A death row inmate spent Monday in court so a lawyer could fight his death sentence, despite his own desire to die.
In 2016, Scotty Ray Gardner was arrested for the murder of Susan Stubbs. His attorney says his desire to be executed was made clear during the months leading up to his conviction and sentencing. Public and private statements since Gardner's trial reaffirm his desire to be executed.
Gardner has just finished his eighth year on death row. Meanwhile, his case is undergoing a standard appeals process. At the Faulkner County Courthouse in Conway on Monday, his new attorney Lee Short called Gardner's former attorney to the stand. Thomas Scott Brisendine represented Gardner in the initial 2018 murder trial.
Though he’s a public defender, Brisendine was a part of a full team of lawyers and investigators who worked on the case. Brisendine, who has dedicated much of his career to anti-death penalty work, wanted to “seek life.”
But, Gardner made this aim difficult. In a meeting with the defense team, Brisendine said Gardner made a “logical, passionate speech about why he wants the death penalty.”
This contrast between what Gardner wanted and his lawyer's goals was the heart of Monday's testimony.
Ineffective Assistance of Counsel is a common claim made in appeals. The concept comes out of the Sixth Amendment of the U.S. Constitution which says the accused shall “enjoy” “the Assistance of Counsel for his defense.”
In 1984, the U.S. Supreme Court expanded this language to account for the “effectiveness” of counsel. But it's still a high bar to meet.
In appeals cases, a new attorney must prove their client's previous legal team was both deficient and that the deficiencies would have changed the outcome of the case.
Lee Short, Gardner's current attorney, tried to argue that the initial murder defense was lacking. Gardner was allowed to make unwise decisions in his case, despite his lawyer's advice. These arguments were part and parcel with a second discussion over whether Gardner's mental capacity should have prevented him from making decisions on his own behalf.
Prosecutor Carol Crews slowly dismantled the appeal on cross-examination. She pointed to trial documents proving capacity and autonomy avenues were fully explored.
Brisendine kept saying he “couldn't recall” the details of the almost ten-year-old case.
“It's easy not to recall when you don't review your records, correct?" Crews asked Brisendine.
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When she was murdered, Stubbs was staying at a Days Inn motel in Conway. The pair had a romantic past that culminated in Stubbs filing a restraining order against Gardner months before the murder. The order contains serious allegations of stalking and domestic violence.
Gardner murdered Stubbs in her hotel room. She was strangled to death with the extension cord on a curling iron. Gardner then stole her money and phone, and spent the night gambling in Hot Springs, where he was arrested.
At the Faulkner County Sheriff's Office, police took pains to preserve Gardner's civil rights. Detective Melissa Smith read Gardner his rights, slowly asking if he understood each one. When Gardner asked for a lawyer, Smith ended the interrogation.
“You have a right to an attorney,” she said. “I would never, ever, ever infringe upon that. That's a wonderful right we have.”
She said Gardner was welcome to change his mind.
Days later, he met with Smith again. At first, Gardner feigned confusion over the case. He asked Smith how Stubbs died, as if he didn't know. Then he ranted about their relationship.
About 20 minutes in, Smith says “what we're looking at is a murder in the second degree. So not like a pre-meditated thing.”
“I mean, I ain't going to lie,” Gardner responds abruptly. “I did it.”
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During Gardner's trial, Brisendine wanted to say the murder was a “crime of passion” and not pre-meditated, because in order to get the death penalty, you have to prove pre-meditation.
But Gardner made statements after the murder implying the crime involved some planning. Brisendine hoped to argue these statements were mischaracterized hindsight, but Gardner didn't want his lawyer to put on a defense.
This issue of whether a lawyer should make calls based on their expertise or the client's wishes, came before the U.S. Supreme Court in 2018, the same year Gardner went on trial.
McCoy v. Louisiana is strikingly similar to the Gardner case. In 2008, Robert McCoy was charged with triple murder. The case against him was strong. McCoy was caught carrying the murder weapon, he had possession of one victim's cellphone and a 911 call during the crime implicated him as the murderer.
His attorney, Larry English, thought the evidence against his client was too insurmountable for a “not guilty” plea. In an attempt to save his life, English stood before the jury and said McCoy did it. McCoy had wanted to say he was framed, something English refused to engage with. He also claimed to have alibis, but after investigation, English called the claim “delusional.”
The court prevented McCoy from firing his lawyer.
Writing for the majority, Justice Ruth Bader Ginsburg said lawyers should be loyal to their clients wishes over their best judgment.
Gardner's attorney, Scott Brisendine, says he wrestled with the question personally. Following his client's wishes meant the chances of Gardner dying were high, but going against his wishes could possibly save his life.
Brisendine consulted with the Georgetown law professor quoted in Ginsburg's opinion. Erica Hashimoto wrote a law review article arguing a client's wishes should take precedence to preserve defendant autonomy.
“The Framers intended to protect defendants’ control over their own cases,” she says in the abstract.
Though on the witness stand Monday, Brisendine said he didn't think he read the McCoy decision “correctly.” He did not expand on what he meant.
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By all accounts, Gardner wants to die. In 2020, he sent a letter to the state Supreme Court saying: "I will accept any of the 5 executions — gun, gas, rope, chair, drugs.”
In March communications with Little Rock Public Radio, Gardner again said he wants to die.
“I've been doing prison time since I was 19 years old,” he said, referencing arrests at an early age. “Since day one the legal fees have been paid by the people of Arkansas as of today the state has paid millions to keep me alive. How stupid is that.”
Though he claimed dying would keep the Stubbs family from “more suffering,” he spent more time in his messages complaining about the quality of life on death row. Water is never the right temperature, he says. The night noises are loud, yard time is boring, and the channels on the prison-issued TV are “hit and a miss.”
His messages to LRPR include random line breaks, sentences in all lowercase and no punctuation.
“Think about living in a walk-in closet for 8 years,” he said. “Eating slop off a dirty tray that has yesterday's food left on it. Life in a cave starts at 1 a m and ends at 10:30 pm. Welcome to the row.”
He is frustrated with his attorneys for continuing with normal appeals despite his hope to die.
“It’s just a game they are playing,” he said, calling his current lawyer a “piece of ship,” in a probable misspelling.
While in an Oregon prison, Gardner says he read a book about Gary Gilmore. The book Gardner read is presumably Norman Mailer's 1979 book "The Executioner’s Song," though Gardner did not reference it by name. The book is about a Utah murder where Gilmore, the defendant, asked to be executed instead of fighting his appeals.
“I really dig his way of going out,” Gardner said.
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Gardner's mental competency was a big issue in the Monday hearing. Brisendine struggled to remember if Gardner's mental competence was explored during pre-trial. If his mental fitness was never evaluated, it could be grounds for a new trial. But on cross-examination, Brisendine was forced to acknowledge the matter had been thoroughly investigated.
Gardner was evaluated several times by different psychologists. Some evaluations say he has a possible IQ of 64, meaning he is mentally challenged and unable to assist in his own defense. Other evidence suggested Gardner may have schizophrenia.
In messages to Little Rock Public Radio, Gardner said he has faked symptoms of mental health issues.
“I don't have mental issues unless I want to act like I do to better my circumstances,” he said in one message. "Back in the day little rock state hospital was better than the jail. play crazy. go to the state hospital.”
These comments reflect similar comments made under oath such as: "I don't have no mental illness,” and “Every time I get arrested, I act like I had problems.”
Before the trial, Gardner was evaluated by several expert psychologists who doubted the mental health claims. Prosecutor Carol Crews showed documents from at least three psychologists who did pre-conviction evaluations of Gardner. One evaluator wrote: “no impairment” in her notes. Another said Gardner was “sly, not crazy” and “very manipulative,” with the word “manipulative” underlined three times.
Still another note from a psychologist said: “this guy is good.”
She pointed to two IQ tests administered before his capital murder trial measuring an IQ around 90. This number is below average, but a far cry from the 60-70 points threshold of low mental functioning.
Brisendine eventually admitted that he didn't use the psychologists who evaluated Gardner in his defense strategy, because they wouldn't have helped his case.
Gardner's fate is in limbo. Arguments should continue for the rest of the week in front of Circuit Judge Charles Clawson. No execution date has been set.
