Old Sparky

by Anthony Galvin

  Born in 1948, Gregg was a white career criminal. He was a drifter who stole what he needed and had no compunction about using violence. On the morning of Wednesday, November 21, 1973, he was with a teenage companion, Floyd Ralford Allen, and they were hitchhiking in northern Florida. They were broke—they had just eight dollars between them. A car stopped to pick them up. It was driven by Fred Simmons and Bob Moore. Together they drove north along the Florida Turnpike, but about 240 miles out of Miami the car broke down on the highway. A Florida State Highway patrolman drove Simmons and Moore to an auto dealer, where they bought a 1960 red and white Pontiac. Then they drove back and picked up their hitchhikers.

  Gregg realized that the two men had enough money to buy a car and plenty more besides. As they drove onwards, he began to plan ways of relieving them of that stash. Along the way, they picked up another hitchhiker, Dennis Weaver, who got out when they reached Atlanta, Georgia. The four occupants of the car then drove on again. All were drinking. They got to the intersection of Georgia Highway 20 and I-85 in Gwinnett County, Georgia, where they stopped for a comfort break. Simmons and Moore got out, and then Gregg turned to Allen and told him to get out too, as they were going to rob the two Good Samaritans who had picked them up. He produced a gun and lay in wait behind the car, using the roof to steady his aim. When Simmons and Moore reappeared, Gregg fired three times, dropping the two men. Then he circled around the car and shot both in the back of the head, execution style.

  After emptying the wallets of their victims Gregg and Allen got into the car and drove off.

  It was an opportunistic crime and they had not thought it out. The third hitchhiker, Weaver, spotted an article in an Atlanta newspaper about the double slayings and went to the police. Gregg and Allen were apprehended shortly afterwards.

  At the trial in Georgia in 1974, Gregg was convicted of both murders, which were committed in the course of a robbery. That would traditionally have merited him the death penalty in the pre-Furman days. As a result of changes in the relevant legislation, the court in Georgia felt confident imposing the death penalty. Gregg found himself on death row.

  The inevitable result was that the case was thrown on to the Supreme Court, which would pass final judgment on whether the state of Georgia had made enough changes in their legislation to make capital punishment once again constitutional.

  Other states also felt they had made sufficient changes to satisfy the Supreme Court and reintroduce the death penalty. Four other cases were considered alongside Gregg v. Georgia. These were Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana.

  Charles William Proffitt broke into a home in Florida, where he stabbed the homeowner, Joel Medgebow, in his bed. He pushed over Medgebow’s wife and ran. He had been intending to burgle the house but the homeowner had woken and disturbed him.

  Jerry Lane Jurek was convicted of abduction, rape, and murder of a ten-year-old girl in Texas. He was twenty-two at the time and had been drinking all afternoon. After ditching his companions, he went prowling for a young girl to have sex with. He found a ten-year-old girl in a public swimming pool where her grandmother had left her. He abducted and raped her, and then strangled her and tossed her body into a river.

  James Tyrone Woodson was convicted of armed robbery and murder in North Carolina. With three accomplices he robbed a grocery store. Two stayed outside as lookouts. Two went inside. Woodson asked for a pack of cigarettes, and as the woman behind the till reached for the pack, he drew his gun and shot her. As he was running out, he bumped into a customer coming in, and he shot the customer too. The employee was killed immediately but the customer survived.

  Harry Roberts was an armed robber in Louisiana. As he was robbing a gas station, he shot employee Richard Lowe four times in the head. He was arrested along with three accomplices and convicted of first-degree murder when the three testified against him. The story that emerged was that the men decided to rob the gas station and went there around midnight on August 17, 1973. They pretended to be looking for employment and gained entry to the office, where Roberts stole a pistol. He used this to shoot Lowe in a back room while the others were outside.

  All four killers were sentenced to death, and their states, too, were confident that they had made the changes to satisfy the Supreme Court following Furman v. Georgia. The last execution had been in 1967. It was now 1976. Would the Supreme Court allow the new executions or shoot them down? Would the decade-long absence of the death penalty in the United States become a permanent feature?

  All five cases shared the same basic procedural history. Georgia, Florida, Texas, North Carolina, and Louisiana had amended their legislation to comply with the guidelines laid down by the Furman decision. In all five cases the individual State Supreme Courts had upheld the death penalty. But would the US Supreme Court? The attorneys for the five defendants hoped that this test case would eliminate forever capital punishment in the United States. The crux of the matter was that the Court had declared capital punishment unconstitutional (“cruel and unusual”) because there were no rational standards that determined when it was imposed and when it was not. Had the new legislation changed that?

  The first thing the Court found during their July 1976 deliberations was that America had not outgrown the death penalty, as some had hoped. Noting that thirty-five states and Congress had adapted legislation to take into account the Furman decision, rather than abolishing the penalty, the court said, “The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman.” They were also influenced by a referendum in California, when the people voted that the death penalty should not be removed.

  Capital punishment served two purposes: retribution and deterrence, and it “comports with the basic concept of human dignity at the core of the Eighth Amendment.” The deterrent effect was impossible to measure, but the Court could not dismiss it, as “The possible penalty of death may well enter into the cold calculus that precedes the decision to act.”

  They also felt that the death penalty was not a disproportionate reaction to murder, saying that although death was irrevocable, that did not make it disproportionate to the crime of deliberately taking a live.

  “It is an extreme sanction, suitable to the most extreme of crimes,” they judged.

  Having said that, it had to be applied rationally and fairly. The first thing the Court determined was that the death penalty could not be mandatory for certain crimes, as it had been in other jurisdictions such as medieval England and as it had been in the United States until the 1790s. Around that time, a distaste for the death penalty had begun to creep in and juries occasionally found someone innocent because they thought it was the lesser of two evils when faced with the prospect of hanging him. Back then there were no jails, so lengthy imprisonment was not an option—it was either hang or walk.

  Pennsylvania was the first state to split murder into different degrees, allowing juries to convict of murder in a lesser degree and save someone the noose. That was in 1794. In the 1840s, Tennessee, Alabama, and Louisiana began to allow juries to exercise discretion when it came to capital cases. They could recommend the death penalty or life imprisonment. This development quickly spread, and by the end of that century, twenty-three states allowed jury discretion. Fourteen more states followed in the early years of the twentieth century, and by 1963 all death penalty jurisdictions employed discretionary sentencing. But it had been applied arbitrarily and sometimes along racial lines.

  The Court laid down two guidelines that states needed to follow to make the death penalty constitutional. The first was that there must be objective criteria to guide juries or judges in exercising sentencing discretion. The objectiveness and fairness of these criteria would be tested by the appeals system in the state and every death sentence would be scrutinized by the appeals system. The second guideline was that the judge or jury must be able to take into account the character and previous reco
rd of the defendant facing the death penalty.

  Looking at the five cases before them, the Court decided that in the case of Gregg, Proffitt, and Jurek, the sentencing schemes of Georgia, Florida, and Texas had met their criteria. But in the other two cases (Woodson and Roberts), North Carolina and Louisiana had not.

  It is worth looking at the three procedures of the states that passed and the two that didn’t, to understand why the death penalty was reintroduced in the United States and how it is applied today.

  What Georgia implemented fairly much followed the Model Penal Code, a blueprint drawn up in 1962 to encourage states to update and standardize their laws. There was a two-part trial. In the first part, the defendant pleaded guilty or was found guilty of a capital offense. In the second and separate part, there was an additional hearing where the jury heard evidence of aggravation and mitigation—the pros and cons that would either get someone the death penalty or save them from it. In order for the defendant to get the death penalty, there had to be at least one of ten aggravating factors. Here are the ten factors:

  1. The defendant had a prior conviction for a capital offense, or a history of serious felonies.

  2. The capital felony was committed while the defendant was committing another capital felony.

  3. The defendant created a grave risk of death to others.

  4. The crime was committed for financial or other gain.

  5. The victim of the murder was a judge or prosecutor executing his official duties.

  6. The defendant hired a killer.

  7. The crime was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery of the victim.”

  8. The defendant killed a police officer, prison guard, or fireman in the line of duty.

  9. The offense was committed while the defendant was on the run from prison.

  10. The offense was committed in the course of resisting arrest.

  If one of these aggravating factors was proven, the defendant was eligible for the death penalty. But it was not mandatory. The jury could consider mitigating evidence and decide whether the defendant would live or die.

  The Supreme Court found that the need for at least one aggravating factor for the death penalty adequately narrowed the class of defendants eligible for the ultimate punishment. And though there was some discretion allowed to juries, they had clear guidelines on what they could consider. This meant that Georgia’s death penalty scheme complied with the Furman requirements and was approved. So Gregg would face execution.

  Next they considered Florida. That state’s scheme differed from Georgia’s in two respects. First, at the sentencing hearing (after the conviction in the first part of the trial), the jury had to determine if there were one or more aggravating factors. They then were asked specifically to weigh these aggravating factors against any mitigating evidence that was presented. This was called a weighing scheme.

  Second, the jury’s role was advisory. They presented their recommendation to the judge, who had the power to disregard what they said. But he had to explain his reasoning clearly if he decided to disregard the jury recommendation. And there was a clear onus on him to have very good reasons for imposing the death penalty: “The facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.”

  The Supreme Court found that the sentencing judge’s discretion was limited in a specific way, and reviewable. Because of the inclusion of the weighing scheme it came very close to the ideal suggested in the Model Penal Code. Thus, Florida also complied with Furman, and Proffitt could be executed.

  The third state they considered was Texas. They found that the Texan scheme differed widely from both the Model Penal Code and the schemes adopted by Georgia and Florida. Instead of requiring aggravating factors for a felony to be considered a capital offense, they severely limited the types of crime that could draw down the death penalty. By narrowing the definition of a capital crime, they complied with Furman in a different way.

  In 1976, Texas legislated for five classes of crime which were capital felonies. They were:

  1. Murder of a policeman or fireman.

  2. Murder committed in the course of a kidnapping, burglary, robbery, rape, or arson.

  3. Murder committed for pay (i.e. a professional hit man, or contract killing).

  4. Murder committed while escaping from a prison.

  5. Murder of a prison employee by a prison inmate.

  If a defendant was convicted of capital murder, it was up to the prosecution to seek the death penalty. They did not have to. But when they did, the trial moved on to the second phase—a sentencing hearing. The jury had to consider “special issues.”

  These “special issues” were whether the murder had been deliberate or unplanned; whether the defendant constituted a danger to anyone, including fellow prisoners; and whether, if there had been any provocation leading to the murder, the response of the defendant had been unreasonable.

  If the murder was deliberate, or if the condemned was a danger to others, or if they had massively overreacted to a minor provocation, they would face execution. But if none of those factors was proven, the sentence would automatically be life imprisonment.

  The Supreme Court ruled that Texas’s narrow legal definition of capital murder served the same purpose as the aggravating factors used by Georgia and Florida, and thus complied with the Furman decision. The “special issues” consideration allowed mitigating evidence to be presented. The Texan scheme was found to be constitutional. Jurek could be executed.

  In the end, he wasn’t. His sentence was commuted to life imprisonment. But Texas went on to execute more people than all the other states put together since the moratorium on executions was lifted in 1974.

  Two states found that their schemes fell short of the requirements that followed the Furman decision.

  The North Carolina General Assembly, like the Texas Legislature, narrowed the definition of first-degree murder to “murder perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary, or other felony.”

  North Carolina also made first-degree rape a capital offense.

  There was no discretion in the application of the death penalty. If convicted of a capital offense, you would get an automatic death sentence. This meant that North Carolina had failed to comply with the Furman requirements and so the Supreme Court rejected their scheme. Woodson succeeded in his challenge and would not be executed.

  Finally, the Supreme Court rejected the scheme proposed by Louisiana. The State Legislature, just like North Carolina, narrowly defined capital murder. It was first-degree murder, a capital offense, if the defendant deliberately killed during the commission of a kidnapping, rape, or armed robbery; if the defendant deliberately killed a fireman or police officer in the line of duty; if the defendant deliberately killed and had a prior conviction for murder in any degree; if the defendant killed more than one person, or tried to kill more than one; or if the defendant had been paid to kill.

  Aggravated rape and aggravated kidnapping and treason were also capital offenses. But because there was no discretion in sentencing and no consideration of mitigating factors, the North Carolina scheme was shot down by the Supreme Court. So Roberts would not face execution.

  In all, five cases had been considered, representing five states’ responses to the Furman decision. The Supreme Court found that three of those states now had schemes in place that made executions constitutional, while two did not. But now states knew what was required if they wanted to resume executing prisoners. The way was open for the lifting of the death penalty ban.

  As for the five prisoners, Roberts and Woodson succeeded in having their death penalties overturned. Jurek failed, but Texan authorities i
n 1982 commuted his sentence to life imprisonment. Proffitt was executed. But Gregg, the man whose name is still remembered in connection with the landmark decision, avoided his fate.

  Gregg was due to be executed on July 29, 1980. The day before his execution he succeeded in escaping from the maximum security prison at Reidsville, Georgia. Along with three other convicted murderers on death row, he sawed through the bars of his cell. The four men then dressed in homemade prison officer uniforms—complete with fake badges. They walked calmly through the prison and entered the prison visitor’s car park. The aunt of one of the four had left a car with the key in the ignition. The four convicts got into the car and drove off. They drove to North Carolina, where a biker acquaintance of theirs, William “Chains” Flamount, put them up in a rented house that he owned.

  That night, they hit a bar to celebrate their release. During the course of a wild night, a bar fight broke out and Gregg was beaten to death by a local man, James “Butch” Horne. His body was dumped in a nearby river. The other three were quickly recaptured.

  The North Carolina Star News reported: “Atlanta—Three escapees from Georgia’s death row headed back to Georgia Friday after deciding not to fight extradition. Meanwhile a Charlotte man was charged with accessory after the fact in the death of a fourth Georgia escapee.”

  The three who had escaped with Gregg were named as Timothy McCorquodale, twenty-seven; Johnny Johnson, twenty-six; and David Jarrell, twenty-five.

  “The four convicted murderers disguised themselves as guards and strolled out of the maximum security prison at Reidsville, Ga., but three of the men were recaptured about forty-eight hours later near Charlotte,” reported the North Carolina Star News, “Shortly before police flushed the three unarmed convicts out of a house with tear gas, authorities fished Gregg’s beaten body out of a nearby lake.”

  James Horne was charged with second-degree murder, and former bike gang member William Flamount was charged with accessory after the fact of murder. He had provided accommodation for the escaped prisoners. The North Carolina Star News went on: