James Free

Name

James Free

Legal status and outcome

James Free Jr. was executed by lethal injection in Illinois on April 6, 1995.

Background

James P. Free Jr. was 36 at the time described in the case summary. He was 41 in the New York Times account included in the provided material. He grew up in Chicago's western suburbs. He was a former Army mechanic and was on leave from the Army when the offence occurred.

The offence

James Free Jr. fatally shot Bonnie Serpico, 34, of Glen Ellyn, after raping her and another woman on April 24, 1978, in a Glen Ellyn factory.

Free slipped into the office of a data-processing company in a suburb of Chicago while carrying a gun and a knife and wearing a towel wrapped around his face. He tried to rape Ms. Serpico and a co-worker. Ms. Serpico broke away, and Free shot her to death. He also shot the co-worker, who survived.

Trial

James P. Free Jr. was convicted of the 1978 murder of Bonnie Serpico, 34.

Appeals

James P. Free Jr. filed a motion under Fed.R.Civ.P. 60(b) in the district court and sought a stay of execution pending the U.S. Supreme Court's decision whether to grant a writ of certiorari in Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1274, 131 L.Ed.2d 192 (1995). The issue raised was whether the execution of a death sentence constitutes cruel and unusual punishment under the Eighth Amendment as understood by the Framers if, as a result of inordinate delay not attributable to his own conduct, the condemned inmate is forced to endure nearly two decades on death row, during which time his execution is repeatedly rescheduled.

The district court found the Lackey case was "clearly and materially distinguishable, and thus can provide no relief to Free." The appellate court agreed with the district court and found that any inordinate delay in the execution of Free's sentence was directly attributable to his own conduct. The appellate court stated that the circumstances of the case were clearly distinguishable from Lackey.

The appellate court affirmed the district court's judgment. Petitioner's Emergency Motion for a Stay of Execution was denied. The mandate was to issue immediately.

The Seventh Circuit opinion included:

• James P. FREE, Jr., Petitioner-Appellant, v. Howard A. PETERS, III and Neil F. Hartigan, Respondents-Appellees.
• No. 95-1692.
• United States Court of Appeals, Seventh Circuit.
• Submitted March 21, 1995.
• Decided March 21, 1995.
• Published March 29, 1995.
• Before POSNER, Chief Judge, BAUER and CUDAHY, Circuit Judges.
• PER CURIAM.

A dissent was filed by CUDAHY, Circuit Judge, with respect to emergency stay of execution: Free requested an emergency stay pending the Supreme Court's decision scheduled for March 24, 1995 on whether to grant a writ of certiorari in Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1274, 131 L.Ed.2d 192 (1995).

The dissent said Free had been on death row for fifteen and a half years since his sentence of death was originally imposed. The dissent stated Free was scheduled to be executed in the early morning hours of March 22, 1995 (tomorrow). The dissent stated that Free's death sentence was vacated by the district court in 1992 after hearings before a Magistrate Judge and that the death penalty was reimposed by this court in 1993.

The dissent stated that Free claimed at least six years of his time on death row were not attributable to his own conduct and that Free asserted that including a ten-year period of time he sought post-conviction relief as provided by Illinois law at the time in question, only a small fraction of this time on death row was attributable to his conduct.

The dissent stated the Illinois Supreme Court set three execution dates for Free prior to the present one. The dissent stated:

• "Free's case seems quite factually distinguishable from that of Lackey--a Texas prisoner likewise held for many years on death row."
• "But the Supreme Court has up to now announced no law governing allegedly excessive death-row delay, exacerbated by the setting of multiple execution dates and similar arguably painful events, as possible violations of the Eighth Amendment."
• "It seems to me that in light of the exceedingly minimal stay requested and the potentially resounding impact of a grant of certiorari in the Lackey case, an emergency stay should be granted."
• "A decision in Lackey might create a wholly new dimension in death cases."
• "Weighing the rather trivial consequences of a grant of an emergency stay against the grave and irrevocable consequences of a denial, the grant of the request of the emergency stay is appropriate."
• "I would therefore grant an emergency stay pending the decision of the Supreme Court with respect to certiorari in Lackey."

The dissent included citations:

• Cf. Pratt & Morgan v. Attorney General of Jamaica, Privy Council Appeal No. 10 of 1993, 3 WLR 995, 143 NLJ 1639, 2 AC 1, 4 All ER 769 (Nov. 2, 1993) ("in any case in which the execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading or other treatment");
• Coleman v. Balkcom, 451 U.S. 949, 952, 101 S.Ct. 2031, 2033, 68 L.Ed.2d 334 (1981) (Stevens, J., concurring in the denial of certiorari);
• Solesbee v. Balkcom, 339 U.S. 9, 14, 70 S.Ct. 457, 460, 94 L.Ed. 604 (1950) (Frankfurter, J., dissenting);
• Furman v. Georgia, 408 U.S. 238, 288-89, 92 S.Ct. 2726, 2751-52, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring);
• People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972);
• District Attorney for Suffolk District v. Watson, 381 Mass. 648, 411 N.E.2d 1274, 1289-95 (1980).

Other details

The New York Times excerpt included an account of two executions in Illinois on the morning described in the excerpt. The condemned men were identified as Hernando Williams and James P. Free Jr. They were executed about an hour apart and were described as having their appeals exhausted at the same time. Prison officials said the executions were carried out together because their appeals had been exhausted at the same time.

The excerpt quoted James P. Free Jr. as asking for forgiveness and adding: "Taking my life will not bring back the victims." It quoted him as saying: "Capital punishment," he said, "is not the answer."

The excerpt included additional material about Hernando Williams, including that he was sent to his death for the 1978 murder of Linda Goldstone, a 29-year-old childbirth instructor, in Chicago; that he forced her into the trunk of his car and drove her around the city for 36 hours, raping her at least twice and keeping her in the trunk even as he attended a court hearing on an earlier rape charge; that after once giving her $1.25 for bus fare and freeing her he changed his mind a few minutes later, recaptured her and forced her back into his car; and finally that he shot her to death. The excerpt also stated that Williams was briefly married to Shirley Coleman, who was now a Councilwoman, and that although they were divorced before the murder, her opponent in an April 4 runoff, Hal Baskin, was quoted in The Chicago Sun-Times as apparently blaming her at least partly for the crime; it included the quoted statement: "She may not have been giving the man what he needed at home," he said.

The excerpt described protesters and demonstrators around Stateville Correctional Center and included a quoted sign carried by a woman: "Execute Justice, Not People". It also included a quote from Jesse Cantu: "These were just a couple of average Joes, who committed one terrible crime apiece," Mr. Cantu said. "They're not famous. Maybe that's why more people aren't here. But I came out to have some fun and to support the death penalty." It included a quote from Bill Pelke: "and I hope my last, but I know it won't be." It also included Pelke's statement: "They're all the same," he said. "Tragic." It included a quote attributed to a death-penalty proponent: "Let the clown die!" It also stated that Baptist ministers prayed for the souls of the condemned men and for the state.