme Court ruled in Ford v. Wainwright in 1986 that it is unconstitutional to execute the insane. More recently, the high court prohibited the execution of the mentally retarded but left it up to the states to define retardation.
Legal experts say more recent lower court decisions on cases such as Walton's have eroded the force of Ford v. Wainwright , reducing the pool of death-row inmates who might be considered under the decision and trivializing the meaning of mental illness. Richard J. Bonnie, director of the University of Virginia's Institute of Law, Psychiatry and Public Policy, said the appeals court's March decision on Walton's appeal undermines the fundamental principle of capital punishment as retribution.
"Putting a mad dog to sleep that is dangerous is not punishment," Bonnie said. "What we have to understand is that the death penalty is meant to be an example of personal responsibility through punishment. What that requires is that the subject of the punishment understand why he is being punished."