THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, September 27, 1995 TAG: 9509270425
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: RICHMOND LENGTH: Long : 127 lines
A federal appeals court Tuesday night overturned a 60-day stay for death-row inmate Dennis W. Stockton and ordered his execution for murder-for-hire to proceed tonight as scheduled.
The 4th U.S. Circuit Court Appeals overturned the stay, which was issued Monday by U.S. District Judge Jackson Kiser in Roanoke to hear new evidence in the 1983 murder conviction. In the past two weeks, Stockton's attorney's have produced affidavits by three witnesses claiming that the state's key witness, Randy Bowman, was the real killer of Kenneth Arnder, 18, in July 1978.
The only thing now standing between Stockton and death by lethal injection is a last-minute appeal filed today with the U.S. Supreme Court and a clemency plea to Gov. George F. Allen.
On Tuesday, Stockton's lawyers met with four Allen staff members about clemency. ``I told them there were people who will investigate this even after Dennis is executed,'' said Steve Rosenfield, one of the lawyers. ``We would like to get answers to important questions that remain unanswered. All we want is for the governor to grant a temporary reprieve to give us time to complete the investigation.
``Dennis is likely to be executed on the strength of Randy Bowman, somebody who has a reputation for not being trustworthy and honest,'' Rosenfield said. ``I think there is compelling evidence to suggest someone else killed Kenny Arnder. I know in my heart Dennis has been deprived of a fair process.''
On Monday, a fourth witness corroborated the affidavit of Bowman's ex-wife, Patricia Anne McHone, who said Bowman returned home one evening ``and told me he had just killed Kenny Arnder.'' McHone's sister said McHone told her of the alleged confession in the late 1970s and said she feared for her safety.
But on Tuesday, the federal judges said the new evidence was too little, too late. Stockton's last-minute claims of innocence were blocked by the state's laws against introducing new evidence within 21 days of conviction. It is a law that has led experts to call Virginia the worst state in the nation for the lack of due process protection.
The federal judges wrote: ``Last minute stays . . . represent an interference with the orderly processes of justice which should been avoided in all but the most extraordinary cases.''
Sworn statements by McHone, Bowman's former wife, and Kathy Carreon, his former friend, said he told them on separate occasions that he killed Arnder. An affidavit by Timothy Crabtree, Bowman's son, said Bowman admitted killing a boy and disposing of the body with the help of friends.
But according to the appeals court: ``The credibility of these affiants has never been observed; the contentions of the affiants have never been tested by cross-examination. Moreover, the affidavits do not represent eyewitness accounts of the offense, and they are produced a dozen years after the trial in a context that is suggestive of an intent to delay.''
Bowman's credibility has increasingly come under fire. He testified at Stockton's March 1983 trial that he attended a meeting in June 1978 where he heard Stockton accept $1,500 from Tommy McBride to kill Arnder over a soured drug deal. McBride was arrested but never tried. It was Bowman, and Bowman alone, who linked Stockton to the contract killing - a capital offense.
Then, this April, Bowman told a Virginian-Pilot reporter that he had never heard the deal. He recanted that in an affidavit in May after being visited by two investigators.
On Tuesday, Bowman's credibility was still being assailed. Stockton's lawyers entered last-minute evidence challenging an affidavit filed Monday by Surry County Sheriff Connie Watson. This affidavit said Bowman was on work release from June 26, 1978, to July 3, 1978, when he escaped. He was arrested and put in ``continuous custody'' in jail until Aug. 16, 1978, serving a six-month sentence for reckless driving, speeding and eluding arrest.
This meant that Bowman could not have been the killer because he was in jail at the time, the affidavit suggested. Arnder was last seen alive on July 20, 1978. His body was discovered in a shallow grave on July 25, 1978, near Mount Airy, N.C., the home of Stockton, Bowman and Arnder.
Yet Stockton's new evidence suggests Bowman may have been out on work release again when the murder occurred.
Johnny Ray Belton, the sheriff's detective who investigated Bowman's sentence, told a reporter Tuesday that a jail log comprehensively recorded when inmates were incarcerated, released and allowed out for work release. The records indicated Bowman stayed in jail from July 3 to Aug. 16, 1978, and was not allowed out on work release during that period, he said.
But on Tuesday, Rosenfield said he found evidence that the records were not that comprehensive. In fact, a judge recommended that Bowman be placed on work release on July 13, a week before Arnder was killed, court records show.
According to Rosenfield, some work release prisoners were allowed to stay home at night in a policy called ``furlough.'' Pat McHone said in her affidavit that Bowman confessed to killing Arnder one night in July 1978. It could not be determined Tuesday whether Bowman was ever on furlough.
Rosenfield's letter to the appeals court said his private investigator checked the jail records on Tuesday. He said that the quality of those records was much different than described by sheriff's officials.
``The jail records of Randy Bowman do not contain any information regarding whether or when he was placed on work release,'' the letter said. ``The records only say that he was taken off work release on July 3, 1978, and charged with escape. Court records of the same trial judge that convicted Bowman for escape show that on July 13, 1978, he recommended Bowman again for work release.''
Rosenfield said in an interview, ``The only reason they knew about his work release was by default - it was only because his work release was revoked that they had that record.''
The federal judges noted that the dates described in Watson's affidavit ``encompass the conceivable dates of the Arnder murder.'' Rosenfield's evidence ``fails to contradict the statement in the affidavit that Bowman was actually released on $500 bond on August 16.''
Finally, there is a question of whether Bowman was out of jail at the time he said he heard Stockton accept money to kill Arnder. Court records say Bowman was arrested on the driving offenses in May 1977, then sentenced to six months on June 26, 1978 - minus 37 days' credit for time he spent in another jail ``awaiting trial somewhere else,'' Belton said. He did not know where Bowman spent the 37 days.
Bowman testified in Stockton's trial that he heard Stockton accept the money in mid- to late June 1978. He knew the time because it was ``a couple of weeks'' after June 6, a date he remembered ``because I'd been shot on that day,'' he testified. It could not be determined Tuesday whether the jail time elsewhere coincided with the dates of Arnder's killing.
These questions might have been hammered out in an evidentiary hearing. But barring a stay by the Supreme Court, they will never be resolved.
As the appeals judges wrote: ``This last minute attempt to replicate a state trial setting through affidavits and federal evidentiary hearings twelve years after the fact of conviction bears little relationship to the orderly and deliberate manner in which justice should proceed.'' ILLUSTRATION: Color photo
Dennis Stockton: People are claiming that another man confessed.
KEYWORDS: MURDER-FOR-HIRE MURDER DEATH ROW
CAPITAL PUNISHMENT VIRGINIA APPEAL by CNB