World

DEATH CLOSING IN

A Canadian prisoner talks about his looming execution

ANDREW PHILLIPS November 30 1998
World

DEATH CLOSING IN

A Canadian prisoner talks about his looming execution

ANDREW PHILLIPS November 30 1998

DEATH CLOSING IN

World

SPECIAL REPORT

A Canadian prisoner talks about his looming execution

Death row inmate No. 580 shifts uneasily on his stool. He is behind a thick plate of glass, locked in a steel cage no bigger than a phone booth. He has been in prison for 21 years, most of it alone in a 1.5-by-2.7-metre cell, so he is not used to talking to strangers. But when the words come, they come quickly and smoothly. He knows that the state of Texas intends to put him to death very soon—a few minutes after 6 p.m. on Thursday, Dec. 10, to be precise. He has been here before: this is his ninth execution date. But this time feels different. Even his lawyer says it will be a “minor miracle” if he lives through that day. So he is calm, prepared to face whatever he must face. “I’m ready to go, and I’m not afraid to go,” he says. “There’s an afterlife, as far as I’m concerned, and I expect to be part of it. It’s that simple.”

Joseph Stanley Faulder (“Stan” to his friends and family back in Alberta) has kept his silence for more than two decades. Now 61, he was twice tried and convicted for the 1975 murder of an elderly widow in the east Texas oil town of Gladewater, and did not testify on his own behalf either time. Through the long years on death row, he refused all chances to speak publicly. Even now, with death around the corner, Faulder will not discuss his case—including the essential question: did he commit the crime for which he faces execution by lethal injection? But last week, in an interview with Maclean’s, he reflected on his life and his approaching death. “We don’t dictate when we come, and we don’t dictate when we go,” he said. “That’s true for everybody. But I have an advantage over you—I know when I’m going.” He is not, he said, counting on another reprieve: “I’m not expecting one this time. Our legal battle is more or less over. It’s pretty much in the hands of the governor of Texas, and he’s not noted for doing things like that.”

Last week, too, he said goodbye to his older sis_ ter, Pat Nicholl, who travelled from Jasper, Alta., | to the Ellis Unit prison in Huntsville, Tex., to see | him for what may well be the last time. They sat on Ï either side of the heavy glass barrier, talking quietly -

through a wire mesh grille about family matters, about Faulder’s two daughters and his grandchildren—whom he has never seen. There are no plans for Nicholl or other members of his family to return before Dec. 10. “No,” he said. “We’ve said our goodbyes for the time being. We’re set, on both sides.

I’m OK with that. I prefer it that way. Goodbyes are very hard, you know, under these circumstances.”

If Faulder is finally put to death, he will be the first Canadian to be executed in the United States since 1952—when Stan Buckowski of Toronto went to the gas chamber in San Quentin for killing a California woman. Texas executes more people than any other state—161 since it restored the death penalty in 1982,17 so far this year alone—and, for most Texans, Faulder is just one more convicted killer who must pay the price. The murder for which he was sent to death row was a particularly brutal one: on the night of July 8,1975, Faulder and a sometime prostitute known then as Stormy Summers talked their way into the home of a 75-year-old woman named Inez Phillips, planning to break into a floor safe they

had been told was full of money and jewelry. It all went terribly wrong. Phillips was found the next morning lying on a bed, bound with tape, the back of her head smashed in and a kitchen knife plunged into her chest. For Gladewater’s mayor, Curtis Bright, it is high time that Faulder paid. “It was a horrible, vicious crime,” he says. “This man was tried twice, and it just needs to be settled.” Faulder’s family and supporters tell a much different tale. Both his trials, they say, were riddled with legal irregularities. The first time, in 1977, he was convicted on the strength of a confession he gave to police—but which was later thrown out by an Appeal Court. The second time, in 1981, Faulder was sent away on the basis of testimony by Summers, whose real name was Lynda McCann, and her common-law husband, Ernie. Lynda McCann was given immunity in return for her testimony, and both she and Ernie were offered money by Phillips’s family. The victim’s son, a wealthy oilman named Jack Phillips, spent $155,000 hiring private prosecutors to pursue the case. Faulder’s medical history—including a childhood brain injury—was not taken into account when he was sentenced. Instead, he was classified as a “severe sociopath” by a notorious pro-execution psychiatrist known in Texas as “Doctor

Death.” Finally, he was never put in touch with Canadian authorities, something that should have been done under the international agreement known as the Vienna Convention. Instead, he was sent to Huntsville to await the outcome of his appeals against his mandated execution.

Now, he has few chances left. His lawyer, Sandra Babcock, has appealed for clemency to Texas Gov. George W. Bush and to the state’s Board of Pardons and Paroles—neither of which has a record of showing leniency. Foreign Affairs Minister Lloyd Axworthy has written to Bush and Secretary of State Madeleine Albright, appealing for clemency on the grounds that Faulder’s rights to consular assistance were violated. Ottawa is also supporting Babcock’s last-ditch appeal to the U.S. Supreme Court this week. And some prominent Canadian opponents of the death penalty—including Rubin (Hurricane) Carter, the onetime boxer who was almost executed in New Jersey for three murders a court later said he did not commit—plan to go to Austin, the state capital,

ANDREW PHILLIPS

IN HUNTSVILLE, TEX.

to appeal to Bush. Faulder is grateful for the support, but frankly doesn’t believe much will come of it. “I don’t think the government of Canada,” he says, “has any clout down here whatsoever.”

No or family, father perhaps, ending up can as a easily prison imagine number a in beloved a faraway brother city. Stan Faulder’s is no exception. His 66-year-old sister, Nicholl, who administers a senior citizens’ home in Jasper, recalls her brother as a good-natured kid who grew up to be a bit of a ham, the kind who would grab a guitar at a party and be the centre of attention. “He was the guy everyone wanted at their parties,” she says. “He could sing and dance and whistle like a bird.”

But it wasn’t all smooth going. In 1941, when young Stan was almost 4, he was involved in an accident that his family says may have a lot to do with what happened in Gladewater decades later.

The Faulders were living in McLennan, Alta., and one day while they were driving along a country road the boy somehow managed to open the car’s back door. He tumbled onto the road, smashing his head on the door as he fell. For several days, it was touch-and-go. Finally, the doctors sent him home. But Stan wasn’t quite the same. “Anything that caused him stress,” she says, “he’d go off in a blackout”—what she calls “Stan’s spells.”

From the age of about 7, he started stealing little things but couldn’t explain why he did it. “He’d have this grey-white look on his face,” recalls Nicholl. “He’d say, “Why did I do that? I know better.’ He never really understood.” It got worse. In high school, after the family moved to Jasper, his “spells” continued, his grades fell, and he got into more serious trouble—though he was never violent. At 15, he was arrested for stealing a watch and sent to a boys’ home for six months. At 17, another theft got him six months in jail. At 22, he was caught in a stolen car and sent to jail in New Westminister, B.C., for two years. There, he asked for psychiatric help and, according to Nicholl, was put in an experimental drug program that involved doses of LSD.

When Faulder got out in 1962, he went back to Jasper and straightened out. He got a job driving heavy machinery, and the next year married a nurse from Calgary named Lorraine Spencer. They had two daughters, but the marriage was strained. |g Faulder drifted from job to job, and both he and Lorraine drank.

The marriage fell apart in 1971, and Faulder was devastated.

He lost custody of his daughters because of his prison record and sank into a deep depression. He showed up at a family reunion in 1972, then vanished.

Faulder had drifted across the border into the United States. For a while, he worked on a kitchen crew at a casino in Reno, Nev. In the summer of 1975, he turned up in Longview, an oil town in northeast Texas, where he was going by the name Stan Cotter. Faulder was hustling pool at a lowlife bar called the Hurricane Club on the southern edge of Longview, part of a strip of juke joints known as Whiskey River Bend. It was there, one night in late June, that he hooked up with Stormy Summers, aka Lynda McCann. Stormy was a sight: a 240lb. biker girl with swastikas tatooed on her hands. Her regular boyfriend, Ernie McCann, rode with an outlaw club called Destiny’s Legion, but that night Stormy was with another man, James Moulton.

Faulder, Stormy and Moulton got talking, and, according to later trial testimony, started scheming how they could get money. Moulton had an idea: he had laid tile in a house where an old lady lived alone in Gladewater, 20 minutes west. She had a floor safe installed in a new wing of the house; it was full of money and jewels, Moulton said. So later that night, all three drove to Gladewater and checked out Inez Phillips’s big white-brick bungalow on North Main Street, the one with the ornate latticework and big pecan trees all around.

A few nights later, on July 8, Faulder and Stormy returned to Gladewater. Exactly what happened is unclear. But Faulder signed a confession after he was arrested in 1977, and Stormy Summers told her story at his second trial in 1981. According to both versions, Stormy

knocked on the back door of the bungalow, told Phillips that her car had broken down and asked to use the phone. When she got inside, she pulled a gun on the old lady and let Faulder in. He went to find the safe, but heard a gunshot and came back to find Stormy and the woman struggling. In his signed statement, Faulder said he tried to subdue Phillips so he could tie her up, but she kept fighting and he hit her with a homemade blackjack. Then, they laid her on the bed, tied her hands with tape, and went through the house.

The confession went on: “I went back to check on Mrs. Phillips. She was moaning and groaning and kicking. I felt the back of her head and the skull felt crushed. I went to the kitchen and got a knife. I went back to the bedroom and stabbed Mrs. Phillips. I stabbed her in the center of the chest.”

It turned out the safe contained only worthless costume jewelry. Jack Phillips, the victim’s son, posted a reward of $50,000, and Moulton gave police the names of both Faulder and Summers. In 1977, Faulder was arrested in Colorado, brought back to Longview, and tried there. His lawyer, Veraard Solomon, argued that his confession was inadmissible as evidence. During his interrogation by Texas Rangers, the evidence showed, Faulder had asked for “a couple of days” to think through his story. Solomon maintained that meant he had asked to remain silent, so his constitutional rights were violated when the police kept questioning him. But the trial judge rejected that argument and the jury convicted Faulder.

Then came the punishment phase of the trial. The prosecutor, Odis Hill, produced two psychiatrists to evaluate Faulder. One, James Grigson of Dallas, was known as “Doctor Death” because he testified in scores of death-penalty cases—constantly concluding after a brief interview that the accused was a menace to society. Grigson’s credibility was “zero,” Solomon recalls now. “He was a hired gun for any county in Texas that would pay his fee.” Several years later, in fact, Grigson was expelled from the American Psychiatric Association.

‘I stabbed her in the chest,’ Faulder said in a confession

Canadians facing death

More than 1,600 Canadians are currently held in American jails, but fewer than 20 have been convicted of capital crimes. And besides Joseph Stanley Faulder, only two other Canadians sit on death row in a U.S. prison.

One is Ronald Smith, 41, who was sentenced to death in Flathead County, Mont., in 1983 for murdering two native American cousins, Harvey Mad Man, 24, and Thomas Running Rabbit, 20. Smith, formerly of Red Deer, Alta., admitted shooting the pair while high on LSD and alcohol in order to steal their car and, he said, because he wanted to know how it felt to kill someone. Early on, Smith changed his plea to guilty and asked for the death penalty, but later said he wanted to live. His lawyer believes his current round of court challenges—seeking life imprisonment with no parole—will take another five years to decide.

The other death row inmate is Michael Roberts, 44 this week, who walked away from a minimum-security prison in Mission, B.C., in May, 1994, where he was serving 25 years for the attempted murder of a New Brunswick police officer and life for the killing of a prison inmate. He stands convicted of strangling to death his fishing buddy, Elijio Cantu, 57, in his suburban Seattle basement a few days later. Again, prosecutors said the motive was car theft. Roberts, who was sentenced to death by a Seattle-area jury last year, is mounting an appeal.

For the moment, though, Faulder went to death row in Huntsville as inmate No. 580. He was handy: he fixed radios and typewriters for fellow prisoners, and built intricate boxes and clocks out of popsicle sticks and toothpicks. He read the Bible and wrote poems. One, titled “Dreamers and Fools,” contained this passage: My dreams and fond schemes of wine, women and such/

Have been with me since I was a child/

These fantasies nursed, have made me accursed/ And were the source of my running so wild.

In 1979, an Appeal Court threw out Faulder’s confession and ordered a new trial. Jack Phillips, determined that his mother’s accused killer not get away again, used a provision of Texas law to hire private prosecutors to pursue the case with the approval of the local district attorney. Odis Hill, who had prosecuted Faulder the first time and was by then in private practice, was hired to pursue the case with a Dallas lawyer named Phil Burleson. With no confession to rely on, and no physical evidence such as fingerprints linking Stan Faulder to the crime, Hill needed witnesses. He struck a deal with Lynda McCann, the former Stormy Summers, who had been convicted only of conspiracy to commit burglary. In return for immunity and parole, as well as a promise of up to

$15,000 for “relocation,” McCann testified that it was Faulder who murdered Phillips.

McCann, however, was an accomplice of Faulder’s and he could not be convicted solely on her evidence. Hill brought in her now-husband, Ernie McCann, who testified that he had heard Lynda and Faulder planning to rob the Phillips house. Ernie McCann, too, was offered money: $2,000 to compensate him for wages lost while he testified. Solomon, who now practises law in nearby Marshall, Tex., maintains that using private prosecutors may be legal—but it leads to conflicts of interest. “The problem is—where does their allegiance lie? To the people paying them or to the state of Texas? It was totally out of line.” Worse, say Faulder’s defenders, it amounts to letting a wealthy man pursue a vendetta against an indigent defendant.

Prosecutor Hill still maintains that the procedure was valid. A self-described “liberal Democrat” who admits to having personal doubts about the death penalty, Hill says he was faced with the dilemma of trying to convict a man he was sure was guilty—but without being able to use the 1977 confession. The statement might have been ruled legally inadmissible, says Hill, but that does not mean it was false. “I don’t think there’s any question that he did it,” Hill says flatly. “If we are going to have the death penalty in Texas, then Joseph Stanley Faulder has earned it.”

Faulder languished in prison for another decade, while his appeals wended their way through the courts. In 1991, Solomon passed Faulder’s file to Babcock, a young public interest lawyer. She threw herself into the case, and for the first time contacted Faulder’s family back in Alberta. They had not heard from him in 19 years and thought he might be dead. Faulder himself explains that he thought they knew where he was and did not want anything to do with him. “I just let it ride,” he says. “I was ashamed of myself and my situation. I was pretty depressed, and you don’t really think straight when you’re in that condition.”

Babcock found out about Faulder’s childhood brain injury, his “spells” and bouts of depression. She collected statements attesting to Faulder’s decency—including one from an Alberta woman who said he saved her life in January, 1965, when her car crashed in the middle of a blizzard and he took her to hospital. Babcock also found out that Faulder had maintained a clean disciplinary record during his 14 years on death row—a far cry from Grigson’s portrayal of him as a vicious sociopath.

In 1992, she had two psychologists examine her client. One of them, a neuropsychologist, found that Faulder’s old head „ injury left him with damage to the hippocampus—the part of the brain that controis judgment and impulse. The other psychologist, Faye Sultan of Charlotte, N.C., found Faulder to be basically “an extremely gentle, passive man who had never displayed aggressive impulses in another context.” In other words, Sultan said in an

interview, he was not an ongoing threat to society, that “if in fact he had committed this crime, it was an aberration to his general character and psychological makeup.” Babcock brought all that evidence to a judge in 1992, hoping to convince him that a new jury should reconsider Faulder’s death sentence. The judge ruled against her, and sent Faulder back to death row.

Finally, Babcock found out that Faulder’s second trial might also have been tainted. In the files of Phil Burleson, one of the private prosecutors, she found a handwritten note suggesting that Ernie McCann was in on the robbery-murder all along. If so, he was also an accomplice and Faulder could not be convicted on his testimony. Burleson had since died, and so could not be questioned about the note. But a judge dismissed Babcock’s argument that it meant McCann’s testimony was invalid.

Babcock remains convinced that no jury would convict Faulder if it was given the evidence she now has—and would certainly not sentence him to death. It is not a defence lawyer’s job to decide whether her client did or did not commit a crime. But if Babcock had a chance to retry the case now, she says she would argue that Lynda and Ernie McCann were responsible for the death of the old lady in Gladewater—and used Stan Faulder, the outsider, as a scapegoat. “That is as plausible an explanation for what happened as the state’s theory,” she says.

Now, Faulder’s legal appeals are all but exhausted. He has spent the past decade mostly alone; he does not take part in the prison work program because “I can’t see any point in working for a state that wants to kill you. It’s kind of silly.” So he has had plenty of time to think about the death penalty, about how arbitrary it is, how rich, white people almost never seem to get it and how death row is filled with poor, mostly uneducated men who did not get a good legal defence. “I’d hate to see Canada go back to the death penalty,” he says. “There’s no fair way you can adjudicate the death penalty.” As close as he gets to discussing that longago night in 1975 is to say that, yes, he does regret what happened. “All of it. There’s never been any doubt about that.”

Faulder has watched many friends leave death row—for the final ride to the forbidding old Walls Unit in the centre of Huntsville. The death chamber is there, the clinical room with the infamous gurney, to which the condemned are strapped as a lethal solution of sodium thiopental, pancuronium bromide and potassium chloride flows into their veins. The pace of executions has escalated: in the week Faulder is due to die, executions are scheduled for Monday, Tuesday, Wednesday and Thursday. Still, he says again, he is ready and unafraid. ‘We don’t have a vengeful God,” he says. “There’s a time for judgment, and it’s not here on Earth. If I don’t make the grade there, that’s something I’ll have to deal with then.” Then, he laughs. □