On a rainy night in October 1976, Cheryl Lynn Payton was working alone as a clerk in a convenience store in Theodore, in Mobile County, Alabama. A man took her from the store at gunpoint. On October 18 her body was found near Irvington, and the same day deputies chased down the driver of a pickup truck seen leaving the area. He was Thomas Warren Whisenhant, a 29-year-old shipyard worker who was still serving the parole portion of a federal sentence for assault with intent to murder.
Within an hour of his arrest he began giving statements. He confessed to killing Cheryl Payton and to killing two other women who had worked in Mobile County convenience stores. In 1981 he pleaded guilty to the first-degree murders of those two women, Patricia Hitt and Venora Hyatt, and received a sentence of life without parole for each. For Cheryl Payton's death he was tried twice and sentenced to death three times. He pleaded insanity, and the defense never succeeded. Alabama executed him on May 27, 2010. He had been the state's longest-serving death row prisoner.
Whisenhant was born in Prichard, the small city just north of Mobile. The Alabama Department of Corrections gives his birth year as 1947. Much of what is on the record about his childhood comes from testimony his own lawyers offered in support of an insanity defense, and it should be read in that light.
His sister testified at his first trial that their mother ran the household and pushed their father to the margins. The parents fought often. Whisenhant slept in his mother's room until he was about 16. His sister said their mother controlled his earnings, and that a grandmother whipped him. She described him as generally mild but capable of turning violent when he was refused something, and she said a minister had told the family he needed psychiatric help. The trial judge who sentenced him in 1987 summed up the family evidence in similar terms: an alcoholic father who was derided by his mother, frequent fights between the parents, and an overbearing mother.
He was in trouble as a youth. The 1979 opinion records a purse-snatching charge and a robbery committed before he was 16. Other accusations were raised at his trials but were not proved.
While he was in the Air Force, Whisenhant attacked a woman, an assault the 1979 opinion describes as unprovoked. A general court-martial convicted him of assault with intent to murder, and that conviction was put before the jury at his first sentencing hearing. The 1979 opinion says that he then spent about seven years in a penitentiary.
The 1988 opinion of the Alabama Court of Criminal Appeals records a federal sentence of 20 years for assault with intent to murder, imposed on March 14, 1966, and release on parole on November 28, 1973. The courts later held that he was still under a sentence of imprisonment when Cheryl Payton was killed, which became an aggravating circumstance at each of his sentencing hearings.
After his release he worked on a crew at Ingalls Shipbuilding in Pascagoula. A man whose crew he worked on testified in 1977 that Whisenhant had been with him for more than two years. He had a wife and a daughter, who turned one on October 16, 1976. A police captain testified in 1977 that Whisenhant's wife had come to him and reported that her husband had once attacked her.
A woman who worked with him and dated him for a few months in 1974 later gave a statement to police. According to the federal appeals court, she called him weird, said his eyes sometimes looked glassy and that he would giggle for no reason, and said she lost contact with him in 1975. She denied that he had ever threatened her, used violence against her or made sexual advances. Her statement was not given to his defense, and it became part of his later appeals.
Little is on the court record about the first two women beyond their names, the years of their deaths and the outcome. Patricia Hitt was killed in 1975 and Venora Hyatt in 1976, according to the 1988 opinion; the federal appeals court says Venora Hyatt was killed about six months before Cheryl Payton. The federal appeals court describes both as female convenience store clerks, and the 1979 opinion places both killings in Mobile County.
Venora Hyatt's killing went unsolved for months. The FBI prepared two profile reports to help find the unknown killer. The first, drawn from crime scene photographs, speculated about how a schizophrenic offender might have acted. The second concluded that the likely offender suffered from what it called simple schizophrenia. Neither report named a suspect, and neither was given to Whisenhant's lawyers at the time of his trials.
After his arrest in October 1976, Whisenhant confessed to killing both women, and investigators corroborated those statements, according to the 1979 opinion. In 1981 he pleaded guilty to the first-degree murders of Venora Hyatt and Patricia Hitt and was sentenced to life without parole for each.
Cheryl Lynn Payton lived in Theodore. She was 24, according to the Alabama and federal courts and an Associated Press report from 2010; Alabama Public Radio, in its report on the day of the execution, gave her age as 23 and described her as a mother of two. She was married. She worked as a clerk in a small convenience store in Theodore, and on the night of October 16, 1976, she was working alone.
That same day Whisenhant's daughter turned one. His sister testified that at the birthday party he seemed the happiest she had seen him in a long time.
At about 10 p.m. a man who returned to the store found it empty and called the police from the store's telephone. The evidence at trial showed that Cheryl Payton had been taken from the store at gunpoint, sexually assaulted and shot. The State's case, and the later findings of the trial judge and the Alabama Supreme Court, held that she had been abducted and taken to an isolated place, and that she knew she was in danger before she was killed.
On the evening before the body was found, two men hunting near Irvington saw a man on the land; one of them later identified him in a lineup. The owner of the land saw a white pickup truck leaving the area. On Monday, October 18, 1976, Cheryl Payton's body was found near Irvington.
The same day deputies pursued the white pickup at high speed. It crashed into a wooded area and the driver ran. The truck was registered to Whisenhant. Officers brought his wife to the scene, and she spoke to him over a police loudspeaker. He called out to her that he had done everything they said. Officers found him in the woods, unarmed, and handcuffed him.
About an hour after the arrest, at the sheriff's office, Detective Sergeant Larry Tillman, the district attorney and a third man began questioning him after reading him his rights. He gave two statements. In them he confessed to killing Cheryl Payton and described what he had done, and he confessed to the killings of the two other women clerks.
On December 13, 1976, a court committed Whisenhant to Searcy Hospital to determine whether he was competent to stand trial. The three psychiatrists who examined him reported on February 24, 1977. They found him competent, able to tell right from wrong and able to help his lawyers. They added that he possibly lacked adequate control when the crimes were committed.
The three did not agree on the larger question. Dr. Claude L. Brown Jr. diagnosed a severe schizoid personality with paranoid traits and concluded that Whisenhant lacked the power to choose right from wrong. Dr. James E. Kimbrough found a schizoid personality but no brain disease or schizophrenia, and later considered him sane. Dr. William H. Rudder found him sane at the time of the killing.
A Mobile County grand jury indicted him on May 7, 1977, for the capital rape-intentional killing of Cheryl Lynn Payton. On June 16 the court found him indigent and appointed counsel. His lawyers included Holmes Whiddon, Morris Dees, John Carroll and Dennis Balske. He pleaded not guilty and not guilty by reason of insanity.
The court moved the trial out of Mobile County to Jefferson County, and it opened in Birmingham on August 1, 1977. The defense itself introduced his confessions and read them to the jury, because they supported its claim that he was mentally ill. Dr. Brown testified for the defense that Whisenhant had a mental disease and could not tell right from wrong when he killed Cheryl Payton. The State answered with its own experts: a psychologist found him rational and aware of his wrongdoing, and another psychiatrist diagnosed a personality disorder and found it highly probable that he was sane. Co-workers, neighbors, friends and hospital staff testified that he had seemed normal. His sister described the family history.
On August 9, 1977, the jury convicted him of capital murder. At a sentencing hearing on September 7, 1977, Circuit Judge Ferrill D. McRae of the Thirteenth Judicial Circuit found that the aggravating circumstances outweighed the mitigating ones and sentenced him to death by electrocution. Among the aggravating factors the judge listed were that the killing was especially cruel, that Whisenhant was on parole, and that he had committed other murders. The judge rejected every statutory mitigating circumstance, including extreme mental or emotional disturbance.
On February 20, 1979, the Alabama Court of Criminal Appeals reversed the conviction. The opinion, by Presiding Judge Harris, held that the prosecutor's closing argument had been improper. Despite a pretrial motion meant to keep the subject away from the jury, the prosecution had drawn testimony that Searcy Hospital released patients it found sane, and then argued in closing about what would happen if the jury found him not guilty by reason of insanity. Under earlier Alabama cases, telling jurors that an insanity verdict could put a defendant back on the streets was prejudicial, and a curative instruction did not repair it. The court also found a fatal variance between the indictment and the judgment, which independently required reversal. It said it reached the result with reluctance. One judge, Bookout, concurred specially, arguing that the remarks were less prejudicial in context. Rehearing was denied on March 27, 1979, and the Alabama Supreme Court denied review the same year.
The second trial was held in Mobile County in August 1981. Before it began, the defense asked for $3,500 to bring back Dr. Brown and Dr. Emanuel Tanay, a psychiatrist whose report had been introduced at the 1977 sentencing and who had diagnosed chronic schizophrenia. The court refused, but it granted the $500 that Alabama law then allowed for expert help of the defendant's choosing.
Morris Dees and John Carroll took a calculated risk. They believed that the refusal to fund the psychiatrists was an error that would win a reversal on appeal, and that an insanity defense without psychiatric testimony could not succeed. They also doubted that a Mobile County jury would accept insanity at all. As Dees later explained, it was a case "in their backyard where women were being killed and left dead all around the county." They decided to present no insanity evidence. They considered reading the earlier testimony and reports into the record and decided against it, and they did not call Dr. Brown or a former police captain who knew Whisenhant's family history. The $500 was not enough to pay Dr. Brown's fees, so they used it to test physical evidence in the hope of showing that no sexual assault had taken place, which would have removed the element that made the killing a capital offense.
In closing, the prosecutor told the jury that no doctor, friend or co-worker had said Whisenhant was insane. The defense objected and was overruled. On August 6, 1981, the jury found him guilty, and after a sentencing hearing it fixed the penalty at death. The trial judge again imposed death and set an execution date of December 9, 1981. At that hearing Dr. Brown testified as a witness subpoenaed by the State, saying his opinion on Whisenhant's sanity had not changed.
In 1981 Whisenhant also pleaded guilty to the murders of Venora Hyatt and Patricia Hitt.
On November 23, 1982, the Court of Criminal Appeals affirmed the 1981 conviction. It held that Alabama had no constitutional duty to pay for a private psychiatrist of the defendant's choosing, since state psychiatrists had already examined him, and it rejected his other claims. But it reversed the death sentence. In the opening statement of the penalty phase the prosecutor, the state attorney general, had described other crimes he said Whisenhant had committed, including a robbery, a purse snatching and a homicide in Prichard. No evidence of any of them was offered, and the jury received no curative instruction. The court ordered a new sentencing hearing before a different jury.
The State appealed. On July 8, 1983, the Alabama Supreme Court, in an opinion by Justice Maddox, held that harmless-error review applied to capital sentencing hearings and sent the case back for the Court of Criminal Appeals to decide whether the remarks had been harmless. Justice Jones dissented. The lower court then found the error harmless and reinstated the death sentence. On May 11, 1984, the Alabama Supreme Court reversed again, in an unsigned opinion. It held that the defense's choice to rest without evidence could not make the error harmless, and that the State had not shown beyond a reasonable doubt that the outcome would have been the same. Rehearing was denied on June 15, 1984, and on June 26 the Court of Criminal Appeals returned the case to the Mobile County circuit court for a new sentencing hearing.
The third sentencing hearing took place in Mobile in February 1987, ten years after the killing. The defense asked to move it, citing widespread publicity, including a press conference the state attorney general held 15 days before the hearing to announce that the State would seek death. The court refused. It questioned prospective jurors one by one and excused those who remembered the earlier death sentence or the press conference, and the appeals courts later upheld the ruling.
This time the defense presented its mental health case in full. Dr. Brown testified that a troubled childhood and a domineering mother lay behind a history of violence against women, and he diagnosed a schizoid personality with a mental disease that the people around Whisenhant would be unlikely to notice because it appeared in episodes. Parts of Dr. Tanay's report were read to the jury. The federal district court later called the defense's evidence a detailed mosaic. The mitigation evidence also showed that Whisenhant had helped Cheryl Payton's family in a civil suit against the federal government over his release from federal prison, and that he had taken part in an FBI study of violent killers.
On February 24, 1987, the jury unanimously recommended death. Judge McRae held a separate hearing without a jury on April 2. Testimony from Cheryl Payton's mother about fears her daughter had expressed was heard by the judge alone. On April 23, 1987, McRae sentenced Whisenhant to death by electrocution for the third time.
The judge found four aggravating circumstances: the killing was committed while Whisenhant was under a sentence of imprisonment; he had prior convictions for violent crimes against persons, namely the 1966 assault and the two 1981 murder pleas; the killing was committed during a sexual assault; and the killing was especially cruel. He found no statutory mitigating circumstances. He did weigh, as nonstatutory mitigation, that Whisenhant had been under some mental or emotional disturbance, though not an extreme one; that he had a schizoid personality with paranoid tendencies; his childhood; his good adjustment in prison; his help to the Payton family in their lawsuit; and his help with the FBI study. He gave the lawsuit little weight, finding that Whisenhant had never felt genuine remorse and had cooperated in the hope that it would count in his favor. He found that Whisenhant was not paranoid schizophrenic or psychotic, and that a sociopathic personality was not a mitigating factor.
The Court of Criminal Appeals affirmed on August 23, 1988. The Alabama Supreme Court affirmed on September 15, 1989, with no dissent. It held that the judge had no duty to step aside, that the jury was fair despite the publicity, and that the testimony of Cheryl Payton's mother was admissible because it concerned the victim's own fear rather than her family's grief. The United States Supreme Court declined to hear the case in 1990.
In state post-conviction proceedings, Whisenhant's lawyers raised new claims. In 1995 they added a claim that the prosecution had withheld evidence favorable to the defense: the two FBI profile reports from the Hyatt investigation and the statement of the woman who had dated him in 1974. Shortly before a hearing in October 1996, they found something else. Before the 1987 hearing the prosecutor, Chris Galanos, had sent Judge McRae a draft order on the defense's request for psychiatric funds, with a note saying he was not familiar enough with the facts to judge its accuracy. The defense had not been sent a copy. McRae entered a similar order the next day, raising the amount from $2,000 to $2,200. Whisenhant added a claim of judicial bias and asked McRae to step aside, which he did "out of an abundance of caution." Judge Braxton Kittrell denied the petition, the Court of Criminal Appeals affirmed in an unpublished memorandum, and the Alabama Supreme Court declined review.
The federal district court for the Southern District of Alabama rejected all 14 of his claims in an 81-page order. On February 3, 2009, a panel of the Eleventh Circuit, Chief Judge Edmondson and Judges Birch and Black, affirmed in an unsigned opinion. It held that Dees's decision not to present insanity evidence in 1981 was a reasonable strategy reached after thorough investigation. The FBI profiles and the co-worker's statement were not material: Dees testified he would not have used them in 1981, and by 1987 they would have added little to the detailed evidence of mental illness the jury already heard. The prosecutor's 1981 remark that no doctor, friend or co-worker had called Whisenhant insane was a fair response to the defense's argument. And Whisenhant had not shown actual bias by Judge McRae, whose order in fact benefited the defense.
On November 16, 2009, the United States Supreme Court denied certiorari. The next day, according to an Associated Press report carried by Alabama Public Radio, the state attorney general's office said it would ask the Alabama Supreme Court to set an execution date. Whisenhant was 62.
The Alabama Supreme Court set the execution for May 27, 2010. The Equal Justice Initiative, which reported the order on April 28, 2010, said his lawyers had maintained that he was mentally ill. In an Associated Press report published early on the day of the execution, a prisons spokesman, Brian Corbett, said Whisenhant had been moved to a holding cell near the death chamber, and that he had been on death row for 31 years, 11 months and 25 days. The Associated Press reported that no court filings had been made that week to stop the execution.
The execution was scheduled for 6 p.m. on Thursday, May 27, 2010, at Holman Prison in Atmore. Thomas Warren Whisenhant was executed that day. The Alabama Department of Corrections lists the execution on May 27, 2010, and names Riley as governor; its list records his arrival on death row as May 31, 1978.
Several accusations against Whisenhant appear in the court record without ever being proved.
The 1979 opinion records that a police captain testified he had once picked Whisenhant up on a murder charge over the shooting of a 70-year-old woman, and that the family said he was at home that evening. No outcome is given. Whisenhant's sister testified only that he had been suspected of killing a woman. In its opening statement to the 1977 jury, the defense itself told jurors of a killing in which he was said to have been involved at 13; that was a lawyer's statement, not evidence.
At the 1981 sentencing hearing the prosecution described a robbery, a purse snatching and a homicide in Prichard as crimes he had committed. No evidence of them was introduced, and the appeals courts set aside that death sentence because of those remarks.
The trial judge said in 1977, and again in 1981, that he would kill again if freed. The appeals court noted in 1982 that the 1981 finding was not relied on as an aggravating circumstance.
The question of his mental state was never settled to the satisfaction of both sides. The 1977 jury rejected his insanity defense, the 1981 jury heard no insanity evidence, and the 1987 sentencing judge found the defense still unproven. His lawyers and Dr. Brown maintained that he was mentally ill, while the 1987 sentencing judge found him neither psychotic nor paranoid schizophrenic.
1947: Born (birth year per the Alabama Department of Corrections), Prichard, Alabama.
March 14, 1966: Federal sentence of 20 years for assault with intent to murder.
November 28, 1973: Paroled.
1975: Patricia Hitt killed.
1976: Venora Hyatt killed, about six months before Cheryl Payton.
October 16, 1976: Cheryl Lynn Payton abducted from a convenience store in Theodore and killed.
October 18, 1976: Her body found near Irvington; Whisenhant arrested after a chase; confessions begin about an hour later.
December 13, 1976: Committed to Searcy Hospital for evaluation; report February 24, 1977.
May 7, 1977: Indicted by a Mobile County grand jury.
August 1 to 9, 1977: Trial in Birmingham; convicted of capital murder.
September 7, 1977: Sentenced to death.
February 20, 1979: Conviction reversed by the Alabama Court of Criminal Appeals.
August 6, 1981: Convicted again in Mobile County; jury fixes death.
1981: Pleads guilty to the murders of Venora Hyatt and Patricia Hitt; life without parole for each.
November 23, 1982: Conviction affirmed, death sentence reversed.
July 8, 1983: Alabama Supreme Court orders harmless-error review.
May 11, 1984: Alabama Supreme Court orders a new sentencing hearing.
February 24, 1987: Third sentencing jury unanimously recommends death.
April 23, 1987: Sentenced to death for the third time.
August 23, 1988, and September 15, 1989: Death sentence affirmed by the state appeals courts.
1990: United States Supreme Court declines review.
October 1996: State post-conviction hearing; trial judge steps aside.
February 3, 2009: Eleventh Circuit affirms denial of federal habeas relief.
November 16, 2009: United States Supreme Court denies certiorari.
April 28, 2010: Execution date reported set for May 27.
May 27, 2010: Executed.