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Court to Consider Reinstating Arkansas Death Sentence

May 18, 1992

WASHINGTON (AP) _ The Supreme Court today agreed to consider reinstating the death sentence of Arkansas killer Bobby Ray Fretwell, convicted of a 1984 murder in Marshall.

The justices said they will review a ruling that reduced Fretwell’s punishment to life in prison without possibility of parole.

Arkansas officials contend that the 8th U.S. Circuit Court of Appeals wrongly concluded that Fretwell was denied adequate legal help at his sentencing trial.

Fretwell fatally shot Sherman Sullins after entering his Marshall home Dec. 14, 1984, and robbing him. He was convicted and sentenced to death in 1985.

After losing appeals in state courts, Fretwell turned to the federal courts for relief. He argued that his lawyer failed to give him constitutionally adequate help at the sentencing trial because the lawyer did not object to the sole aggravating factor found by the sentencing jury.

The jury said Fretwell had committed the murder ″for pecuniary gain.″ But six months earlier, the 8th Circuit court had ruled in an Arkansas case that the ″pecuniary gain″ factor could not be used in cases such as Fretwell’s in which robbery was the only thing that made the murder a capital crime.

The appeals court had ruled that allowing such an aggravating factor to be considered at sentencing amounted to an unfair ″double counting″ of the robbery aspect of the crime.

The Supreme Court in 1988 allowed states to use an element of a capital crime as an aggravating factor at sentencing, and the 8th Circuit court in 1989 reversed its decision barring the ″pecuniary gain″ aggravating factor in robbery-murder cases.

But a federal judge ruled that Fretwell’s lawyer should have raised the now-defunct ruling in his client’s defense because it was good law at the time.

A three-judge panel of the 8th Circuit court upheld the judge’s ruling last September, but it set aside the judge’s call for state authorities to give Fretwell a new sentencing trial within 90 days.

″The only remedy that will remove the prejudice he suffered is the reduction of his sentence to life without parole,″ the appeals court panel said.

The entire 8th Circuit court voted 5-5 last December not to hear the state’s ensuing appeal.

In the appeal acted on today, Arkansas Attorney General Winston Bryant said the justices should tell lower courts how ″claims of prejudice resulting from ineffective assistance ... are to be evaluated when the alleged prejudice arises from failure to make an objection on the basis of persuasive case authority that was subsequently overruled.″

The case is Lockhart vs. Fretwell, 91-1393.

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