THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, June 17, 1995 TAG: 9506170325
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
LENGTH: Long : 180 lines
In a case where the unexpected has almost become commonplace, a retired sheriff's deputy - who was quoted in an affidavit as believing that condemned inmate Dennis W. Stockton is innocent of capital murder - has clarified his stance, now saying he only has ``reasonable doubt'' about Stockton's guilt.
Late last month, an affidavit filed by a private investigator in a Roanoke federal court quoted retired Patrick County Sheriff's Deputy Clifford Boyd as saying that ``based on his extensive investigation, Mr. Boyd does not believe that the murder for which Dennis Stockton was convicted occurred in Virginia or that Dennis Stockton killed Kenneth Arnder.''
But in a handwritten letter sent early this month to The Mount Airy News of Mount Airy, N.C., Boyd said: ``I have never said that Stockton was innocent or that he was guilty. . . . I have no way of knowing whether he is guilty or innocent. I do however feel, in my mind, that there is a reasonable doubt as to Stockton's guilt, but that is a long way from saying he is innocent.''
``Reasonable doubt'' is the standard for acquittal in criminal cases. Judges tell jurors before they begin deliberations that a defendant is presumed innocent and cannot be found guilty if there is reasonable doubt of his guilt.
Although Boyd disagreed with some of the statements in private investigator Doris Pye's affidavit in a June 9 article in The Mount Airy News, he did not dispute the two most important points: He did not retreat from his doubts of Stockton's guilt; and he did not retreat from his statement that a key prosecution witness believes he was given promises in exchange for his testimony.
Stockton was sentenced to death in 1983 for the murder-for-hire of the 17-year-old Arnder in Southside Virginia. On May 27, Pye - hired by Stockton's lawyers - spent three hours interviewing Boyd at his home in Willis Gap, Va. Pye's affidavit was in filed in federal court on June 1.
The affidavit prompted a flurry of news reports in Virginia and North Carolina. Boyd's statement was the first time since Stockton's conviction that a law enforcement official connected to the investigation said in court documents that he doubted Stockton's guilt.
Stockton's lawyers filed Boyd's statement with evidence that the key prosecution witness, Randy Bowman, had recently recanted his testimony to a reporter. Bowman had testified that he heard Stockton accept $1,500 from another felon to kill Arnder for allegedly cheating on a drug deal. In an interview on April 20, Bowman said he never heard Stockton make the deal. Then, last month, he signed an affidavit claiming he never recanted his testimony.
Boyd's statement to Pye also focused on Bowman. It said: ``Bowman told Mr. Boyd that investigator Jay Gregory and Sheriff Bill Hall (of Surry County) came to Yadkinville prison (in North Carolina) and made promises that if he would testify against Stockton, they would let him out of jail or get him transferred. Bowman told Mr. Boyd that he was not going to testify unless promises made to him were kept.''
On June 8, the state attorney general filed a response to Stockton's claims in federal court, calling Boyd's statement ``inconsequential new information'' and hearsay because it was told to the private investigator. They asked the judge to deny Stockton a new hearing because of the state's rule that new evidence can only be introduced within 21 days of a conviction.
All this comes as Stockton has nearly run out of appeals. Stockton believes he will be executed in mid- to late summer. His lawyers have asked the court to grant a new hearing based on the evidence and have filed a final appeal with the U.S. Supreme Court. After that, Stockton's last recourse is a clemency plea to Gov. George F. Allen.
Boyd left the Patrick County Sheriff's Department in 1984 and has given previous statements to Stockton's lawyers over the years about claims by Bowman that officials promised him leniency in exchange for his testimony. Yet Boyd's doubts of Stockton's guilt were never made part of court records until last month's statement to Pye.
It was that statement that made Boyd the newest focal point in Stockton's case, and the sudden media attention seemed to surprise him. Until then, he enjoyed a relatively quiet life in rural Patrick County. He has refused to talk over the phone to reporters because he is nearly deaf, his wife has said. He recently declined to talk with a reporter with The Virginian-Pilot and The Ledger-Star in a face-to-face interview, stating through his wife that he preferred to remain silent until the federal judge rules whether to grant Stockton a new hearing.
Boyd took issue with these points in the affidavit and subsequent news reports, apparently in an attempt to clarify his position:
Pye described Boyd as the supervising investigator in the Stockton case. Boyd said he was one of two shift supervisors reporting to the sheriff and was not directly involved in the murder investigation. In a 1989 affidavit, Boyd said he ``was responsible for overseeing all of the investigators, jailers, correctional officers and dispatchers . . .''
Pye said Boyd named another man, Jerry Slate, as the chief suspect in Arnder's murder. Affidavits by other people have also named Slate as a suspect. Pye's report to Stockton's lawyers says Slate was suspected before Stockton, but that Slate was never arrested.
But Boyd told The Mount Airy News that, ``to my knowledge, Stockton was always the chief suspect.'' He acknowledged that there were rumors about a second suspect, but no hard evidence emerged.
Pye said in an interview that, at first, Boyd ``didn't think anything was wrong, but now he does. He thinks something wrong was done. He said he thinks he will write the governor.''
Boyd told The Mount Airy News that ``any skepticism I had was from Day One'' and has not changed over time.
News reports said Boyd believed information was withheld from Stockton's lawyers. In fact, Boyd has given previous statements in which he said Bowman was upset because he was promised preferential treatment for his testimony but didn't receive any. These statements helped Stockton's lawyers prove that prosecutors withheld information from Stockton's trial. But Boyd himself never said he knew of withheld information.
What does this mean for Stockton? Experts says that an 11th-hour statement by a law enforcement official like Boyd, rare as it is, probably is not enough to win Stockton a new hearing in court this close to his execution.
Boyd's statement about Bowman's claims of secret deals may be used in court to attack Bowman's credibility, experts say. But Boyd's doubts about Stockton's guilt are only opinion, and courts rarely admit that as evidence.
Still, Boyd's doubts could very well command Allen's attention in a clemency plea, said Larry Sabato, a professor of political science at the University of Virginia.
``Of all recent governors, Allen is the least likely to grant clemency,'' Sabato said. ``His major campaign issue was being tough on crime and abolishing parole.'' Yet exactly because of this stance, Allen ``tends to regard law enforcement officials as particularly credible,'' Sabato said. Boyd's statement ``would attract his attention.''
Virginia experts could not recall any other case in the state since the death penalty was reinstated in 1977 where a law enforcement official said he doubted that the condemned man was guilty.
National experts also said that such last-minute support from law enforcement officials is nearly unheard of.
Boyd's statement is the kind of evidence that a governor would seriously consider in a clemency plea, said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta. Although clemency decisions are often influenced by politics, governors are also able to consider factors outside the narrow realm of law, Bright added.
``In a recent case in North Carolina, the governor granted clemency even though he was not completely convinced'' of the inmate's innocence, Bright said. The governor's reasoning case was that ``I want to be sure beyond a reasonable doubt before I allow an execution to be carried out.''
The newest example of this occurred on Thursday. Florida Gov. Lawton Chiles granted an indefinite stay to a man condemned for the mutilation-murder of a nurse 22 years ago because a key witness who testified under hypnosis now says he has no memory of the case. Joseph ``Crazy Joe'' Spaziano was scheduled to be electrocuted on June 27, but Chiles granted the stay at least until state police investigators review the case.
``Law enforcement officials have a certain camaraderie,'' said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. ``Your coming forward means you're criticizing someone else.
``A death penalty case raises the ante,'' Dieter added. ``There's a lot on the line - reputations. By coming forward, you're saying someone made a mistake in a life and death case. Ironically, that makes it harder to come forward - harder for people to break ranks and say their own department's people are not blameless.''
Coincidentally, another current death row case involving last-minute support from law enforcement also involves an affidavit from a former official like Boyd.
In January, the Supreme Court gave Lloyd Schlup, a condemned inmate in Missouri, a chance to persuade federal courts that his execution would be a miscarriage of justice because of new evidence that Schlup says proves his innocence. Schlup came within nine hours of execution in 1993 before the governor granted a stay, partly because of an affidavit by a former prison guard who said he was talking to Schlup at the time of the murder.
Schlup was convicted in 1984 for the murder-for-hire of inmate Arthur Dade by the Aryan Brotherhood, a white supremacist prison gang. The state said Schlup held the arms of Dade, who was black, while a second man threw a steaming liquid in his face and a third man stabbed him. The other two have been convicted.
Faherty said in an affidavit that Schlup could not be guilty because he encountered Schlup ambling so slowly down a 260-foot corridor en route for lunch that he could not have participated in the murder. A videotape showed Schlup in the lunch line 65 seconds before the distress call went out for Dade's murder.
``Lloyd Schlup cannot possibly be guilty,'' Faherty's statement said. He said that Schlup was in his presence for 2 1/2 to 3 minutes. ``Lloyd was not perspiring or breathing hard, and he was not nervous. There was nothing at all about his behavior consistent with his just having been involved in a fight or a stabbing.'' MEMO: Researcher Diana Diehl contributed to this report.
ILLUSTRATION: Deputy Clifford Boyd says he has ``reasonable doubt'' about the
guilt of Dennis W. Stockton, above, charged with murder.
KEYWORDS: DEATH ROW DENNIS STOCKTON CAPITAL MURDER STATEMENT
DEPUTY CLIFFORD BOYD by CNB