Howard A. Allen Jr. spent a quarter of a century under a death sentence in Indiana for the murder of Ernestine Griffin, a 74-year-old woman who lived alone in Indianapolis. She was killed in Indianapolis on July 14, 1987. A jury in Marion Superior Court convicted him in 1988 of murder, felony murder and robbery, and the judge followed the jury's recommendation and sentenced him to death.
He was not a first offender. By the time of his trial he had, in the words of the Indiana Supreme Court, eight felony convictions, most of them burglaries or robberies, and all of them involving middle-aged or elderly women. One of them was a conviction for the voluntary manslaughter of an 85-year-old woman, killed during a burglary. When he went on trial for Griffin's death, a murder charge over the death of another elderly woman was pending against him.
The longest part of his case was not about what happened in Griffin's house, which the courts treated as settled, but about his mind. School records showed IQ scores of 70 and 68 when he was a child and placement in special education classes. A prison test given when he was an adult showed 104. For years the Indiana courts held that the question had already been decided against him. In 2009 the federal appeals court in Chicago disagreed and sent the case back for a hearing, and a federal district judge later found that he was mentally retarded, the legal term then in use, which made his execution unconstitutional. In 2013 he was resentenced to 60 years. The Indiana Department of Correction now lists him as deceased.
The Indiana Department of Correction records his birth as February 1949. The fullest account of his childhood is in the federal appeals court's 2009 opinion, which drew on the evidence his lawyers had gathered. His father left the family when he was very young and gave the family neither his presence nor money. His mother, the opinion said, drank heavily and went on binges, leaving him in charge of his younger siblings for days at a time. Too young to work, he looked for food for them and turned to stealing it. The Indiana Supreme Court's 2001 opinion described the household in similar terms: his mother raised eight children by herself with little money.
Stealing for food led to juvenile custody in the 1960s. The Seventh Circuit wrote that he was severely beaten while he was held as a juvenile, until a court stepped in. The Indiana Supreme Court referred to corporal punishment at the juvenile institution it called IBS, where, as the evidence put it, strappings, paddlings and slappings were part of life.
His schooling was recorded in tests. In 1956, at 7 years and 9 months, he scored 70 on the Revised Stanford-Binet, which placed his mental age at 5 years and 5 months. In 1959, at 10 years and 9 months, he scored 68, a mental age of 7 years and 4 months. At eight he was placed in special education classes for children with mental retardation, and he stayed in special education. A special education director who later reviewed his records said he left elementary school at 12 years and 8 months reading at a second-grade level, that he had trouble processing language as a child, that his thinking was very concrete, and that he could be easily led.
Other records pointed the other way. Pre-sentence reports from his earlier cases and his parole applications stated that he had completed the eleventh grade and had an IQ of 104, a score from a test known as the Beta, given by the Department of Correction after he turned 22. His mother described him as an "average" student. These conflicting records shaped every stage of his later appeals.
The Indiana Supreme Court's opinions give his earlier record only in outline. His earliest adult convictions dated to 1967. By 1988 he had been convicted of eight felonies, most of them burglaries or robberies, and the court noted that all involved middle-aged or elderly women. The 1997 opinion called him "a seasoned criminal" with an "extensive criminal record" and a "solo-acting criminal" who knew the interrogation process from experience.
The gravest earlier conviction was for voluntary manslaughter. The 2001 opinion described it as the voluntary manslaughter of another elderly woman, Olga Cooper, during a burglary, and elsewhere in the same opinion described the victim of his voluntary manslaughter conviction as an 85-year-old woman. The opinions do not give the date of that death or the sentence. The 2003 order mentions that two court-appointed psychiatrists examined him in 1975 and found him well oriented and able to understand his conduct.
The same 2001 opinion recorded that at the time of his 1988 trial another murder charge, involving an elderly woman it identified as Mrs. Hale, was pending against him. The 1997 opinion noted, separately, that he was already serving an 88-year sentence on another conviction. Neither opinion says what that 88-year sentence was for, and neither gives the outcome of the Hale charge.
Ernestine Griffin was 74 in the summer of 1987. She lived alone on the north side of Indianapolis. The Indiana Supreme Court noted that she was partly disabled by childhood polio. At the penalty phase of the trial her daughter described her mother as a religious woman who did not swear or drink, who baked, went to church and read the Bible. The court later held that admitting this testimony was, at most, a harmless error.
Her neighbor had a car for sale, and that car is what brought Howard Allen to her door.
On July 13, 1987, a man who said he was interested in buying the neighbor's car came to Griffin's house. She took his details to pass on, a name and a home telephone number, on a slip of paper. She telephoned the neighbor with the information, and the neighbor wrote it down. That evening the neighbor called the number. A woman who said she was Allen's sister answered and took a message, which she did not pass on.
At about 10:25 a.m. the next day, July 14, the man came back to Griffin's house. Griffin called the neighbor, and the two men spoke briefly on her telephone. The neighbor was abrupt with him and told him to leave. After that, every time the neighbor called Griffin's line, it was busy.
At about 12:45 p.m. the neighbor found her dead and called the police. The Indiana Supreme Court summarized the cause of death as a knife wound combined with a blow. Her wallet and its contents, a camera and its case, and a battery charger had been taken.
The neighbor told police that the man asking about the car had been at Griffin's house that morning. At about 2:45 p.m., officers found Howard Allen at the car wash where he worked. They asked him to come to police headquarters about an incident in the area, without naming the killing. He went with them. He was not yet a suspect, and the officers later testified that he was free to leave; he did not dispute that. He was questioned for about six hours.
During that time police found, at the scene, the slip of paper with his name and telephone number. At about 8:45 p.m. he was formally arrested. A detective read him his rights aloud and in writing, and at 8:50 p.m. he signed a waiver. When the detective told him he did not think he was telling the truth, Allen offered to take a polygraph test, and he ate dinner while an examiner was called in.
The polygraph session began at about 11 p.m. The examiner opened with his own oral account of Allen's rights, which the Indiana Supreme Court later called "deplorable." According to the Seventh Circuit's summary, the examiner told him that silence "sometimes ... can hurt" a defendant, described "counsel" as "pretty much anybody," and offered to help him personally. Allen signed a second waiver form. During the session the examiner raised the death penalty and claimed the State had evidence it did not have. The Indiana Supreme Court noted that he changed his account when he was confronted with the readings. During the same interrogation he identified the handwriting on the slip of paper as his own. He admitted being in the house and striking Griffin in the face, but he denied killing her. The session lasted about four hours, and he declined to give a formal statement because he was tired. He was allowed to sleep at about 3 a.m.
About ten hours later, a third detective read him his rights again. He asked to speak to his mother. He then gave a formal statement in which he said he had been shopping for a car, had been at Griffin's house, had talked to "the doctor" on the telephone, and had hit her in the face. He did not admit killing her.
The case against him did not rest on his statement alone. A handwriting examiner matched the note to Allen. His clothing was bloodstained, and laboratory tests found the stains to be type A, Griffin's blood type; Allen's own type was O. Griffin's wallet was found, empty of money, on a roof. Her camera was found in the locker of one of Allen's co-workers at the car wash, where Allen had put it.
Allen was charged in Marion Superior Court, Criminal Division, with murder, felony murder and robbery. The State sought the death penalty on a single aggravating circumstance: that he had killed Griffin intentionally while committing a robbery. Judge Barney presided.
The defense did not argue that Allen had not been there. Trial counsel argued instead that he was not guilty of murder because he had acted in sudden heat after Griffin insulted him with racial epithets and threatened him, and asked the jury to consider voluntary manslaughter. The judge refused a defense request to instruct the jury on theft as a lesser offense, finding no serious dispute in the evidence to support it.
The jury convicted him on all three counts. During its penalty deliberations it sent the judge two notes: one asked what would happen if it could not reach a unanimous decision, the other whether it could stop for the night and resume the next day. The judge answered both in writing, without Allen present, telling the jurors to reread their instructions, that dinner would be arranged at about 7:30 p.m., and that they could stop and resume the next day. The Indiana Supreme Court later called this an error, but a harmless one. The jury unanimously recommended death.
The trial court merged the murder and felony murder counts. On August 30, 1988, it sentenced Allen to death, and to the maximum term of 50 years for robbery as a Class A felony. The judge found the one aggravating circumstance proved and gave little weight to the mitigating evidence.
At the sentencing hearing Allen spoke for himself. He said he was unhappy with his lawyer, described witnesses he would have called, and said he wanted to raise a claim that his lawyer had been ineffective. The sentencing judge later cited how articulately he spoke that day as a reason to doubt claims that he was mentally retarded. Before sentencing, eighteen people wrote letters on his behalf. A sister described him as "nice, caring, loving, just like a brother," and his mother said he taught karate to neighborhood children and was always trying to make people laugh. None of the letters suggested an intellectual impairment.
What followed in the state courts was marked by delay. On October 18, 1988, Allen filed his own motion to correct errors, alleging that his trial lawyer had been ineffective and had a conflict of interest. In January 1989 that lawyer was allowed to withdraw. A belated supplemental motion filed on March 27, 1989, was denied in January 1990. Then, as the Indiana Supreme Court later put it, the case sat for more than two years with no recorded reason.
On March 1, 1992, two lawyers were appointed for the appeal. The court reporter did not prepare the trial record; the Supreme Court held a status conference on September 10, 1992, and in 1993 the reporter was held in contempt, fined $500 and sentenced to seven days. The record finally reached the court on March 25, 1993. On October 25, 1993, appellate counsel filed a brief of 21 pages. On February 15, 1994, the Public Defender asked the court to strike it, and about a week later the court did so and removed both lawyers. One of them was later suspended from practice. A new appellate lawyer was appointed in March 1994, and briefing was completed on July 29, 1994.
The court accepted that a two-year delay in appointing appellate counsel was unreasonable, but found that Allen had shown no actual harm from it and had never asked for faster review.
On July 3, 1996, the Indiana Supreme Court sent the case back to the trial court for a new written sentencing order. It directed the trial judge to apply stricter capital sentencing standards and to consider affidavits, filed by the defense, saying that Allen was mentally retarded. One affidavit came from Dr. Richard Dever, who concluded from the childhood tests and records that Allen was mentally retarded and had shown significant deficits in adaptive behavior during his development. The other came from the special education director.
The trial court did not hold a hearing. In an order certified on July 30, 1996, it called the evidence "a very slight mitigating factor," relied on the 1975 psychiatric reports, the IQ of 104 and the fact that no sentencing witness had mentioned retardation, and found that the aggravating circumstance outweighed "the possibility of the mitigating circumstance of mental retardation."
On September 25, 1997, in an opinion by Chief Justice Randall T. Shepard with no dissent, the Indiana Supreme Court affirmed the convictions and the death sentence. It rejected his claims that his statements had been taken in violation of his rights, holding that the proper warnings and signed waivers before and after the polygraph outweighed the examiner's flawed explanation, and that his remark "hold it" and his requests to speak to his mother were not clear requests to stop the questioning. It found that an autopsy photograph had been wrongly admitted, but that the error was harmless. It rejected his claims of ineffective counsel at both phases of the trial. On the retardation question, it held that an Indiana law passed in 1994, which barred the execution of people with mental retardation, did not apply to trials held before July 1, 1994, and that in any case the trial court had found him not to be mentally retarded. The United States Supreme Court declined to hear the case in 1999.
Allen next sought post-conviction relief in the trial court, and was refused. On June 29, 2001, in an opinion by Justice Sullivan, the Indiana Supreme Court unanimously affirmed that denial.
His new lawyers raised several issues. One concerned a juror who had not disclosed earlier arrests on her questionnaires; the court found no harm, because trial counsel testified that he would not have struck her for those arrests alone. Others concerned his trial lawyer's choices at the penalty phase. The defense had not called evidence about his family history or about the punishments he suffered as a juvenile, and had not called an expert witness on his future dangerousness. The court held that these were reasonable decisions, because any of that evidence could have opened the door to his full criminal record, including the voluntary manslaughter conviction and the pending Hale murder charge. The court also held that its earlier rulings on the retardation evidence settled that question. The United States Supreme Court again declined review, in 2002.
In 2002 the United States Supreme Court decided Atkins v. Virginia, holding that executing people with mental retardation violates the Eighth Amendment. For Allen, that changed the nature of the question. Until then his childhood scores had been offered as a reason for mercy, to be weighed against the aggravating circumstance. After Atkins, a finding that he was mentally retarded would bar his execution outright.
He asked the Indiana Supreme Court for permission to file a second post-conviction petition raising an Atkins claim. On July 15, 2003, the court refused, by three votes to two. The majority, led by Chief Justice Shepard with Justices Dickson and Sullivan, assumed that Atkins applied to his case but held that he had already had a full and fair chance to prove mental retardation. The trial court, it reasoned, had weighed the conflicting evidence in 1996 and resolved it against him, and that decision had been reviewed twice.
Justice Boehm, joined by Justice Rucker, dissented. Under Atkins, Justice Boehm wrote, the question was a simple yes or no: either Allen was mentally retarded or he was not. Weighing retardation as a mitigating factor was a different exercise. The trial court's phrase "a very slight mitigating factor" could mean that Allen's impairment was mild, that the evidence deserved little weight, or both, and the trial court had never said what standard of mental retardation it was applying. The dissent would have let him litigate the claim.
Allen had filed a federal habeas corpus petition in the U.S. District Court for the Southern District of Indiana in 2002. On September 19, 2006, the district court denied it without a hearing, and on May 30, 2007, it refused to alter that judgment. He appealed to the U.S. Court of Appeals for the Seventh Circuit.
The appeal was argued on July 25, 2008, and decided on March 11, 2009, in an opinion by Judge Ann Claire Williams, joined by Judges Flaum and Rovner. The court split his claims.
On the main claim it ruled for him. The Indiana Supreme Court's 2003 decision, it held, was contrary to clearly established Supreme Court law, because Atkins draws a line between treating mental retardation as a mitigating factor and treating it as a categorical bar to execution. The trial court's 1996 order had done only the first. It had not applied Indiana's own legal definition, which requires significantly subaverage intellectual functioning and substantial impairment of adaptive behavior, both showing before age 22. It had not concluded that Allen was not mentally retarded at all. Reading it as such a finding was, the court said, objectively unreasonable.
The Seventh Circuit also weighed the evidence the state courts had relied on. The childhood scores of 70 and 68 fell within the range that Atkins itself had described. No expert had contradicted Dr. Dever's conclusion. The IQ of 104 came from the Department of Correction's Beta test, taken after Allen turned 22, and nothing in the record showed that it was reliable or comparable to the standard Wechsler or Stanford-Binet tests. His mother's description of him as an average student, the court noted, did not rule out retardation, since he had always been in special education. At oral argument the State had suggested that a court would also need to find an IQ of 60 or below to meet a national standard. The Seventh Circuit rejected that, pointing out that Atkins had left the definition to the states and had referred to a cutoff well above 60.
The court sent the case back to the district court for an evidentiary hearing at which Allen could develop the facts and the court would apply Indiana's standard.
On his other claims it ruled against him. His argument that he should have received a new penalty hearing before a jury in 1996, instead of a remand to the judge, had never been raised in the state courts and was procedurally defaulted. His claim that the trial court had ignored his childhood evidence failed under the deference federal courts owe state courts. And his challenge to the polygraph warning failed as well: the Seventh Circuit agreed that the oral warning was misleading, but held that the Indiana Supreme Court's finding that his statements were voluntary was not objectively unreasonable, since the misleading warning came between two proper ones. His lawyers on the appeal were Alan M. Freedman and Laurence E. Komp; the State was represented by the Indiana Attorney General's office.
The Indiana Lawyer reported the decision under the headline "7th Circuit: Courts wrongfully denied re-litigation," noting that on remand Allen would get the chance to present the factual basis of his claim at a hearing.
The case on remand ended his death sentence. According to a list of former Indiana death row prisoners compiled from records of the Indiana Public Defender Council, a federal district court vacated the death penalty after finding that Allen was mentally retarded, and the State dismissed its appeal of that ruling under a sentencing agreement. The list dates his removal from death row to June 4, 2013.
The Indiana Department of Correction's record shows the new sentences. On May 28, 2013, in Marion County, he was sentenced to 60 years for murder and 50 years for robbery causing serious bodily injury, both under the original 1987 cause number. The same record lists a third sentence, 38 years for theft (receiving stolen property), imposed on June 26, 1991, under a different Marion County cause number from 1987. The record does not say what conduct that theft conviction concerned.
The Indiana Department of Correction's offender record for Howard A. Allen Jr., DOC number 881978, lists his status as deceased. It gives June 5, 2020, as the earliest possible release date and the projected release date for all three sentences, and it does not state a date or place of death.
Several points in the record are unsettled or unclear.
The earlier killing. The Indiana Supreme Court's 2001 opinion names the woman whose death led to his voluntary manslaughter conviction as Olga Cooper, describes her as an elderly woman killed during a burglary, and elsewhere gives the victim of that conviction as 85 years old. The opinions do not give the date of her death or his sentence for it.
The Hale charge. In 1988 a murder charge involving another elderly woman, identified by the court only as Mrs. Hale, was pending. The 1997 opinion separately says he was already serving an 88-year sentence on another conviction. Neither opinion links the two, and the outcome of the Hale charge is not stated.
His intellectual capacity. The state courts and the federal courts read the same records in opposite ways. The state courts gave weight to the adult IQ score of 104, the pre-sentence reports of an eleventh-grade education, his family's descriptions of normal intelligence, the 1975 psychiatric reports, the eighteen letters and his articulate statement at sentencing. The Seventh Circuit gave weight to the childhood scores of 70 and 68, his placement in special education, the uncontradicted expert opinion and doubts about the Beta test. In the end a federal district court found that he was mentally retarded.
His statements. Allen admitted striking Griffin but always denied killing her. His defense at trial was that he acted in sudden heat after being insulted and threatened. The jury rejected that defense and convicted him of murder, and every court that reviewed the conviction upheld it.
The spelling of the victim's name. The 1997 and 2001 opinions spell her surname Griffin; the 2003 order spells it Griffen.
February 1949: Howard A. Allen Jr. born (Indiana Department of Correction record).
1956: At 7 years and 9 months, scores 70 on the Revised Stanford-Binet.
About age eight: placed in special education classes.
1959: At 10 years and 9 months, scores 68.
1960s: Held in juvenile custody after stealing food for his siblings.
1967: Earliest adult convictions.
1975: Two court-appointed psychiatrists find him well oriented and able to understand his conduct.
Before 1987: Convicted of the voluntary manslaughter of an elderly woman, named by the Indiana Supreme Court as Olga Cooper, 85, during a burglary; by 1988, eight felony convictions in all.
July 13, 1987: A man asking about a neighbor's car leaves his name and telephone number with Ernestine Griffin.
July 14, 1987: The man returns at about 10:25 a.m.; Griffin is found dead at about 12:45 p.m. Allen is questioned from mid-afternoon and arrested at about 8:45 p.m. The next day, after sleeping, he gives a formal statement admitting he struck Griffin but denying he killed her.
1988: A Marion Superior Court jury convicts him of murder, felony murder and robbery and unanimously recommends death. A murder charge involving Mrs. Hale is pending.
August 30, 1988: Sentenced to death, plus 50 years for robbery.
October 18, 1988: Files his own motion to correct errors.
January 1990: Supplemental motion denied; the case then stalls for more than two years.
June 26, 1991: Sentenced to 38 years for theft (receiving stolen property) under a separate Marion County cause (Department of Correction record).
March 1, 1992: Appellate counsel appointed.
March 25, 1993: Trial record reaches the Indiana Supreme Court after the court reporter is held in contempt.
February 1994: First appellate brief struck and counsel removed; new counsel appointed in March.
July 3, 1996: Indiana Supreme Court remands for a new written sentencing order.
July 30, 1996: Trial court calls the retardation evidence "a very slight mitigating factor" and keeps the death sentence.
September 25, 1997: Indiana Supreme Court affirms the conviction and death sentence.
1999: U.S. Supreme Court declines review.
June 29, 2001: Indiana Supreme Court affirms the denial of post-conviction relief.
2002: Atkins v. Virginia bars the execution of people with mental retardation; Allen files a federal habeas petition; the U.S. Supreme Court declines review of the 2001 decision.
July 15, 2003: Indiana Supreme Court, 3 to 2, refuses to let him file an Atkins claim.
September 19, 2006: Federal district court denies habeas relief without a hearing.
March 11, 2009: Seventh Circuit orders an evidentiary hearing on whether he is mentally retarded.
May 28, 2013: Resentenced to 60 years for murder and 50 years for robbery.
June 4, 2013: Removed from death row after the federal finding of mental retardation and the State's dismissal of its appeal.
June 5, 2020: Date given by the Department of Correction as the end of all three sentences; the department lists him as deceased.