A murder trial with Bobby Fussell
March 27 - April 2, 2023
By Judge Jack Holt Jr.
Judge Robert F. Fussell, better-known and revered as “Bobby,” wrote a history of his legal career and placed a copy in the Bobby Fussell reading room at the law school in Fayetteville. With his permission I have lifted much of the following from those writings (his memory is much better than mine).
Shortly after his retirement from a long tour of duty with the United States Attorney’s Office, Bobby Fussell returned to private law practice. Not long after, Circuit Judge John Cole of Sheridan called Bobby (they were close friends in law school) to ask for a favor, particularly in light that Bobby was deeply involved in helping the hearing-impaired.
Judge Cole explained that there was a 19-year-old deaf man in the Grant County Jail who had been indicted for first degree murder, and that he wanted Bobby to represent him. Cole mentioned another problem, “Grant County is broke, and we can’t pay your legal fees, only your out-of-pocket costs. And if you get another lawyer to help you, we can’t pay him either.”
Judge Cole told Bobby that he would direct the prosecuting attorney to give him the file for review, which would save time and money and avoid extensive discovery. He further stated that he would make an appointment for Bobby to meet the young man, with the young man’s sister acting as interpreter. Bobby agreed to take the case.
He obtained the prosecutor’s file, which consisted of eight pages, six of which were a statement the defendant gave the police. One page was an autopsy report, and one page was an inventory of the victim’s car.
The defendant lived in Sheridan. He said that one Monday afternoon he had gone down to the local pool hall to shoot a few games and saw two people he knew. While playing, one of the men asked him if he wanted to go deer hunting that Saturday and spend the night at the camp. The defendant told him that he had never been, and that he would like to go.
They left the pool hall and got into the acquaintance’s car, for the 15–20-mile trip into the woods. The defendant said they were heading down a road through the woods when the driver, referred hereafter as the victim, suddenly stopped the car. The defendant stated a truck came up behind them, turning its lights off and on repeatedly six times.
The victim appeared to the defendant to “go crazy.” He motioned to the defendant to get out of the car.
“I got scared, picked up a rifle and shot the driver (victim) in the ear,” the defendant said. “Then I walked down the road to the Sheriff’s office and told the police what had happened.”
The defendant’s story did not make sense to Bobby. However, he did not want to question the defendant over the truth of his statement until investigating further. The autopsy report reflected that the defendant had taken a rifle and shot the victim in the back of the head from some seven inches away. From the inventory report of the car there appeared to be only one weapon, and that was the victim’s rifle.
Bobby was relieved that the defendant had not taken a weapon with him, his opinion being the State could not prove premeditation and convict him on the first-degree murder charge.
Armed with information from the prosecutor’s file, Bobby visited the defendant in jail. He appeared neat, smart, and very likeable. Afterwards Bobby immediately began learning sign language, in order to communicate and earn the defendant’s trust.
Having participated in several homicide cases, both as a prosecutor and defense counsel, Bobby called and asked if I would assist him in preparing and trying the case. He told me that he was learning sign language to prepare for the trial, and that he would be responsible for the direct examination. I agreed to help.
Three days before the trial began, the defendant, now our client, asked to visit with Bobby and me, at which he told us that his previous statement was not accurate. He apologized for not telling the truth, but felt the deceit was necessary because in the deaf community, if you participated in an unnatural sex act, you would be excluded and treated like a leper. He indicated he was afraid that would happen, yet still wanted to tell the truth.
He told us that after driving into the woods the victim pulled over and grabbed him by the back of the neck, forcing him down to have oral sex. Afterwards, our client said he became nauseated and crawled into the back seat where he went to sleep. When he awoke, the victim was staring at him, and afraid he would have to go through it again, he picked up the man’s rifle and shot him.
Bobby and I subpoenaed the victim’s car because we wanted to get samples from the carpet and seat to corroborate the testimony. But to our dismay, we learned that the victim’s parents had sold the car to pay his bills, and that the seat covers and carpet had been replaced prior to the sale. Bobby and I surmised that had our client told us the truth earlier, we may have gotten an acquittal.
The case was tried in three days in Sheridan, with our client taking the stand. Bobby communicated with our client through the assistance of Shirley Harold, a trained and skilled interpreter, who related Bobby’s direct examination and the defendant’s responses to the jury.
Our client admitted making a false statement to the investigating officers, then described his sordid sexual encounter with the deceased. The jury convicted him of involuntary manslaughter and gave him a four-year prison sentence.
Having participated in Arkansas penitentiary cases over a considerable period of time, I was well acquainted with the penitentiary personnel. I took the liberty to advise admissions that our client was on his way to the prison, and suggested that he be isolated from barrack life, as it would not be safe for him and could possibly create serious problems for the institution.
I was aware that the Cummings Unit had a newspaper publication known as the “Pea Picker Picayune,” and suggested that our client could learn to use the presses in the print shop, get a grasp of the newspaper business, and have a trade so he could gain employment when he left prison. His contact with the prison population would be minimal. The superintendent agreed and all went well.
After our client served two years, I learned that Bobby had gone to the newspaper in Sheridan to tell them of the man’s good works while in prison. Bobby explained that he was ideally suited for long working hours with the printing presses, as the noise of the presses did not bother him because of his deafness.
As a result, Bobby found not only a job for our client, but also a sponsor, allowing him to leave prison earlier than expected.
Today Bobby is happy to report that our client is employed, happily married with two children, and is well respected in the community.
Having this experience in working with a client devoid of hearing, Bobby saw the need to draft a proposed statue which would require, in all criminal and civil cases where defendants who are parties to a suit are deaf, that a certified court interpreter would not only translate, but would “cause” the record. Some of Bobby’s friends in the legislature got it passed and Shirley Harold was the first court interpreter hired by the State Judicial Department.
Later, The Administrative Office of the Courts employed Shirley as head of its Certified Court Reporters Department, a position she held for years before her death. Bobby reports that subsequently every state in the union now has a similar legislation. It was a pleasure to work with Bobby in this matter.