By Sam Levin
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By Dennis Brown
Fueled by a fresh pack of unfiltered Camels, a penchant for one-upmanship and twenty-plus years on death row, Robert Driscoll is braving westbound I-70 on a soggy December afternoon. The temperature is dropping fast, and the Saab's old wipers yelp as they scrape across the windshield. The gray landscape speeds by, as does the occasional big rig. A fine mist of road-sullied water sprays the car's interior each time Driscoll cracks the window for a smoke, which is often.
He's headed for the Callaway County Courthouse. Specifically, Driscoll aims to pay a visit to Michael Fusselman and Robert Ahsens, the two prosecutors who ten months ago lost their fight to keep him on death row. "The last time they seen me, I was about an eighth of an inch from dying," Driscoll says, fumbling with the power-window switch. "I thought it would be enjoyable to make my appearance -- let them know that I'm walking."
He means it literally. The last time Fusselman and Ahsens saw Driscoll, he was wheelchair-bound and ailing, having spent the previous year in a prison hospital bed battling a nasty bout of hepatitis C. The disease had withered his legs to the point that when he testified, courtroom bailiffs had to pick him up and deposit him on the witness stand. Driscoll shed the wheelchair soon after his release. But showing off his regained mobility is only a pretext for his surprise visit. Driscoll has another, more fundamental reason for driving 100 miles west to see these two men.
He has come to gloat.
Upon arrival in Fulton, he's careful to place both feet firmly on the curb before hoisting himself from the car. His right foot slaps the ground as he walks -- another hep C souvenir. The rain has exhausted itself for the moment, and the country air smells freshly washed. Driscoll pauses to scrape out a final butt before entering the stone courthouse.
Inside, Ahsens and Fusselman are immersed in the murder trial of a drug runner who allegedly panicked when a deal went sour. From the looks of it, he's panicking still; he doesn't so much as look up when Driscoll lumbers into the sparsely populated gallery. Young and wiry, sporting spiked hair and an oversize suit, the defendant keeps his eyes trained on the table before him. The only sign of recognition is his enormous Adam's apple, which scrapes twice along its narrow track.
Ten months ago in Rolla County, Driscoll sat at a similar table as prosecutors attempted to prove, for the third time, that he had stabbed a prison guard to death during a riot at Moberly Correctional Center in 1983. Twice juries had found him guilty of the murder. Twice judges had sentenced him to death. And twice higher courts had reversed the sentence.
Driscoll hadn't taken the stand during his prior trials, figuring the jury would see him as anything but a sympathetic figure. But this time, faced with the choice of death by lethal injection or death by hepatitis C, he decided to take his chances.
"I got to thinking: 'I'm in the penitentiary for a guard killing,'" he says today. "'What difference does it make if the jury knows I done did a robbery here, or done did this or done did that?'"
Of course, he says, there was another factor working in his favor the third time around: "They can't use the AB -- it can't be brought up."
He's referring to the Aryan Brotherhood, one of the most powerful and vicious gangs in the U.S. prison system. Back in the '70s, when Driscoll was doing time in California, he was a loyal member who went by the nickname "Rabbit." During his first two trials, prosecutors had played up Rabbit's AB involvement, painting him as a racist with a penchant for killing blacks and guards. It didn't endear him to the juries.
But this time, thanks to some savvy defense-counsel sleight of hand, Ahsens and Fusselman were barred from bringing up testimony that linked Driscoll to the Aryan Brotherhood. Rather than the racist killer prosecutors had earlier described, the jury saw a wheezing old man in a wheelchair. And while they may not have been convinced of his innocence, they weren't convinced he was a cold-blooded killer, either. So they compromised, finding him guilty of manslaughter. Given that he'd already served twenty years in prison since the killing, Rabbit went free.
Today, as the afternoon's proceedings wind down, Driscoll sits unmoving on one of the courtroom's straight-backed benches. Through his unbuttoned plaid work shirt, his gut bulges over his jeans. His pale blue eyes set off his clean-shaven cheeks, and his hair, a combed-back sweep of blond and gray, has been marshaled to order. A dental plate conceals his missing bottom teeth. Other than the small swastika tattooed into his left index finger, Robert Driscoll could be mistaken for any courthouse gadfly.
Prosecutor Ahsens, who maneuvers around the courtroom with the aid of a cane, has been seated with his back to the gallery. When court recesses, he turns to leave. Pushing his way through the swinging gate to the gallery, he looks up.
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