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Further information on UA 442/91 (AMR 51/68/91, 16 December and follow-ups AMR 51/03/92, 3 January and AMR 51/17/92, 6 February) - USA (Arizona): death penalty: Donald Eugene Harding

, Index number: AMR 51/043/1992

EXTERNAL (for general distribution) AI Index: AMR 51/43/92
Distr: UA/SC
Follow-up to UA 442/91 (AMR 51/68/91, 16 December 1991) and follow-up AMR
51/17/92, 6 February 1992 - Death Penalty 24 March 1992
USA (Arizona) Donald Eugene HARDING, white, aged 42
Donald Harding is scheduled to be executed in Arizona on 6 April 1992. He is
under three death sentences. He was convicted of the murder of a man in a motel
in Phoenix during a 1980 burglary, and was convicted separately of the murders
of two men at a motel in Tucson the following day. His execution date relates
to the Tucson murders.
The public defender assigned to defend Donald Harding withdrew from the
case before the trial. He advised Harding to represent himself, apparently
in the expectation that this would result in errors that would provide grounds
for overturning the death sentence on appeal. Although counsel was present
in an "advisory" capacity during the trial, he did nothing to assist Harding
and no defense of any kind was presented. Although substantial mitigating
evidence existed, which supported a life sentence, counsel investigated nothing
and presented nothing.
Donald Harding had an extremely disturbed upbringing. When he was six
months old his father abandoned the family. He lived with his grandparents
for three years until his mother remarried and took him back. His home
environment was unstable. He was abused, neglected and witnessed serious
violence between his mother and stepfather. He exhibited symptoms of mental
illness from an early age and was later diagnosed as having a "chronic brain
syndrome" which made him hyperactive, aggressive and depressed. He was beaten
by teachers to "control" his hyperactivity. Medical experts acknowledged that
he was greatly in need of psychiatric help but they had no place to hospitalize
him. He threatened suicide at the age of nine by slashing his wrists. Since
the age of 11, Donald Harding has been institutionalized for all but a few
months of his life, first in a juvenile reform school from which he ran away,
then at 16 in an adult prison where he was put to work in the fields and subjected
to violent abuse and sexual assaults at the hands of other inmates. Despite
the abundant evidence of how this upbringing shaped the behaviour of an already
brain-damaged boy, the trial court found "no mitigating circumstances"
sufficiently substantial to support a life sentence.
On appeal Donald Harding presented evidence that, at the time of the
crimes, he suffered from an organic brain dysfunction which substantially
impaired his ability to control his behaviour. He was not competent to make
the decision to waive his right to counsel and to represent himself at trial,
being incapable of acting rationally in his best interests. Several neurological
experts who have examined Donald Harding agree that he suffers from organic
brain dysfunction that renders him unable to control aggressive and violent
impulses, or behave appropriately, especially when under the influence of
alcohol or other sedating drugs. According to another medical expert, Donald
Harding also suffers from untreated Post Traumatic Stress Disorder as a result
of the brutal treatment and sexual assaults he received in an adult prison
from the age of 16 to 24.
Two federal courts of appeal in 1987 ruled, however, that the public
defender had provided adequate representation and that Mr Harding had knowingly
taken the risk of representing himself.
Page 2 of FU 442/91
If carried out, Donald Harding's execution will be the first in the state of
Arizona for nearly 29 years. The last prisoner executed in Arizona was Manuel
E Silvas in March 1963. The method of execution is the gas chamber. At the
beginning of 1992 there were 101 prisoners under sentence of death in Arizona.
In Arizona the power to commute death sentences rests with the Governor
who may act only on the recommendation of the Board of Pardons and Paroles.
RECOMMENDED ACTION: Telegrams/faxes/telephone calls/express and airmail
- opposing the execution of Donald Harding, urging that he be granted clemency
and his death sentence commuted;
- citing his disturbed upbringing and history of brain damage - evidence which
was not heard by the trial court; urging that these mitigating circumstances
now be taken into account in a full clemency hearing;
- expressing concern at the deficiencies of Donald Harding's legal
representation at trial: the fact that counsel withdrew and permitted Harding
to represent himself; the fact that no defence and no mitigating evidence
whatsoever was presented;
- urging that the state of Arizona not take the retrograde step of resuming
executions after almost 29 years of not carrying out the death penalty.
Robert Tucker Dear Mr Tucker
Arizona Board of Pardons and Paroles
1645 West Jefferson, Suite 326
Phoenix, AZ 85007, USA
Telegrams: Mr Tucker, Arizona Board Pardons/Paroles, Phoenix, AZ 85007,
Tel: (602) 542 5656
Fax: (602) 542 5680
The Honorable Fife Symington Dear Governor
Governor of Arizona
1700 West Washington
Phoenix, AZ 85007, USA
Telegrams: Governor Symington, Phoenix, AZ 85007, USA
Tel: (602) 542 4331
Fax: (602) 542 7601
The Letters Editor
Arizona Republic
Box 1950
Phoenix, AZ 85004, USA
Fax: (602) 271 8500
and to diplomatic representatives of the USA in your country.
PLEASE SEND APPEALS IMMEDIATELY. Check with the International Secretariat,
or your section office, if sending appeals after 5 April 1992.

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