Judge rules no new trial for convicted murderer Thacker

Retired Judge Allen Wallace denied Thacker's petition for post-conviction. He filed an order to that effect this month in Dyer County Circuit Court.

Thacker, 39, of Chouteau, Okla., was given a death sentence in 2002 for the first-degree murder and felony murder of Dyersburg tow-truck driver Ray Patterson, 52. Thacker claimed in his petition that his appointed attorneys provided ineffective counsel and his conviction should be overturned.

"This court has found that, even where (Thacker) has demonstrated counsel's representation fell short of the required standard for capital cases, petitioner has failed to demonstrate he was prejudiced by the action or inaction of counsel," Wallace wrote in his 110-page court order. "Even so, the Sixth Circuit (Court of Appeals) has recognized that errors which individually might not rise to the level of a constitutional violation may, when considered cumulatively, render a trial fundamentally unfair. ... Nevertheless, in the instant case, this court finds that, although petitioner's trial may not have been perfect, overall the procedures withstand his due process challenge."

Thacker's claims were explored during a three-day hearing in February. A number of witnesses were called to second-guess the work of attorneys Charles Kelly and Tom Strawn, who represented Thacker during his 2002 trial.

Thacker had been diagnosed with bipolar disorder and stopped taking his medicine before beginning his 10-day journey of violence through three states. He raped and killed a 25-year-old woman in Bixby, Okla.; traveled to Missouri, where he killed a 24-year-old restaurant supervisor; and continued to Tennessee, where his stolen car broke down. He called Patterson Bros. service station in Dyersburg for help.

Patterson towed Thacker's stolen car to the service station. When Thacker's credit card was denied, Thacker stabbed Patterson to death and stole his tow truck, cash, credit cards and an unloaded pistol. Police tracked Thacker to a Union City motel, where he was arrested on Jan. 2, 2000.

Thacker was sentenced to death in Oklahoma and life imprisonment without the possibility of parole in Missouri.

Dr. Keith Caruso, a forensic psychiatrist, examined Thacker before his trial to assess the extent of his mental illness and to administer a screening test for brain function. Caruso said "the test demonstrated that, at the time of the evaluation, (Thacker's) judgment and impulse control were not immediately impaired; his insight was 'fair;' and he was no longer in a manic episode; but, was depressed."

Caruso said Thacker was competent to stand trial. With that ruling, Kelly and Strawn couldn't pursue a claim of "diminished capacity." Instead, they focused on a claim of self-defense during the trial and attempted to focus on mitigating factors during the sentencing phase. Mitigating factors, such as Thacker's mental illness and his relationships, theoretically should have helped jurors see him in a sympathetic light.

In the February hearing, Caruso testified he would have changed his opinion if he'd known the front lobe of Thacker's brain was damaged.

That information wasn't available until after Thacker had been convicted and sentenced.

Dr. Johnathan Pincus, a neuropsychologist who later examined Thacker, determined Thacker "had deficits in the frontal lobe of his brain. Dr. Pincus explained that frontal lobe damage affects an individual's ability to control impulses and desires," the judge's order said.

Still, Pincus testified, Thacker "was not completely without responsibility and likely could control his impulse to murder."

Thacker suffered a number of severe blows to the head when he was young.

Dr. Robert Shaffer, a clinical psychiatrist, evaluated Thacker twice in 2008. He determined that Thacker was predisposed to violence because of a combination of factors: a genetic history of mental illness; an absence of a maternal relationship; childhood neglect and physical abuse; frequent changes in his home and schools, and multiple head traumas. Shaffer recounted reports that Thacker fell from his crib onto a concrete floor when he was a baby, was ejected from a car and lost consciousness when he was 3, hit his head on a concrete culvert at age 4, and, prior to age 8, hit his head on a windowsill. Shaffer said Thacker and his siblings also played a game in which they ran toward one another and knocked their heads together. When he was 15, Thacker had a motorcycle wreck and suffered a concussion.

Schaffer "stated that the fact that petitioner suffers from bi-polar disorder combined with brain damage means he has no ability to anticipate the consequences of his actions," the judge's order reported. "Dr. Shaffer testified that (Thacker's) only reaction to stress is aggressive, defensive behaviors. He stated that (Thacker) has a fear of abandonment that can trigger manic episodes. He stated that right before the events in question, (Thacker's girlfriend) Kim Bowen rejected (him) and his current wife kicked him out of their home. He stated that emotionally, (Thacker) felt he was acting in self-defense."

To engender jurors' sympathy for Thacker during the trial, Kelly and Strawn needed friends and family members to testify. Thacker reportedly told his mother and sisters not to come to his trial. Thacker was estranged from his father, and the defense team did not contact him. Thacker's father, mother and stepfather all appeared for the post-conviction relief hearing in February.

One person who did testify for Thacker in 2002 was his former girlfriend, who shared her home with him from 1994 to 1997. Bowen said Thacker had manic periods when he would get revved up and become a different person, but he never became violent.

Glori Shettles, an investigator with Inquisitor Inc., "stated that essentially the defense team was in a situation where (their) mitigation consisted of (whomever) was willing and available to testify," the judge's order said.

Shettles, who was attempting to gather information for the defense team, said she had little guidance or interaction with the defense attorneys. She gave them her reports and information. She said she prepared a list of possible mitigation themes and a timeline showing hypo-manic and manic episodes in Thacker's life. A "bridge" document showed the progression of Thacker's mental illness and how it related to his crimes.

Susan Wardell, who testified as an expert mitigation specialist, criticized Shettles' work. She claimed Shettles' investigation was shallow and her timeline skimpy and out of order. Wardell said if Shettles were the defense team's mitigation specialist, she should have been in control of the team, calling meetings and requiring counsel to consult with witnesses at her direction. Wardell praised Shettles' bridge document and said it was a shame the defense attorneys didn't use it.

Strawn testified in February that he viewed Shettles as a mitigation investigator, not a mitigation specialist. So, he didn't discuss mitigation theory or strategies with her. He said that he and Kelly combed through Shettles' reports and discussed them, seeking additional information when necessary.

Kelly, the lead attorney for the defense, said he reviewed the information prepared by Shettles. Although Strawn was in charge of the mitigation phase of the trial, Kelly said he and Strawn discussed mitigation strategies and the proof that was to be presented.

Kelly and Strawn defended their jury selection tactics, performed with the assistance of a jury selection consultant. They used only four of their 16 peremptory challenges to eliminate potential jurors. Both Kelly and Strawn said their research indicated the people on the jury would be more sympathetic than those remaining in the jury pool.

Attorney Richard Kammen, who has handled two death penalty cases in his career, was called as an expert in death penalty defense. After reviewing the case and the Inquisitor Inc. reports, Kammen said it appeared that the "defense counsel properly assembled a team; but, then failed to properly communicate with the team and failed to properly utilize the team."

Kammen criticized the defense trial strategy and failure to get a neuropsychological evaluation, which would have given the defense team a chance to argue that Thacker suffered from diminished capacity.

The judge acknowledged the defense team had troubles, but he dismissed each of Thacker's complaints.

"In this case," the judge wrote, "counsel was assisted by competent mitigation investigators who gathered numerous records, conducted extensive interviews and provided counsel with assistance in developing mitigation themes and evidence. Glori Shettles provided Dr. Caruso with ninety-four different documents consisting of witness interviews; medical records; and social history. Dr. Caruso stated that he relied upon these documents in diagnosing (Thacker). At the sentencing portion of the trial, the jury heard testimony regarding (Thacker's) bipolar disorder both from an expert witness and from lay witnesses. Additionally, Dr. Caruso explained how (Thacker's) childhood trauma could contribute to his illness and how his illness affected his behavior on the date in question. Although both counsel acknowledged that, in hindsight, their mitigation case could have been stronger, this court does not find they rendered ineffective assistance during the sentencing portion of (Thacker's) trial."