by Michael A. Kroll
(PNS) -- The "People of California" are in a morbid race with God to see who can kill Clarence Ray Allen first. With the date for his execution only a week away, God may still get there first. Just four months ago, on Sept. 2, the condemned man suffered a massive, near-fatal heart attack. "My heart stopped three times when those doctors at Marin General worked to save my life in September," he told me.
This week, I had the opportunity to sit with the nearly blind, wheelchair-bound Allen in a small cage inside San Quentin, just a few yards from the gas chamber (now converted into a lethal injection chamber), awaiting the Jan. 17th date -- just over a month since it was last used to kill Stanley "Tookie" Willliams.
Unless the court -- or the governor -- intervenes to stop or postpone it, Allen will become the oldest prisoner California has ever put to death. Whether by coincidence or design, the last full day of his life on Jan. 16 is also his 76th birthday. His family will be able to "celebrate" with him until 6PM, when they will be ushered out of the prison where his execution is scheduled to take place at one minute past midnight.
Besides his advanced years, Allen's physical deterioration is also the product of grossly deficient health care provided to prisoners throughout California's massive prison system. In an ongoing but separate civil suit, Plata v. Schwarzenegger, presiding Federal Judge Thelton Henderson took the unprecedented step in July 2005 of taking control of the California prison health care and putting it under federal receivership. Citing scores of preventable deaths, the judge called the prisoners' health care system "deplorable" and guilty of "outright depravity."
Allen's heart is not all that is failing. Advanced diabetes has left him unable to walk. Yet, following his September heart attack, San Quentin inexplicably stopped providing his daily insulin shots -- which were just as inexplicably resumed a week later. He is losing his hearing, and his failing vision has rendered him legally blind. He wears very dark glasses to protect what's left of his deteriorating sight. He told me he could only make out my silhouette, though he sat just a foot from me. Laser surgery could restore his vision; San Quentin's own ophthalmologist recommends it, but the state has failed to provide it.
Though cardiologists at Marin General Hospital recommended open heart surgery for a coronary artery bypass following his heart attack, officials instead took the ailing old man on a bizarre journey lasting nearly two weeks -- from Marin General back to San Quentin, from San Quentin to Napa's Queen of the Valley Hospital (where he was told he would be operated on the next day) and then back to San Quentin, from San Quentin on an excruciatingly painful 5-hour drive to Corcoran State Prison ("They took me to die," he told me), followed several days later by an equally painful return trip to San Quentin. He never received the recommended surgery.
The odyssey prompted Allen to post a "Do Not Resuscitate" order on his cell wall. Doctors have warned that the exertion and stress of the preparations required to execute him may be enough to trigger a fatal heart attack. "If I was to have a heart attack in my cell or any place," he told me, "let it happen. I never want to see that prison hospital again!"
Allen's failing health not only promises the unseemly spectacle of the state putting to death an enfeebled invalid, but it also provides some significant legal issues -- if any court is willing to look at them.
There is evidence that Allen suffers from neurological brain damage, the result of a prolonged childhood bout with encephalitis. But the state has barred the neurological testing required to determine if, and to what extent, his brain function has been impaired. (Some of these tests require a visual acuity he no longer possesses, again because prison officials refuse to provide the laser surgery to restore his sight.)
Fighting to present "the full picture of Mr. Allen's case for clemency," his legal team has just asked the California Supreme Court to stay the execution, and to compel San Quentin to provide the recommended eye surgery and to permit testing of Allen's brain. Citing the Eighth Amendment bar against cruel and inhuman punishment, Allen's attorneys asserted, "...the extraordinary duration of Mr. Allen's impairments, and the State's unconscionable contributions to his failing health (together) render executing him under the present circumstances unconstitutional."
Ray Allen has been on death row for more than 23 years. During all those years, he has steadfastly insisted that he is innocent. Another man, Billy Ray Hamilton, and a woman, Connie Barbo, carried out the actual homicides in 1980 that Allen was convicted of orchestrating from his Folsom prison cell where he was serving time for a prior murder conviction. Barbo testified in her own trial that Allen had nothing to do with the crime, that his name had never come up. Allen's jury never heard this testimony, however, because his lawyer never called Barbo as a witness in his trial. Barbo is now serving a life sentence without parole. Hamilton, who is under sentence of death, never implicated Allen in the murders, though two other witnesses did -- his own son, Kenneth Allen, and Gary Brady.
Kenneth was implicated in a conspiracy with Hamilton to kill those who had testified against his father in the crime for which Ray Allen was serving time in Folsom. Threatened with a possible death sentence, the younger Allen agreed to testify against his dad in exchange for leniency. Ray Allen encouraged his son to make the deal. "I told Kenneth to go ahead and tell them what they wanted to hear," he told me, "because I didn't want him to get the death penalty, and I knew I was innocent. I thought I could prove it in court. I didn't know they'd bring in a paid informant." He was referring to Gary Brady who, in exchange for testifying that Allen had confessed to him at Folsom, had drug charges then pending against him and his wife resolved. "I never spoke to that man, ever!" Allen insisted. Allen's jury never heard, in the words of the federal district court, that Brady suffered from "brain damage, memory lapses, and low intellectual functioning, and that Brady avoided a felo ny conviction based on a finding of insanity," because the district attorney failed to disclose the information -- and his own attorney never bothered to find out.
After implicating his father at the preliminary hearing, Kenneth Allen attempted to recant his testimony, writing to his father: "I'm going to tell them the real truth the next time we go to court, and that should clear you." But his attempt to clear his father was deemed by the district attorney a breach of their "agreement." Instead of the promized leniency, the younger Allen was sentenced to life without the possibility of parole, which he is now serving in Corcoran State Prison. Father and son exchange letters weekly. "I told Kenneth not to let it pass his mind," Ray Allen told me. "He did what he had to do."
But it was during the penalty phase of the trial that the jury was most severely deprived of the kind of mitigating evidence that so often results in verdicts of life over death. A long list of potential witnesses were prepared to paint a complete picture of a young, impoverished Indian boy (Allen's mother is part Choctaw, his father part Cherokee) who attended church, worked tirelessly picking cotton from the age of eleven to provide for his family, was a devoted father and then grandfather, and numerous other qualities the federal court described as revealing "a human side to petitioner not previously presented."
Instead, his attorney -- admitting that "he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered," in the words of the Ninth Circuit Court of Appeals -- called but a single witness for the jury to hear. This, the court found, made it "overwhelmingly plain... that Allen's representation fell below an objective standard of reasonableness."
Allen reminisced with me about those formative years, which the jury heard next to nothing about. With the horsehair headband he always wears, the beaded choker and beautiful abalone shell necklace strung with blue beads given to him by Indian inmates on the mainline, he smiled as he remembered standing in a circle at age 6 doing the Eagle Bone Whistle Dance in Oklahoma. "Everybody who knows me calls me Running Bear," he told me. "It's the name my mother gave me, Yea-Nu-Ai-Dasi."
He recalled seeing his future wife for the first time picking cotton when he was 17 and she 18. He recited a poem he wrote for her nearly 60 years ago called "Cotton Picking Machine":
"The first time that I saw her/ She was in a cotton patch/ Picking beside her daddy/ And never looking back/ She was the fastest picker/ That I had ever seen/ Right then and there/ I fell in love/ With this Cotton Picking Machine/ We were married in '47/ Lived in a tent behind my dad/ We kept on picking cotton/ 'Cause that's all the work we had/ We would start picking at daylight/ And wouldn't stop 'til the sun went down/ And when we'd weigh our last sack up/ She would beat me by a hundred pounds!"
As our interview was coming to a close, I asked Ray if he was willing to express remorse. He said, "I'm terribly sorry for all that happened. But I can never express remorse for this crime because I didn't do it. I'm remorseful about many things, but not for a crime I didn't commit. I'm so sorry it all happened. I hope to meet the victims in the afterlife and explain to them I never plotted to harm them and I never wanted them to be harmed."
As the guards approached to take him back to his cell, he said, "Being in here is like living in hell. It's time to go to a better place. If it comes to that, the last words I'll speak is an old Indian saying, Hok-Ah-Ei, it's a good day to die."
January 11, 2006 (http://www.albionmonitor.com) All Rights Reserved. Contact firstname.lastname@example.org for permission to use in any format.
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