Inmate: JAY W. NEILL
ODOC# 141128
Race: White
Sex: Male
Height: 5 ft. 11 in
Weight: 150 pounds
Hair: Blonde
Eyes: Blue
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General - 10/14/02

Execution Date Set for Neill

The Oklahoma Court of Criminal Appeals today set execution date for death row inmate Jay Wesley Neill. Attorney General Drew Edmondson requested the execution date Oct. 7 after the United States Supreme Court denied the inmate's final appeals.

Neill, 37, is scheduled to be executed Dec. 12. He was convicted in Comanche County District Court of the Dec. 14, 1984, murders of Kay Bruno, 42, Jerri Bowles, 19, Joyce Mullenix, 25, and Ralph Zeller, 33, during a robbery at the First Bank of Chattanooga in Geronimo. Bruno, Bowles and Mullenix were employees of the bank. Zeller was a customer. Three other customers were shot and wounded during the robbery.

ProDeathPenalty.Com

Jay Neill received a death sentence for his murder of four people during an armed robbery of a bank in Geronimo, Oklahoma in 1984.

At the time of the murders, Neill was 19 years old and living with Grady Johnson, his lover. Facing financial difficulties and with their relationship on the rocks, they decided to rob a bank and flee to San Francisco, and proceeded to buy knives, guns, and plane tickets. The robbery took place in December, 1984. During the robbery, Neill stabbed three bank employees to death. All three women, Kay Bruno, Jerri Bowles and Joyce Mullienix, died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one, Ralph Zeller, and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. Neill's attorney, James Hankins says that the pair planned to commit suicide when the money ran out, but FBI agents arrested the pair there three days after the robbery.

The State had initially tried Neill and Johnson jointly. The Oklahoma Court of Criminal Appeals, however, reversed their resulting convictions, holding, among other errors, that the trial court should have severed their trials. Prior to his second trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications, Neill admitted committing the crimes.

Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill. At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

UPDATE: In McAlester, Jay Wesley Neill, who killed 4 people in one of Oklahoma's deadliest bank robberies, was put to death in Oklahoma on Thursday. Neill, 37, was pronounced dead at 6:18 p.m. at the Oklahoma State Penitentiary. Neill was executed for fatally stabbing 3 employees and fatally shooting a customer of the First Chattanooga Bank branch in Geronimo. He wounded 3 others before the Dec. 14, 1984, robbery was over. For Janie Bowles, whose 19-year-old daughter, Jeri, was killed that day, justice can't come soon enough. "It's about damn time," Bowles said. "They die so easily and it's not fair." Bowles' daughter was one of 3 women who were stabbed more than 15 times each and their throats cut during the robbery. "This is how my grandchildren will remember their aunt," Bowles said. Jeri Bowles, described by her mother as caring and nurturing, was called into work early the day of the robbery. Her father Calvin Bowles, had just dropped her off when Neill entered the bank and herded the 3 female employees into the back room of the bank. He then stabbed them with a hunting knife, cutting so deep that Neill severed the ribs of his victims, court documents show.

Jeri Bowles was stabbed 14 times and her throat was cut. Kay Bruno, 42, the manager of the bank, was stabbed 34 times and her throat was cut. Joyce Mullenix, 25, who was 6 months pregnant, was stabbed 27 times and nearly decapitated. Neill forced customers who trickled in after the robbery to get down on the floor next to the women and then he shot at them. He killed Robert Zeller, 33, but Bellen Robles, 15, Ruben Robles, 20, and Marilyn Roach 24, recovered from their wounds.

The crime rocked Geronimo, a town of about 960 near Lawton in southwestern Oklahoma. More than 1,700 people attended Jeri Bowles' funeral, which was held in the town's high school gym. In March 1986, Neill appeared on the religious program "The 700 Club," confessing to the crime and asking for forgiveness. "I've yet to come up with something that I know will make it easier for any of you," Neill told victim's family members as he testified in his 1992 trial. "I am sorry. It's eating me and I believe that's been part of my punishment. I just wish there was something I could say to make it better but there's not."

National Coalition to Abolish the Death Penalty

Jay Neill (OK) - Dec. 12, 2002 - 6:00 PM CST, 7:00 PM EST

The state of Oklahoma is scheduled to execute Jay Neill, a white man, Dec. 12 for committing four murders during a bank robbery in 1984. Neill testified on his own behalf during the punishment phase of his trial, expressing remorse for his actions and asking for a sentence of life without the possibility of parole. His accomplice, Robert Johnson, is currently serving four life sentences for the crimes.

From death row, he recently wrote a letter describing his spiritual journey since his incarceration; it concluded: “Above all, I enjoy the sharing of love, and positive thoughts. I’m as unjudgmental as I know how to be. I believe every person has an individual right to live their lives free of harm, and prejudice. I just wish I knew more about life when I was a confused 19-year-old – the age I was, when I committed this crime.”

In an attempt to escape his piling rent debts and overdue bills, Neill decided to rob the First Bank of Chattanooga in Geronimo, Oklahoma Dec. 14, 1984. During the robbery, he allegedly stabbed three bank employees to death and fatally shot a customer. Along with Johnson, his accomplice and roommate, Neill then skipped town to San Francisco, where police arrested him three days later.

Neill and Johnson initially went on trial together, but the Oklahoma Court of Criminal Appeals reversed that conviction and remanded the case for a new trial. Since his 1992 conviction, Neill’s appeals have included a Batson claim (prosecutors striking jurors based on non-race neutral grounds) and an ineffective counsel argument.

The state of Oklahoma has scheduled four executions dates for the month of December, as well as two more dates for January. Since his incarceration, Neill has repeatedly expressed his remorse, converted to Buddhism, and served as a model prisoner. This pending execution has no purpose beyond continuing the cycle of violence in Oklahoma and the United States as a whole. Please write the state of Oklahoma to protest this execution.

United Press International

"Oklahoma Robber Executed for Four Murders," by Doug Russell. (UPI December 12, 2002)

MCALESTER, Okla., Dec. 12 Begging for forgiveness, a man convicted of killing four people while robbing a bank of almost $17,000, was executed Thursday at the Oklahoma State Penitentiary. Jay Wesley Neill, 37, was pronounced dead at 6:18 p.m. as outside the prison death penalty opponents prayed for the inmate, his victims and their families, prison officials and others involved in the execution. Nearby, death penalty supporters waited patiently, holding signs with pictures and information about slain loved ones.

Neill was executed for fatally stabbing three employees and fatally shooting a customer of the First Bank of Chattanooga branch in Geronimo, Okla. Three other customers were shot and wounded in the Dec. 14, 1984 holdup. "I want everyone to know I'm really sorry for what I did to you," said Neill, his voice shaking with emotion as he strained to raise his head from the gurney in the death chamber. "I'm not sorry for dying here today. I'm not sorry because I'm lying here. I'm sorry for the horrible, horrible thing I did. I hope you find some comfort in that ... Please forgive me."

Neill said his co-defendant in the bank robbery and murder trials, Robert Johnson, "wasn't in that bank. I know some of you think he was, but he wasn't." Johnson is serving a life sentence without parole for his part in the bloody bank robbery.

Three minutes after the execution began, Neill was pronounced dead. Twenty-three members of his victims' families attended the execution. None believed he was sincerely remorseful. "He died the way he lived: as a liar," said Charlene Blevins, sister of one of the murder victims. For Faye Tanner, Neill's death came too easily. "He died a lot easier than my daughter did," Tanner said. "She died on the floor with a knife in her back." Her voice broke. "I not only lost her, I lost my grandbaby too."

Tanner's daughter, 25-year-old bank teller Joyce Marie Tanner Mullenix, was stabbed 27 times and nearly decapitated during the robbery. Teller Jeri Annette Bowles, 19, was stabbed 14 times and her throat was cut. Branch manager Kay Bruno, 42, was stabbed 34 times and her throat was cut. Customer Robert Zeller, 33, was shot and killed during the robbery. Three other customers, 15-year-old Bell Robles, 20-year-old Ruben Robles and 24-year-old Marilyn Roach, were also shot but survived. Witnesses said Neill also pointed the pistol he carried at the head of a 14-month-old child and pulled the trigger, but the gun was empty.

The crime shook Geronimo, a small community of 960 people near Lawton in southwest Oklahoma. "This is not about the death sentence, but about the heinous crimes Jay Wesley Neill committed," said Danny Zeller, whose brother died in the bank robbery. "He tore the community apart." Neill was the sixth Oklahoma inmate executed this year. Two others have execution dates this month, but one is unlikely to be carried out.

The Daily Oklahoman

"Geronimo Bank Robber Put to Death," by Bob Doucette. (AP December 13, 2002)

McALESTER, Okla. (AP) - Jay Wesley Neill, who killed four people in one of Oklahoma's deadliest bank robberies, became the sixth inmate put to death in Oklahoma this year on Thursday. Neill, 37, was pronounced dead at 6:18 p.m. at the Oklahoma State Penitentiary.

Neill was executed for fatally stabbing three employees and fatally shooting a customer of the First Chattanooga Bank branch in Geronimo. He wounded three others before the Dec. 14, 1984, robbery was over.

Before the lethal injection was administered Neill, strapped to a gurney, craned forward looking into a camera that broadcast the execution to family members, and apologized. "I want everyone to know that I'm really sorry, not because I'm dying but for the horrible, horrible thing that I did," said Neill, who became emotional as he spoke. "I hope it brings you comfort to know Robert Johnson wasn't in that bank. I know you think he was, but he wasn't."

Johnson was Neill's lover and co-defendant during their initial trial. Some speculated that Johnson, who was given a life without parole sentence in a new trial in 1992, was at the bank and helped Neill. As Neill gave his last statement his voice quivered and he complained of being dizzy. "Are they starting?" he asked.

As the lethal injection was administered, Neill prayed until he lost consciousness. His left shoulder twitched and the color drained from his face. Neill was pronounced dead about three minutes after the execution began at 6:15 p.m. "We got some justice tonight," Calvin Bowles said. "He died like a coward, he was crying and asking for forgiveness. I walked into that bank and saw my daughter and the others butchered, he didn't give them a chance to ask for the Lord for forgiveness."

Bowles' daughter, Jeri, was one of three women who were stabbed more than 15 times each and their throats cut during the robbery. Jeri Bowles, described by her mother as caring and nurturing, was called into work early the day of the robbery. Her father Calvin Bowles, had just dropped her off when Neill entered the bank and herded the three female employees into the back room of the bank.

He then stabbed them with a hunting knife, cutting so deep that Neill severed the ribs of his victims, court documents show. Jeri Bowles was stabbed 14 times and her throat was cut. Kay Bruno, 42, the manager of the bank, was stabbed 34 times and her throat was cut. Joyce Mullenix, 25, who was six months pregnant, was stabbed 27 times and nearly decapitated. Neill forced customers who trickled in after the robbery to get down on the floor next to the women and then he shot at them. He killed Robert Zeller, 33, but Bellen Robles, 15, Ruben Robles, 20, and Marilyn Roach 24, recovered from their wounds.

The crime rocked Geronimo, a town of about 960 near Lawton in southwestern Oklahoma. More than 1,700 people attended Jeri Bowles' funeral, which was held in the town's high school gym.

In March 1986, Neill appeared on the religious program "The 700 Club," confessing to the crime and asking for forgiveness. "I've yet to come up with something that I know will make it easier for any of you," Neill told victim's family members as he testified in his 1992 trial. "I am sorry. It's eating me and I believe that's been part of my punishment. I just wish there was something I could say to make it better but there's not."

In Oklahoma City, six people were arrested on misdemeanor civil disobedience complaints during a protest at Oklahoma Attorney General Drew Edmondson's office. Protester Wes Roberts said murder is the only crime that is duplicated by the state when an execution is carried out. "You don't rape a raper, rob a robber or mug a mugger," Roberts said. "That would be considered unconscionable." Two more men are scheduled to die later this month.

The Death House

Savage Killer Executed in Oklahoma

McALESTER, Okla. - A man who savagely stabbed and slashed three female bank employes to death - including one who was pregnant - was executed by lethal injection Thursday night at the state prison here. Mass murderer Jay Neill,37, was put to death for the slayings during a 1984 robbery at the First Bank of Chattanooga in Geronimo. Besides the women, Neill was also convicted of shooting a customer to death. He was pronounced dead at 6:18 p.m. Neill was the sixth convicted killer executed in the state this year. Two more are scheduled to die before

Neill and his lover, Robert Johnson, were facing severe financial difficulties and decided to rob the bank, purchasing knives, guns and even plane tickets to San Francisco for their getaway. Johnson, who was tried together with Neill and also sentenced to death, later won a new trial and was resentenced to life in prison.

But proseuctors believe that Neill and Johnson both entered the bank for the robbery on Dec.14,1984. They say Neill forced three female banker workers, Joyce Mullenix, 25, who was six months pregnant; Kay Bruno, 42, and Jerri Bowles, 19, into a bank room. While they were laying down, prosecutors said Neill stabbed and slashed each to death. Two of the victims were nearly decapitated. Prosecutors said Mullenix was stabbed 27 times; Bruno 33 times; and Bowles 15 times.

In a television interview with the religious program, The 700 Club, in 1986 Neill tried to explain the savage murders he had committed. "It was like everything else blacked out and you're not really aware of what was going on," Neill said. "I could hear my heart beating in my ears. Everything was going a million miles an hour."

The customer shot to death was Ralph Zeller, 33. In addition, three other people were shot and wounded during the robbery.

McAlester News Capital & Democrat

"Killer Begs Forgiveness," by Doug Russell. (December 13, 2002)

With an emotion-wracked voice, Jay Wesley Neill apologized to his victims' families, begged forgiveness and said his co-defendant had nothing to do with killing four people in a Geronimo bank 18 years ago.

But the victims' families didn't believe him. "He died the way he lived - as a liar," said Charlene Blevins, a relative of one of the murder victims. Neill, 37, was pronounced dead at 6:18 Thursday night, the sixth state inmate executed this year and the 54th since the state resumed executions in 1990. "I want everyone to know I'm really sorry for what I did to you," Neill said when the blinds to the state's execution chamber were raised at 6:14 p.m. "I'm not sorry for dying here today. I'm not sorry for lying here. "I'm sorry for the horrible, horrible thing I did. "I hope you find some comfort in that."

But for some family members, there was no comfort in Neill's words or his death. Calvin Bowles, whose daughter was killed in the robbery, said although he felt he received some measure of justice with Neill's execution, the convicted murderer and bank robber died too easily. "He died easy, like the coward he is - crying," Bowles said. "I walked into that bank and saw my daughter, Joyce, Kay and Ralph, and they were butchered."

"I think he died a lot easier than my daughter died," said Faye Tanner, whose daughter, 25-year-old bank teller Joyce Marie Mullenix was stabbed 27 times and nearly decapitated in the robbery. "She died on the floor with a knife in her back." Tanner's voice broke as tears streamed from her eyes. "I not only lost her, I lost my grandbaby too."

Mullenix was seven months pregnant with a daughter when she, 19-year-old teller Jeri Annette Bowles and 42-year-old bank branch manager Kay Bruno were herded into a back room of the First Bank of Chattanooga shortly after 1 p.m. on Dec. 14, 1984, and ordered to lie on the floor. Between them, the three women suffered a total of 75 stab wounds and each had her throat cut. Four customers who entered the bank shortly after the women were stabbed, 33-year-old Ralph Zeller, 15-year-old Bellen Robles, 20-year-old Ruben Robles and 24-year-old Marilyn Roach, were each shot in the head by a 32. caliber revolver. Zeller died from his wounds. The other three survived.

At Neill's trial, Ruben Robles said he saw Neill point the gun at the head of his 14-month-old daughter and the weapon's hammer click on an empty chamber. Questions about whether Neill acted alone while committing the murders still linger on in the minds of some of his victims' family members, despite statements that he did from the Federal Bureau of Investigation, co-defendant Robert Grady Johnson and a deathbed statement from Neill himself. "Robert Johnson wasn't in that bank," Neill said shortly before a lethal mixture of drugs began flowing into his veins through two intravenous lines at 6:15 p.m. "I know some of you think he was, but he wasn't."

But family members of the murder victims don't believe one person could have caused so much carnage. In addition, Roach testified at trial that she heard two men talking after she was shot. Discharged from the Army because he was homosexual, Neill was living with Johnson in a Lawton apartment at the time of the murders. Court documents indicate he and Johnson purchased two hunting knives several days before the robbery and bought a .32 caliber revolver on the day of the robbery itself. Neill escaped the bank with almost $17,000. Most of the money was gone when FBI agents caught up with them in San Francisco three days later.

The two men were initially tried together, with both receiving death sentences, but an appeals court overturned the sentences in 1992, saying the men should have been tried separately. Later that year Neill was again sentenced to die. Johnson was sentenced to life without parole.

In the hours leading up to his execution, Neill was served a last meal of a double cheeseburger, a large order of french fries, cranberry-grape juice, cobbler and a pint of vanilla ice cream.

CCADP Pen Pal Request (Jay Neill)

JAY NEILL - Some of what interests me... On death row there are few options in the way of hobbies/activities. But I do love to read. And I enjoy writing letters. I crochet afghans, and just about anything I can think of, or have a pattern for. Right now I'm involved in a quest of self discovery. A spiritual quest. Not in a "traditional Religious" manner. More so a spiritual quest of who I am, my place in this existence. I do believe in a soul. I've read many books covering many religions, and spiritual beliefs, and their history. each belief system centers primarily on "love". On good & bad deeds, and/or Karma. Allowing room for the basic human nature that sways the writer of any history to shape the text, and its contents towards his/her own morality & ideas. I think there is ample proof from which to draw the conclusion that life did not simply "happen" by accident. I also like new ideas, and good conversation. And any letters I write, will be varied, as to interests & topic. I have definite opinions, and I expect that others do too. Above all, I enjoy the sharing of love, and positive thoughts. I'm as unjudgmental as I know how to be. I believe every person has an individual right to live their lives free of harm, and prejudice. I just wish I knew more about life when I was a confused 19 year old. The age I was, when I committed this crime. Sincerely Yours...

Jay Neill 141128
H-SE-8-II
PO Box 97
McAlester, OK
74502 USA

American University Law Review

"GUILTY AND GAY, A RECIPE FOR EXECUTION IN AMERICAN COURTROOMS: SEXUAL ORIENTATION AS A TOOL FOR PROSECUTORIAL MISCONDUCT IN DEATH PENALTY CASES," by MICHAEL B. SHORTNACY. (January 24, 2002)

2. The case of Jay Wesley Neill164

During the fall of 1984, Jay Wesley Neill and Robert Grady Johnson were involved in a homosexual relationship.165 The men began to experience financial difficulties.166 As their financial troubles grew worse,167 Neill and Johnson, who shared a checking account, frequently attempted to resolve their money problems at a local bank.168 Neill commented on several occasions how easy it would be to rob the bank.169

In the days and hours that led up to the robbery, Neill and Johnson took steps to prepare for the crime and their escape.170 Shortly after

162. See Lingar, 176 F.3d at 458 (explaining that even though the jury instructions asked the jurors to determine whether “the murder of . . . Allen involved torture or depravity of mind . . . ,” the fact that the prosecutor never explicitly referred to depravity of mind meant that the jury found the aggravating circumstance to exist because the nature of the crime was “wantonly vile, horrible or inhuman”). Part III of this Comment critiques the abstract re-weighing of the evidence as determined at trial against the prosecutor’s remarks at the sentencing hearing.

163. See Man Who Killed Teen is Executed; Holdeu, High Court Rejected Appeals, ST. LOUIS POST-DISPATCH, Feb. 8, 2001, at B3 (explaining that Missouri Governor Bob Holdeu denied clemency to Lingar, and that the denial was the first death penalty decision made by the governor since he took office); Missouri Gay Killer Executed Despite Protests, L.A. TIMES, Feb. 8, 2001, at A19 (indicating that forty demonstrators protested outside the prison while Lingar was executed); Gill Donovan, Death Watch, NAT’L CATHOLIC REPORTER, Feb. 16, 2001, available at 2001 WL 8697323 (reporting the time and date of Lingar’s death); Missouri Executes Inmate for Murder of a Teenager, AGENCE FRANCE-PRESSE, Feb. 7, 2001, available at 2001 WL 2337190 (reporting that Lingar was executed by lethal injection).

164. Neill v. Gibson, 263 F.3d 1184 (10th Cir. 2001); Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1995), cert. denied, Neill v. Oklahoma, 516 U.S. 1080 (1996).

165. See Neill v. State, 896 P.2d 537, 543 (Okla. Crim. App. 1995) (noting that the two men shared an apartment in Lawton, Oklahoma).

166. See id. (explaining that the two men attempted to cut expenses by sharing the apartment with Rhonda Neff and her husband, and that Neff agreed to purchase groceries while Neill and Johnson paid the rent).

167. See id. (indicating that Neill eventually fell behind on the rent and utility payments; and observing that the telephone service was discontinued to the apartment, and that Neill purchased a car with a loan, which quickly became delinquent).

168. See id. at 543-44 (remarking that Neill sought financial assistance with their debt from their local bank).

169. See id. at 544 (revealing that their bank was a small facility that usually had only two tellers and no surveillance cameras or guards).

170. See Neill, 896 P.2d at 544 (stating that on December 13, 1984, Neill and Johnson purchased two hunting knives at a local discount store, and talked to a travel agent at the Lawton Municipal Airport about booking a flight to San Francisco, California; and observing that on December 14, 1984, the two men picked up a gun permit, which they had applied for earlier, and purchased a thirty-two-caliber revolver from a pawnshop). SHORTNACYPP 1/24/02 6:00 PM

one o’clock in the afternoon on December 14, 1984, Neill went to the bank and encountered three employees.171 He ordered them into a back room, forced them to lie face down on the floor, and proceeded to stab them to death.172 A patron entered the bank, found that the teller windows were empty, and looked toward the back room.173 The customer went outside to tell her husband that she thought the bank was being robbed.174 She and her husband, who was carrying their fourteen-month-old daughter, went inside the bank to check things out.175 Another bank customer followed them inside, where Neill greeted them with his gun, herded them into the back room, and forced them to lie down on the floor.176 At that point, yet another customer entered the bank, and Neill forced her to lie down in the back room as well.177 Neill shot the four adult customers in the head.178

Neill and Johnson escaped and flew to San Francisco179 where they spent portions of the robbery’s proceeds.180 The Federal Bureau of Investigation arrested Neill and Johnson three days later in San Francisco.181

At trial, Neill never contested his guilt.182 During the sentencing phase, however, he proffered evidence of a mitigating factor, namely, “that he was acting under an extreme emotional disturbance . . . as a

171. See id. at 544 n.2 (revealing that “the evidence as to whether Robert Johnson accompanied [Neill] into the bank is controverted;” and that Neill testified at sentencing that Johnson was at home waiting on him during the robbery).

172. See id. at 544.

173. See id. (observing that the bank patron, Bellen Robles, looked down the hallway and noticed a man bending over something, then went outside to get her husband).

174. See id.

175. See Neill, 896 P.2d at 544.

176. See id. at 544-45.

177. See id. at 545.

178. See Neill v. Gibson, 263 F.3d 1184, 1188 (10th Cir. 2001) (noting that one of the bank customers who was lying on the floor, Bellen Robles’ husband, had to turn his head during the shooting to keep the blood out of his eyes and, further, that he also saw the gun pointed at his baby daughter and heard a click—the gun was empty).

179. See Neill, 896 P.2d at 545 (reporting that Neill and Johnson arrived at the Lawton Airport at approximately 2:30 p.m., and paid $1,200 in cash for tickets to San Francisco).

180. See Neill, 263 F.3d at 1188 (explaining that when the two landed in San Francisco, they spent some of the $17,000 they stole from the bank on expensive jewelry, clothing, hotels, limousines, and cocaine).

181. See id. (commenting that much of the stolen money was marked, which allowed authorities to trace the serial numbers to ascertain their location).

182. See id. at 1189 (noting that prior to his second trial, “Neill gave a video taped interview to a religious television program, ‘The 700 Club,’ and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications, Neill admitted committing the crimes.”).

result of his fear of losing his relationship with Johnson.”183 In the closing arguments of the sentencing phase, the prosecutor imported Neill’s homosexuality as legal issue by explicitly asking the jurors to consider it in their decision making just as they might consider other statutorily prescribed factors.184 The prosecutor stated the following: If I could ask each of you to disregard Jay Neill and take him out of the person but consider things in a generic way. I want you to think briefly about the man you’re setting [sic] in judgment on . . . . I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on—disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic] homosexual . . . . But these are areas you consider whenever you determine the type of person you’re setting [sic] in judgment on . . . . The individual’s homosexual. He’s in love with Robert Grady Johnson.185

The jury convicted Neill of four counts of murder in the first degree, three counts of shooting with intent to kill, and one count of attempted shooting with intent to kill.186 The jury found the existence of three aggravating factors and recommended the death penalty for each count of murder.187 The trial court, following the jury’s recommendation, sentenced Neill to death.188 In direct appeals in Oklahoma state court, Neill never raised the issue of prosecutorial misconduct based on the prosecutor’s

183. Id. at 1197.

184. See id. In Oklahoma, jurors are allowed by statute to consider both mitigating and aggravating circumstances in the sentencing phase of capital trials. See 21 OKLA. STAT. ANN. § 701.10(c) (2001) (allowing evidence to be presented in the sentencing phase as to any aggravating or mitigating circumstances enumerated in section 701.7); 21 OKLA. STAT. ANN. § 601.11 (2001) (providing that if the verdict is a unanimous recommendation of death, the jury must designate in writing the statutory circumstances it unanimously determined beyond a reasonable doubt); see generally 75A AM. JUR. 2D Trial § 572 (2001) (remarking that it is appropriate for the prosecutor to refer to the defendant’s remorse, or lack thereof, and to appeal to the jury to assess the deterrent value of the death penalty).

185. See Neill, 263 F.3d at 1199 (Lucero, J., dissenting) (quoting the prosecutor’s remarks, and concluding that “[a]ccording to the prosecutor, the ‘true person,’ the ‘kind of person’ Neill is can be summed up in four words: ‘He is a homosexual.’”).

186. See Neill v. State, 896 P.2d 537, 543 (Okla. Crim. App. 1995) (summarizing the jury verdict).

187. See id. at 557-58 (listing the aggravating factors: (1) Neill had created a great risk of death to more than one person; (2) he had committed the murders to avoid arrest and prosecution; and (3) the murders were especially heinous, atrocious or cruel).

188. See id. at 543 n.1 (citing Neill v. State, 827 P.2d 884 (Okla. Crim. App. 1992)) (revealing that Neill and Johnson were initially tried together, however, those sentences were vacated on appeal as a result of improper joinder). In a separate retrial, Robert Johnson was sentenced to life imprisonment without the possibility of parole. See id.

homophobic statements.189 After obtaining new legal counsel, he appealed to the Tenth Circuit Court of Appeals,190 and, among other things, asserted that the prosecutor’s comments were inflammatory.191 With little explanation and without even quoting the prosecutor’s statement,192 two judges of the three-judge panel found that the prosecutor’s comments about Neill’s homosexuality “were accurate, in light of the evidence, and were relevant to both the State’s case and Neill’s defense theory.”193

Neill then successfully petitioned for a rehearing before the Tenth Circuit panel.194 In reevaluating Neill’s claims, the Tenth Circuit focused on the merits of what it referred to as “underlying” claims of prosecutorial misconduct.195 In reevaluating the prosecutor’s statements, the court’s standard of review required the remarks to result in a “fundamentally unfair proceeding.”196 After reciting the prosecutor’s remarks,197 the court concluded that while they may have

189. See Neill, 943 P.2d at 147-48 (documenting Neill’s argument that he did not waive his claim of prosecutorial misconduct); see also Neill, 263 F.3d at 1195 (explaining that “[b]ecause Neill did not assert any prosecutorial misconduct until his state post-conviction application, the Oklahoma appellate court deemed him to have waived these claims. That procedural bar is adequate to preclude federal habeas review.”) (citations omitted).

190. Neill’s petition for habeas review was first denied by the U.S. District Court for the Western District of Oklahoma. See Neill v. Gibson, No. 00-6024, 2001 WL 1584819, at *1 (stating in the caption that the appeal is from the District Court, D.C. No. Civ-97-1318-C). The District Court decision was not reported and it is never mentioned by the Tenth Circuit Court of Appeals.

191. See Neill, 263 F.3d at 1197 (discussing the court’s refusal to address the claims of prosecutorial misconduct on the merits because his failure to raise these claims on direct appeal is procedural default barring habeas review). The court, however, did evaluate the statements by the prosecutor concerning Neill’s homosexuality in the context of an ineffective assistance of counsel claim. See id. (noting that claim was not procedurally barred).

192. See id. (stating that the prosecutor’s statement merely challenged Neill’s proffered mitigating factor: that “[h]e had a gay lover he didn’t want to lose;” and observing that the prosecutor then compared Neill’s situation to the breakup of a heterosexual relationship). But see id. at 1202 (Lucero, J., dissenting) (responding to the logic of the majority and stating, “[t]o my mind, that argument is no different from claiming that a Jewish Defendant opens the door to a prosecutor’s anti-Semitic arguments by wearing a yarmulke in the presence of jurors.”).

193. Id.

194. See Neill v. Gibson, No. 00-6024, 2001 WL 1584819, at *1 (10th Cir. Dec. 7, 2001) (filing the opinion on rehearing with the order granting Neill’s petition for rehearing).

195. See id. at *8-9 (noting that because Neill had the same attorney at trial and on direct appeal, his failure to raise claims of ineffective assistance of counsel on direct appeal is not a sufficient procedural bar to federal habeas review); see also supra note 191 and accompanying text (discussing same).

196. See id. at *9 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974)). Part III of this Comment critiques the use of this Donnelly standard for reviewing homosexual criminal defendants’ claims of prosecutorial misconduct.

197. See id. at *10-11 (quoting the prosecutor). But see supra note 192 (revealing that in its first opinion the Tenth Circuit dismissed the prosecutor’s comments

been “improper,”198 the remarks did not amount to a federal constitutional deprivation.199 In deciding that the challenged remarks could not “plausibly”200 have tipped the scales in favor of the prosecution, the court put the comments in “context”201 and considered the strength of the state’s case against Neill.202 The court then recited State’s evidence, which was largely uncontested at trial.203 Ultimately, the court held that “in light of the overwhelming evidence supporting Neill’s guilt and the charged aggravating factors . . . we cannot say that the prosecutor’s improper comments influenced the jury’s verdict or otherwise rendered the capital sentencing proceeding fundamentally unfair.”204 Jay Wesley Neill awaits his execution on death row in the State of Oklahoma.205

JAY WESLEY NEILL V. GARY GIBSON, Warden (Habeas 2001)

TACHA, Chief Judge.

Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief, see 28 U.S.C. § 2254, from four death sentences. This appeal presents, among other issues, the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment. We conclude Oklahoma can do so without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the denial of relief on this, and the remainder of Neill's habeas claims.

I. FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree malice murder stemming from Neill's armed robbery of a Geronimo, Oklahoma bank in December 1984. Neill did not contest his guilt during the trial's first stage. The State's evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson, age twenty-one, were roommates involved in a homosexual relationship. In 1984, they were having serious financial difficulties. During the week before the bank robbery, the pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and ammunition, and made plane reservations to San Francisco for Friday afternoon, December 14. On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the robbery, Neill stabbed three bank employees to death. All three women died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications,(1) Neill admitted committing the crimes. Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill's convictions and death sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 1080 (1996); Neill v. State, 943 P.2d 145 (Okla. Crim. App. 1997).

* * * *

IV. CONCLUSION

Having considered the record and the parties' arguments, we AFFIRM the denial of habeas relief.(6)

LUCERO, Circuit Judge, dissenting.

Because the prosecutor's blatant homophobic hatemongering at sentencing has no place in the courtrooms of a civilized society, and Neill's appellate counsel's failure to raise the issue on direct appeal constitutes clear and plain prejudicial neglect, I respectfully dissent. Correctly or incorrectly, we have encapsulated the applicable Strickland jurisprudence into the term "dead-bang winner." See United States v. Cook, 45 F.3d 388, 395 (1995) (citing Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989)).(1) Whether we apply this more stringent standard, or an orthodox Strickland approach, we have before us a "dead-bang winner."

While thinly disguising his intent by denying that a person's "sexual preference" is an "aggravating circumstance," the prosecutor deviously and despicably incited the jury with the following statement:

If I could ask each of you to disregard Jay Neill and take him out of the person but consider these things in a generic way. I want you to think briefly about the man you're setting [sic] in judgment on . . . and believe me, . . . you have every thing in this case, the good, the bad, everything that the law allows to aid you in this decision. But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on -- disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual. . . . But these are areas you consider whenever you determine the type of person you're setting [sic] in judgment on. . . . The individual's homosexual. He's in love with Robert Grady Johnson.

I sternly reject the prosecutor's disavowal and the "he brought it up" post hoc rationalization that this somehow justifies the use of hate as an appropriate adversarial tool.

Moreover, the record evidence calls into question whether Neill was sentenced to death by an impartial jury, which further erodes my confidence in the jury's sentence. I would grant habeas relief and vacate Neill's sentence.