A Dangerous Man
At 18, Billy Joe Wardlow took a man’s life. Nearly 30 years later, the state still wants his.
Like any place humans gather, death row has a culture. Billy Wardlow says it's different in many ways from general population. One is in how new inmates are treated. "In [general population], the guys around you would try to find some way to exploit you," Wardlow said. "Death row, with a few exceptions, will often extend a hand of friendship to the 'new boot' so they can get on their feet ... Most of us get together and let each other know what we can send to the new guy."
Wardlow typically sends writing materials, food, clothes, and hygiene products. Recently, after receiving some of these items, a new inmate asked Wardlow what he owed him. "I told him to remember how guys helped him when he saw someone else new," Wardlow said. "Pay it forward, as the saying goes."
Sending gifts is one thing Wardlow is known for on death row. He's also known for counseling prisoners having emotional trouble, fixing their typewriters, and scrubbing the showers to bring them to his personal level of cleanliness. In a quarter century behind bars, the tall, lanky country boy has evolved into a caretaker of those around him, a person respected even by guards. A fellow inmate calls him, simply, "one of the good guys." Still, the state plans to execute Wardlow on July 8.
The Crime, The Trial
Billy Joe Wardlow was 18 years, 6 months, and 19 days old on June 14, 1993, the morning he and his girlfriend, Tonya Fulfer, set out to steal Carl Cole's Chevy Silverado. In their minds the theft would be the first step toward a new life, one far from the parents who had hurt them and the poverty they'd known in rural Northeast Texas. The idea was to drive the pickup to Montana, change their identities, and begin life anew.
The plan's magical thinking revealed itself as Wardlow stood on Cole's front porch at dawn. Wardlow asked to borrow a phone. Cole handed one through the door. As Wardlow pretended to make a call, Cole tried to shut the door. Wardlow brought out the .45 he'd stolen from his mother hours before. To Wardlow's surprise, the 82-year-old Cole charged him, grabbed his arm, and began to push the much-larger Wardlow backwards off the porch. As Cole's fingers grabbed for control of the gun Wardlow shot. Cole fell dead. Wardlow and Fulfer were arrested two days later, having made it as far as South Dakota.
As Wardlow waited in the Morris County jail, he felt overwhelming guilt and remorse. He went days without sleeping, tried repeatedly to kill himself, and threatened jailers. The sheriff, a friend of the family, counseled the distraught teen to write his feelings down on paper. If that didn't help, he said, just flush it down the toilet. Wardlow wrote out a confession and showed it to the sheriff. The sheriff handed it to prosecutors.
The confession had a novelistic quality. In Wardlow's telling, Cole's murder reads like a scene from Raymond Chandler. "Being younger and stronger, I just pushed him off and shot him right between the eyes. Just because he pissed me off. He was shot like an executioner would have done it. He fell to the ground lifeless and didn't even wiggle a hair." This passage – especially the phrase "Just because he pissed me off" – has been quoted by prosecutors and judges many times over the years.
Wardlow later testified that he changed details in the confession to write his girlfriend, Fulfer, out of the crime. Prosecutors were threatening both with the death penalty. They were also trying to turn Fulfer. They wanted her to testify that Wardlow had planned to kill Cole all along. When Fulfer wouldn't agree, they crafted a plea deal for her that would be finalized only after Wardlow's trial was complete. The implication did not need to be spoken aloud: If Fulfer tried to help Wardlow, her plea deal could get yanked.
When the trial got underway in 1995, Wardlow was defended by a local attorney who, experienced as he was, had never worked a capital murder case. Wardlow testified that the shooting had been an accident, that he had pulled the trigger to frighten Cole, without meaning to hit him. The prosecutor put a medical examiner on the stand who said there couldn't have been a struggle over the gun, that the lack of gun powder residue on Cole's face showed it had been fired from more than three feet away. Wardlow's attorney didn't object to this testimony, given by a witness with no expertise in ballistics. With the evidence mounting, the attorney desperately needed Fulfer to back up Wardlow's version of the events. He called her to the stand but she took the Fifth.
The jury found Wardlow guilty. Prosecutors brought in a well-traveled prison expert to argue that if Wardlow wasn't given death he'd be dangerous in prison. Since Wardlow had already threatened his jailers, it wasn't much of a stretch. Wardlow's attorney had a lot of mitigation evidence at hand to argue against the death penalty – that Wardlow had been abused as a child, that he had mental problems, that he'd never been violent before. But rather than try to enlist the jury's sympathy by showing the conditions Wardlow had grown up in, his attorney put three character witnesses on the stand, folks who barely knew Wardlow. The jury gave him death.
The Defaulted Appeals
"He seemed like a kid" – this was Mandy Welch's first impression of Billy Wardlow when she met him in late 1997. "He was really tall and seemed like a gangly kid. He may have been in his early 20s by then but to me he was like a teenager. His emotional state was up and down. He was vulnerable and scared. And he was needy."
Welch was 52 years old at the time. She and her husband, Richard Burr, had just finished their work as part of the defense team for Timothy McVeigh, the Oklahoma City Bomber, and returned home to Texas. The two attorneys had spent their entire careers defending capital murderers to that point. Today, with both in their 70s, that remains true.
Wardlow had been on death row for two years by then. On the morning after his sentence he'd been bundled into a squad car and driven to Huntsville. His lawyers hadn't told him what to expect – nor had his family, nor had anyone. With TV shows as his only reference, he'd assumed he was being driven to his execution. Instead he was placed in a concrete box. It slowly dawned on him that he might be there for years. He decided to do what he could to shorten that time: To forego his appeals, to speed up his execution.
Welch had seen young men like Wardlow before, young offenders, overwhelmed by the ugliness of their new surroundings, who wanted to end it. But, she knew, that changed. She arranged a visit.
Speaking with a pleasant rural twang, pausing between sentences, Welch said: "I went to the prison and saw him. And talked to him and told him what I could do. That I could represent him. And he was interested in talking to me. I explained the appeals to him and explained that if he changed his mind he could drop his appeals again and that I wasn't trying to force him to do anything. That I was just there and available."
It took several meetings, but Welch built a relationship with Wardlow. He decided to pursue the appeals. She began compiling arguments. Then, with two weeks to go before the deadline for their filing, he changed his mind again and sent a letter to the Texas Court of Criminal Appeals, waiving the appeals.
Welch wrote to the court, expressing concern for Wardlow's mental state. She finished the petition and took it to Wardlow. "My memory is I took it down to him the day it was due," she said. "His parents were visiting him and I laid it out and said I want you to look at this and if you want me to file it I will. So he looked at it and he read it." Her voice gets softer. "My memory is he said, 'You understand me, don't you?' And I said, 'Yes, I think I do.' That's what I remember distinctly. And he said, 'I want you to file it.'"
Welch stapled an affidavit from Wardlow withdrawing the waiver of the appeals to the back of the petition and submitted it on the afternoon of the deadline.
Welch's petition alleged, among other things, that prosecutors at the trial manipulated Tonya Fulfer into refusing to testify for Wardlow by not finalizing her plea deal until after Wardlow's conviction. It argued that Wardlow's trial attorney did an ineffective job when he failed to object to the testimony of the state's medical examiner. It argued that the attorney again provided ineffective assistance by failing to present the jury with information about Wardlow's upbringing during the sentencing phase of the trial.
It took six years for the TCCA to address the petition. When it did, in 2004, the court ruled that since it had already accepted Wardlow's request to waive his appeals back in 1998 it wouldn't even look at the arguments. It said nothing about Wardlow's withdrawal of the waiver.
"I just was flabbergasted," Welch said. "I mean, that was just not the law ... The A.G. never raised it, the [trial] judge never questioned it. Nobody ever raised it." Welch said the TCCA's ruling wasn't based on any actual Texas law and that no similar ruling has ever been made in regard to any other death penalty litigant, many of whom have waived appeals and then withdrawn the waivers. The ruling was, simply, a mistake.
Still, once Texas' highest criminal court had thrown out the appeal, federal courts further up the line were free to do so as well. And they did. Wardlow's claims of prosecutorial misconduct and ineffective lawyering – two of the arguments most likely to overturn a death sentence – have never been fully and fairly considered by the courts.
The New Arguments
After the TCCA denied Wardlow's habeas appeal in 2004, Richard Burr took over the case. He appealed it for 15 years, all the way to the Supreme Court, and was rejected at every stop. In October of 2019, Wardlow was given an execution date – April 29 (it has since been moved to July 8 because of the coronavirus pandemic). But by then, Burr had filed new appeals for his client, and he continues to do so. One of his most compelling arguments relates to the concept of "future dangerousness."
In order to get the death penalty in Texas, juries must decide that a convicted man will probably commit violent acts in the future. If they can't agree to this, he is given life without parole. This prediction, called future dangerousness, has always been controversial. Practically anything, even the mere facts of the crime itself, can be proof of it. Juries make the prediction in almost every capital murder case they see.
Burr is asking the Supreme Court to review new research that shows that because of the way the brain grows – or doesn't – the prediction of future dangerousness in an 18-year-old is scientifically impossible. If the court rules in his favor, the law would no longer be applicable to 18-year-olds, and Wardlow – who, you will recall, was 18 at the time of his crime – could receive a new sentence.
The question at the heart of Burr's argument – at what point is a person mature enough to be held responsible for his actions? – is one the Supreme Court has grappled with before. In 2005, the Court ruled that executing those under 18 years of age is unconstitutional because their character is not yet fully formed. One line that appears near the end of the ruling is particularly relevant to Wardlow's case: "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18."
New research shows how correct that statement is. In the years following Wardlow's sentence, scientists began using a new invention, magnetic resonance imaging, to study the brain. Today, after 20 years of MRI research, there is universal agreement that 18-year-olds are not full-fledged adults.
In an amicus brief filed on Wardlow's behalf with the TCCA in February, professors from UT-Austin and Texas A&M describe, from a biological perspective, why young adults do stupid, violent things. Citing dozens of studies published within the last decade, they write that during the early years of adolescence the parts of the brain that control aggression and risk-taking grow quickly. Only much later, in the early 20s, do the parts responsible for controlling these impulses begin to catch up. The studies show that 5-6% of young offenders will continue to be violent. But since the brain isn't finished developing there is no way to determine which young people those will be.
"There is thus no reliable way to determine whether an 18-year-old capital defendant will commit acts of violence in the future," the brief concludes, "making the overwhelming probability in the present case that Mr. Wardlow was sentenced to death based on a determination of future dangerousness that was theoretically and empirically unfounded, and which has proven untrue as he has grown into adulthood."
In addition to this major argument, Burr has appealed to the Texas Board of Pardons and Paroles for clemency for Wardlow, in a letter co-signed by 58 members of the Texas Legislature. He's also appealed yet again to the TCCA, asking them to reconsider their 2004 rejection of Wardlow's original appeals and to stop the execution while they determine a response. And after the Supreme Court recently ruled against Texas in a case with similarities to Wardlow's – Andrus v. Texas – Burr plans to file a second petition asking the court to review Wardlow's claim that his trial attorney was ineffective.
In short, Wardlow's July 8 execution is not yet a done deal.
The Best of the Best
Mark Robertson remembers when Wardlow was the new guy on death row. "I met Billy Joe Wardlow the day he was received at the Ellis Unit in 1995," Robertson recently wrote in an affidavit. "Billy looked like a tall, skinny kid. He had that forward-staring nervous [look] of all new arrivals."
Wardlow's cell was below Robertson's and soon they were talking. "We both liked science and were both into astronomy," Robertson writes. "When Billy sent me a book on the sun, I was hooked." Before long, Wardlow was teaching Robertson how to plot astrological charts. "I learned how to read and utilize the ephemerides and tables of houses and could erect the heavens for any given time on any given day, and do so from any point on Earth, which I found delightful. All that's really thanks to Billy."
Inmates learned about the individualized astrological charts Wardlow created and began to seek him out. Not long afterward, Wardlow acquired a repair manual for the Smith Corona typewriters that TDCJ allows prisoners to keep. He fixed his own and began fixing others. Again, he taught Robertson how to do it. Suddenly, the kid who had been a loner all his life, who felt more comfortable with machines than people, was making friends.
Tony Egbuna Ford is another inmate who submitted an affidavit on Wardlow's behalf. Ford became aware of Wardlow when he joined with Black inmates to protest the increasing number of executions in the late Nineties. He writes: "It was surprising to a lot of us Black guys that there was some white guy [Billy] joining in because in prison it is HARD to organize any efforts across racial and ethnic lines."
Ford says that Wardlow finds ways to get along with everyone, "even prison staff, even the prison staff that acts like they don't like anyone." On death row, prisoners are wary of guards who try to provoke them into physical altercations. But Ford says Wardlow isn't bothered by taunts and insults. "He will still talk to guards who act this way where most people back here will show obvious hostility. They will curse and yell. They will threaten. Billy won't do this. And because of this the guards respect him."
There are currently over 200 men on Texas' death row. They live in 6-by-10-foot concrete boxes, with 14 boxes to a section, seven upstairs, seven downstairs. The sections are arranged in a square called a pod. The architecture makes it possible for death row inmates to communicate. "We can talk to anyone in the section we live in easily," Wardlow said. "You can even talk to people in the other two sections of your half of the pod when it's quiet, so you can play games with each other when others are quiet enough to let you."
Being able to communicate with 41 other men makes it possible for Wardlow to preside over games of Dungeons & Dragons, the fantasy roleplaying game. In D&D, players assume an identity – wizard, elf, dwarf, human – with various attributes and vulnerabilities, and embark together on an adventure. The Dungeon Master – Wardlow – creates a goal for the group and weaves together a storyline as players encounter challenges, choose a response, and roll dice to determine success or failure.
In D&D, characters may attack and kill adversaries, and each other, with swords, maces, and balls of fire. For a bunch of convicted murderers it could devolve into unchecked aggression. But Ford says this doesn't happen when Wardlow runs the game, that he finds gentle ways to challenge players, "to get them to think about their actions." Ford said Wardlow's approach to the game is like therapy. When it ends, players feel lifted up: "They are much more social and they can't wait until the next session."
Through his contacts, Wardlow keeps his finger on the pulse of everyone on death row. He knows which inmates are struggling with emotional issues, with health issues, with unresponsive lawyers. If an inmate is having difficulty, Wardlow will talk one-on-one with him during the two-hour break prisoners get from their cells. He often asks Mandy Welch to coordinate help from the outside.
When his mother passed away, Ford said Wardlow was there for him. "He'd let me express myself .... He wasn't doing what so many people do, like they are comparing losses, like they are somehow ignoring your loss and pain to say, 'But what about my loss and pain?'" Warlow listened while Ford spoke. When Ford was finished, Wardlow relayed his own experience of losing his mother. "He started off just speaking, like he was in that moment with me, and I believe he was. Then, next thing you know, I'm speaking in the manner in which he is speaking. Calmly. Not breaking down."
In these descriptions, a picture emerges of a man very different from the one who took Carl Cole's life – a caretaker, a person others rely upon, who asks, "How can I help?" The usefulness Wardlow has found on death row has given his life meaning. This meaning, and the satisfaction he takes from it, is what Welch imagined could happen when she gently persuaded the distraught young man to file his appeals 23 years ago.
Wardlow feels a deep love for Welch. "She is like a mother to me," he said. "I definitely wouldn't be here were it not for her. She's been very patient, kind, loving, and forgiving with me over the past two decades."
One of the cherished myths of those who support the death penalty is that it is reserved for the "worst of the worst," those beyond redemption. At the end of my interview with Welch, I asked her about this notion – is it possible that Wardlow is one of the worst of the worst?
She paused one second, two seconds, three seconds, and began: "He is so far from – he is somebody who anybody would love to have for a son. If you just took that one day out. If you just took that day out of his life. You'd be just so proud of him, proud of who he is. He's kind, he's compassionate, he has a desire to improve himself. He works at it. He's good to guards. He has insight beyond – you don't know where it came from because he grew up on death row – but he can see beyond people's worst traits and understand that there's some good in people no matter how bad they behave to him.
"So you know, it's not just that he's not one of the worst of the worst. He is, as a human being, one of the best of the best. He is that."
Billy Joe Wardlow’s execution is scheduled for July 8, 2020.