An allegedly mentally retarded black man convicted of murder narrowly avoided the Arkansas death chamber late last night after a federal appeals panel let stand a lower court ruling that the convict should never have been sentenced to die in the first place.

While eleventh-hour stays of execution are routine in death penalty cases, U.S. District Judge G. Thomas Eisele's ruling, which was allowed to stand by the 8th Circuit Court of Appeals, went further. Eisele vacated the death sentence of Barry Lee Fairchild, saying it was unconstitutional because the state court failed to prove that Fairchild was liable for the death. Eisele changed Fairchild's sentence to life without parole. Fairchild, 39, was convicted of capital murder for the 1983 kidnapping, rape and killing of a young Air Force nurse, Marjorie Mason, who was white.

Fairchild's case became a rallying point for lawmakers, led by Rep. John Conyers Jr. (D-Mich.), as well as civil rights lawyers and advocates for the mentally ill. The case, Fairchild's advocates said, fits a pattern of judicial bias based on race.

Fairchild was not the triggerman and his attorney, Richard H. Burr, maintains his client did not participate in the crime.

A jury, however, found him guilty of capital murder on the basis of "accomplice liability, and what the {U.S.} Supreme Court has said is accomplice liability is not enough for a death sentence," said Burr of the NAACP Legal Defense and Educational Fund. To receive a death penalty, "You have to have either been the killer or intended the killing or at least known that one might occur," he said.

But Arkansas Attorney General Winston Bryant said that the test of accomplice liability is whether a defendant acts with "extreme indifference to the value of human life."

"By the mere fact that Mr. Fairchild, number one, kidnapped the victim at gunpoint, robbed the victim, raped the victim and sat while someone else apparently shot the victim in itself amounts to extreme indifference," Bryant said. The appeals panel still could allow Fairchild to die. It set oral arguments in the case for next month. Whether Bryant will appeal to the U.S. Supreme Court before then was not clear last night.

Burr maintains Fairchild was subjected to racially inspired physical abuse by Pulaski County, Ark., sheriff's deputies who coerced a confession with physical abuse. Burr and others say Fairchild was susceptible to the coercion because he is mentally retarded. Despite a series of tests and expert testimony showing Fairchild to be mentally retarded, Eisele in a previous hearing ruled he is not.