Jimmy Lee Gray
(1949 – September 2, 1983) was convicted for the murder
of three-year-old Deressa Jean Seales in 1976, after
kidnapping and sodomizing her. At the time of this
murder, he was free on parole following a conviction in
Arizona for the murder of a 16-year-old girl.
He was executed in 1983 by the State
of Mississippi by gas chamber. He became the first
person to be executed in Mississippi since 1976 when the
death penalty was reinstated.
Dan Lohwasser, a reporter for United
Press International, was one of the observers who
witnessed Gray's execution. Lohwasser's account of
Gray's death sparked a controversy, because of its
graphic nature.
At the time of Gray's execution, the
gas chamber used in Mississippi had a vertical iron bar
directly behind the inmate's chair. There was no
headrest or strap used to restrain Gray's head. As Gray
began breathing in the toxic gas, he started thrashing
his head around, striking the iron bar repeatedly before
he finally lost consciousness. Officials decided to
clear the observation room eight minutes after the gas
was released, due to the graphic scene.
The decision to clear the room was
sharply criticized by Dennis Balske, Gray's attorney.
"Jimmy Lee Gray died banging his head against a steel
pole in the gas chamber while reporters counted his
moans (eleven, according to the Associated Press)". It
was ultimately revealed that the executioner was drunk
during the procedure.
Stay of execution is continued
New York Times
July 7, 1983
Jimmy Lee Gray, convicted of murdering 3-year-old
girl after kidnapping and sodomiced her in 1976, in cell on death
row last year in Mississippi. State officials, after a new United
States Supreme Court ruling yesterday that could accelerate pace of
executions, appealed to the United States Court of Appeals for Fifth
Circuit to lift stay it had granted condemned man Saturday. But the
appeals court refused, saying there was not enough time to consider
his case properly before death warrant ran out at midnight.
Sept. 2, 1983. Mississippi.
Jimmy Lee Gray. 34.
Asphyxiation.
Officials had to clear the room eight minutes
after the gas was released when Gray's desperate gasps for air
repulsed witnesses. His attorney, Dennis Balske of Montgomery,
Alabama, criticized state officials for clearing the room when the
inmate was still alive. Said noted death penalty defense attorney
David Bruck, "Jimmy Lee Gray died banging his head against a steel
pole in the gas chamber while the reporters counted his moans
(eleven, according to the Associated Press)." Later it was revealed
that the executioner, Barry Bruce, was drunk.
Jimmy Lee Gray
In 1976, a little girl was murdered. Her name was
Deressa Jean Seales. The brutality of the crime is alost unspeakable.
She was abducted by Jimmy Lee Gray. He took her
into a wooded area and raped her. He then attempted to drown her in
a shallow creek. As he started to walk away from what he thought was
finished, he heard this poor little soul gurgle. She was face down
in this little creek you see... He walked up to her and slammed his
boot into the back of her neck breaking it.
She was 3 years old.
685 F.2d 139
Jimmy Lee GRAY, Petitioner-Appellant,
v.
Eddie LUCAS, Warden, et al., Respondents-Appellees.
No. 81-4018.
United States Court of Appeals,
Fifth Circuit.
Sept. 3, 1982.
Appeal from the United States
District Court for the Southern District of Mississippi.
ON PETITION FOR REHEARING AND SUGGESTION FOR
REHEARING EN BANC
(677 F.2d 1086 (5th Cir. 1982))
Before CLARK, Chief Judge,
THORNBERRY and GARZA, Circuit Judges.
PER CURIAM:
In affirming the district court's
denial of Jimmy Lee Gray's habeas corpus petition, we decided
several issues raised by Gray that had not been addressed in the
district court's opinion. Gray raises four of these issues again in
this petition for panel rehearing, alleging that his initial
presentation was not complete. We have reconsidered each of these
questions in light of Gray's supplemented arguments but still find
them to be without merit. His petition is denied.
I.
Gray was convicted of capital
murder under Miss.Code Ann. § 97-3-19(2)(e). That statute applies by
its terms to both intentional and unintentional killings that occur
during the commission of certain felonies. Therefore, Gray argues
that we must address the ticklish question whether capital
punishment for an unintentional killing comports with eighth
amendment standards.
We disagree. It is undisputed that
at the sentencing phase of Gray's bifurcated trial the jury found
beyond a reasonable doubt that Gray had killed Derissa Scales for
the purpose of avoiding arrest. This finding is equivalent to a
finding of intent. Taking a human life for a deliberate and
particular purpose, such as to avoid arrest, is necessarily
intentional murder. For this reason we affirm our earlier conclusion
that we need not reach the "difficult question of constitutional law"
posed by capital punishment for an unintentional killing. 677 F.2d
at 1103.
II.
Gray's second contention is that,
in sentencing him, the jury should have been required to find beyond
a reasonable doubt that the attendant aggravating circumstances
outweighed the mitigating circumstances. On this point we are
persuaded by the reasoning of our sister circuit, which recently
addressed this issue.
(This argument) seriously confuses proof of facts
and the weighing of facts in sentencing. While the existence of an
aggravating or mitigating circumstance is a fact susceptible to
proof under a reasonable doubt or preponderance standard, the
relative weight is not. The process of weighing circumstances is a
matter for judge and jury, and, unlike facts, is not susceptible to
proof by either party.
Ford v. Strickland, 676 F.2d 434,
442 (citations omitted), reh'g en banc granted, 676 F.2d 456 (11th
Cir. 1982). The reasonable doubt standard simply has no application
to the weighing of aggravating and mitigating circumstances.
III.
Gray also alleges that we erred in
failing to make an independent determination of the voluntariness of
his confession. In our prior opinion we found that the state court
rejected Gray's allegation that his confession was coerced and that
we were bound by this factual determination. Gray's position here is
that the state court did not disbelieve his allegation that he was
threatened but rather found the threats insufficient to render his
confession involuntary. Therefore, he argues that it is our duty to
determine, under his version of the facts, whether the confession
was voluntary.
We disagree with Gray's
interpretation of the state court's opinion and adhere to our prior
opinion, in which we stated: "Although the (state) court's holding (that
the confession was voluntary) turned on several considerations,
implicit in that holding was a rejection of Gray's version of the
events leading to his confession, a conclusion which the court had
already made clear in its earlier recitation of the facts." 677 F.2d
at 1108 n.18. The state court's recitation of the facts completely
omits Gray's allegation that his confession was coerced by threats.
It is obvious that the court made a credibility choice and rejected
Gray's version. We are bound by this choice.
IV.
Miss.Code Ann. § 99-19-101(5)(h)
provides that one aggravating circumstance to be considered by a
jury in the sentencing phase of a capital murder trial is whether
the murder was especially heinous, atrocious, or cruel. Gray
contends that the Mississippi Supreme Court has never adopted a
constitutionally permissible construction of that statute.
Again, we disagree. In Coleman v.
State, 378 So.2d 640 (Miss.1978), the Mississippi Supreme Court
construed § 99-19-101(5)(h) by quoting from this court's opinion in
Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir. 1978): "What
is intended to be included are those capital crimes where the actual
commission of the capital felony was accompanied by such additional
acts as to set the crime apart from the norm of capital felonies-the
conscienceless or pitiless crime which is unnecessarily torturous to
the victim." 378 So.2d at 648 (emphasis added by the state court).
This construction clearly eliminates the risk that the death penalty
will be inflicted in an arbitrary and capricious manner. See Furman
v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
The other issues Gray raises in
his petition for panel rehearing were fully briefed by the parties
and given plenary treatment in our prior opinion. Further
consideration of them is unnecessary.
Gray's petition for panel rehearing
is
Gray's petition for panel
rehearing was accompanied by a suggestion for rehearing en banc. No
member of this panel nor judge in regular active service on the
court having requested that the court be polled on rehearing en banc
(Fed.R.App.P. 35; Local Fifth Circuit Rule 16), this suggestion is
U.S. Supreme Court
GRAY v. LUCAS , 463 U.S. 1237 (1983)
463 U.S. 1237
Jimmy Lee GRAY
v.
Eddie LUCAS, Warden, et al
No. 83-5290
Supreme Court of the United States
September 1, 1983
On petition for writ of certiorari to the United
States Court of Appeals for the Fifth Circuit.
The petition for writ of certiorari is denied.
The application for stay of execution, scheduled
for 12:01 a.m. on September 2, 1983, addressed to Justice BRENNAN
and referred to the Court is denied.
THE CHIEF JUSTICE, concurring in the denial of
the petition for writ of certiorari and in the denial of the
application for stay.
On Justice WHITE denied petitioner's application
for a stay on August 25, 1983, and the following day, the
Mississippi Supreme Court set petitioner's execution for September
2, 1983. Now before the Court is petitioner's petition for
certiorari and his reapplication for a stay of execution addressed
to Justice BRENNAN, and referred to the Court.
The facts and procedural history have not been
referred to in the dissent. Since they are critical, they are set
forth as follows:
(1) In October 1976, petitioner was indicted for
capital murder. At trial, the State proved that on June 25, 1976,
petitioner abducted a three-year-old girl, carried her to a remote
area, and after sexually molesting her, suffocated her in a muddy
ditch and threw her body into a stream. Petitioner was convicted and
sentenced to death.
(2) On appeal, the Mississippi Supreme Court
reversed the conviction and remanded the case for a new trial. Gray
v. State, 351 So.2d 1342 (Miss.1977).
(3) On retrial in 1978, Gray was again convicted
of capital murder and sentenced to death.
(4) The Mississippi Supreme Court affirmed both
the conviction and the death sentence. Gray v. State, 375 So.2d 994
(Miss.1979).
(5) We denied petitioner's petitions for
certiorari and rehearing. Gray v. Mississippi, 446 U.S. 988 ,
rehearing denied, 448 U.S. 912 (1980).
(6)
Petitioner filed his first applications for a writ of error coram
nobis and stay of execution before the Mississippi Supreme Court in
July 1980. (7) After the state court's summary denial of the writ,
petitioner filed a petition for habeas corpus in the Federal
District Court for the Southern District of Mississippi. The court
conducted an evidentiary hearing with respect to several of Gray's
22 claims of constitutional violation and denied relief. (8) The
Court of Appeals for the Fifth Circuit affirmed and denied
petitioner's motion for rehearing. Gray v. Lucas, 677 F.2d 1086,
rehearing denied, 685 F.2d 139 (CA5 1982). (9) A petition for
certiorari and rehearing were once again denied by this Court . On
May 11, 1983, the Mississippi Supreme Court set the execution date
for July 6, 1983.
(10) On June 22, 1983 petitioner submitted to the
Mississippi Supreme Court a second motion for stay of execution
along with a new application for a writ of error coram nobis. The
petition raised, among others, those claims now before this Court.
The Mississippi Supreme Court denied all requested relief on June
29, 1983. (11) Petitioner thereupon filed his second petition for a
writ of habeas corpus in the federal district court, reasserting
those claims he had submitted to the Mississippi Supreme Court .
(12) On July 2, 1983, the court of appeals granted petitioner's
application for a stay of execution. (13) The district court
dismissed the petition for habeas corpus on July 8, 1983. (14) The
court of appeals affirmed and denied petitioner's petition for
rehearing. The stay was dissolved on August 26, 1983.
This case has been in state and federal courts
for seven years. It has been tried twice in the state court and
reviewed by the Mississippi Supreme Court four times. Seventeen
different federal judges have reviewed petitioner's case, and this
Court has previously acted on this case four times prior to Justice
WHITE's denial of petitioner's application for a stay last week.
Over the past seven years, judicial action reviewing this case has
been taken 82 times by 26 different state and federal judges.
Petitioner's latest claims have been reviewed by
several courts in both the state and federal systems. Petitioner's
principal claim, which Justice MARSHALL addresses in his dissent, is
that the lethal gas method of execution constitutes cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments. In my view, no evidentiary hearing on the effects of
lethal gas is required. A number of affidavits describing such
effects were filed with and considered by the Court of Appeals, and
the contents of several of these have been set forth in the dissent
today of Justice MARSHALL. For purposes of my vote in this case, I
accept the truth of the affidavits submitted by the petitioner, but
nevertheless conclude-as did the Court of Appeals-that they do not
as a matter of law establish an Eighth Amendment violation. I agree
with the Court of Appeals that the showing made by petitioner does
not justify a court holding "that, as a matter of law or fact, the
pain and terror resulting from death by cyanide is so different in
degree or nature from that resulting from other traditional modes of
execution as to implicate the eighth amendment right ." Gray v.
Lucas, 710 F.2d 1048, 1061 (CA5 1983).
This case illustrates a recent pattern of
calculated efforts to frustrate valid judgments after painstaking
judicial review over a number of years; at some point there must be
finality. I join the Court's action denying the petition for
certiorari and denying a stay of execution.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
In this application for a stay, petitioner
requests simply that we postpone his execution long enough to allow
us to consider and dispose of his pending petition for certiorari to
the decision of the United States Court of Appeals for the Fifth
Circuit affirming the denial of a writ of habeas corpus. Gray v.
Lucas, 710 F.2d 1048 (1983). I would grant the application.
*****
Petitioner argues that the method by which the
state of Mississippi plans to execute him-exposure to cyanide gas-constitutes
cruel and unusual punishment. In support of that claim, he submitted
to the United States District Court for the Southern District of
Mississippi numerous affidavits that described in graphic and
horrifying detail the manner in which death is induced through this
procedure. Gray v. Lucas, No. S83-0546(C) (July 8, 1983). For
example, Dr. Richard Traystman, Director of the Anesthesiology and
Critical Care Medicine Research Laboratories at Johns Hopkins
Medical School, described the process as follows:
"Very simply, cyanide gas blocks the utilization
of the oxygen in the body's cells. ... Gradually, depending on the
rate and volume of inspiration, and on the concentration of the
cyanide that is inhaled, the person exposed to cyanide gas will
become anoxic. This is a condition defined by no oxygen. Death will
follow through asphyxiation, when the heart and brain cease to
receive oxygen.
"The hypoxic state can continue for several
minutes after the cyanide gas is released in the execution chamber.
The person exposed to this gas remains conscious for a period of
time, in some cases for several minutes, again depending on the rate
and volume of the gas that is inhaled. During this time, the person
is unquestionably experiencing pain and extreme anxiety. The pain
begins immediately, and is felt in the arms, shoulders, back, and
chest. The sensation is similar to the pain felt by a person during
a heart attack, where essentially, the heart is being deprived of
oxygen. The severity of the pain varies directly with the
diminishing oxygen reaching the tissues.
"The agitation and anxiety a person experiences
in the hypoxic state will stimulate the autonomic nervous system. .
. . [The person ] . . . may begin to drool, urinate, defecate, or
vomit. There will be a muscular contraction[ ]. These responses can
occur both while the person is conscious, or when he becomes
unconscious.
"When the anoxia sets in, the brain remains alive
for from two to five minutes. The heart will continue to beat for a
period of time after that, perhaps five to seven minutes, or longer,
though at a very low cardiac output. Death can occur ten to twelve
minutes after the gas is released in the chamber." Gray v. Lucas,
710 F.2d at 1060.
Dr. Traystman further testified that the lethal-gas
method is sufficiently painful that it is disfavored in the
scientific community as a way of putting animals to sleep. "We would
not use asphyxiation, by cyanide gas or by any other substance, in
our laboratory to kill animals that have been used in experiments-nor
would most medical research laboratories in this country use it."
Ibid.
Other affiants described in less clinical
language the effects of the procedure when used to execute people:
"When the cyanide gas reached [the prisoner], he
gasped, and convulsed strenuously. He stiffened. His head lurched
back. His eyes widened, and he strained as much as the straps that
held him to the chair would allow. He unquestionably appeared to be
in pain.
"Periodically now, perhaps at thirty second
intervals, he would convulse, alternately straining and relaxing in
the chair. I noticed he had urinated. The convulsions continued for
approximately ten more minutes, and you could see his chest expand,
and then contract, trying to take in fresh air. These movements
became weaker as the minutes ticked away. You could not tell when
[he] finally lost consciousness.
"According to prison officials, [he] died . . .
approximately 12 minutes after the cyanide pellets had dropped in
the chamber. Death was pronounced after the shade on our observation
window had been drawn, though there was still some slight movement
in the body. Id., at 1058-1059. "The pellets of cyanide were
released by mechanical controls, and dropped into an acid jar
beneath the chair. The gas rose, and seemed to hit him immediately.
Within the first minute, [he] slumped down. I thought to myself how
quickly cyanide really worked. "Within 30 seconds he lifted his head
upwards again. He raised his entire body, arching, tugging at his
straps. Saliva was oozing from his mouth. His eyes open, he turned
his head to the right. He gazed through my window. His fingers were
tightly gripping his thumbs. His chest was visibly heaving in
sickening agony. Then he tilted his head higher, and rolled his eyes
upward. Then he slumped forward. Still his heart was beating. It
continued for another several minutes. "He was pronounced dead,
twelve minutes after the pellets were released, by the doctor who
could hear his heart through the stethoscope, die." Id., at
1058-1059.
The Court of Appeals accepted 3 petitioner's "proffered
facts as proven." Id., at 1061. Specifically, the court adopted
petitioner's description of the method of execution as that of "death
by cyanide gas, causing asphyxiation at the cost of protracted pain
over a period that may exceed seven minutes." Ibid. The court
refused, nevertheless, to reverse the District Court's decision
denying petitioner an evidentiary hearing, reasoning that, "under
present jurisprudential standards," petitioner's allegations were
insufficient "to implicate the eighth amendment right." Ibid.
In my view, if the lethal-gas method operates in
the manner described by petitioner, the Court of Appeals clearly
erred in ruling that the method is not "cruel" under "present
jurisprudential standards." The Eighth Amendment proscribes "punishments
which are incompatible with 'the evolving standards of decency that
mark the progress of a maturing society.' " Estelle v. Gamble, 429
U.S. 97, 102 , 290 ( 1976) (quoting Trop v. Dulles, 356 U.S. 86, 101
, 598d 630 (1958)).
Identification of those standards is sometimes
difficult, but two principles have long been beyond dispute. First,
"[p]unishments are cruel when they involve torture or a lingering
death." In re Kemmler, 136 U.S. 436, 447 , 933 (1890). Second,
punishments are cruel when they "involve the unnecessary and wanton
infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 , 2925
(1976). A corollary of the second principle is that " no court would
approve any method of implementation of the death sentence found to
involve unnecessary cruelty in the light of presently available
alternatives." Furman v. Georgia, 408 U.S. 238, 430 , 2824 (1972) (POWELL,
J., joined by BURGER, C.J., and BLACKMUN and REHNQUIST, JJ.,
dissenting); see also id., at 279, 92 S.Ct. at 2747 (BRENNAN, J.,
concurring).
The Court of Appeals failed to apply either of
the foregoing principles to the case before it. Instead, the court
attempted to assess the "pain and terror" associated with "traditional
modes of execution" ( such as hanging) and concluded that the
difference between the trauma associated with the use of lethal gas
and the trauma associated with those traditional methods was not so
great as to render the former constitutionally infirm. Gray v.
Lucas, supra, at 1061.
Had the court made an effort to apply the proper
legal standards, it seems highly likely that it would have found the
lethal-gas method to be unconstitutional. A death that, as the court
recognized, involves extreme pain over a span of 10 to 12 minutes
surely must be characterized as "lingering," see In re Kemmler,
supra. And petitioner directed the court's attention to at least one
readily available alternative method of administering the death
penalty that, though equally barbaric in its effects, involves far
less physical pain than the use of cyanide gas; 4 it seems
indisputable, therefore, that the lethal-gas method is "unnecessarily
cruel."
That execution through the administration of
lethal gas violates the Eighth amendment is confirmed by examination
of the treatment accorded the method in recent years by the state
legislatures. This Court has often indicated that assessment of the
constitutional status of a given punishment " 'should be informed by
objective factors to the maximum possible extent.' " Enmund v.
Florida, 457 U.S. ___, ___, 3372 (1982) (quoting Coker v. Georgia,
433 U.S. 584, 592 , 2866 (1977) (plurality opinion)).
Among the most important of those factors is the
direction in which contemporary "legislative judgments" are moving.
Enmund v. Florida, supra. Between 1921 and 1973, several states by
statute adopted the lethal gas method. In most instances, the
abandonment of the scaffold or electric chair in favor of the gas
chamber was prompted by humanitarian motives; asphyxiation was
regarded as a less painful and more dignified way of administering
the death penalty than hanging or electrocution. However, as
awareness of the trauma associated with the lethal-gas method grew
and as the lethal-injection method became better known, the trend
was reversed.
In the past decade, no state has adopted the
lethal-gas method. By contrast, three states that formerly employed
the gas chamber exclusively have altered their laws to require or
permit use of the injection procedure. At least two other states
that never had used the gas chamber considered adopting the method
but rejected it in favor of the injection system. At present, only
seven of the 39 jurisdictions that retain the death penalty require
use of the gas chamber. This evolving consensus against compulsory
use of the lethal-gas method buttresses the conclusion that the
procedure must now be considered "cruel."
Under these circumstances, the majority's
decision to deny the stay, thereby authorizing the execution of
petitioner before we can even consider his petition for certiorari,
seems to me unconscionable. Petitioner has presented a substantial
challenge to the constitutionality of Mississippi's method of
execution. The Court of Appeals has denied petitioner a hearing to
develop his claim. Townsend v. Sain, 372 U.S. 293 (1963). Yet a
majority of this Court declines to delay petitioner's execution a
few more weeks until we can consider through our traditional means
of deliberation whether this case raises issues of sufficient import
to grant a writ of certiorari.
I dissent from the denial of the stay.
Justice STEVENS would grant the application for
stay.
Jimmy Lee Gray |
