Case highlights inconsistencies in sentencing practices

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BY JoANNE YOUNG / Lincoln Journal Star

On the night of Nov. 1, 1989, a neighbor heard noise coming from Esther Drinkwalter’s apartment in Valentine.

Emma Ohlmann tried to call her friend and frequent card partner.

No one answered. Then she heard a knocking on the wall.

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Randy Drinkwalter at the Nebraska State Penitentiary on Oct. 31. (Michael McNamara)

Randy Drinkwalter at the Nebraska State Penitentiary on Oct. 31. (Michael McNamara)

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Ohlmann, 89, and her 87-year-old neighbor had an agreement: If either needed help, just knock on the wall.

The grandson maintained his innocence. Evidence in the 1989 homicide of his grandmother said otherwise.

Blood on a shirt and underwear in the Dumpster outside Randy Drinkwalter’s apartment in Valentine. Blood on a rug and in a sink trap inside that was the same type as his grandmother’s. Glass fragments in his apartment like those found on her body.

The jury deliberated 5½ hours after a trial that started on a Tuesday and was over by Thursday.

On that Friday morning, jurors said the 27-year-old had killed Esther Drinkwalter, that the 6-foot-4, 420-pound man had sat on her, hit her in the face with a ball-peen hammer as many as 20 times and jammed a knife into her face just below her eye.

He then took another hammer and shattered family pictures, peppering her body with glass.

A three-judge panel sentenced him to die in the electric chair.

In 2009, he will be a free man.

In Nebraska, Drinkwalter’s case serves as one example of the glaring inconsistencies in homicide sentences.

The state has given the death penalty for the killings of two cab drivers but a life sentence for the killings of  two gas station attendants. Death for kidnapping, killing and raping a newspaper carrier. Life for stalking, suffocating, raping and drowning a young bride-to-be.

Was justice served in moving Drinkwalter from death row to a manslaughter charge and 20 years of confinement?

The conviction and plea agreement split Esther Drinkwalter’s large family, causing two decades of animosity and dread among some of his return to Cherry County. 

The agreement also disturbed Cherry County Sheriff Melvin Christensen.

“I sure didn’t expect it to go (that direction),” he said.

Randy Drinkwalter is 45 now. Gray peppers his beard and close-cropped hair. His left ear holds a small stud earring.

He says he has no idea what happened the night of Nov. 1, 1989, at his grandmother’s apartment. He wasn’t there. He didn’t commit the crime, he says in an interview at the Nebraska State Penitentiary.

His expression is flat — not cool, not warm.

The blood investigators found in his apartment? No idea how it got there, he says.

When he was growing up, Drinkwalter lived a couple of miles from his grandparents’ ranch south of Kilgore. He attended many family gatherings at their house.

“She was very giving,” he says of his grandmother. She spent equal amounts of time with all of her 11 children.

At the time she died, he says, she had 30 grandchildren, 39 great-grandchildren. She welcomed them all.

Relatives say half of Esther Drinkwalter’s kids — his aunts and uncles — think he’s guilty. Some relatives wrote letters to the paper about it. Some have said they would be afraid to meet him on the street when he is released, that they would fear for their own lives.

They have nothing to worry about, he says.  “I would avoid them at all costs.”

His two years on death row, waiting for the state Supreme Court to address his appeal, were nothing like he expected, he says.

He thought he would be locked in his cell 24 hours a day. Instead, he was allowed visitors, meals in a community dining area and two hours a day outside in a segregated yard.

He tried not to think about being executed, he says. When he did, he thought about how his parents would feel about him being electrocuted.

Everyone told him the state Supreme Court likely wouldn’t help much, that he would have to rely on the U.S. Supreme Court for a decision.

Then the state Supreme Court ordered a new trial, and the Cherry County prosecutor agreed to a manslaughter plea deal. Drinkwalter tried to negotiate a deal on the weapons charge, too, but the prosecutor wouldn’t budge, he says.

He pleaded no contest and was sentenced to up to 20 years on each of the two charges, to be served consecutively.

For the past five or six years, Drinkwalter has lived in Housing Unit 7 of the maximum security prison, in an open dormitory with 98 beds. At any given time, 75 to 80 inmates live there. It’s noisy, he says.

He doesn’t know if he’ll stay in Nebraska when he gets out of prison in late 2009, he says.

The 1980 Cody-Kilgore High School graduate won’t return to Valentine, though. There’s no money there.

He could stay around Lincoln, he says, and drive a truck or work heavy construction.

“This is a place (where) I wouldn’t want to spend much more time,” he says of the prison. “I wouldn’t want to come back to it.”

Don Keenan got a call at 10:10 p.m. from Emma Ohlmann, asking him to check on their neighbor. A minute later, Keenan entered Esther Drinkwalter’s apartment and found her next to her couch, a hammer near her head, blood pooled around her and spattered throughout the living room and kitchen, on the ceiling, the walls and appliances. A knife was stuck in her face.

Her clothing had been pulled off from the waistband down and buttons were missing. She had been sexually assaulted.

Four family pictures surrounded her body. A pack of Marlboros lay on her. A cord on one of her two phones had been cut.

It didn’t appear anyone had entered the apartment by force.

The doctor who performed the autopsy said it was not possible to count the number of wounds to Esther Drinkwalter’s head and face, but whoever killed her hit her up to 20 times. And broke five of her ribs.

She was alive when the blows to her head began and dead when the knife pierced her face, the doctor said.

Randy Drinkwalter told authorities he woke up at 7:30 on the morning of Nov. 1 and went to work at Ron’s Texaco. He worked until 6 p.m. and then asked his boss if he could work in the shop on his pickup, installing an auxiliary gas tank. He finished around 8:30 and left.

A Cherry County deputy told a different story. He testified that a man who worked at the gas station told him Drinkwalter did not return to the station after leaving early in the evening.

Drinkwalter said he went home after installing the tank, showered and went to the Dairy Sweet for a broasted chicken dinner around 9:10. He left 35 to 40 minutes later. He says he stayed home the rest of the evening.

No witnesses saw him going into or out of his grandmother’s apartment.

But there was the issue of the bloody shirt and underwear, his white Avia shoes in the Dumpster, the blood in the sink and the glass on the rug in his apartment.

He told an investigator his grandmother had never been to his apartment and he couldn’t remember the last time he had been to hers. Someone, he said, was trying to frame him. But he had never given his apartment key to anyone, and there had been no evidence of a burglary.

“I don’t think they ever established a motive,” said Drinkwalter’s defense attorney, Leonard Vyhnalek. “The speculation is he went to borrow money and she wouldn’t give it.”

At the trial, a cousin testified that about five months before she was killed, Esther Drinkwalter had told him she was glad Randy never came around, because “he scares me.”

It was that testimony, and an instruction Judge Edward Hannon gave to the jury, that brought the opportunity for a new trial, the one that never happened.

Prosecutor Warren Arganbright had argued for the death penalty. He said the circumstances clearly justified death for the accused.

The court listed two aggravating circumstances that could allow for a death sentence: The homicide was committed to conceal a sexual assault, and the slaying was heinous, atrocious and cruel. Authorities weren’t sure at what point Esther Drinkwalter died in the attack, but they knew it was a torturous death.

One mitigating circumstance —an argument against the death penalty — was Drinkwalter’s lack of a significant criminal record.

A three-judge panel sentenced him to death, taking into consideration the sexual assault, even though it had been removed from the charges.

Then the appeal to the state Supreme Court and its reply: The lower court had erred in allowing a cousin to testify that Esther Drinkwalter had said she was afraid of her grandson.

“It was speculation,” Vyhnalek said. “There were no reasons given why she was afraid of him.”

The Supreme Court also said a technicality — the instruction given to the jury by Hannon in defining premeditation and reasonable doubt — tainted the result.

In front of the Supreme Court, Assistant Nebraska Attorney General J. Kirk Brown said nothing that happened at trial justified reversing Drinkwalter’s conviction.

There are reasons a prosecutor would not want to try a capital case a second time, attorneys say. Witnesses can disappear, evidence can be lost or suppressed, and cost can be a problem, especially for a rural county.

Arganbright did not return repeated phone calls seeking comment. But Valentine’s Midland News had reported the decision was made in light of the probability the venue would have to be changed, which would result in further delays and increased expenses to the county.

Zale Quible, a Cherry County commissioner at the time, said he didn’t remember the plea bargain coming about because of the cost of a second trial.

“I don’t remember that money had anything to do with it,” Quible said.

But those kinds of things happen in rural counties, he said, because funding gets tough.

He did remember Cherry County didn’t have a public defender and had to hire a defense attorney for Drinkwalter.

That same year, Arganbright had accepted a plea agreement in another slaying. Zelda Hawkman’s charges had gone from second-degree murder in the stabbing of Jesse Herman Turner to manslaughter. The reported reason was to avoid the expense of a trial and possible appeals, estimated to be in excess of $15,000.

Cherry County Clerk Thomas Elliott said he couldn’t give an estimate of what the Drinkwalter trial might have cost. But some have estimated around $50,000.

The newspaper reported Arganbright consulted with County Board members about the availability of funds for the continuing cost of the trial.

He also consulted with family members.

Esther Drinkwalter’s daughter-in-law Kathleen remembers the call from Arganbright the morning jury selection in the second trial was to begin.

Family members had made it clear they didn’t want a plea bargain, she said.

He pushed it anyway.

“He definitely gave us the impression Randy was going to serve at least 40 years, 20 for each crime,” she said.

The initial murder charge tore the Drinkwalter family apart. Esther Drinkwalter was a quiet woman who loved her family and wanted everyone to get along, Kathleen Drinkwalter said.

She also was strong and in good health.

Every winter she traveled to Arizona, Colorado and Arkansas to visit her children who had moved away. She was getting ready to leave in about a week when she was killed.

Jan Drinkwalter testified at the trial that her grandmother always kept her door locked, that she would have had to have known whoever came to her apartment that night.

She is convinced her cousin is guilty. He had a history of intimidating people, she said.

She doesn’t like the idea he will be free in two years.

“But I can’t live in fear. Then he would win,” she said.

Reach JoAnne Young at 473-7228 or jyoung@journalstar.com.