On 1989 Alabama executed Horace Dunkins, who had
been convicted of raping and murdering Lynn M. McCurry, a 26-year-old
mother of four. Mr. Dunkins had an I.Q. of 69 and the reasoning
skills of a 12-year-old, but this evidence was never presented to a
After one juror learned of it later, she signed
an affidavit saying she never would have voted for the death penalty
had she known of Mr. Dunkins's mental retardation.
Execution of Horace Franklin Dunkins, Jr
On July 14, 1989 in Alabama, Horace Franklin
Dunkins, Jr. was executed by electrocution. It took two jolts of
electricity, nine minutes apart, to complete the execution. After
the first jolt failed to kill the prisoner (who was mildly retarded),
the captain of the prison guard opened the door to the witness room
and stated "I believe we've got the jacks on wrong." ††
Because the cables had been connected improperly, it was impossible
to dispense sufficient current to cause death. The cables were
reconnected before a second jolt was administered. Death was
pronounced 19 minutes after the first electric charge. At a post-execution
news conference, Alabama Prison Commissioner Morris Thigpen said, "I
regret very very much what happened. [The cause] was human error."**
†† John Archibald, On Second Try, Dunkins Executed
for Murder, BIRMINGHAM NEWS, July 14, 1989.
** Peter Applebome, 2 Jolts in Alabama Execution, N.Y. TIMES,
July 15, 1989, at 6.
Source - Post-Furman Botched Executions by Michael L. Radelet,
University of Colorado
Horace Dunkins, black,
executed in Alabama 07.14.89. IQ: 65-69. The attorney never told the
jury he was mentally retarded 65. When newspapers reported this
several years later, one juror told the press she would not have
voted for the death penalty had she known of his retardation. This
would have saved his life.
July 14, 1989. Alabama. Horace Franklin
Dunkins, Jr. Electrocution. It took two jolts of electricity,
nine minutes apart, to complete the execution. After the first jolt
failed to kill the prisoner (who was mildly retarded), the captain
of the prison guard opened the door to the witness room and stated
"I believe we've got the jacks on wrong." Because the cables had
been connected improperly, it was impossible to dispense sufficient
current to cause death. The cables were reconnected before a second
jolt was administered. Death was pronounced 19 minutes after the
first electric charge. At a post-execution news conference, Alabama
Prison Commissioner Morris Thigpen said, "I regret very very much
what happened. [The cause] was human error."
2 Electric Jolts in Alabama
Applebome - The New York Times
July 15, 1989
Alabama prison officials had to use a second jolt of electricity
today to execute a mildly retarded murderer after the first charge
failed to kill him.
Alabama officials said improper cable connections
were to blame for the fact that the execution of Horace Franklin
Dunkins Jr. took 19 minutes.
Mr. Dunkins, who was convicted of the 1980 rape
and murder of a woman from Warrior, Ala., became the first retarded
murderer to be executed since the Supreme Court said last month that
the Constitution did not bar such executions.
Mr. Dunkins, 28 years old, was executed at Atmore,
Ala., after the Supreme Court refused late Thursday to block his
execution. The Court voted 7 to 2, with Justices William J. Brennan
and Thurgood Marshall dissenting.
Stay for Georgia Murderer
In Georgia, the State Supreme Court issued a
temporary stay of execution Wednesday for Son H. Fleming, who has
also been found to be mildly retarded. He was convicted of murdering
a rural Georgia police chief in 1976.
In ruling June 26 that the Constitution allows
states to execute mentally retarded murderers, the United States
Supreme Court said juries were required to consider evidence of
retardation before imposing a death sentence.
Officials said the first throw of the electrical
switch at 12:08 this morning failed to kill Mr. Dunkins. Officials
reconnected the cables as Mr. Dunkins sat, apparently unconscious,
strapped to the electric chair, his face covered by a black veil. At
12:17, the switch was thrown second time and 10 minutes later, he
was declared dead.
Alabama officials said human error was the cause
of the problem.
''I regret very very much what happened,'' the
Alabama Prison Commissioner, Morris Thigpen, said at a news
conference after the execution. ''It was human error. I just hope
that he was not conscious and did not suffer.''
Critics said it was a ghoulish finale to a case
that raised troubling questions about executing the retarded.
'Brutal and Unjustifiable'
''It was awful,'' said Mr. Dunkins's lawyer,
Stephen D. Ellis. ''What happened was brutal and unjustifiable in
and of itself. That it followed a gross miscarriage of justice made
it that much worse.''
Mr. Dunkins and an accomplice were convicted of
the 1980 rape and murder of a 26-year-old mother of four. She was
raped and then stabbed 66 times while tied to a tree. The accomplice
was given a life sentence.
Mr. Dunkins's lawyers argued that his death
sentence should be overturned because the jury was never given
evidence of his retardation. They said such evidence would have been
essential for evaluating his culpability, and they argued that Mr.
Dunkins waived his right to a lawyer before his interrogation by the
police without any understanding of his legal rights.
A juror who heard the case presented an affidavit
this week saying she would not have voted for a death sentence if
she had known of Mr. Dunkins's retardation.
Alabama Disputes Defense
Alabama officials argued that the jury was given
evidence about Mr. Dunkins's learning deficiencies that gave them an
understanding of his mental impairment even if he was not termed
mentally retarded. They said his I.Q. of 69, at the borderline of
retardation, made him responsible for his actions.
''If you're going to have a death penalty, if you
don't have it for a crime like this, what do you have it for?''
asked Ed Carnes, head of the capital punishment division of the
Alabama Attorney General's Office.
But Mr. Ellis argued that the issue was not the
brutality of the crime, but whether Mr. Dunkins received a fair
trial and judicial review.
''This was an indigent, mentally retarded man,''
he said. ''There was absolutely no interest in protecting his rights
or making sure his conviction and death sentence were fair, and in
this case they were not.''
Dr. George S. Baroff, a professor of psychology
at the University of North Carolina, who testified at an appeals
hearing as an expert witness called by Mr. Dunkins's lawyers, said
the courts and legal profession had not yet addressed the issues of
how retardation affects a person's ability to reason, to understand
moral issues, to make decisions and to protect their own legal
rights. Experts estimate that 10 percent or more of the prisoners on
death row may be mentally retarded.
''We're on a slippery slope
now where these people are going to be killed all over the
country,'' he said. ''This thing is going to get a lot hotter.''
854 F.2d 394
Morris Thigpen, Commissioner
of Alabama Department Of
W. E. Johnson, Warden,
Holman Unit, Respondents-appellees
States Court of Appeals,
Appeal from the United States
District Court for the Northern District of
Before HILL, FAY and VANCE,
VANCE, Circuit Judge:
On petition for rehearing,
the court withdraws its previous opinion
dated May 27, 1988, and substitutes the
following opinion. The petition for
rehearing is otherwise DENIED and no member
of this panel nor other judge in regular
active service on the court having requested
that the court be polled on rehearing in
banc, the suggestion for in banc
consideration is DENIED.
On May 27,
1980 two sheriff's deputies arrested
petitioner and transported him along with a
co-worker to the Jefferson County Courthouse.
Petitioner was a suspect in the rape and
murder of Lynn McCurry.1
After the deputies read petitioner his
rights, they began to interrogate him. After
a few questions, petitioner stated: "Before
I talk anymore now, I would like to talk to
my lawyer or either my mama or somebody...."
After this statement, the deputies asked a
few more questions2
and arranged a lineup. The police then
returned petitioner and his co-worker to
their place of employment. At some point
during the day, petitioner agreed to take a
morning, Sergeant House picked up petitioner
at work and brought him to the Sheriff's
office for the polygraph test. After the
test Dunkins was
returned to his job. Later that day House
brought petitioner back for more questioning.
An hour or so later petitioner signed a
waiver of his rights and confessed his
complicity in the crime.
Jefferson County Circuit Court jury
and sentenced him to death. After
unsuccessfully challenging his conviction
and sentence on direct appeal and on
collateral attack in the Alabama courts,
petitioner filed a habeas petition in the
district court. The district court denied
the petition, and Dunkins
brought this appeal.
contends that the admission of the May 28
confession violated his fifth amendment
right to counsel under Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and Edwards v. Arizona, 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Petitioner argues that under Miranda his
expression of desire to speak with an
attorney precluded any further questioning,
and that under Edwards he did not waive his
right to have counsel present by responding
to further police initiated investigation.
Supreme Court has held that once a defendant
expresses a desire to deal with the police
only through counsel, the authorities may
not further interrogate the defendant until
"counsel has been made available to him,
unless the accused himself initiates further
communication, exchanges or conversation
with the police." Edwards, 451 U.S. at
484-85, 101 S.Ct. at 1885; See Arizona v.
Roberson, --- U.S. ----, 108 S.Ct. 2093,
2097, 100 L.Ed.2d 704 (1988); Connecticut v.
Barrett, 479 U.S. 523, 107 S.Ct. 828, 832,
93 L.Ed.2d 920 (1987).
Thus once a defendant
has requested counsel, Edwards permits the
police to resume questioning only if the
defendant initiates contact with police. See
Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103
S.Ct. 2830, 2833, 77 L.Ed.2d 405 (1983);
Edwards, 451 U.S. at 485, 101 S.Ct. at 1885;
Collins v. Francis, 728 F.2d 1322, 1332
(11th Cir.), cert. denied, 469 U.S. 963, 105
S.Ct. 361, 83 L.Ed.2d 297 (1984). Even if a
defendant has initiated contact with the
police after requesting counsel, any
statements made are still inadmissible
unless they are the product of a knowing and
voluntary waiver. See Bradshaw, 462 U.S. at
1045, 103 S.Ct. at 2834; id. at 1054 n. 2,
103 S.Ct. at 2840 n. 2 (Marshall, J.
dissenting); Wyrick v. Fields, 459 U.S. 42,
46-48, 103 S.Ct. 394, 395-96, 74 L.Ed.2d 214
(1982); Edwards, 451 U.S. at 486 n. 9, 101
S.Ct. at 1885 n. 9; Wilson v. Murray, 806
F.2d 1232, 1237 (4th Cir.1986), cert. denied,
--- U.S. ----, 108 S.Ct. 197, 98 L.Ed.2d 149
argues first that Edwards does not bar the
admission of petitioner's confession because
the police honored Dunkins'
request. Petitioner wanted to see a lawyer
or his mother or somebody, and he did in
fact see his mother. Respondent argues
second that Edwards does not exclude the
confession because petitioner was not
continually in custody between the time of
his assertion of the right to counsel and
his confession. While the first argument is
probably meritorious, we believe that the
second argument is an even more compelling
basis for holding that the police did not
circuits have required that there be no
break in custody before the Edwards rule
will operate to exclude a confession. In
these cases, the courts of appeals have held
that even when the police wrongfully ignore
a defendant's request for counsel,
subsequent confessions obtained from even
police initiated interrogation are
admissible if there has been an intervening
break in custody. See McFadden v. Garraghty,
820 F.2d 654, 661 (4th Cir.1987); United
States v. Fairman, 813 F.2d 117, 125 (7th
Cir.), cert. denied, --- U.S. ----, 107 S.Ct.
3240, 97 L.Ed.2d 745 (1987); United States
v. Skinner, 667 F.2d 1306, 1309 (9th
Cir.1982), cert. denied, 463 U.S. 1229, 103
S.Ct. 3569, 77 L.Ed.2d 1410 (1983).
that a break in custody dissolves a
defendant's Edwards claim. If the police
release the defendant, and if the defendant
has a reasonable opportunity to contact his
attorney, then we see no reason why Edwards
should bar the admission of any subsequent
statements. A break in custody after the
invocation of fifth amendment rights ends
the need for the Edwards rule.6
case, petitioner made a somewhat ambiguous
statement that included a request to see his
attorney. Even assuming that this statement
and regardless of whether or not petitioner
initiated further discussion with the police,8
we hold that petitioner's release from his
initial custody provided him with
substantial opportunity to speak with those
he wished to consult. The admission of his
subsequent confession therefore did not
violate his constitutional rights under
also argues that his waiver of his Miranda
rights was not voluntary, knowing and
intelligent. Petitioner, citing Hines v.
State, 384 So.2d 1171 (Ala.Crim.App.1980),
contends that his confession was neither
voluntary nor knowing because a
psychological assessment performed after his
arrest revealed that petitioner was "functioning
at the high mild range of mental retardation."
Because of this condition, petitioner argues
that he could not have waived his rights
voluntarily and intelligently.
Supreme Court has held that the inquiry into
whether a defendant has waived his rights
under Miranda voluntarily, knowingly and
intelligently has two distinct dimensions:
First the relinquishment
of the right must have been voluntary in the
sense that it was the product of a free and
deliberate choice rather than intimidation,
coercion or deception. Second, the waiver
must have been made with a full awareness
both of the nature of the right being
abandoned and the consequences of the
decision to abandon it. Only if the "totality
of the circumstances surrounding the
interrogation" reveal both an uncoerced
choice and the requisite level of
comprehension may a court properly conclude
that the Miranda rights have been waived.
Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141,
89 L.Ed.2d 410 (1986); see Colorado v.
Spring, 479 U.S. 564, 107 S.Ct. 851, 857, 93
L.Ed.2d 954 (1987); Evans v. McCotter, 790
F.2d 1232, 1238 (5th Cir.), cert. denied,
479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300
(1986); United States v. McClure, 786 F.2d
1286, 1288-90 (5th Cir.1986). Thus "a valid
waiver of Miranda rights must not only be
voluntary; it must also be intelligently
made." Miller v. Dugger, 838 F.2d 1530, 1538
(11th Cir.1988) (emphasis in original).
Mental illness, moreover, is a factor to be
considered by the trial court when ruling on
the validity of a waiver. Id. at 1539; see
Cooper v. Griffin, 455 F.2d 1142, 1145 (5th
Cir.1972); McClure, 786 F.2d at 1289.
Burbine and Miller to the facts of this
case, we find that petitioner's waiver was
both voluntary and intelligent. Mental
retardation does not by itself prevent a
defendant from voluntarily waiving his
constitutional rights. See Colorado v.
Connelly, 479 U.S. 157, 107 S.Ct. 515,
523-24, 93 L.Ed.2d 473 (1986). The
voluntariness of a Miranda waiver depends on
the absence of police overreaching, and not
on any broad sense of "free choice." Id. 107
S.Ct. at 523; see United States v. Scheigert,
809 F.2d 1532, 1533 (11th Cir.1987).
Petitioner does not argue on appeal that his
confession was involuntary due to any police
overreaching or coercion.9
We hold therefore that petitioner's waiver
of his Miranda rights was not involuntary.
hold that petitioner's waiver was knowing
and intelligent. The issue of petitioner's
ability to understand his Miranda rights and
competently waive them was not specifically
raised at trial. Petitioner presented no
psychiatric evidence to the trial court. Cf.
Cooper, 455 F.2d at 1143-44 (defendant
presented testimony of four special
education teachers at suppression hearing);
McClure, 786 F.2d at 1289 (defendant
presented testimony of a clinical
psychologist at suppression hearing). Indeed,
the evidence before the trial court at the
suppression hearing indicated that
petitioner behaved in such a way that he
understood his rights and waived them
knowingly and voluntarily.10
On direct appeal, the Alabama Court of
Criminal Appeals agreed:
We have thoroughly
reviewed the totality of the circumstances
surrounding both statements given by the
defendant, including the facts that he was
nineteen years old and almost illiterate.
Our assessment of these facts convinces us
that both statements were completely
voluntarily given after a knowing and
intelligent waiver of constitutional rights.
Dunkins v. State,
437 So.2d 1349, 1353 (Ala.Crim.App.1983).
that petitioner did not make a knowing and
intelligent waiver because he was "moderately
retarded and functionally illiterate" first
appears in his coram nobis petition.
Petitioner also introduced for the first
time a psychiatric report from Bryce State
Hospital. The report stated:
revealed no delusions or hallucinations,
though he did have a preoccupation with his
legal situation and the possibility of going
to jail concerned him greatly, but in an
appropriate way.... [Petitioner's] judgment
and insight were fair; attention span and
memory were within normal range;
calculations and general information store
were within normal range.
assessment revealed that Mr.
functioning at the high mild range of mental
retardation with his adaptive behaviors
falling within the borderline range. Test
results are not suggestive of organic
coram nobis hearing, petitioner's trial
counsel testified that petitioner's parents
told him that petitioner "didn't have any
real problems other than being slow."
Petitioner's trial counsel also testified:
"I never had any real trouble communicating
with him. He was able to discuss fully with
me the events...."11
this evidence, the coram nobis court ruled
that petitioner's confession was properly
admitted at trial. On the second appeal, the
Alabama Court of Criminal Appeals reaffirmed
its prior holding that petitioner's waiver
was knowing, intelligent and voluntary. The
surrounding the petitioner's confession
indicate that he did in fact understand and
voluntarily waive his rights. Moreover, a
person functioning in the high mild range of
mental retardation, such as the petitioner,
can intelligently waiver their rights. It is
the opinion of this court that petitioner
did in fact voluntarily waive his rights and
his confession was properly admitted.
Dunkins v. State,
489 So.2d 603, 610 (Ala.Crim.App.1985) (citations
these facts and the totality of
circumstances surrounding the interrogation,
see Burbine, 106 S.Ct. at 1141, we agree
with the courts below that despite the fact
that petitioner's IQ may have been somewhat
below normal, he understood his Miranda
rights and knowingly waived them.12
All of the evidence supports the state
court's findings, and petitioner has
presented no new evidence of any mental
therefore made a voluntary, knowing and
intelligent waiver of his Miranda rights.
His subsequent confession was properly
admitted at trial.
argues finally that he was denied effective
assistance of counsel both at the trial
level and on direct appeal. After reviewing
the record, we believe that petitioner's
counsel in the Alabama state court system
performed admirably in formulating and
pursuing petitioner's defense strategy at
trial and on appeal. We therefore find that
petitioner has failed to satisfy both the
performance and the prejudice prongs of
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).14
conclude that none of petitioner's
contentions has merit. The district court's
denial of the petition for habeas corpus is