Robert Ballard Bailey

Flight to avoid prosecution for drunk driving took him to the brink of execution for murder

On October 22, 1949, 56-year-old Rosina Fazio was robbed of cash and diamond jewelry, badly beaten, and left for dead in high weeds beside a street in Charleston. She was found unconscious and taken to a local hospital, where she died on October 25. Before she died, according to her son, Joseph Fazio, she identified her assailant as "Bob, the glass cutter." Based on that allegation a warrant was issued for Robert Ballard Bailey, a 35-year-old Charleston glazier, who had hurriedly left town the day of the murder. Ballard was arrested on October 28 in Palatka, Florida, and charged with the crime.

After his arrest for the Fazio murder, two witnesses reported having seen Fazio in a car driven by Bailey at 3:30 p.m. on the day of the crime. It turned out, however, that at the time, Bailey was several miles from the scene. He was in fact being pursued by the police for drunk driving, and the officers involved in the chase fired several shots into the back of his car, but didn't stop him. He apparently fled only to avoid a drunk driving charge, but to police and prosecutors his flight was further evidence that he had committed the murder. Bailey had been convicted of auto theft in 1933, armed robbery in 1938, and unarmed robbery in 1946 — impulsive crimes, usually committed when drunk, carried out ineptly, and never involving personal violence to the victims.

Bailey was returned to Charleston and tried for first-degree murder. Although the statements from the eyewitnesses fluctuated and there was no evidence of a robbery, with a convicted felon in the dock who had suspiciously fled the state, the jury believed the witnesses over Bailey's alibi defense. On March 9, 1950, Bailey was convicted of first-degree murder, mandating an automatic death sentence under the West Virginia law then in force. The trial judge, Jackson Savage, not convinced of Bailey's guilt, was in tears as he pronounced the mandatory death sentence.

The next day, Savage wrote to Governor Okey L. Patterson recommending executive clemency for Bailey "I do not believe the State of West Virginia should take the life of any man when there is a question, however slight, of his guilt or innocence," Savage wrote. Patterson did not act and the West Virginia Supreme Court and U.S. Supreme Court denied his appeals. But on death row Bailey was more fortunate than he had been in the courts. Warden Orel J. Skeen took an interest in the case and concluded that Bailey was innocent.

Skeen asked Erle Stanley Gardner, the author of eighty Perry Mason novels and founder of a group known as the Court of Last Resort, to reinvestigate the case. Gardner and a group of colleagues arrived at the Moundsville State Penitentiary just 48 hours before the scheduled execution. They arranged a polygraph test, which Bailey passed. Soon Gardner interviewed the trial judge and learned of his misgivings about the case, reviewed the case files, and met with Governor Patterson, who issued a reprieve and asked for further investigations.

Upon review, the West Virginia Department of Probation and Parole concluded that Bailey indeed was innocent and recommended that he be pardoned. In 1951, Patterson commuted the sentence to life in prison. In 1960, Governor Cecil H. Underwood granted Bailey a conditional pardon, and six years later Governor Hulett C. Smith dropped the conditions.

— Michael L. Radelet