Feb. 24
MISSOURI:
Life After Death Row ----From maximum security in Potosi to a bungalow in
Maplewood: The odyssey of Rabbit, a.k.a. Robert Driscoll
Fueled by a fresh pack of unfiltered Camels, a penchant for one-upmanship
and twenty-plus years on death row, Robert Driscoll is braving westbound
I-70 on a soggy December afternoon. The temperature is dropping fast, and
the Saab's old wipers yelp as they scrape across the windshield. The gray
landscape speeds by, as does the occasional big rig. A fine mist of
road-sullied water sprays the car's interior each time Driscoll cracks the
window for a smoke, which is often.
He's headed for the Callaway County Courthouse. Specifically, Driscoll
aims to pay a visit to Michael Fusselman and Robert Ahsens, the two
prosecutors who ten months ago lost their fight to keep him on death row.
"The last time they seen me, I was about an eighth of an inch from dying,"
Driscoll says, fumbling with the power-window switch. "I thought it would
be enjoyable to make my appearance -- let them know that I'm walking."
He means it literally. The last time Fusselman and Ahsens saw Driscoll, he
was wheelchair-bound and ailing, having spent the previous year in a
prison hospital bed battling a nasty bout of hepatitis C. The disease had
withered his legs to the point that when he testified, courtroom bailiffs
had to pick him up and deposit him on the witness stand. Driscoll shed the
wheelchair soon after his release. But showing off his regained mobility
is only a pretext for his surprise visit. Driscoll has another, more
fundamental reason for driving 100 miles west to see these 2 men.
He has come to gloat.
Upon arrival in Fulton, he's careful to place both feet firmly on the curb
before hoisting himself from the car. His right foot slaps the ground as
he walks -- another hep C souvenir. The rain has exhausted itself for the
moment, and the country air smells freshly washed. Driscoll pauses to
scrape out a final butt before entering the stone courthouse.
Inside, Ahsens and Fusselman are immersed in the murder trial of a drug
runner who allegedly panicked when a deal went sour. From the looks of it,
he's panicking still; he doesn't so much as look up when Driscoll lumbers
into the sparsely populated gallery. Young and wiry, sporting spiked hair
and an oversize suit, the defendant keeps his eyes trained on the table
before him. The only sign of recognition is his enormous Adam's apple,
which scrapes twice along its narrow track.
Ten months ago in Rolla County, Driscoll sat at a similar table as
prosecutors attempted to prove, for the 3rd time, that he had stabbed a
prison guard to death during a riot at Moberly Correctional Center in
1983. Twice juries had found him guilty of the murder. Twice judges had
sentenced him to death. And twice higher courts had reversed the sentence.
Driscoll hadn't taken the stand during his prior trials, figuring the jury
would see him as anything but a sympathetic figure. But this time, faced
with the choice of death by lethal injection or death by hepatitis C, he
decided to take his chances.
"I got to thinking: 'I'm in the penitentiary for a guard killing,'" he
says today. "'What difference does it make if the jury knows I done did a
robbery here, or done did this or done did that?'"
Of course, he says, there was another factor working in his favor the 3rd
time around: "They can't use the AB -- it can't be brought up."
He's referring to the Aryan Brotherhood, one of the most powerful and
vicious gangs in the U.S. prison system. Back in the '70s, when Driscoll
was doing time in California, he was a loyal member who went by the
nickname "Rabbit." During his first 2 trials, prosecutors had played up
Rabbit's AB involvement, painting him as a racist with a penchant for
killing blacks and guards. It didn't endear him to the juries.
But this time, thanks to some savvy defense-counsel sleight of hand,
Ahsens and Fusselman were barred from bringing up testimony that linked
Driscoll to the Aryan Brotherhood. Rather than the racist killer
prosecutors had earlier described, the jury saw a wheezing old man in a
wheelchair. And while they may not have been convinced of his innocence,
they weren't convinced he was a cold-blooded killer, either. So they
compromised, finding him guilty of manslaughter. Given that he'd already
served twenty years in prison since the killing, Rabbit went free.
Today, as the afternoon's proceedings wind down, Driscoll sits unmoving on
one of the courtroom's straight-backed benches. Through his unbuttoned
plaid work shirt, his gut bulges over his jeans. His pale blue eyes set
off his clean-shaven cheeks, and his hair, a combed-back sweep of blond
and gray, has been marshaled to order. A dental plate conceals his missing
bottom teeth. Other than the small swastika tattooed into his left index
finger, Robert Driscoll could be mistaken for any courthouse gadfly.
Prosecutor Ahsens, who maneuvers around the courtroom with the aid of a
cane, has been seated with his back to the gallery. When court recesses,
he turns to leave. Pushing his way through the swinging gate to the
gallery, he looks up.
"How are you doing, Bobby?" he says with a forced smile, then shambles to
the door, not pausing for a reply.
"That guy wanted me dead," Driscoll mutters, his moment, this time,
stolen.
The night of July 3, 1983, could have been like any other. Robert Driscoll
and his cellie, Jimmie Jenkins, were watching TV. Underneath Rabbit's bunk
was a 5-gallon bucket of orange-juice hooch. They'd figured the homebrew,
made from OJ, sugar and a yeasty bit of bread, wouldn't be ready till the
next day. "But we tested it July third. It was pretty good, almost
cooked," Driscoll remembers. "So we started sippin'." To add an extra
kick, Driscoll says, he spiked the brew with a bottle of Everclear he
bought from a guard.
In those days inmates in Moberly's Unit 2B could often move freely from
cell to cell, and Driscoll was able to surreptitiously share the wine
among his fellow inmates. "We started getting a little high," he recalls,
adding, "Jenkins got a little too high."
By 9:30 their wine was gone. Feeling the booze, Jenkins yanked a metal rod
from his bunk frame. He was talking fierce, roaming the wing and looking
to strong-arm some more hooch from another inmate, Driscoll says.
At the heart of Moberly's X-shape Unit 2 is a control center where guards
regulate inmate movement through the building. According to court
documents, Thomas Jackson was on duty when he spied Jenkins rampaging
through the corridor of Unit 2B with a metal bar in his hand. "Jackson
came into the wing and asked him to come up front," Driscoll recounts.
"Jimmie refused."
Disinclined to take on Jenkins alone, Jackson retreated to the guard
center to gather reinforcements. Jenkins, meanwhile, slid into the cell he
shared with Driscoll and feigned sleep.
Driscoll was six months into a ten-year stint for a robbery he'd pulled in
Ferguson. But he didn't expect to stay at Moberly long. A veteran of
California's notorious San Quentin and Folsom prisons, he'd arrived in
Missouri after jumping parole in California. His extradition papers had
been signed, and Golden State authorities had 120 days to ferry him back.
He'd prepared for his return to California. "I had a knife in the cell
that I was intending to take with me when I got extradited," Driscoll
says, recounting how he'd fashioned a small carpenter's square into a
6-inch blade in the prison's sign shop. He sandwiched the shank between 2
pieces of wood and drilled screw holes to anchor the grip, then bound it
with tape. He planned to transport the knife from Moberly back to
California in time-tested convict fashion: "Put gauze around it, grease it
up, and then just keister it."
But on the night of July third, Driscoll's knife lay in pieces hidden
throughout his cell. And that worried him. "I assumed that Jackson was
going to come back and tear the cell up looking for Jenkins," he explains.
"So I had put the knife together and stuck it in the back of my pants. I
was going to take it upstairs to a guy named Emmett Nave to hold for me
[Nave was executed in July of 1996]. But when I was starting to walk out
of the cell, here comes Jackson and 2 other officers."
Ordering Driscoll back into his cell, the guards rousted Jenkins and began
marching him toward the control center. According to court testimony, one
guard was on either side of the inebriated inmate, with Jackson trailing
at a distance, providing cover. The precaution proved inadequate. A mass
of roughly 30 prisoners surged toward the retreating guards. According to
court documents, the inmates began shouting, "You're not taking Jimmie
anywhere!" One convict, Roy "Hog" Roberts, reportedly yelled that if his
cohorts let the guards pull Jenkins from the cell block "they were a bunch
of sorry inmates."
"Let's rush them!" someone screamed.
All hell broke loose. The guards escorting Jenkins dashed for the control
center. They tried to slam the door shut, but inmate Rodney Carr parried
with his foot. Wielding clubs and flashlights, the guards reached through
the partially open door and swung at the surging inmates, smashing into
anyone who got close enough, including Driscoll, who was at the front of
the mob.
In their haste to reach the control center, the guards had stranded
Jackson among the inmates. They made several attempts to pull their
colleague in as he attempted to jam his way through the door, but in the
end the mob proved too much. The swarm of prisoners beat back the guards,
leaving Jackson to fend for himself. Robert Driscoll, meanwhile, found
himself pressed up against the control center's door, and face-to-face
with Jackson. "I got hit in the head and pulled my shit," he recalls. "I
pulled my knife and lunged at the officer in front of me."
What happened next is a matter of dispute. Prosecutors argue that Hog
Roberts (who at 300 pounds came by his nickname honestly) grabbed Jackson
from behind while Driscoll and Rodney Carr stabbed him in the heart and
lungs.
In a written statement that Driscoll later alleged was involuntary and
coerced, he conceded: "When the fighting started I got hit, and I pulled
the knife out and started stabbing at the officer in front of me. At that
time I did not know who the officer was. I don't know how many times I
stabbed him, or if I stabbed him more than once."
For roughly 45 minutes, chaos reigned. It took reinforcements firing 60 to
80 shotgun blasts into the cell wing's floor and ceiling to restore order.
By night's end 5 guards had been stabbed or otherwise injured. Jackson was
dead.
The inmates didn't fare well either. According to a subsequent court
finding in Driscoll's case, "[G]uards subjected the inmates of Unit 2B to
brutal beatings in response to the incident. Driscoll's injuries, for
example, required him to spend 40 days in the prison hospital."
Later, a sweep of Unit 2B netted an estimated 50 gallons of homemade wine
and 14 makeshift knives. Driscoll's was the only one with blood on it.
In the 10 months since his release, Robert Driscoll has kept busy talking
to students, drug addicts and church groups about his life on death row.
On tap for tonight: a small group of law students from Saint Louis
University. The meeting was set up by Driscoll's defense attorney, Brad
Kessler, who teaches at the university's law school. Amid the
saffron-colored confines of Joe Boccardi's restaurant in the Coronado
Hotel, the students tuck into wedge salads and cheese pizza before asking
the ex-con their sensitive, intelligent questions. They want to hear his
thoughts about defense attorneys and capital punishment. They're curious
about life inside the joint, and what it's like to be out.
Driscoll has mellowed some since his hooch-drinking days at Moberly, and
sipping from a bottle of Bud Light, he's all shuffling charm and good
cheer. He left his suburban St. Louis home freshly showered and shaved. He
wears a maroon sweater, a pair of newly washed jeans and suede loafers. He
apologizes to the women in his audience each time he swears. When one
student knocks over a glass, a pitcher and nearly topples a bottle of
olive oil, Driscoll jokes that the kid has had enough to drink.
He has his life story down cold, offering it up as a series of anecdotes
about farting cellmates and how, once freed, it took him days to figure
out his TV's remote control. He titillates with instructions for smuggling
money and drugs through prison. (Keister it. Or, he says, popping out his
dental plate, hide it in your mouth.) He speaks fluently on fine points of
law and jokes that he went to law school courtesy of the state's penal
system.
"I've been out ten months," he declares as the evening draws to a close.
"I haven't fixed once. I haven't picked up no gun, and I ain't shot no
one. It's weird."
Driscoll's pushed-up sleeve presents a clear view of his forearm: a faded
tattoo of a snake constricting a skull and crossbones. As much as his
patter, Driscoll's tattoos tell his biography. He got that one during a
brief stint at Fort Bragg, North Carolina, with the 82nd Airborne Rangers.
(Driscoll says he received an undesirable discharge when he fled the base
for California. Military records indicate that Driscoll served in the army
from July of 1965 to March of 1968 and trained as a parachutist and
sharpshooter but do not note the circumstances surrounding his discharge.)
If the SLU students could have seen through his sweater, there'd have been
more. On Driscoll's chest he has etched the words "San Quentin: Class of
73-77." Over his solar plexus is another brand, this one of a clenched
fist aiming a revolver outward, surrounded by the words "Weiss Macht" --
fractured German for "White Power" -- and the initials "A.B."
"I was in orientation," Driscoll elaborates. "A Mexican dude I had known
from the [streets] came up to me. He had a carton of cigarettes, some
coffee and some hot-dog books -- dirty books. He gave them to me and said
the brothers had sent them down."
So began Driscoll's initiation into the Aryan Brotherhood, or "The Brand,"
a prison-spawned gang that authorities say is one of the most violent in
America.
Driscoll's involvement was gradual. Gang leaders first asked him to do
them small favors: He held their weapons in his cell; he moved their drugs
through the prison; he delivered their messages. As he earned the
leadership's respect, his responsibilities grew. Six months into his stay
at San Quentin, reputed AB gang member Rick Terflinger summoned him to the
cell of Robert "Blinky" Griffin, a convict still believed to be one of the
gang's chieftains. "I sat down on the bench and started talking to them,"
Driscoll says. "He said, 'How you doin', Rabbit?' And he said, 'Look,
we've been watching you and kind of like your stuff.' And: 'Do you want to
get into the Brand and make your bones? How would you feel about that?' I
told him, 'Well, it's all right with me. What you want done?' He said,
'Well, we'll get with you in 2 or 3 days.'"
Five days passed. Then, recounts Driscoll, word came down that Blinky
wanted to see him at lunch on the upper yard. "I rapped to Blinky, and he
was telling me, 'You're going to make your bones, right?' He says, 'Some
guy will be coming up from the upper yard.' He gave me his name and told
me, 'We got a piece stashed for you in the restroom.'"
The knife was taped under a urinal. Reaching down as if to tie his shoes,
Driscoll grabbed the shank and stuck it in his waistband. The mark was a
loner, unaffiliated with any gang, but he'd been running drugs for the AB.
Driscoll says he didn't know it at the time, but gang leaders believed the
man had been skimming profits. "I didn't know what the beef was. I didn't
ask no questions," he says.
The mark appeared. "I proceeded to walk up behind him, hit him in the back
and kept on stepping," Driscoll says. "I handed the piece off to somebody
in case they seen me too close to the victim and wanted to pat-search me.
Sirens went off. Guards were running around everywhere, pat-searching
down. I didn't have no blood on me or nothing, no marks on me, so they
just passed me. I went to the cell, just kicked back and turned on the TV.
We was locked down for about 3 hours."
Driscoll refuses to divulge whether he made his bones with a "hit," or
merely a "sticking." Whatever the case, at dinner that evening he says
Blinky told him, "Good job, Brother. You did good."
By 1981 Driscoll was out of prison but facing a parole violation on a
weapons charge. "I was kind of hot in California," he says. "I was on my
way to New York when I caught this case in Missouri."
He'd fled California with a woman whose brother lived in Ferguson. Before
pushing on to the East Coast, they stopped off in St. Louis to catch their
breath -- and knock over an area liquor store. But Driscoll had neglected
to change the plates on their car, and a police cruiser pulled up behind
them as he drove away from the store. In October 1982 a Missouri judge
sentenced him to ten years in prison under the name Robert Driscoll -- an
alias he picked up from a coke dealer he robbed before leaving California.
(He now goes by his given name, which he does not want made public.)
Born in Tacoma, Washington, in 1946, Driscoll was first institutionalized
at the age of nine. His family soon moved to Los Angeles, where after
repeatedly running away from home and fighting at school, he was deemed
"incorrigible" by a judge.
Driscoll remembers the occasion vividly. "My mom had dressed me in a
little suit with a tie," he says. "I was so scared. I honestly feel that
if the judge had let me go at that time I probably would have never gone
back to a penitentiary, but he kept me. He detained me, and I come to find
out it wasn't all that hard."
By sixteen Driscoll had dropped out of school. In the years that followed
he robbed, fought and stole his way through LA, doing stints along the way
at the state's so-called gladiator schools of Soledad and Tracy. By 1971
he'd graduated to the federal system and from there to a decade of hard
time in San Quentin and Folsom.
Missouri authorities were slow to learn the extent of Driscoll's criminal
past, thanks in no small part to his alias. But by the time he was charged
with killing Thomas Jackson, California authorities were preparing a
detail to bring him back to the West Coast.
>From the start, Driscoll has steadfastly maintained that he'd crafted his
knife in preparation for the move back to California. He insists that on
the night of July 3, 1983, he assembled the knife with the sole intention
of handing it off for temporary safekeeping.
"The state has always argued that I had put the knife together to use it
[on a guard], which is not true," Driscoll says. "They don't understand.
Say if I have a knife and I come up to your cell and I give it to you in
pieces and say, 'Hey, hold on to this for me.' Well, you're going to know
that maybe I had it stashed in my cell, because of the pieces. But if it's
already assembled, you won't know if I already had it in my cell or if I
picked it up from the yard. It matters, because I don't know if you're
going to snitch on me."
At Driscoll's murder trial, prosecutors argued that he had assembled the
knife and stuck it in his waistband with the intention of stabbing a
prison guard. They highlighted Driscoll's statement to investigators the
day after the riot, in which he conceded that he "started stabbing at the
officer in front of me." They said Driscoll and Rodney Carr stabbed
Jackson to death while "Hog" Roberts held the guard from behind. (Roberts
was executed in 1999 for his role in the murder. Carr is serving a term of
life without parole for his involvement.)
Prison guards testified they'd seen Carr and Roberts take part in the
stabbing. But at Driscoll's original trial, no guard testified to having
seen him stab Jackson. Instead, the state's argument relied heavily on the
testimony of three inmates: Joseph Vogelpohl, Edward Ruegg and Driscoll's
cellmate, Jimmie Jenkins. Vogelpohl and Ruegg told the jury they saw
Driscoll stab Jackson in the chest. Vogelpohl added that after the riot
Driscoll asked him, "Did I take him out, JoJo, or did I take him out?"
Jenkins told the jury that Driscoll later bragged that he'd "killed the
freak."
But the prosecution's most damning witness was Dr. Kwei Lee Su. The head
forensic serologist for the Missouri Highway Patrol Crime Laboratory at
the time, Su testified that she'd performed a "thread" test on a blood
sample taken from Driscoll's knife. The now-outdated procedure determines
blood type by introducing different reagents to a sample and checking for
coagulation. Samples of types A, B and AB react to their specific reagents
(anti-A, anti-B, etc.). If the reagents do not cause a reaction, the blood
is determined to be type O. Su testified that the thread test detected
type A blood on Driscoll's knife. But Officer Thomas Jackson had type O
blood. Prosecutors contended that Driscoll fatally wounded Jackson, then
stabbed another guard, Harold Maupin, whose blood was type A. According to
the prosecution's theory, the type A reaction in the test "masked"
Jackson's type O blood. What's more, they pointed out, of the 14 knives
recovered from Moberly's Unit 2B after the fatal altercation, only
Driscoll's carried traces of blood.
That was enough to sway the jury. Driscoll was sentenced to die in
Missouri's gas chamber.
Poring over his trial transcript, Driscoll was struck by the fact that Dr.
Su had specified she couldn't confirm the presence of type O blood under
the thread test. "That told me that there must be some other test,"
Driscoll says.
He was right. The serologist had performed an additional analysis, known
as a "lattes" test, which can positively detect blood types A and O in a
mixed sample. But neither the prosecution nor Driscoll's defense attorney,
Greg Robinson, had brought this up. Had the issue arisen, Su would have
confirmed that the 2nd test had detected no trace of type O blood --
Thomas Jackson's type -- on Driscoll's knife.
In 1995 a federal appeals court reversed Driscoll's conviction, sending
his case back to the state of Missouri for retrial. Wrote Judge Gerald
Heaney: "[The defendant's] lawyer allowed the jury to retire with the
factually inaccurate impression that the victim's blood was possibly on
Driscoll's knife."
"Unbeknownst to me there was some sort of test that determined the blood
types," says Robinson, who now has a private practice with offices in
Columbia. "I did not have that information. So when the verdict was
reversed because of the blood evidence, they said 'ineffective assistance
of counsel' because I didn't bring [the other test] up. Well, I couldn't
bring it up because I didn't know it. I didn't get the information, and
because I didn't get the information I couldn't effectively defend him."
It had taken Driscoll's appeal a decade to unspool. During that time, he
says, he began cutting his ties with the Aryan Brotherhood. "I can't have
correspondence going between me and Brand members, especially when I'm
doing a capital murder case," he explains. "They read your mail."
Driscoll had concentrated on the blood evidence in his appeal, but his
association with the AB had not served him well during his 1st trial.
Jimmie Jenkins, his former cellmate, had not only testified that Driscoll
bragged to him of murdering Jackson, he'd also revealed that Driscoll was
a member of the Aryan Brotherhood. To join the AB, Jenkins told the court,
one had to kill a guard or an African-American. "It's a prison gang is
what it is," Jenkins testified. "They kill and murder all the time -- it's
a way of life."
Jenkins died before the appeals court overturned Driscoll's conviction.
But the transcript of his testimony remained, and that testimony contained
references to Driscoll's affiliation with the Aryan Brotherhood. As his
retrial approached, Driscoll could draw comfort from the fact that the
prosecution's blood argument wouldn't be as strong the 2nd time around,
but he was well aware that prosecutors intended to hammer away at his
Aryan Brotherhood affiliation in its stead.
One of the first prison gangs, the AB was born of the race wars that
plagued California's prison system in the 1960s and '70s. By the time
Driscoll went to trial, law-enforcement agencies knew the gang to be a
sophisticated nationwide criminal syndicate. As membership burgeoned,
elaborate constitutions and standards of behavior evolved. According to
one now-declassified FBI report, new recruits were made to swear an oath:
I will stand by my brother/My brother will come before all others/My life
is forfeit should I fail my brothers/I will honor my brother in peace as
in war. Gang members "branded" themselves with various tattoos identifying
their allegiance, including swastikas, shamrocks and the number 666.
During an investigation that spanned much of the 1980s, federal
investigators found that the AB trafficked in organized gambling and the
sale of homosexuals, or "punks," inside prison walls. Using girlfriends,
guards and family members as mules, the Brand also smuggled drugs into
prisons. But as its power swelled, the AB's white-supremacist roots were
eclipsed by its pursuit of power, pure and simple. A declassified FBI memo
dated March 8, 1984, puts it bluntly: "The purpose of the AB is now power
and is not the racial organization as it has been deemed in the past."
Like so many prison gangs, the AB had a "blood in, blood out" policy. In
other words, there was only one way out. "It is a hard fact that most of
the AB will be paroled or discharged at some future date, and in view of
members' lifelong commitments, it would be nave to think he would not
remain in contact with his brothers," reads a declassified FBI memo dated
October 15, 1982. "The rule of thumb is that once on the streets, one must
take care of his brothers that are still inside. The penalty for failure
to do so is death upon the member's return to the prison system."
With the Aryan Brotherhood's power growing both in and outside the prison
system, authorities began transferring the gang's leaders into federal
penitentiaries in an effort to break up the gang. The strategy backfired.
(In the words of the October 1982 memo, "[N]ow they had the entire country
to pick from.") Dispersed into the federal system, AB members soon
embarked on a murderous campaign against prison guards, culminating three
months after Thomas Jackson was killed. On October 22, 1983, AB members
Thomas Silverstein and Clayton Fountain murdered two prison guards at the
federal penitentiary at Marion, Illinois. By May of the following year,
federal agents feared the AB was forming an alliance with other prominent
prison gangs "to launch a cooperative effort of death and fear against
staff and other inmates in the Federal system in order to take over the
system."
Investigators believed the Aryan Brotherhood was branching out. "The A.B.
needed different types of individuals with different skills and not just a
mindless bunch of murderers," reads an FBI memo dated December 9, 1986.
"Attempts would therefore be made to recruit explosives experts, chemists,
people with legal backgrounds, conmen, and people who would be able to run
scams inside and outside the prison."
Federal conspiracy theories aside, the October 1982 memo said it best:
"The AB's most valued tool of intimidation is brutal execution-style
murders."
Says Driscoll: "Look at it this way: You're being charged with killing a
guard inside the institution. You want evidence to come forth that you're
in a white-organized racist group? And to get in this group you've got to
kill a nigger or a guard? Why even go to trial? You've got the jury
talking about, 'Well, if he ain't good for that one, he's got to be good
for this one.'
"So I'm sitting there and I'm trying to figure out: Okay, how am I going
to deal with this?" he goes on. "So I decide to have my attorney ask that
[the AB] portions of Jenkins' transcripts be deleted."
Of course, it wasn't as easy as that. Judge John Wiggins simply refused
the motion. Driscoll tried another tack. The topic of Driscoll's Aryan
Brotherhood involvement had arisen during the cross-examination portion of
Jenkins' testimony. "I got to thinking," he says. "I said, 'Look, this
testimony wasn't brought up on direct [examination]. It wasn't a part of
their case in chief.' So I ask the judge can I waive cross."
Translation: If the defense waived cross-examination of the transcript,
the prosecution would be unable introduce mention of the Aryan
Brotherhood. It was an elegant end-around. But Judge Wiggins denied the
motion. Prosecutors Ahsens and Fusselman argued that when Driscoll stabbed
Maupin, Jackson's blood was wiped from his blade. Jimmie Jenkins'
testimony was presented unexpurgated, Aryan Brotherhood and all. And the
jury found Driscoll guilty.
During the trial's sentencing phase, the two prosecutors described
Driscoll's tattoos and suggested he'd killed Jackson "for apparently no
better reason than to enhance his stature within the prison system, and in
part because of his membership in the Aryan Brotherhood."
On February 7, 2000, for the second time, Robert Driscoll stood before a
judge to be sentenced to death.
"Monotonous, boring and scary," is how Driscoll sums up life on death row.
"I used to do a lot of research and studying. I played Nintendo and read
the Bible."
But by 1987 Driscoll was stir-crazy. "I got a guy named Frankie Guinan
that comes to me and says, 'Hey, I got someone who's writing to me, a
religious woman. But I'm not getting nothing from her. She's a poor
religious woman,'" Driscoll recounts. (Guinan was executed in October of
1993.) "A lot of guys in the penitentiary will work on religious aspects
with women to get visits and correspondence," he explains. "At the time in
Jeff City you could have Levis and Nintendos sent in. There's a lot of
hustles in this area. She wasn't performing up to par, I guess."
Driscoll began writing her. "She wanted to reach out to someone in the
penitentiary to convert them into religion and save their soul before they
had died," he says. "She started preaching, talking about 'Lord loves me'
and 'His Son died for my sins' and this and that, and I said, 'Yeah, all
right.' I had talked to her and explained to her what I wanted to do."
What he had in mind was only slightly less spiritual. "I wasn't really
interested in her religion or nothing," he says. "What I wanted to do was
experience love, true love, one time before I was executed."
She was in a bad marriage. Driscoll had his lawyer help her file for a
divorce. She moved to Jefferson City to be near him, and when Driscoll was
transferred to Potosi, she followed him there. The courtship was intense,
if constrained. At the time in Potosi, each cell was outfitted with a
phone jack. "I had a hidden phone so I could talk to her late at night,"
Driscoll says. "I'd put my mirror out [of the cell] to see if the gate was
locked. If it was locked, I'd call her, plug it in and kick back on the
bed. It was real nice."
On January 17, 1989, Robert Driscoll married his wife, a Native American
woman who asked that she not be named in this story. She continued to
visit him, twice a week. Often they were the only 2 in the visiting room;
it was there that the couple consummated their marriage.
Driscoll's wife became his biggest champion. She was there in 1995 when he
won his first reversal. She was there in 2000 when he was again sentenced
to die. She was also there on September 11, 2001, when -- of all days --
the Missouri Supreme Court reversed Driscoll's 2nd conviction, finding
that he'd have been within his rights to waive cross-examination of Jimmie
Jenkins' transcript.
In a precedent-setting decision, the court found that Judge Wiggins had
erred in allowing Ahsens and Fusselman to introduce the portions of
Jenkins' testimony linking Driscoll to the Aryan Brotherhood. The court
ordered another trial -- but this time prosecutors could not mention the
AB, and the jury would hear that Jackson's blood was never detected on
Driscoll's knife. "When I go back this third time, there's no blood
evidence. Their 2 state witnesses, [inmates] Vogelpohl and Ruegg -- a
bunch of lies and inconsistencies. They can't use the AB. It can't be
brought up," Driscoll sums up.
Unlike Driscoll's previous attorneys, who'd cautioned against testifying
on his own behalf, his new counsel, David Bruns and Brad Kessler, saw the
defendant as his own best advocate. "After the state put on its evidence,
Brad says, 'Well, we got one witness. We're going to put on Driscoll,'"
Driscoll recounts. "Well, they weren't ready for me."
After a lifetime of smoking, Driscoll's lungs were brittle with emphysema.
Interferon, administered to fight hepatitis C, gave his complexion an
ashen pall. His legs atrophied from more than a year spent in a prison
hospital bed, Driscoll couldn't make it to the witness stand under his own
power. Bailiffs hoisted him into the witness box, wheelchair and all.
None of which had clouded Driscoll's knowledge of his case. He'd spent the
past 21 years studying each motion, query and objection. He knew his case
better than any attorney, and when he finally ascended the witness stand
Ahsens and Fusselman were flummoxed.
"It was great theater," Kessler recalls. "Ahsens had won the conviction a
couple of years earlier, so he's leafing through twenty years of
transcripts looking for a statement. But [Driscoll] had no prior
statement."
Robert Ahsens declined to comment for this story. Michael Fusselman did
not respond to an interview request.
When it came time for Ahsens to cross-examine Driscoll, the prosecutor
struggled to find his bearings. He then launched into a rambling series of
questions about Driscoll's record, his truth-telling and his intentions
that went on for roughly 2 hours. Driscoll, meanwhile, ingratiated himself
to the jurors, agreeing with one elderly woman that it was chilly in the
courtroom and solicitously asking others whether they were able to see an
exhibit he was showing them.
On March 29, 2004, both sides delivered their closing statements. The jury
deliberated for 7 hours before returning with a verdict: voluntary
manslaughter.
In the past, Driscoll had been frustrated that his attorneys didn't know
his case as well as he did. Still, when the verdict was read, he was
stunned. He'd prepared himself for a judgment of either guilty (another
death sentence or life without parole) or not-guilty (freedom). He had no
idea what sentencing guidelines applied to manslaughter cases. "All my
life all I thought about was the death penalty and life without parole,"
he marvels. "I'd never even looked at manslaughter."
Voluntary manslaughter now nets five to thirty years behind bars for a
persistent offender. Back in 1983, though, the crime carried a maximum
sentence of 15 years. Robert Driscoll had been in prison more than twenty
years awaiting a final verdict.
Time served: He was granted his release.
Along with 38 alleged co-conspirators, Rabbit's San Quentin cohorts Robert
"Blinky" Griffin and Rick "Bart Simpson" Terflinger were indicted in 2002
on federal racketeering charges. The 110-page indictment charges the Aryan
Brotherhood members with multiple murders dating back to 1979 and minutely
chronicles alleged schemes to instigate prison race wars, manufacture
weapons, distribute drugs and carry out murder contracts.
Driscoll says he's only marginally aware of his former brothers' legal
problems. For the most part, he's reluctant to discuss the Aryan
Brotherhood at all. "My past life is one aspect. Where I'm at today is
another," he reasons.
While his former friends await trial in solitary confinement, 58-year-old
Robert Driscoll spends his days padding around his Maplewood bungalow in
house slippers, sweats and a T-shirt. He passes the time smoking Camels on
the porch, watching his favorite soap opera, All My Children, and playing
chess on his computer. "I'm thinking about getting that Internet," he
confides.
His wife, who works as a legal secretary, has festooned the couple's home
with inspirational tchotchkes. In one framed image, Jesus holds a fallen
young man. In another are the words, "As for me and my house we will serve
the Lord." The dining-room table is covered with a lace tablecloth; in the
bedroom a wall bears a plaque engraved with their wedding date: January
17, 1989. At Christmas no less than 7 red stockings with white trim hung
over the fireplace.
The couple shares the house with a roommate, but head down the rickety
staircase off the bedroom hall and the cluttered, flood-prone basement is
Driscoll's alone. Pale light squeezes through the ground-level windows,
and on damp days the foundation's cement walls sweat. The only sign of
feminine life is the occasional blouse hanging by the washing machine.
Here Driscoll has set up a small gym with a bench press and stationary
bike. An adjacent room is devoted to a woodshop, where he spends hours
shaping wood into intricate carvings of eagles and lions, roses and
crosses, jewelry boxes and snowflake Christmas ornaments. Here, among the
power saws, drills and lumber, Driscoll displays one of the few mementos
he took away from his incarceration: a trophy won in a prison dominoes
tournament.
A lot changed during the years Driscoll spent behind bars. In his wallet
he carries a piece of paper with instructions for retrieving voicemail.
He's still getting used to the cell phones and remote controls of a
faster-paced world, and to this day he needs to ask clerks for help when
he uses his credit card. "When I went in it was called Dairy Queen, now
it's DQ. IHOPs, it was International House of Pancakes," he observes.
"Everything's shortened -- everything's fast."
That's not all. "Values are completely different on the outside," Driscoll
reflects. "In the joint if somebody says something, they usually stand on
their word. Out here people just talk at the mouth like it don't mean
nothing."
It's the small things that really bother him. When he first got out, he
went for a haircut. "The woman's talking to me, just cutting it up. I had
mentioned that yeah, I had to cut my hair or I'd be in the doghouse with
the wife -- just kidding with her, right?" Driscoll says. "The beautician
says: 'Oh, you got a dog?' And I say yeah. So one lie led to another. I'm
finding out that you shouldn't even say nothing."
But it's also the small things that bring him joy. "After you've done 21
years in a room that's about the size of a bathroom, you're thankful for
little things, like getting up in the middle of the night and going to the
icebox," he says. "Or going to a movie, any one you want to see, or taking
a trip and getting on the plane without handcuffs."
Driscoll dotes on his wife, a small, soft woman with whom he never
expected to live. One night he tells of slathering his hands in lotion and
giving her a foot massage, the next he swells with pride as he describes
the jewelry chest and makeup kit he bought her for Christmas. He cares for
her when she's sick, worries because he doesn't have a job and can't
support her financially.
He goes to church twice a week, and each fortnight he tries to make it out
to Jerseyville to speak with drug addicts and at-risk youth. He may have
dodged the death penalty, but between his emphysema and the now-dormant
hepatitis C, he knows he's living on borrowed time. Unlike in prison,
where one's days are -- literally -- numbered, life outside is full of
uncertainty. And questions. Why, for instance, was he spared the violent
end that befell so many of his friends and enemies? Why, only two years
ago, was the state giving him life-saving interferon to counter his hep C,
in order that it might execute him?
For now, he says, he concentrates on drawing strength from his wife, and
from her faith in God. "I'm what they call a baby Christian," Driscoll
says. "I'm just getting into it. You slap me, I'm going to slap the shit
out of you back.
"I haven't got the turn-the-other-cheek stuff," he adds. "But I'm working
on it."
(source: Riverfront Times)
