Tuesday, February 16, 2010

Oldest condemned man dies at 94

Elderly outlaw's competency remained at issue

Like so many Depression-era outlaws, the infamous Clyde Barrow and Bonnie Parker met early deaths, gunned down in a police ambush at the ages of 26 and 23. Among the few from that era to beat the hangman's noose was Viva Leroy Nash, the oldest death row prisoner in the United States, who died last week of natural causes.

Imprisoned for most of his adult life, Nash lived long enough to become both psychotic and demented, according to his lawyers; he was also deaf and almost blind. At the time of his death, his competency to participate in post-conviction habeas proceedings was on appeal to the U.S. Supreme Court.

Forensic psychiatrist Barry Morenz of the University of Arizona had evaluated Nash and opined that the old outlaw suffered from a delusional disorder. His symptoms included paranoid and grandiose delusions as well as auditory hallucinations. Dr. Morenz also noted worsening cognitive problems and memory impairment.

In the landmark case of Oscar Gates (formally known as the Rohan case), the 9th U.S. Circuit Court of Appeals ruled in 2003 that a death row prisoner has a right to be competent during post-conviction appeals, so that he may advise and consult with attorneys regarding issues that might arise. The standard is somewhere between the higher level of competency required to stand trial and the very low, so-called "Ford" competency standard required for execution.

In 2007, the appellate court applied this holding to Nash's case, granting a death penalty stay until Nash's ability to communicate rationally with his counsel could be evaluated and litigated. The government was appealing that ruling when Nash died.

A lengthy account in Phoenix' New Times last year was skeptical of Nash's incompetence claim. It described the self-educated convict as "intelligent and well read" and "a consummate jailhouse lawyer" who in the 1960s won "certain procedural safeguards for inmates" in a ruling that almost made it to the U.S. Supreme Court.

But then again, maybe advancing age and years of supermax confinement finally did him in. After all, more than one out of three people in their 90s has a dementia. And long confinement in solitary housing eventually drives even the strongest mind "stir crazy."

Life at Nash's final residence, the austere supermax Arizona State Prison Complex-Eyman, is an invisible form of torture. With Arizona "at the vanguard of the country's correctional zeitgeist in stripping away inmate privilege," according to a critical report in The Tucson Weekly, long-term lockdown in the unit is the state's "version of a straitjacket." Devoid of human connection, prisoners in such environments not uncommonly take to self-stimulating behaviors that is rare in other contexts -- sculpting figurines out of feces, masturbating in public view, or gouging their flesh and playing with it.

Craig Haney, an expert on the psychological effects of long-term solitary confinement, called the Arizona supermax one of the most severe. "Solitary confinement has been around for a long time," Haney told the Weekly. "What's different about these supermax units is that the technology of the modern correctional institution allows for a separation, almost a technological separation, of inmates from the social world around them in ways that really weren't possible in the past."

Under these conditions, if a condemned prisoner's appeals drag on long enough, it is almost inevitable that his mind will deteriorate to the point that he needs a forensic evaluation of his competency to rationally communicate with his attorney. So, if other Depression-era outlaws had survived long enough, we forensic practitioners may have gotten a chance to glimpse back into a bygone era through their eyes as well.

A wild and colorful life

It surely would have been interesting to interview this old man who talked like he had just stepped out of an Old West movie. Born in Salt Lake City's rural south side in 1915, during Prohibition, the "wild child" dropped out of school in the seventh grade and embarked on a life of crime.

During the Roaring Twenties he and a gang of other boys burglarized warehouses. In his mid-teens, armed with a gun, he caught an outbound boxcar and, like millions of other dispossessed young men during the Great Depression, set off "to seek his fortune," according to a laudatory 2005 account in the New Criminologist that referred to him as "a living legend." The account was based in part on more than 200 pages of handwritten memoirs.

By age 17, he was serving time at an industrial school for juveniles in Ohio for car theft. He escaped, did an armed robbery, and was sentenced to 30 months at Kansas' notorious Leavenworth Penitentiary, where he has said that a Mafia don tutored him in jewelry store heists.

Paroled in 1934, he fathered his only child (who died 21 years ago) and resumed his life of crime, with robbery sprees in Utah, Georgia, Alabama, and who knows where else. He was imprisoned in 1936 after a bungled robbery with his younger brother. Next arrested in 1946 in Alabama for check-kiting, he escaped from jail and reportedly fled to Mexico with a large sum of stolen money.

But his outlaw ways were catching up to him, and he spent most of his ensuing years in prison. He did a 25-year stretch for the 1947 shooting of a Connecticut police officer (who lived). In 1977, he was sentenced to two life terms for a robbery-murder. Somehow, he was placed on a prison work crew from which he escaped in 1982. Just three weeks later, he did the crime for which he was sentenced to die in 1983 -- a robbery-murder at a Phoenix coin shop.

Although his appeals have focused on his poor legal representation at his 1983 trial, given his litany of crime and the callous way that he executed his final victim it is doubtful than any jury would have voted to spare his life. Yet he managed to outlive men who were sent to death row long after he arrived, and ultimately he managed to die of natural causes.

Some have intimated that the state itself was dragging its heels, to avoid the spectacle of killing a dottering old man. With California and Alabama getting flak for recent executions of a 76-year-old and 74-year-old, respectively, just think of the clamor over the killing of a blind, deaf, crippled, demented and mentally ill 94-year-old.

So ends another chapter in America's love-hate relationship with capital punishment.

Hat tip: Kathleen

Photos: Bonnie Parker, circa 1932, credit Wikipedia Commons; Nash about 20 years ago, credit Arizona Department of Corrections; Arizona State Prison at Eyman, courtesy Department of Corrections

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