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William Frank PARKER

 
 
 
 
 

 

 

 

 


New name: "Jusan Fudo Sifu"
 
Classification: Murderer
Characteristics: Revenge - Also shot his wife and wounded a policeman
Number of victims: 2
Date of murder: November 5, 1984
Date of arrest: Same day
Date of birth: 1954
Victims profile: James and Sandra Warren (the parents of his former wife)
Method of murder: Shooting
Location: Benton County, Arkansas, USA
Status: Executed by lethal injection in Arkansas on August 8, 1996
 
 
 
 
 

William Frank Parker was executed in Arkansas for murdering the parents of his former wife. He also shot his wife, but she survived.

 
 

Si-Fu Frankie Parker executed in Arkansas

August 9, 1996

In Arkansas, Si-Fu William Frank Parker was executed by injection Thursday night for killing his ex-wifes parents in 1984 because he belived they broke up his marriage.

Parker- whose adopted name meant teacher in Chinese- attracted support from the Dalai Lama, who wrote to oppose the execution, and actor Richard Gere, a fellow Buddhist who had hoped to visit him on death row.

The Corrections Department refused to allow the visit saying it didn't have time to do a background check on Gere.

In his final words, Parker, 42, invoked his Buddist beliefs: "I seek refuge in the Buddha. I seek refuge in the Dharma. I seek refuge in the Sangha."

Si-Fu William Frank Parker was executed by injection in Arkansas on Thursday night for killing his ex-wife's parents in 1984 because he felt they broke up his marriage.

After he took office from former Gov. Jim Guy Tucker last month, Gov. Mike Huckabee advanced the execution date of Parker by six weeks, saying the victims' family had suffered long enough.

In his final words, Parker invoked his Buddhist beliefs: "I seek refuge in the Buddha. I seek refuge in the Dharma. I seek refuge in the Sangha.''

His mother, Janie Parker, waited out the final hours with her son after pulling up to the prison with several cans of beer iced down in the car and a handgun in her purse. The weapon was confiscated by guards.

“I forgot I had it in my damn purse,'' she told KARK-TV. "You never know when you might break down and someone try to kill you.''

Parker, 42 -- whose adopted name meant Teacher in Chinese -- attracted support from the Dalai Lama, who wrote to oppose the execution, and actor Richard Gere, a fellow Buddhist who had hoped to visit him on Death Row.

The Corrections Department refused to allow the visit, saying it didn't have time to do a background check on Gere.

 
 

Deathrow Inmate Finds Transformation Through Buddhism

By Kevin Sack

UCKER, Ark. -- William Frank Parker, a double murderer with a nasty habit of slugging corrections officers, was doing time in solitary confinement one day when he asked a prison guard, somewhat impolitely, for a Bible to read.

The guard, his sense of humor stimulated by Parker's insolence, opened the cell door, tossed in a copy of a Buddhist tract known as the Dhammapada, and slammed the door shut. Parker, with little else to do, began to read.

Seven years later, Parker is the only practicing Buddhist in the Arkansas prison system. And as his appointment with a lethal injection approaches, he has become a cause celebre among Buddhists worldwide. Earlier this month, the Dalai Lama himself joined the hundreds of clemency-seeking correspondents who have written Gov. Jim Guy Tucker on Parker's behalf.

Death row conversions are common, but Parker's seems to be different. His Buddhism, he says, concerns neither salvation nor repentance. It is less a religion than "a transformational psychology" that guides practitioners toward inner peace, a rather scarce commodity on death row.

"The Buddha said the greatest of all footprints is that of the elephant, and the greatest meditation is that on death," Parker said in an interview at the Maximum Security Unit here, the site of Arkansas's death row. "I needed to come to grips with death. I was having trouble with it. Buddhism teaches that it's the big lie, the big delusion.

"Now I know," he said, pointing to his chest, "that this vehicle will die. But what's in it moves on."

Indeed, the 41-year-old Parker has forbidden his lawyer, Jeffrey M. Rosenzweig of Little Rock, to file additional appeals of his convictions for killing his former wife's parents and wounding his former wife and a police officer in 1984. While he would not object to a commutation of his sentence to life without parole, he says he has no interest in delays of an inevitable execution.

"He has psychologically steeled himself to be executed and has reached a peace of some sort about it and is not sure he wants to disturb that," Rosenzweig said.

Until a last-minute unrequested reprieve bought him some time, Parker's execution had been scheduled for Wednesday. On Friday, Tucker delayed the execution until July 11 so the U.S. Supreme Court would have time to judge the constitutionality of a new federal law that limits appeals by condemned prisoners.

Many of the clemency pleas written to Tucker, whether from Buddhist priests in Sri Lanka or Zen masters in Honolulu, cite Parker's rededication of his life to Buddhism. His conversion has been so convincing that many inmates and guards call him by the Buddhist name he assumed several years ago, Si-Fu, which means "master" or "teacher." When he approaches, some bow, their hands clasped in front of their faces.

Each night, he waits for the rantings of the condemned to fade and then rises at 3 a.m. to meditate in silence for 40 minutes. His cell has become a temple, complete with a brass statuette of the Buddha and, when the warden allows, burning candles and incense. During crackdowns on such possessions, he makes do. "I can make candles," Parker said. "I can make incense."

He has read dozens of books on Buddhist wisdom and laces his conversations with references to Zen masters, the Bible and Carl Jung. He has learned to fashion intricate origami flowers and birdcages from paper supplied by his mother. He has shaved his head in devotion and wears a ritualistic black apron, called a rakusu, over his prison whites. During a recent interview, he wrapped brown prayer beads around his hands while silver cuffs shackled his ankles.

"He has the most impressive understanding of Buddhism of any inmate I've ever met," said Kobutsu Shindo (also known as Kevin C. Malone), a Buddhist priest who ministers to inmates at the Sing Sing Correctional Institute in New York and who is leading the campaign to spare Parker. "And he has as deep an understanding as many Western Buddhist teachers. The man belongs in a monastery, not on death row."

Even Parker's mother, Janie N. Parker of Bastrop, Texas, who has had reasons for skepticism about her son over the years, said she was convinced of the depth of his conversion. "I thought it might be a fake at first because so many of them get jailhouse religion," Mrs. Parker said. "But the longer I talked to him, the more I realized he was into it."

Parker said the religion seized him when he read Buddha's teachings that impure thoughts led to trouble. "I said, This is me here," he recalled. "I knew that in my own crimes, my own history, I had acted with an impure heart."

His education has not always been easy. When a prison chaplain refused his orders of Buddhist books, Parker threatened to throw him over a second-floor railing. "I know it was anti-Buddhist to say that," Parker said, adding, "Now I don't have any problems."

On Nov. 5, 1984, Parker, high on liquor and cocaine and desperately unhappy about his recent divorce, killed his former in-laws at their house in Rogers, Ark., and later abducted his former wife. For reasons he says he cannot now fathom, he took her to a police station where he shot her and wounded a policeman three times before being disarmed. His lawyer's efforts to appeal the convictions, mostly on the ground of double jeopardy, have been unsuccessful.

At a state clemency board hearing earlier this month, a prosecutor said that Parker once joked that he had turned the Warrens into "worm food." His former wife, Pamela Warren Bratcher, told board members, "Frankie Parker has been given 111/2 more years than he gave my parents." The board voted 5 to 0 to advise the governor not to commute Parker's sentence.

Parker said that he was remorseful, but that he had not written Ms. Bratcher because any apology would be inadequate. "What are you going to do?" he asked. "Say, 'Sorry I killed your Mom and Dad?' "

But he also mocks Ms. Bratcher's devotion to his demise. "My death is her life," he said, "and when I die, she's going to be lost."

On Saturday, Kobutsu Shindo visited Parker and performed a jukai ceremony, a high-level initiation into Buddhism during which Parker received a new name, Ju San, or "mountain of everlasting life." An abbot's inscription on a certificate encouraged him to "depart with dignity like a mountain, trusting that his life is everlasting."

Parker said he would do so.

"My friends on death row used to say, 'If you think those Buddhists are going to get you off death row, forget it. Those Buddhists love death,' " he said. "I don't want to die. But I'm ready. In fact, I'm sort of looking forward to the journey. I've studied it for so long."

Copyright 1996 The New York Times Company

 
 

Death Row Practice: Walking The Last Mile

By Rev. Kobutsu Malone

"Mind is the forerunner of all actions. All deeds are led by mind, created by mind. If one speaks or acts with a corrupt mind, suffering follows, as the wheel follows the hoof of an ox pulling a cart."
- The Dharmapada.

On August 8th, 1996 I witnessed the killing of my friend and brother monk, Rev. Jusan Fudo Sifu Frankie Parker. This is the reason the publication of this issue of Gateway Journal has been delayed for so long.

Sifu Frankie Parker came into our lives on the morning of March 24th, 1996 in the form of a letter reprinted in the Letters section of this issue. When I read his letter for the first time I found myself, at first incredulous, and finally numb with shock. Frankie had written to us two months before he was scheduled to be executed; this was an entirely new circumstance in our experience.

This man shot and killed his in-laws, James and Sandra Warren, on November 5th 1984. He was about to be executed for these crimes, but somehow the content of his letter struck me in a profound way. We receive hundreds of letters each year from prisoners all over the country; we try to respond in a timely manner as best we can and send out a few books or provide a little advice to those who write. Not only was Frankie about to be executed, but he did not once ask for anything in his letter.

I put our stack of prisoner correspondence to the side for the time being. I wrote to Frankie, Sifu, as he was known, offering our friendship and support. I didn't know how he would take it; we didn't wish to intervene in his business, but we did want to let him know that we cared about him and were willing to support him if he wished. Several days later I received a call from Frankie. He was not in the least offended and, in fact, was pleased that we had offered our support. We talked for quite a while. Toward the end of our conversation he said that he had planned to be killed without a spiritual advisor present but, since we had offered our support, would I accompany him when he was executed? He said that he would be honored by my presence. With no hesitation, I immediately consented. Our lives changed at that point. There were many considerations, more than I can possibly write about here. I have been asked to write a book about our experiences with Sifu, and in that forum I will be able to communicate the full impact of volunteering to be a spiritual advisor for a person to be executed by the state.

During the following month E-Kun and I became intensely involved in organizing people to petition the Governor of Arkansas to grant clemency for Frankie and commute his death sentence to life in prison without parole. We spent a huge amount of time on the telephone contacting people all over the world, wrote many letters and sent out mailings. We appealed to people to donate funds to help us cover the costs of the campaign and to help pay for our transportation to Arkansas.

The toll of this activity was considerable, not only in terms of financial drain but also psychological strain and stress. We were constantly aware of the pressure of the situation, the fact that a human life was at stake. Every night before retiring I would find myself questioning if I had done everything I possibly could on Frankie's behalf that day.

We purchased airline tickets to Arkansas, and on Friday, May 24th, we flew to Little Rock, prepared to spend the next few days visiting Frankie. I was to spend the last day, May 28th, alone with Frankie in preparation for his execution scheduled for 9:00 PM on May 29th. When we arrived in Little Rock we discovered that the Governor had granted a reprieve to move the execution to July 11th. E-Kun and I drove from Little Rock on the following morning to Tucker Arkansas, the location of Death Row.

We drove through 30 miles of totally flat Mississippi Delta lands, past vast paddies of rice growing for miles in each direction. We arrived at the facility at 11:00 AM and were admitted through security. We were treated with respect and courtesy by the Arkansas Department of Corrections staff. We were greeted by Chaplain, Rev. James Reynolds, a robust black gentleman with great wisdom, a wonderful sense of humor, and a heart of Gold!

I spotted Frankie through the windows of the visiting room. It was an interesting moment. For the first time, I had the face of a human being to connect with the name. After a delightful get-acquainted meeting, I performed a Jukai ceremony for him, giving him the name Jusan (mountain of eternal life), which was selected for him by my abbot, Ven. Eido Shimano, Roshi. Eido Roshi did the calligraphy of his new name on the back of a Rakusu (ritual bib) which was lovingly handmade by our dear sister Myojo as a Jukai present for Jusan.

Governor Tucker was convicted by a jury of two federal felonies on May 28th. Shortly after his convictions, Governor Tucker announced his intention to step down from office on July 15th. The office of Governor was then to be filled by the Lieutenant Governor, Rev. Mike Huckabee. Now the focus of our letter writing campaign shifted. Due to Arkansas statute, a governor was only permitted to grant clemency up to thirty days prior to leaving office. This meant that Governor Tucker could grant clemency only prior to June 15th. We were hopeful that Governor Tucker, now a felon himself, and scheduled to leave office in disgrace, would recognize that he had nothing to lose in granting Jusan clemency. This however, was not to be the case. June 15th passed with no word.

On June 17th, after repeated attempts on my part to reach Governor Tucker or his aide Mr. Jack Gillian, at 12 noon I received a telephone call from Mr. Stark Ligon, the Governor's legal council. Mr. Ligon informed me that after consultation with the Lieutenant Governor's transition staff, a new date of August first had been selected for Jusan's execution. That evening, I received a call from Jusan who was somewhat distraught over the new execution date; evidently the Governor's staff had failed to note that August first was Jusan's birthday! Jusan's mother and father have experienced the suicides of two of their children, Cathy Parker in March of 1980 and Richard Parker in December of 1983, and now they were to experience the State-sanctioned murder of their eldest son on his birthday!

On June 29th we were informed by Governor Tucker's staff that the execution would be set for September 17th. We were told that this date had been selected to avoid carrying out the execution during the hot summer months and at a time when many Department of Corrections employees were on vacation.

The September 17th date was confirmed when I received the copy of the Death Warrant signed by Governor Tucker bearing the three inch diameter, ribbon emblazoned, embossed gold Seal of the State of Arkansas. Jusan thought I would get a kick out of receiving this macabre document. He was right; it is a sobering thing indeed. We were informed by the Governor's office that this date had been selected in consultation with the transition staff of Lieutenant Governor Huckabee.

We were consistently amazed by the actions of the Arkansas Governors. Governor Tucker at one point, during a telephone conversation, told Jusan's mother, Janie Parker, that he would meet with me prior to the execution, and a matter of hours later, his assistant, Mr. Jack Gillian, called me to inform me that the Governor had refused to see me. Mr. Gillian said the Governor had never met with a condemned man's spiritual advisor in the past and there was no reason to do so now. Our campaign re-directed its energy to writing to the Lieutenant Governor, Rev. Michael Huckabee. Rev. Huckabee is an ordained Southern Baptist minister and is adamantly opposed to abortion but is pro death penalty.

Jusan and I were talking just about every day on the telephone and our friendship grew deeper and deeper. We watched the news closely and stayed in contact with Jusan's attorney, Mr. Jeff Rosenzweig. On July 15th, I called Jeff to find out if the new governor had assumed office. He informed me that the capitol was in chaos due to a political crisis precipitated when Governor Tucker had an assistant announce that he was refusing to step down from office! Lieutenant Governor Huckabee, with the support of the legislature, delivered an ultimatum to Governor Tucker threatening him with impeachment if he did not step down from office. Later, on the evening national news, we learned that the Governor had relented and resigned.

Governor Tucker had evidently seriously thought that he might be able to hold on to power, which probably affected his thinking in regards to granting clemency for Jusan. In reality, it seems that he was operating in a deluded state for quite a while due to the pressure of his trial and, finally, his conviction. Later, insiders at the Governor's office informed us that he was despondent during those last days and that the government was being run by his office staff.

The greatest blow to our efforts came on July 22nd when we learned that the new Governor, Rev. Huckabee, in a totally unprecedented action, issued a proclamation, his first in office, moving Jusan's execution date to August 8th! In effect, with his signature, he cut six weeks of Jusan's life. We were stunned. It was reported that the Governor had met with the family of Frankie's victims. Jim Harris, a spokesperson from the governor's office said, "This [date change] was out of consideration for the victim's family. They've waited years and we could determine no reason to delay it more."

We had prepared the text for this issue of Gateway Journal and the printer was scheduled to begin the press run on July 23rd. Given the change in the execution date, the prepared text was now out of date so we canceled the printing. We had the printer run the center fold page with the third installment of Zen Karmics, a tribute to Jusan, since we wanted to be able to show it to him before he was killed.

I began calling Governor Huckabee's office on a daily basis to request a meeting between the Governor and myself, Jusan's mother, Janie, and his sister Shari. The Governor's assistant on Criminal Justice, Mr. Dale "Butch" Reeve, finally informed me on July 29th that the Governor had agreed to meet with Janie, Shari and myself.

The following day I was informed by Mr. Reeve that the Governor had canceled the meeting with us in retaliation for Jusan taking part in a radio talk show! Mr. Reeve seemed to be personally embarrassed by the actions of his superior. I was disturbed by the Governor's action; it appeared that on a psychological level the Governor was acting like a spoiled child. This was ominous indeed. The following day Jusan's sister Shari was on the same radio program and read a profoundly moving letter to the Governor pleading with him to spare her brother's life.

We continued our campaign of letter writing, faxing and E-mailing until August first. We flew to Arkansas on August third, and, early in the morning on the fourth, E-Kun and I went to Tucker to visit Jusan. E-Kun brought along an old monk's robe of mine to give to Jusan for his ordination as a Zen Buddhist monk.

He expressed his desire to become a monk several times to me over the phone but I was not certain if he was serious about it. That morning he asked me directly, "Do you think I am ready to become a monk?" With only four days left to live, and with such deep sincerity in his question, I could not refuse to grant him this request.

There, on the floor of the visiting room with E-Kun and two corrections officers as witnesses we conducted the ordination ceremony. Jusan was shackled throughout the ceremony; our request to have the chains removed was denied, as was our attempt to bring in a camera. Jusan was only able to wear his monk's robe once in his life, during his ordination ceremony.

We took so long with the ceremony that we ran over the allotted visiting time, but the officers were kind enough to allow us a little extra time to complete the ceremony. As we departed, Jusan's robe was confiscated and placed in the Warden's office for safe-keeping. Jusan received the ordination name of Fudo, the immovable Bodhisattva chained to a rock in hell until all beings are liberated from suffering. His name was now Rev. Jusan Fudo Sifu William Frank Parker.

We visited with him on the fifth of August at Tucker. Very early in the morning on the sixth he was moved, under tight security, to the Cummins Unit in Varner, Arkansas, the location of the execution chamber. E-Kun, myself, his friends and family were allowed to visit with him there until the 8th, at which point only myself and his attorney were permitted to see him. I had the honor of spending the entire day with him on the eighth, from 8:40 AM until 8:51 PM. We were under constant observation by the death watch officers who recorded events in the "death watch" log-book.

Jusan spent much of his time writing letters to, and receiving phone calls from friends, relatives and teachers. He was able to speak with Ven. Eido Shimano Roshi, Ven. Philip Kapleau Roshi, and Lama Tarchin Rinpoche in Switzerland. At twenty after five in the afternoon, Jusan's last meal arrived. He had arranged with the warden for me to join him for this meal. He spent time dividing his personal belongings, and wrote a list for me as to who got what. All of his possessions fit into a small cardboard box. We talked, we held hands through the access slot, we both knew that we had done our best to gain clemency; there were no regrets.

At 7:22 PM, he wrote a statement and asked me to read it at the press conference after his death. At 8:47 I was told to prepare for the arrival of the "tie-down team." I put on my Robe, Kesa, and Zagu, then Jusan and I began chanting out loud the Three Refuges, "I take refuge in the Buddha, I take refuge in the Dharma, I take refuge in the Sangha. . . . "

The "team" arrived at 8:50. The men that poured into the "quiet cell" area were big - dressed in black body armor, black helmets with face shields, and black boots. Two of them arrived brandishing large, full-body riot shields with the letters "POLICE" emblazoned across them. We continued chanting together, "I take refuge in the Buddha, I take refuge in the Dharma, I take refuge in the Sangha. . . . "

Jusan "assumed-the-position" at the back wall of his cell. They entered the cell. Men with shields covered him from each side, others chained his legs, wrapped chain around his waist, cuffed his hands and locked the handcuffs in front to the chain. "I take refuge in the Buddha, I take refuge in the Dharma, I take refuge in the Sangha. . . . "

We were guided into the short hallway that comprised "the last mile." The hall was lined with men dressed in black wearing helmets and boots. The hall itself was no more that 15 feet long. We approached our "shrine." It was a cardboard box, covered with a piece of felt on which rested a small brass Buddha figure. Our chanting continued; we turned to face the Buddha and bowed once. We bowed in reverence for the awakened state of mind that manifests in all beings. We took four more steps and were halted by the men in command. We had arranged to be able to bow to each other three times and to embrace before he entered the "death chamber." I turned around to face Jusan; we were still chanting. We bowed three times, one for the Buddha, one for the Dharma and one for the Sangha. We stopped chanting; the next few seconds was "our time." I looked directly into his face; I saw a single tear glisten as it rolled from his right eye down his cheek. I could see every pore of his skin, each individual hair in his goatee, the colors of those hairs in a salt and pepper mix. I saw his wonderful smile; I could feel waves of tremendous gratitude pouring from his heart. Time stopped . . . There was only Jusan and Kobutsu, two old friends saying good-by at the end of the road. No one else was present in all creation at that moment, time dilated to an infinite degree . . we are still there, saying good-by, forever. . . . .

We embraced, he whispered in my ear, "I love you my brother, thank you so much." I took one step backward and we did an "unauthorized" bow to each other - as we bowed, our foreheads touched. The impact of forehead on forehead was the last contact we made; it was shocking to me; it was an unexpected contact; neither of us had planned, yet it somehow was incredibly apropos. It was 8:51 PM, real-time. Our chanting resumed "I take refuge in the Buddha, I take refuge in the Dharma, I take refuge in the Sangha. . ." The men at my sides quickly ushered me out a side door, as Jusan was propelled into the "death chamber". When I stepped outside, I saw the waiting hearse; I felt totally empty. I was brought around the small "death house" building to the entrance of the "viewing room" at the top of a short flight of steps. After a brief delay I was allowed in. Still chanting, I stood at the front of the room as close to the large picture window and adjacent security door as I could. The official witnesses entered the room and seated themselves in the nicely upholstered chairs. There was a dark curtain drawn behind the long rectangular picture window looking into the "death chamber." I continued chanting ". . . I take refuge in the Buddha, I take refuge in the Dharma, I take refuge in the Sangha. . . ."

At 9:01 the curtains abruptly opened - there was an intense visual shock as the bright light of the "death chamber," with its clinically white walls and furnishings flooded into the "viewing room." To my left in the "death chamber", Jusan was restrained to a gurney, both arms tied to supports extending diagonally from the gurney. His head was held in place and prevented from moving by two vertical plates and a forehead strap. He remained perfectly still, he kept his eyes closed.

According to Warden Reed, the last thing that Jusan saw was a picture of the Buddha held by his executioner, the Director of the Department of Correctional Services, Mr. Larry Norris. Warden Reed said that before the curtains opened Mr. Norris showed Jusan the picture, he closed his eyes and nodded to indicate that he had seen the picture.

At the rear of the "death gurney" there were two intravenous solution stands each with a plastic IV bag containing liquids; these bags contained the physiological saline to maintain the IV feed. I saw one IV line entering Jusan's right arm. His body was covered by a white sheet extending from his feet to breast level which served to hide the restraints that were keeping his body immobile on the death gurney.

Later reporters told us that he was covered more fully than others executed before him; it was simple to see that they were attempting to cover as much of his rakusu as possible. He was allowed to wear his rakusu but not his monk's robe. I had negotiated with the correctional officials, particularly Dr. Max Mobley (a medical doctor who functions as a member of the execution team!) to get them to recognize the religious significance of the rakusu and to allow him be killed in this vestment.

Only the straps of his vestment were visible above the cover sheet. On one strap of his rakusu was paper-clipped a photograph of His Holiness The Dalai Lama. His Holiness' head was visible peaking out from under the sheet. Jusan had made me promise that I would hold onto that picture after his death and present it, along with a white silk scarf, to His Holiness in person.

Mr. Larry Norris stood behind Jusan. He was dressed in a dark business suit; he wore a headset equipped with a microphone. On the wall was a large digital clock that displayed the time in bright red numerals. To his right was the "one-way" mirror, behind which sat the two anonymous executioners, isolated from each other. These people actually push the buttons to start the flow of a series of three lethal drugs into the veins of the helpless human being strapped to the table. Somehow this macabre charade is intended to assuage the responsibility of the prosecutors, the judges, and the juries, who tried Jusan twice for his crimes, Governor Huckabee, Director Larry Norris, Assistant Director Guntharp, Warden Reed, the officials, officers and staff that served as their accomplices in homicide.

At 9:04 the Director announced: "A lethal injection was administered at 9:01 PM and the coroner has pronounced Sifu William Frank Parker dead at 9:04 PM this eighth day of August, 1996, thereby carrying out the judgment and sentence of the Circuit Court of Benton County Arkansas, of death by lethal injection. Such judgment having been entered March 28th, 1988 pursuant to the verdict of a lawfully constituted jury which found him guilty of the crime of capital murder."

 
 

New York Times National Report - Wednesday May 29, 1996

DISCOVERING BUDDHA ON PRISON'S DEATH ROW

by Kevin Sack

TUCKER, ARK., May 27 - William Frank Parker, a double murderer with a nasty habit of slugging corrections officers, was doing time in solitary confinement one day when he asked a prison guard, somewhat impolitely, for a Bible to read.

The guard, his sense of humor stimulated by Mr. Parker's insolence, opened the cell door, tossed in a copy of a Buddhist tract known as the Dhammapada, and slammed the door shut. Mr. Parker, with little else to do, began to read.

Seven years later, Mr. Parker is the only practicing Buddhist in the Arkansas prison system. And as his appointment with a lethal injection approaches, he has become a cause celebre among Buddhists worldwide. Earlier this month, the Dalai Lama himself joined the hundreds of clemency-seeking correspondents who have written Gov. Jim Guy Tucker on Mr. Parker's behalf.

Death row conversions are common, but Mr. Parker's seems to be different. His Buddhism, he says, concerns neither salvation nor repentance. It is less a religion than "a transformational psychology" that guides practitioners toward inner peace, a rather scarce commodity on death row.

"The Buddha said the greatest of all footprints is that of the elephant, and the greatest meditation is that on death," Mr. Parker said in an interview at the Maximum Security Unit here, the site of Arkansas's death row. "I needed to come to grips with death. I was having trouble with it. Buddhism teaches that it's the big lie, the big delusion.

"Now I know," he said, printing to his chest, "that this vehicle will die. But what's in it moves on."

Indeed, the 41-year-old Mr. Parker has forbidden his lawyer, Jeffrey M. Rosenzweig of Little Rock, to file additional appeals of his convictions for killing his former wife's parents and wounding his former wife and a police officer in 1984. While he would not object to a commutation of his sentence to life without parole, he says he has no interest in delays of an inevitable execution.

"He has psychologically steeled himself to be executed and has reached a peace of some sort about it and is not sure he wants to disturb that." Mr. Rosenzweig said.

Until a last-minute unrequested reprieve bought him some time, Mr. Parker's execution had been scheduled for Wednesday. On Friday, Governor Tucker delayed the execution until July 11 so the United States Supreme Court would have time to judge the constitutionality of a new Federal law that limits appeals by condemned prisoners.

Many of the clemency pleas written to Mr. Tucker, whether from Buddhist priests in Sri Lanka or Zen masters in Honolulu, cite Mr. Parker's rededication of his life to Buddhism. His conversion has been so convincing that many inmates and guards call him by the Buddhist name he assumed several years ago, Si-Fu, which means "master" or "teacher." When he approaches, some bow, their hands clasped in front of their faces.

Each night, he waits for the rantings of the condemned to fade and then rises at 3 A.M. to meditate in silence for 40 minutes. His cell has become a temple, complete with a brass statuette of the Buddha and, when the warden allows, burning candles and incense. During crack-downs on such possessions, he makes do. "I can make candles," Mr. Parker said. "I can make incense."

He has read dozens of books on Buddhist wisdom and laces his conversations with references to Zen masters, the Bible and Carl Jung. he has learned to fashion intricate origami flowers and bird cages from paper supplied by his mother. He has shaved his head in devotion and wears a ritualistic black apron, called a rakusu, over his prison whites. During a recent interview, he wrapped brown prayer beads around his hands while silver cuffs shackled his ankles.

"He has the most impressive understanding of Buddhism of any inmate I've ever met," said Kobutsu Shindo (also known as Kevin C. Malone), a Buddhist priest who ministers to inmates at the Sing Sing Correctional Facility in New York and the leader of the campaign to spare Mr. Parker. "And he has as deep an understanding as many Western Buddhist teachers. The man belongs in a monastery, not on death row."

Even Mr. Parker's mother, Janie N. Parker of Bastrop, Tex., who has had reasons for skepticism about her son over the years, said she was convinced of the depth of his conversion. "I thought it might be a fake at first because so many of them get jailhouse religion," Mrs. Parker said. "But the longer I talked to him, the more I realized he was into it."

Mr. Parker said the religion seized him when he read Buddha's teachings that impure thoughts led to trouble. "I said, This is me here," he recalled. "I knew that my own crimes, my own history, I had acted with an impure heart."

His education has not always been easy. When a prison chaplain refused his orders of Buddhist books, Mr. Parker threatened to throw him over a second-floor railing. "I know it was anti-Buddhist to say that," Mr. Parker said, adding, "Now I don't have any problems."

On Nov. 5, 1984, Mr. Parker, high on liquor and cocaine and desperately unhappy about his recent divorce, killed his former in-laws at their house in Rogers, Ark., and later abducted his former wife. For reasons he says he cannot now fathom, he took her to a police station where he shot her and wounded a policeman three times before being disarmed. His lawyer's efforts to appeal the conviction, mostly on the ground of double jeopardy, have been unsuccessful.

At a state clemency board hearing earlier this month, a prosecutor said that Mr. Parker once joked that he had turned the Warrens into "worm food." His former wife, Pamela Warren Bratcher, told board members, "Frankie Parker has been given 11 1/2 more years than he gave my parents." The board voted 5 to 0 to advise the Governor not to commute Mr. Parker's sentence.

Mr. Parker said that he was remorseful, but that he had not written Ms. Bratcher because any apology would be inadequate. "What are you going to do?" he asked. "Say, 'Sorry I killed your Mom and Dad?'"

But he also mocks Ms. Bratcher's devotion to his demise. "My death is her life," he said, "and when I die, she's going to be lost."

On Saturday, Kobutsu Shindo visited Mr. Parker and performed a jukai ceremony, a high-level initiation into Buddhism during which Mr. Parker received a new name, Ju San, or "mountain of everlasting life." An abbot's inscription on a certificate encouraged him to "depart with dignity like a mountain, trusting that his life is everlasting."

Mr. Parker said he would do so.

"My friends on death row used to say, 'If you think those Buddhists are going to get you off death row, forget it. Those Buddhists love death,"" he said. "I don't want to die. But I'm ready. In fact, I'm sort of looking forward to the journey. I've studied it for so long."

EBS editorial note: Although generally pleased with this interview, Frankie was distressed that three items misrepresented him. The first was the mention of the minister. He did make that comment and was deeply embarrassed about it.

Secondly, the comment about the Warren's becoming worm food. He said that that was a statement in a North Arkansas newspaper account at the time of the murders and that he himself never said that.

He also commented that the quote regarding Pam Bratcher and his death being her life was not from a perspective of mocking her. He made that comment in considering her psychological state and frequently mentioned that he hoped that should she find that this had been a life focus of obsession with his death, when he died, perhaps she will learn from this and finally be free to move on with her life. He sincerely wished this for her.

 
 

William Frank Parker, Plaintiff-Appellant/Cross-Appellee,
v.
Larry Norris, Director, Arkansas Department of Correction,
Defendant-Appellee/Cross-Appellant.

64 F.3d 1178

Federal Circuits, 8th Cir.

August 31, 1995

Docket number: 94-3022, 94-3104

Before WOLLMAN, Circuit Judge, FRIEDMAN,** Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

William Frank Parker, an Arkansas inmate under sentence of death, appeals the district court's denial of various claims raised in his petition for a writ of habeas corpus. The State cross-appeals the district court's decision that Parker was denied adequate psychiatric assistance at the penalty phase of his trial. We conclude that Parker was afforded constitutionally-mandated psychiatric assistance throughout his trial, and that the district court properly rejected his other claims. Accordingly, we remand with directions to deny his petition for a writ of habeas corpus.

I. Factual and Procedural Background.

Soon after Parker and Pam Warren divorced, Parker approached the home of Pam Warren's parents, James and Sandra Warren, dressed in combat fatigues and carrying a 9mm pistol. When James Warren and daughter Cindy Warren left the house, Parker attacked. Cindy sprayed mace at Parker, ran towards a neighbor's house, and escaped. Parker followed James into the house, where he shot and killed James and Sandra Warren. Parker then abducted Pam Warren from her apartment and took her to a police station, where he shot and seriously wounded Pam and a police officer before surrendering several hours later.

Parker was convicted of capital felony murder and sentenced to death for killing James and Sandra Warren. The Arkansas Supreme Court reversed because the killings were not committed during the course of an independent felony. Parker v. State, 292 Ark. 421, 731 S.W.2d 756, 758-59 (1987) (Parker I ).

The State then retried Parker for the Warren homicides, this time charging him with premeditated capital murder. He was again convicted and sentenced to death. The Arkansas Supreme Court affirmed on direct appeal, Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989) (Parker II ), cert. denied, 498 U.S. 883 , 111 S.Ct. 218, 112 L.Ed.2d 186 (1990), and denied postconviction relief. See Rosenzweig v. State, 301 Ark. 475, 784 S.W.2d 776 (1990); Parker v. State, No. Cr. 88-95, 1991 WL 19889 (Ark.), cert. denied, 502 U.S. 829 , 112 S.Ct. 101, 116 L.Ed.2d 71 (1991).

Parker then commenced this federal habeas proceeding, raising nine claims. The district court first denied the claim that his retrial violated the Double Jeopardy Clause. Parker v. Lockhart, 797 F.Supp. 718 (E.D.Ark.1992). After a hearing, the court then granted habeas relief on Parker's penalty-phase psychiatric assistance claim and denied his remaining claims. Parker v. Norris, 859 F.Supp. 1203 (E.D.Ark.1994).

Parker appeals the denial of his Double Jeopardy Clause claim, his guilt-phase psychiatric assistance claim, and three claims regarding the jury's finding of an aggravating circumstance. The State cross-appeals the grant of death penalty relief.

II. The Double Jeopardy Clause Issue.

In the first trial, Parker was convicted of capital felony murder for killing James and Sandra Warren "in the course of and in furtherance of" a burglary. Ark.Code Ann. Sec. 5-10-101(a)(1) (Michie 1987). The Arkansas Supreme Court reversed, concluding that Parker's burglary of the Warren home did not support a felony murder conviction. "[T]he burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective." Parker I, 731 S.W.2d at 759.

On remand, the State convicted Parker of capital murder under a different subsection of the statute--killing "[w]ith the premeditated and deliberated purpose of causing [the Warrens'] death." Ark.Code Ann. Sec. 5-10-101(a)(3) (Michie 1987). Parker contends that his retrial violated the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment.

The Double Jeopardy Clause "does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289-90, 102 L.Ed.2d 265 (1988).

There is an important exception to this rule. Retrial is barred if a conviction is reversed because the evidence was legally insufficient; reversal on that ground is equivalent, for double jeopardy purposes, to a verdict of acquittal. See Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2149-2151, 57 L.Ed.2d 1 (1978). Relying primarily on Burks, Parker argues that the Double Jeopardy Clause bars his retrial because the State presented legally insufficient evidence at his first trial to convict him of capital felony murder.

There is considerable logic in Parker's contention that his first conviction was reversed because of a failure of proof. But the Supreme Court has repeatedly refused to extend Burks as far as logic might permit. On the day Burks was decided, the Court explained that its sweep is limited to reversals "that necessarily establish the criminal defendant's lack of criminal culpability." United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197-98, 57 L.Ed.2d 65 (1978) (citation omitted).

In Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), the Court held that reversal of a conviction because it is against the weight of the evidence does not bar retrial because "reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict." In Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812-13, 80 L.Ed.2d 311 (1984), the Court held that Burks does not bar a state court procedure in which a defendant convicted after a bench trial has a right to a jury trial de novo.

And in reversing this court in Lockhart v. Nelson, the Court held that Burks does not bar retrial of a defendant whose conviction was reversed for the improper admission of evidence, even if the remaining evidence was insufficient to convict. 488 U.S. at 40, 109 S.Ct. at 290-91. These decisions make it clear that Burks is indeed an exception to the general rule that the State may retry a defendant whose conviction is reversed for "trial error."

That brings us to Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987), a case the district court found dispositive. The Montana Supreme Court had reversed defendant's conviction of incest, and barred his retrial on double jeopardy grounds, because the incest statute did not apply to sexual assaults against stepchildren.

The Supreme Court reversed, concluding that the Double Jeopardy Clause did not bar retrial on the different charge of sexual assault because the state court's reversal was "on grounds unrelated to guilt or innocence." "[T]he State simply relied on the wrong statute.... It is clear that the Constitution permits retrial after a conviction is reversed because of a defect in the charging instrument." 481 U.S. at 403-04, 107 S.Ct. at 1827.

Parker argues that Hall can be disregarded as "a weird fact-based variance from double jeopardy jurisprudence." We disagree. Almost a century ago, the Supreme Court held that the Double Jeopardy Clause does not bar retrial of a defendant whose first conviction was reversed because of a legally defective indictment. United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 1195-96, 41 L.Ed. 300 (1896).

In Burks itself, the Supreme Court commented, "We have no doubt that Ball was correct in allowing a new trial to rectify trial error." 437 U.S. at 14, 98 S.Ct. at 2149 (emphasis in original). Thus, the district court correctly proceeded to determine whether Parker's first conviction was reversed because of a "defect in the charging instrument," as in Hall, or because of an evidentiary insufficiency equivalent to a verdict of acquittal, as in Burks. See United States v. Todd, 964 F.2d 925, 929 (9th Cir.1992); United States v. Davis, 873 F.2d 900, 903-06 (6th Cir.), cert. denied, 493 U.S. 923 , 110 S.Ct. 292, 107 L.Ed.2d 271 (1989).

In making that determination, the district court looked carefully at the two decisions of the Arkansas Supreme Court:

The issue before the Arkansas Supreme Court in Parker I was one of statutory construction, not sufficiency of the evidence. That is, the court considered whether the capital felony murder statute under which Parker was charged was applicable to his conduct as a matter of law, not whether the prosecution had failed to prove Parker's guilt beyond a reasonable doubt.

* * * * * *

Any ambiguity in Parker I was resolved by the Arkansas Supreme Court in Parker II. In that case, the court clearly disavowed any notion that its earlier opinion was based upon the failure of the state to prove its case. The conviction was overturned due to trial error "in charging and trying Parker under the wrong capital murder provision." Parker II, 779 S.W.2d at 157.

Parker v. Lockhart, 797 F.Supp. at 721, 722. We agree with this analysis. "In determining whether a reversal was based on evidentiary sufficiency [for double jeopardy purposes], we must rely on the reasons of the reversing court, whether state or federal." DuBois v. Lockhart, 859 F.2d 1314, 1318 (8th Cir.1988). Giving deference to the reversing court's characterization of its decision obeys the Supreme Court's guiding principle in deciding this kind of Double Jeopardy Clause issue:

From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.

United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964), quoted in Hall, 481 U.S. at 403, 107 S.Ct. at 1826-27. Thus, the district court properly denied Parker's Double Jeopardy Clause claim.

III. Psychiatric Assistance Issues.

Parker asserts that the State violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by denying Parker, an indigent criminal defendant, the assistance of a state-funded psychiatrist during both the guilt and penalty phases of his second trial. The district court denied the guilt-phase claim but granted habeas relief on the penalty-phase claim. Both sides appeal. Discussion of these issues requires additional background facts.

At Parker's first trial, he unsuccessfully urged an insanity defense. Before trial, he was examined at the Arkansas State Hospital. At trial, the forensic psychologist who performed that examination testified for the State, and a clinical psychologist testified for the defense. See Parker I, 731 S.W.2d at 760-62. These psychologists agreed that Parker was competent to stand trial and not insane at the time of the homicides.

Before the start of the second trial, Parker moved to represent himself, asserting that he was "not suffering from a mental disease or defect which would render him unable to understand the proceedings against him." Appointed defense counsel then moved for the appointment of a psychiatrist to assist the defense, contradicting their client by stating that Parker "may be incapable of assisting in his own defense," and complaining that Parker had only been examined by psychologists before the first trial.

The State opposed counsel's motion, arguing that, given the two psychological evaluations done in connection with the first trial, "the sanity of [Parker] at the time of the alleged crime is not likely to be a significant factor at trial."The trial court held a hearing on these conflicting motions.

After questioning Parker at length, the court granted his motion to represent himself but directed appointed counsel to remain as standby counsel should Parker need their assistance. The court asked Parker if he supported counsel's motion for psychiatric assistance. Parker responded equivocally and noted that, as a death row inmate, he was being treated by Dr. Walter Oglesby, an Arkansas State Hospital staff psychiatrist. The court then ruled:

Now, as far as the additional psychiatric assistance, at this time I don't see that it's necessary because of the fact that Mr. Parker asserts no defense of insanity and unless and until I'm convinced that it's necessary I'm not going to order it but if sufficient information comes to me from either Mr. Parker or from standby counsel or from any other source to indicate that [additional psychiatric assistance is] necessary then I'll order it.

The second trial began one month later with Parker incarcerated at a nearby jail. On the second day of voir dire, standby counsel orally renewed their motion for appointment of a defense psychiatrist, advising the court that Parker had changed his mind and now wanted such assistance. The court denied the motion, commenting, "I do not see that there is an issue concerning mental disease."1

However, two days later, during a break in the lengthy voir dire, when Parker complained to the court that the Sheriff would not allow Parker to phone Dr. Oglesby from the jail, the court summoned the Sheriff and stated:

[It appears that] instructions which I issued yesterday afternoon were deliberately ignored by one of your staff and I'm especially upset about it. The order was that Mr. Parker be permitted to call a psychiatrist in Little Rock which he had requested and in view of the circumstances I feel that this was the best way for him to make contact with the witness. He attempted to do so and was told ... that he couldn't do it. I want to know why?

After hearing the Sheriff's explanation, the court ruled, "I do expect that he will be permitted to talk to Doctor Oglesby and to his attorneys."

The next day, Parker complained that jail staff had cut short a late-night telephone conversation with Dr. Oglesby. The court responded, "I'll take care of it." The following trial day, after the prosecutor's opening statement, Parker moved for a continuance on the ground that jail staff had denied him court-approved assistance, including adequate contact with Dr. Oglesby. The court immediately held a hearing on this motion. With regard to Dr. Oglesby, Parker testified on direct examination:

Q. ... Dr. Oglesby is a psychiatrist, is he not?

A. Yes, sir.

Q. And do you consider the testimony that he may or may not have to be essential to your defense in this case?

A. Definitely, yeah.

And on cross examination:

Q. Do you intend to call [Dr. Oglesby] as a witness in this case?

A. Definitely.

Q. And on what issue?

A. Mitigation.

And in argument to the court:

MR. PARKER: I think that if granted a continuance I could call Doctor Oglesby, stop him from coming up here [tonight] so we can communicate a little bit better instead of him coming here in the middle of the trial trying to talk.

The court granted Parker a four-day continuance and ordered the Sheriff to provide Parker access to Dr. Oglesby. The guilt phase of the trial then proceeded to conclusion with no further mention of Dr. Oglesby or the motion to appoint a psychiatrist. Parker did not assert the defense of insanity,2 and neither side offered testimony by a psychologist or psychiatrist as to Parker's mental condition when the Warrens were killed.

At the penalty phase, the State offered no evidence of Parker's mental condition in its initial case. Dr. Oglesby testified at length as a witness for the defense. Based upon his review of Parker's medical history from Arkansas State Hospital files, and his lengthy treatment of Parker as an inmate, Dr. Oglesby opined that at the time of the killings Parker suffered from a major depressive disorder, an explosive or rage disorder, a mixed personality disorder, and drug and alcohol abuse.

As a result, "he was suffering from a mental disease that was an extreme emotional distress at the time," and "because of his severe depression at the time he had impairment of his judgment." If believed by the jury, this testimony would have established two statutory mitigating circumstances for penalty purposes. See Ark.Code Ann. Secs. 5-4-605(1), (3) (Michie 1987).

Dr. David Pritchard, the psychologist who testified for the State at the first trial, then testified for the prosecution in rebuttal. He again testified that Parker was competent to stand trial and not insane at the time of the killings. He also opined that the homicides were too well-planned and methodically carried out to be the product of either major depression or a rage disorder.

On cross examination, Dr. Pritchard agreed with Dr. Oglesby that at the time of the offense Parker "was suffering under an emotional disorder," but would not agree it was an "extreme emotional disturbance." He admitted that he had never performed certain additional psychological testing that was an issue at the first trial. See Parker I, 731 S.W.2d at 759-61.

Dr. Oglesby testified for the defense on surrebuttal, again opining that at the time of the offense Parker suffered from "clinically significant depression" that "was a factor in his behavior, in his ability to control his behavior." On cross examination, when asked whether he had completed the additional testing that Dr. Pritchard had not done, Dr. Oglesby stated that he had evaluated Parker for treatment purposes, not to prepare to testify at trial.

The jury verdict form included a section on mitigating circumstances. One or more but less than all jurors found that Parker committed capital murder "acting under unusual pressures or influences." Though this finding was somewhat favorable to Parker, the jury unanimously found no extreme mental or emotional disturbance and no impairment from mental defect or drug abuse, the statutory mitigating circumstances. Thus, to the extent Parker's mental condition was relevant at the penalty phase, the prosecution won this battle of the experts. Parker asserts, and the district court concluded, that this victory was tainted by an Ake violation.

In Ake v. Oklahoma, the Supreme Court held: "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial [or at a capital sentencing proceeding], the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. at 83, 105 S.Ct. at 1096. We applied Ake in Starr v. Lockhart, 23 F.3d 1280 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994). In Starr, an Arkansas death penalty case involving a mildly retarded defendant, we held that a competency evaluation at the Arkansas State Hospital plus the ability to subpoena the professionals who performed that evaluation to testify at trial do not satisfy Ake:

We find that Starr's exam [at the Arkansas State Hospital] was inappropriate because it did not delve into the mitigating questions essential to Starr. As the Arkansas Supreme Court has recognized, the issue of mitigation, or diminished capacity, is different from that of guilt....

* * * * * *While due process admittedly does not give defendants the right to assistance from their experts of choice, it does give appropriate defendants the right to experts who will "assist in evaluation, preparation, and presentation of the defense."

23 F.3d at 1289-90 (citations omitted).

From the standpoint of Ake compliance, this case is factually distinguishable in critical respects. As in Starr, the trial court denied the initial motion by Parker's counsel for appointment of a psychiatrist. But relevant similarities between the two cases stop at that point. Here, the trial court ruled, after a hearing, that there was no showing of need for psychiatric assistance but said it would revisit the issue if presented with evidence of need.

Given Parker's decision to represent himself, his failure to support counsel's motion, and his refusal to assert an insanity or diminished capacity defense, this initial ruling did not violate Ake. See Branscomb v. Norris, 47 F.3d 258, 262 (8th Cir.) (right to appointed psychiatrist requires preliminary showing that "the accused's mental condition is crucial to his defense"), cert. denied, --- U.S. ----, 115 S.Ct. 2260, 132 L.Ed.2d 266 (1995); Guinan v. Armontrout, 909 F.2d 1224, 1227-28 (8th Cir.1990) ("counsel's belief that Guinan suffered from a mental disease.... not supported by example or more detailed explanation, cannot be said to have demonstrated to the judge that Guinan's mental state was to be an issue at trial"), cert. denied, 498 U.S. 1074 , 111 S.Ct. 800, 112 L.Ed.2d 861 (1991).

Later in the jury selection process, Parker made it clear to the court that he wanted to present psychiatric testimony for mitigation purposes. Parker asked for access to Dr. Oglesby, who had been treating Parker in prison for clinical depression. The trial court twice ordered the Sheriff to allow Parker access to Dr. Oglesby and then ordered a four-day trial continuance primarily because Parker argued that he needed a better opportunity to meet with Dr. Oglesby. So far as we can discern from the record, the Ake issue never arose again throughout the trial, nor did Parker again complain of inadequate access to Dr. Oglesby's assistance. During the guilt phase, neither side presented expert testimony relating to Parker's mental condition. During the penalty phase, Dr. Oglesby testified for over one hundred transcript pages in support of Parker's claim of statutory mitigating circumstances.

On this record, there was simply no Ake violation. Parker had the state-funded assistance of Dr. Oglesby, and not simply by trial subpoena as in Starr. As we said in Starr, Parker had no right to his "experts of choice," but here Parker repeatedly stated or implied that Dr. Oglesby was in fact Parker's expert of choice. The trial court ordered that Parker be allowed to consult with Dr. Oglesby when the issue first arose, before testimony began in the guilt phase, and the court placed no limit on those consultations. After the court granted Parker access to Dr. Oglesby and a four day continuance, it heard no further complaints on this issue.

Parker never told the court he needed more psychiatric evaluation or assistance. Dr. Oglesby never requested more access to Parker or time to perform more testing. True, Dr. Oglesby was ultimately cross-examined about tests he did not perform, but he did not retreat from his opinions. Indeed, he testified at the district court hearing that his evaluation had been adequate to support the opinions he expressed at trial on mitigation issues.

Parker argues that the State violated Ake because Dr. Oglesby did not give enough assistance in the evaluation and preparation stages of the defense. In evaluating this claim, we examine the information before the trial court at the time of the alleged violation. See Clisby v. Jones, 960 F.2d 925, 930 (11th Cir.1992) (en banc).

Therefore, even if the prosecutor ultimately cross examined Dr. Oglesby more effectively than standby counsel cross examined Dr. Pritchard, that does not establish that the trial court previously deprived Parker of constitutionally-mandated psychiatric assistance. Unlike the situation in Starr, the trial court here afforded Parker unlimited access to Dr. Oglesby before testimony began and throughout the trial.

IV. Aggravating Circumstance Issues.

At the time of Parker's conviction, Arkansas law provided that the jury "shall impose a sentence of death" if it unanimously finds beyond a reasonable doubt that one or more statutory aggravating circumstances justify a sentence of death and outweigh beyond a reasonable doubt all mitigating circumstances found to exist. Ark.Code Ann. Secs. 5-4-602(3), -603(a) (Michie 1987). One statutory aggravating circumstance was that the defendant previously committed another violent felony. Id. at Sec. 5-4-604(3).

During the penalty phase, the State presented evidence that, six months before the killings, Parker threw a knife at Pam Warren, missing her head by about six inches, and later pointed a shotgun at her for five minutes. Though no criminal charges were brought for this conduct, the State argued that it constituted the felonies of aggravated assault and terroristic threatening. Under Arkansas law, the prosecution may prove previously uncharged prior felonies to establish this aggravating circumstance. Miller v. State, 280 Ark. 551, 660 S.W.2d 163, 165 (1983). Therefore, the trial court submitted and the jury unanimously found this aggravating circumstance, and the Arkansas Supreme Court held that the evidence was sufficient to uphold this finding.

We have held the prior felony aggravating circumstance constitutional, and Parker does not revisit that question. See Whitmore v. Lockhart, 8 F.3d 614, 624-25 (8th Cir.1993). Rather, he raises three issues regarding its application in his case--that the trial court erred in failing to instruct the jury on lesser included offenses of the alleged prior felonies; that the jury's finding of a prior violent felony was inconsistent with its finding of "no significant history of prior criminal activity"; and that the Arkansas Supreme Court unconstitutionally applied a lower standard of appellate review.

A. The Aggravating Circumstance Instruction.

Parker argues that, had the trial court instructed the jury on lesser-included offenses to terroristic threatening and aggravated assault, the jury might have found that he committed one or more misdemeanors, which would not have triggered the prior felony aggravating circumstance. Parker relies upon Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in which the Supreme Court held that, in the guilt phase of a capital case, the jury must be instructed on lesser included offenses that the evidence would support. Parker argues that Beck should apply equally to the penalty phase of his capital murder case. We disagree.

In Beck, an Alabama statute prohibited lesser-included offense instructions in capital cases, a practice contrary to common law, to Alabama law in non-capital cases, and "unique in American criminal law." 447 U.S. at 635, 100 S.Ct. at 2388. By this practice, "the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties." 447 U.S. at 628-29, 100 S.Ct. at 2385. The Court concluded that this practice "introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case":

[O]n the one hand, the unavailability of the third option of convicting on a lesser-included offense may encourage the jury to convict for an impermissible reason--its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason--that, whatever his crime, the defendant does not deserve death.

447 U.S. at 642-43, 100 S.Ct. at 2392.

At the penalty phase, Parker's jury was properly instructed that it might find that he committed one or more prior violent felonies, a statutory aggravating circumstance. But that was not an "all or nothing" issue, as in Beck. Here, the jury had already convicted Parker of capital murder. Moreover, even if it found the prior felony aggravating circumstance, it could only impose a sentence of death after considering (i) whether this aggravating circumstance justified a sentence of death, and (ii) whether this aggravating circumstance outweighed any mitigating circumstances found to exist.

Thus, like the district court, we conclude that this aspect of Arkansas law did not contain the defect that was essential to the Supreme Court's decision in Beck. See Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159-60, 82 L.Ed.2d 340 (1984) ("the goal of the Beck rule ... is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence"), quoted in Schad v. Arizona, 501 U.S. 624, 646-48, 111 S.Ct. 2491, 2505, 115 L.Ed.2d 555 (1991).

B. Inconsistent Jury Findings.

Parker argues that the jury's findings at the penalty phase were inconsistent because the jury unanimously found the prior violent felony aggravating circumstance, yet some jurors found, as a mitigating circumstance, that "Parker has no significant history of prior criminal activity." The Arkansas Supreme Court ruled that these findings were not inconsistent:

[W]e believe the jury could have unanimously found appellant committed prior violent felonies used by the state in showing an aggravating circumstance, but at the same time, some jurors may not have considered these prior felonies a significant history of prior criminal activity.

Parker II, 779 S.W.2d at 160. Parker responds that jurors who found his prior criminal history insignificant could not rationally conclude that the prior violent felony aggravating circumstance outweighed this mitigating circumstance. However, we agree with the district court that the Arkansas Supreme Court reasonably interpreted the jury's findings. Parker's argument is essentially semantic and must be rejected. See Simmons v. Lockhart, 814 F.2d 504, 513-14 (8th Cir.1987), cert. denied, 485 U.S. 1015 , 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988).

Parker further suggests that the verdict form failed to inform jurors that they could consider non-unanimous mitigating circumstances, thereby violating the Supreme Court's decisions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). We rejected the same contention in Pickens v. Lockhart, 4 F.3d 1446, 1452-53 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1206, 127 L.Ed.2d 553 (1994).

C. The Standard of Appellate Review.

Parker argues that the Arkansas Supreme Court violated his due process rights when it held that "the same degree of proof is not required to sustain a jury finding that an aggravating circumstance exists, as would be required to sustain a conviction." Parker II, 779 S.W.2d at 160. The jury found beyond a reasonable doubt that the prior felony aggravating circumstance existed, as Arkansas law required. See Ark.Code Ann. Sec. 5-4-603 (Michie 1987). Thus, in this case, unlike Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), on which Parker relies, the trial court factfinder applied the proper standard, and the appellate court did not subvert the statutory process. Instead, the Arkansas Supreme Court reviewed the evidence and found it sufficient to uphold the jury's finding on appeal.3

Parker's contention ignores the applicable federal standard of review: "[I]n determining whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation ... the ... appropriate standard of review is the 'rational factfinder' standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); see Grubbs v. Delo, 948 F.2d 1459, 1469 (8th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 109, 121 L.Ed.2d 67 (1992). The district court reviewed the evidence under that standard and concluded "a rational trier of fact could have found beyond a reasonable doubt the existence of the 'prior violent felony' aggravating circumstance." Parker v. Norris, 859 F.Supp. at 1218. We agree.

The judgment of the district court is reversed and the case is remanded with instructions to deny the petition for a writ of habeas corpus.

*****

* Arnold, Chief Judge and McMillian, Circuit Judge, would grant the suggestion for rehearing en banc

** The HONORABLE DANIEL M. FRIEDMAN, Senior United States Circuit Judge for the Federal Circuit, sitting by designation

1 The next day, Parker filed a hand-written motion for psychiatric assistance, confirming counsel's representation to the court that Parker had changed his mind on this issue. The trial record contains no ruling on this motion. Both the Arkansas Supreme Court and the district court assumed that it was denied. However, given the trial court's actions beginning the very next day to ensure Parker effective access to Dr. Oglesby, we think it more realistic to conclude that, consistent with Ake, the trial court granted this motion by affording Parker the assistance from Dr. Oglesby that he appeared to need for mitigation issues

2 Standby counsel testified at the evidentiary hearing in the district court that Parker personally directed the defense and would not permit counsel to interpose an insanity defense

3 It is clear that Court provides a "meaningful appellate review ... of the appropriateness of the death penalty [in a particular case]." Collins v. State, 261 Ark. 195, 548 S.W.2d 106, 120, cert. denied, 434 U.S. 878 , 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). For example, it reduced a death sentence to life without parole or ordered a new trial when it found insufficient evidence to support a prior violent felony aggravating circumstance in Miller, 660 S.W.2d at 165-66

 

 

 
 
 
 
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