- The Washington Times - Thursday, June 8, 2006

RICHMOND — A federal appeals court last night overturned a lower court’s decision to temporarily stay the execution of a triple killer scheduled to die tonight.

U.S. District Judge Rebecca Beach Smith had ruled earlier yesterday to delay Percy Walton’s execution based on his challenge that Virginia’s protocols surrounding lethal injection are unconstitutional. Judge Smith said authorities should wait until the U.S. Supreme Court rules in a separate case that challenges the way states execute killers.

But the 4th U.S. Circuit Court of Appeals ruled to overturn Judge Smith’s decision, a spokesman for the Attorney General’s Office said.

Walton pleaded guilty in 1997 to the murders of Danville residents Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore. The victims were robbed and shot in the head; Mr. Moore’s body was found stuffed in a closet, his corpse doused in cologne.

Walton’s mental state has been debated for nearly a decade. His attorneys say he keeps no personal effects in his cell, except for a mountain of salt and pepper packets he likes to stack. He rarely speaks, although occasionally bursts into random bouts of laughter. The guards call him “Horse” — short for “Crazy Horse” — and complain of his unbearable stench.

And he thinks if he is executed, he will be able to take a trip to Burger King, his attorneys say.

The Supreme Court has ruled it unconstitutional to execute the insane and mentally retarded, but left definitions up to the states. In a petition to the high court, Walton’s attorneys argue that Walton has schizophrenia and is incapable of understanding the concept of death, therefore making him ineligible for execution.

The petition argues that the court didn’t give sufficient guidance in its Ford v. Wainwright decision in 1986, which found that executions of the insane are unconstitutional. As a result, lower courts read the decision narrowly and allow mentally ill inmates to wrongly be put to death, the petition said.

A clemency request with Gov. Timothy M. Kaine also argues that Walton is mentally retarded. The Virginia attorney general’s office has argued that intelligence scores taken when Walton was 17 and 18 place him above the accepted range for mental retardation, though other evaluations were conflicting.

Mrs. Kendrick’s sister, Irene Jurscaga, 85, of Suffolk, had cried upon hearing the news that Walton’s execution had been delayed.

“It brings up all kinds of memories again,” said Mrs. Jurscaga, who had planned to witness the execution.

In 1999, then-Gov. James S. Gilmore III commuted the death sentence of mentally ill murderer Calvin Swann to life in prison just four hours before his scheduled execution. Swann, who was convicted of robbing and shooting a 62-year-old man in his Danville home in 1992, had been diagnosed with schizophrenia.

Danville Commonwealth’s Attorney William Fuller prosecuted both Swann and Walton’s cases, but holds very different views on the fate of both men. In Swann’s case, he told Mr. Gilmore that he probably would not have sought the death penalty if life without parole had been an option. Walton, on the other hand, deserves to die, Mr. Fuller said.

“When I prosecuted Walton there was absolutely no evidence presented that in any way indicated Walton was mentally retarded or mentally ill,” Mr. Fuller said in an e-mail to the Associated Press. “On the other hand, the punishment phase of Swann’s trial was dominated by evidence of Swann’s medical records which spanned over 25 years.”


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