It was raining on the night of October 16, 1976, when Thomas Whisenhant walked into the Compact Store at the corner of Nan Gray Davis Road and Sweedtown Road, near Theodore in Mobile County, Alabama, and took the clerk out at gunpoint. Cheryl Lynn Payton was working there alone. She was the mother of two young sons and, by her family's account, a few days short of her twenty-fourth birthday; the Eleventh Circuit, writing decades later, simply called her twenty-four. He drove her to a remote spot, raped her in his pickup, walked her into the woods and shot her once in the head with a .32 pistol. Then he came back to the body, and according to his own confession and the courts that later reviewed it, he mutilated it with a knife. The men who found the store empty raised the alarm, her body was found in a field in Irvington, and Whisenhant was seen near the scene and chased until his truck wrecked. With some twenty police cars around the woods where he had gone to ground, his wife was brought out and called to him over a loudspeaker to come out.
Within an hour of his arrest he was confessing, and not only to Payton. He told detectives he had killed two other women who worked alone behind the counters of small Mobile County stores. Patricia Hitt, twenty-eight by most accounts, was beaten and shot in the forehead in a Compact Store in Mobile on November 21, 1975, a killing for which two other men had at first been arrested. Venora Hyatt, forty-four, was abducted from the store where she worked about six months to the day before Payton died, in April 1976, and her body was found beside an old house overgrown with kudzu at the corner of Halls Mill Road and Higgins Road; he admitted going back and mutilating her body too. Newspaper accounts at his execution added that he gave his wife a wristwatch he had taken from one of the dead women, and that he also confessed to attacking three other people, his wife among them. He later pleaded guilty to the murders of Hyatt and Hitt. Only the Payton case was tried, and it was tried three times.
He was born Thomas Warren Whisenhant on January 29, 1947, in Prichard, just north of Mobile, the youngest of four children. The violence the courts heard about started long before the stores. In 1963 a court-martial convicted him of assault with intent to murder, and at his sentencing hearings the State put that conviction and the other attacks he had confessed to before the jury as aggravation, though none of them was tried in the Payton case. His sister testified at the first trial to a violent childhood, and in 1987 the defense psychiatrist told the jury that a troubled upbringing and a domineering mother had produced a history of violence against women. A woman who had dated him for a few months in 1974, a co-worker from the shipyard, later told police that he would giggle when nothing was funny, that his eyes went glassy, and that everyone at the yard knew how weird he was.
The question at every trial was whether he was insane, and the courts never treated the answer as simple. In December 1976 a judge sent him to Searcy Hospital at Mount Vernon, where three psychiatrists, Claude L. Brown Jr., James E. Kimbrough and William H. Rudder, observed him until February 24, 1977, and reported that he was sane, competent to stand trial, knew right from wrong and had shown no psychotic behavior. They added one sentence that the defense would lean on for thirty years: that it was possible he had lacked adequate control when he committed the crimes. His lawyer was Morris Dees of Montgomery, the founder of the Southern Poverty Law Center, who led the defense at all three trials and concluded early that insanity was his client's best chance, and that it would have to rest on psychiatrists because the illness he described would not have been obvious to friends and neighbors. At the first trial, moved to Jefferson County on a change of venue in August 1977, Dr. Brown testified for the defense that Whisenhant had a mental disease and had lost the power to tell right from wrong when he killed Payton. The jury rejected the defense on August 9, and on September 7, 1977, he was sentenced to death.
The Alabama Court of Criminal Appeals threw that conviction out in February 1979 because of the prosecutor's closing argument and a fatal variance between the indictment and the judgment. The retrial, in 1981, was held in Mobile County, and Dees doubted that a jury there would accept insanity at all; it was, he said later, a case "in their backyard where women were being killed and left dead all around the county." He asked the court for money to bring Dr. Brown back to testify and got $500, which was not enough. Rather than pay the psychiatrist himself or read the old testimony into the record, Dees chose to present no insanity evidence, on the view that the refusal of funds was a reversible error he should leave standing, and he spent the money testing Payton's underwear for semen in the hope of disproving the rape that made the killing a capital crime. Whisenhant was convicted again. Over the next three years the appellate courts sent the case back for new sentencing hearings in 1982, 1983 and 1984, and in 1987 a third sentencing jury, after hearing Dr. Brown describe a schizoid personality whose illness surfaced in episodes, returned death once more. The state courts affirmed in 1988 and 1989.
The federal phase ran into the next century. In state post-conviction proceedings Whisenhant's lawyers turned up two FBI profiles written after Venora Hyatt's murder, which speculated that the unknown killer might be schizophrenic, and the shipyard co-worker's statement to police, none of which the defense had been given. They also discovered, shortly before a hearing in October 1996, that before the 1987 trial the prosecutor, Chris Galanos, had handed the trial judge, Ferrill D. McRae, a draft order on the defense's request for psychiatric funds that the defense never saw; McRae entered a similar order the next day, raising the amount to $2,200, and later stepped aside from the post-conviction case "out of an abundance of caution." On February 3, 2009, the Eleventh Circuit rejected the petition. It held that Dees's decision to drop the insanity defense in 1981 was a reasoned strategy made after real investigation, and that the withheld documents added little to the detailed mental-health evidence the 1987 jury had already heard.
Alabama executed him by lethal injection at Holman prison near Atmore on May 27, 2010, and he was pronounced dead at 6:20 p.m. He was sixty-three, and he had spent thirty-two years, eight months and twenty days under sentence of death, longer than anyone else in the state's history. He said nothing and did not look at Payton's family. Her mother recalled that week that after the Mobile County verdict she had believed his road from the courthouse to the electric chair would be a short one, and another relative, Susanna Payton, said that "there is not enough time left on earth to calculate the immense loss we have experienced." His lawyer at the end, Richard Cohen, thanked the prison staff and still called him a psychotic paranoid schizophrenic. Juries heard that argument in 1977 and again in 1987, and neither accepted it.