Faulder Gets Stay of Execution
The local undertakers were standing by ready to claim the body. And Stanley Faulder's grave had already been dug in a cemetery filled with unmarked crosses and plain white headstones in an unfenced field in Huntsville, Tex. On Thursday, the day the 61-year-old auto mechanic from Jasper, Alta., was due to be executed by lethal injection for a 1975 murder, a four-foot square of sandy red clay lay piled up beside the hole where Faulder would be buried. His spot was next to five other recently covered graves in the Captain Joe Byrd Memorial Cemetery, the final resting place for certain inmates of the Texas department of criminal justice. All five held men who had lived with Faulder on Texas's death row.
At 5:15 p.m., Faulder waited in a holding cell inside the death house within Huntsville's vast fort-like prison, known as The Walls. There, with the clock ticking down, he said an emotional farewell to his Minneapolis lawyer, Sandra Babcock, the 34-year-old woman who for the past seven years - and especially in the last two weeks - had worked feverishly filing motions in state and federal courts to try to keep Faulder from the executioner. On eight other occasions since his first date was set in 1991, he had eluded the death penalty. But this time, Babcock feared time had run out. Then, with just 15 minutes to go before the scheduled 6 p.m. lethal dose, Babcock learned that the U.S. Supreme Court had ordered a ninth stay of execution based on a petition she had filed in Washington 16 days earlier. "Far out. That suits me," said Faulder when he heard of his reprieve.
Across from The Walls, near a large contingent of reporters and anti-death-penalty activists, Barbara Allen, Faulder's 39-year-old niece from Jasper, was preparing to light a candle for a vigil when she learned of the last-minute decision. "I'm elated," said a tearful Allen, who had visited her uncle for 15 hours over the past four days. "When I said goodbye to him today, I said: 'I'll see you tomorrow.' And now I will."
The reprieve was the most dramatic legal twist in a week that Babcock described as "a roller-coaster." At a hastily called press conference across from the prison, Babcock was clearly both ecstatic and exhausted. But in a telling example of how legally complicated the case had become, even she was unclear why the Supreme Court had granted the stay (the court did not state its reasons). "I'm delighted," said Babcock, who was one of two people Faulder had arranged to witness his execution (the other was John Morrow, the Canadian consul in Dallas, who had fought tirelessly on Faulder's behalf). "But half an hour ago, I was saying goodbye to my client for the last time. He found out about his stay just a few minutes before the appointed hour of his execution. That is cruel and unusual punishment."
Texas criminal justice officials seemed shell-shocked by the sudden turn of events and admitted that the stay - which will be fought by the state attorney general - had won Faulder a minimum of 30 days, the earliest time his execution could be rescheduled if the stay is overturned. But the most devastated were family and friends of Inez Phillips, the 75-year-old oil matriarch Faulder confessed to murdering during a bungled robbery in Gladewater, Tex. Six of them, including Phillips's son Jack and two of her granddaughters, had travelled to watch Texas execute Faulder. They left Huntsville shortly after learning of the Supreme Court decision, refusing to talk to reporters. But earlier, family friend Joyce Hugman said she and others in Gladewater were angry that Faulder's case had become a lightning rod for death penalty abolitionists in Canada and internationally. At the urging of Foreign Affairs Minister Lloyd Axworthy, U.S. Secretary of State Madeleine Albright had asked Texas Gov. George W. Bush to order a 30-day reprieve, saying the failure of Texas officials to tell Faulder of his right to contact Canadian diplomats violated an international agreement - and could jeopardize protection for U.S. citizens abroad. That approach troubled Hugman. "I can see no reason why Faulder should live," she said. "The law in Texas is clear about who should get the death penalty. He should pay with his life."
At the core of all the legal manoeuvring is Babcock's contention that Faulder, who was tried and convicted for the crime twice, did not receive a fair trial either time. His 1977 verdict was overturned two years later when his confession was ruled inadmissible. The second trial in 1981, she says, was flawed because the Phillips family spent some $150,000 to pay witnesses and hire private prosecutors, whom she says kept critical evidence from the defence. Since being sent to death row 21 years ago, Faulder has refused to say anything else about what happened on that July night when, according to his confession, he entered Phillips's house with a woman accomplice, hit Phillips on the back of the skull with a blackjack, bound and gagged her, then stabbed her through the heart with a kitchen knife. While Babcock said she felt "sorry for the Phillips family," she was quick to add: "This is not about the Phillips family. The issue here is whether Stan Faulder received a fair trial. And he did not."
Faulder's case was fought on two fronts, involving international law and American civil rights. On Nov. 24, Babcock filed her motion in the U.S. Supreme Court, arguing that the Alberta native's rights were violated when he was not told he could contact Canadian consular officials for legal help after his 1977 arrest. That, she argued, contravened the Vienna Convention on Consular Relations, to which both the United States and Canada are parties.
But Faulder's lawyer believes the real legal victory came when a local federal court ruled on the clemency process conducted by the Texas Board of Pardons and Paroles, whose 18 members vote individually via phone and fax, with little record-keeping. On Tuesday, the board voted 17 to 0 against Faulder getting a lesser punishment than death. According to Texas law, the governor can grant clemency only at the behest of the board - a request it has granted only once since Bush was elected in 1994. "We're a death penalty state," said Bush last week in Austin. "When I swore in, I swore in to uphold the laws of this state."
The board is not only tough on death row inmates; it also brooks no interference from strangers. On Wednesday morning, a Canadian delegation from a group called the Association in Defence of the Wrongly Convicted attempted to have a meeting with board chairman Victor Rodriguez in Austin. But they were out the door again seven minutes later, after Rodriguez claimed one of the visitors started accusing him of being personally responsible for Faulder's execution. Rodriguez said that when he asked the man to leave, the other Canadians walked out as well. Delegation member Joyce Milgaard, mother of David Milgaard, who spent 23 years in a Canadian jail for a murder he did not commit, said Rodriguez's treatment of the group was "a slap in the face for every Canadian."
Later on Wednesday, Babcock fought back with a motion in Austin federal court arguing that the board's clemency hearings are so "arbitrary and capricious" as to be unconstitutional. Judge Sam Sparks agreed and ordered a stay for Faulder. It did not stand long: the next day at 1 p.m., the Fifth Circuit Court of Appeals in New Orleans overturned that stay, and only the Supreme Court's final intervention kept Faulder alive. Yet while Babcock could only speculate about what the Supreme Court decision might mean for her client, she was certain that Judge Sparks's ruling on the Texas clemency process will be a landmark decision. "What this signifies is that a federal judge has recognized that Texas clemency is absolutely meaningless," said Babcock. "They have no criteria that they use for their decisions. The vote in the Faulder case was the same as every other case they have ruled on. That vote never varies from case to case. The board has consistently refused to give reasons why it denies clemency. We're not even sure on what basis they deny it. That is absolutely unacceptable."
Babcock is no Washington power lawyer. She arrived for her Huntsville press conference wearing blue jeans and a casual black sweater. Knowing she was about to appear on national television, she ran her hand through her long dark hair and said: "I haven't slept. I look like hell." Faulder was her first case after she graduated, at 27, from Harvard Law School seven years ago. At that time, Babcock was working for the Texas Resource Center, a federally funded agency that provided legal assistance to poor death row inmates. She moved to Minneapolis in 1994 and became a public defender for Hennepin County, keeping only one file from Texas - Faulder's. "She's been working pro bono and around the clock ever since," said Mark Warren, an Ottawa spokesman for Amnesty International, which has protested Faulder's sentence.
Babcock's passionate commitment to Faulder's case is now as much personal as legal. She says that when she first met Faulder he had been on death row for 15 years. His family in Canada had no idea he was alive and Faulder was happy to keep it that way - he was so ashamed of where he had ended up. But Babcock convinced him to get in touch with his sister, Pat Nicholl, and niece Barbara in Jasper. According to the lawyer, that changed his life, and it is one of her proudest achievements. "I reunited him with his family and that was very special," said Babcock, who is married to a defence attorney who also works on death penalty cases. "Even though he was on death row, his life was transformed when his family got involved in his case and re-established contact with him. That has been very fulfilling."
Faulder was returned to death row last week, in the separate unit outside Huntsville that is home to 453 inmates awaiting the ultimate penalty. Although he had dodged the executioner's syringe once more, Faulder well knew that the time may soon come again when another red clay grave will be dug, waiting for him.
Maclean's December 21, 1998