Clemency Bid From Viet Vet May Test Davis

SACRAMENTO —  One man enlisted in the Marines, the other in the Army. Both fought in Vietnam. Neither came back the same.

Today, the Marine, Manuel Babbitt, is on California’s death row, a convicted murderer and probably the next state prisoner to be executed. The Army captain, Gray Davis, is governor.

For Davis, the case could be a quagmire. Unless courts intervene--increasingly unlikely as Babbitt exhausts his appeals--the governor will make the life or death decision on Babbitt’s clemency plea within two months.

Davis--who saluted veterans in his inaugural address and allocated millions for a new veterans home--will find that Babbitt’s supporters include a loyal cadre of middle-aged Marine Corps vets. Some are lawyers. A few are cops. Some are walking wounded who, like Babbitt, abused drugs during and after the war. Many of them call Babbitt a brother.

Those who support Babbitt don’t claim he is innocent, but they do maintain that his Vietnam experiences left deep psychological scars.

“There is no doubt in my mind, or in the minds of the men he served with, that he would have given his life for them in a moment, without hesitation,” said Charles Patterson, one of Babbitt’s lawyers and a Marine veteran of Vietnam. “We’re going to do what we can for him.”

On the other hand, there is the family of Babbitt’s victim.

Leah Schendel was a 78-year-old grandmother. She stood 4-foot-8 and weighed 100 pounds. Babbitt broke into her one-bedroom apartment in Sacramento on a foggy December night in 1980 and beat her so brutally that he shattered her dentures. She died of a heart attack.

“We certainly weren’t at war in 1980 when he murdered my [great-] grandmother,” said John Rizzotti, the oldest of Schendel’s six great-grandchildren. Rizzotti, 8 years old at the time of the murder, still keeps a roll of silver dollars she gave him. “He went into the apartment of a 78-year-old grandmother and killed her. Everything he did before that should be void. He forfeited everything.”

Last month, 17 years after Babbitt was sentenced to death, the U.S. Supreme Court rejected his latest appeal, pushing him to the front of the line for a lethal injection at San Quentin. Later this month, the Sacramento County district attorney’s office will go to court to get an execution date. By law, that date must be within 30 to 60 days, about the time Babbitt turns 50.

Babbitt’s lawyers are preparing more appeals in the hopes that they will be heard. If those are unsuccessful, they will turn to Davis. The Vietnam experience will be central to their plea for mercy.

“[The governor] will review the information presented to him with his legal advisors and make a determination on how best to proceed,” said Davis spokesman Michael Bustamante, adding that he does not know if Davis’ Vietnam experience will play a role in that decision.

Parallel Lines

Throughout his career, Davis has repeatedly sounded two themes--his Vietnam service and his tough defense of the death penalty. He had been in office a month when he turned down the first clemency plea to reach his desk, in the case of Jaturun Siripongs, who was executed last month.

The two themes will collide in the case of Manuel Babbitt.

Davis helped put himself through college by joining the ROTC, then joined the Army after graduating from Columbia Law School. He survived combat, was awarded the Bronze Star and after eight months left Vietnam with what he says were new political views.

“The fighting was being done by people of color and whites who didn’t have college degrees, and that struck me as totally unfair,” Davis said during last year’s campaign.

One such man was Babbitt.

Babbitt grew up poor in a large family in New England. Court papers say his father beat him, his seven brothers and sisters and his mother. After his father died of cancer, his mother suffered a breakdown.

Babbitt repeated each of his first six years in school, finishing seventh grade at age 17. At 18, he enlisted in the Marines. He might not have been accepted, his lawyers say, except that a recruiter helped him pass the entrance exam.

In December 1967, he arrived at an airstrip at a far-off place called Khe Sanh, stationed with 4,000 other Marines.

The following month, 40,000 North Vietnamese Army regulars launched the bloodiest assault of the war. For 77 days, the North Vietnamese shelled the compound.

Thirty-one years later, some members of a loosely organized group of about 2,000 veterans who defended Khe Sanh have come to Babbitt’s defense--even as they recognize that one of their own beat Schendel to death.

Patterson served at Khe Sanh. A litigator in the Los Angeles office of Pillsbury, Madison & Sutro, Patterson has been working on Babbitt’s case without compensation for three years.

Patterson doesn’t say Babbitt is innocent. Instead, he says, Babbitt’s trial lawyer failed to make a strong enough case that Babbitt suffers post-traumatic stress disorder caused by his war experience. Given Babbitt’s childhood experiences and a family history of mental illness, he simply was not strong enough to handle the effects of war, his lawyers say.

Prosecutors dismiss that claim, and appellate courts repeatedly have rejected it.

“He has reached the end of his legal appeals and proceedings,” said Sacramento County Deputy Atty. Gen. Ray Brosterhous, who is helping represent the prosecution in the last appeals. “Absolutely, he has had every opportunity to present his claims.”

Making Their Case

In their briefs, Babbitt’s attorneys retell the story of Khe Sanh. Patterson wrote about the rats that infested the base, the monsoons, the smell of rotting corpses.

When U.S. supply planes and helicopters would arrive at night, often Marines would dive for cover, knowing the North Vietnamese would blast the airstrip.

In the middle of it all, in March 1968, a North Vietnamese rocket exploded on the Khe Sanh airstrip, and Babbitt was hit in the head by shrapnel. He was evacuated by helicopter with a load of dead Marines, was patched up and returned to Khe Sanh a week later.

Babbitt never did the paperwork to get a Purple Heart. Patterson and other Khe Sanh veterans helped orchestrate something unprecedented in California--a ceremony at San Quentin last year at which Babbitt was awarded the medal.

“Marines stick together,” said John Hargesheimer, who was in Babbitt’s company. Hargesheimer came from his home in Sellersberg, Ind., where he teaches shop in a middle school, to San Quentin for the ceremony. “I don’t profess his innocence. But he was my friend then, and he’s my friend now.”

Schendel’s survivors were so appalled that prison and military authorities would hold the Purple Heart ceremony that they turned to U.S. Sen. Dianne Feinstein (D-Calif.). Feinstein carried legislation signed into law last year that bars the military from awarding medals to prisoners serving time for serious felonies.

“He shouldn’t have gotten the medal. He should be stripped of any honor,” said Laura Thompson, Schendel’s granddaughter.

Babbitt’s war duty ended in August 1969. As for most returning Vietnam vets, there was no counseling for Babbitt. And given his background he was “at particularly high risk for developing severe, chronic post-traumatic stress disorder,” Patterson said.

After he wandered away several times from his final post in Rhode Island, the service mustered him out as unsuitable but under honorable circumstances.

The downward spiral had begun.

At night, after smoking marijuana, he would venture into the streets dressed in battle fatigues. He would move like a warrior patrolling the jungle. He would tell of hearing voices. He committed increasingly serious crimes--burglary, robbery, a vicious attack on a prostitute.

Babbitt was incarcerated at Bridgewater State Mental Hospital in Massachusetts, where he was diagnosed as suffering from a “schizophrenic reaction, paranoid type.” He stayed nine months.

In 1980, his brother, William, thinking he could help him find work, invited Babbitt to Sacramento. It quickly became clear that William’s hope was unrealistic.

“He didn’t seem like he was Manny any more,” William said in an interview at his sister Donna’s kitchen table in Sacramento.

After a binge of booze and marijuana, Babbitt walked in the foggy night of Dec. 18, 1980, to an apartment complex for senior citizens. Leah Schendel had returned from an evening with her family. Babbitt slipped in through a screen door. And he beat her. Police found the bloodied body the next morning in the ransacked apartment.

The killer had wrapped a leather strap around Schendel’s ankle and taken a few things--a roll of nickels she kept for her trips to Reno, an engraved lighter, a watch.

Babbitt’s brother read about the murder in the local paper. Cleaning his house, he found some nickels and a cigarette lighter engraved with the letters LS.

The horrifying realization hit, and he turned his brother in to police. William hoped the authorities would place his brother in a mental institution. The district attorney, however, saw the crime as so heinous that it warranted the death penalty.

“I felt compelled to do my duty as a citizen, my duty as a brother, my duty as a human being,” William said, guilt-ridden for helping put his brother on death row and tearfully sorry that the Schendel family was “torn asunder.”

William points to the Unabomber case and sees an unfairness in his own family’s plight. David Kaczynski turned in his brother, serial bomber Ted, but also persuaded authorities not to execute Kaczynski for mailing bombs that killed three people and injured more than two dozen over a 12-year period.

“My brother was mentally ill,” William said. “I thought they would put him someplace where he couldn’t hurt anyone or break anyone else’s heart. . . . I don’t know that I have the capacity to forgive myself. I failed him.”

Flashback Defense

On death row, Babbitt dwells on Vietnam, his friends and family say. He writes to Khe Sanh vets, often concluding his letters with the Marine Corp motto, Semper Fi.

Patterson says the last thing Babbitt recalls about the night of Dec. 18 are headlights in the fog. He believes the sight triggered memories of planes landing at the fog-shrouded airstrip at Khe Sanh and prompted Babbitt to “look for cover.”

He believes other things Babbitt did that night had a Vietnam context--tagging the dead, for example, so they could be identified. Perhaps that’s why Babbitt tied the leather strap on Schendel’s ankle, he says.

Deputy Dist. Atty. Kit Cleland, who prosecuted Babbitt, scoffs at claims that Babbitt suffers post-traumatic stress disorder. “The truth is he was a mean drunk who hated women,” Cleland said.

Just as the veterans of Khe Sanh feel the trauma of their past, so does the family of Leah Schendel. Thompson still shudders when she recalls stepping into her grandmother’s apartment after the crime and seeing her pillow saturated with blood.

“Babbitt is not a national hero,” said Rizzotti, the great-grandson. “He is a man who murdered a grandmother. He deserves to die.”