Antonio Wheat and Arthur Aiken have been in prison for 53 years for committing three murders in the Seattle area in 1965. Aiken, who is now 72, is petitioning for a new trial on one of the murder charges.
Two men who have been imprisoned for more than 50 years for three notorious Seattle-area murders were back in a King County courtroom Thursday for an unusual hearing that could potentially lead to a new trial for one of them.
Superior Court Judge Veronica Alicea Galván will decide in coming weeks if one of the men, Arthur Aiken, deserves to be retried on one of the three 1965 killings despite unsuccessful appeals before the state and U.S. supreme courts.
The question before Galván hinges on whether the willingness of the second killer, Antonio Wheat, to testify that Aiken was asleep in Wheat’s car when Wheat robbed and shot a gas-station attendant constitutes newly discovered evidence. And if it does, the judge must decide whether Wheat’s testimony would probably change the outcome if Aiken were to be tried again.
King County prosecutors say the evidence isn’t new and was considered by the original jury in 1965 and rejected as not being credible. Instead, the jury determined that while Aiken remained in the car, he aided and abetted Wheat by being present and ready to assist him, according to court filings. There was also testimony at trial that Wheat and Aiken had cased a South Seattle gas station 40 minutes before they headed to North Seattle where gas-station attendant James Harp was killed.
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Harp’s death was the third slaying in similar crimes targeting lone gas-station attendants that became one of the most highly publicized murder cases in Seattle in the 1960s.
Neither Wheat, now 73, nor Aiken, now 72, testified during their 1965 trial, but in statements to police, each claimed the other was the triggerman in the first two murders. In Harp’s killing, Wheat made four separate statements, initially claiming Aiken was the gunman, but later saying Aiken had been asleep in the car. Aiken also gave a statement to police saying that he had been asleep.
Both men were initially sentenced to death by hanging, but their sentences were reversed by the U.S. Supreme Court in 1971, which found that potential jurors had been improperly dismissed because they had expressed reservations about imposing the death penalty, court records show.
Wheat and Aiken then were resentenced to three consecutive life terms. But in 1989, they were each given minimum terms to serve — 20 years for the first murder, 30 years for the second and 33 years for Harp’s slaying — after passage of the state’s Sentence Reform Act, said a longtime state employee with the Indeterminate Sentence Review Board.
Thursday’s hearing came about as a result of a motion filed by Aiken’s defense attorney, Jon Zulauf, after Wheat told Seattle Met Magazine in 2015 that Aiken had been asleep in the car during Harp’s robbery and murder. Zulauf contacted Wheat, who then provided a declaration saying he would be willing to testify on Aiken’s behalf.
The state argued in recently filed court documents that Wheat’s willingness to testify doesn’t constitute new evidence and that Aiken is time-barred from bringing his motion. Prosecutors also argued the Court of Appeals, not a trial court, is the proper venue for Aiken’s motion to be reviewed, but Galván disagreed and granted the hearing.
Wheat, on direct examination by Zalauf on Thursday, said Aiken didn’t participate in, plan or help kill Harp and Wheat said he never gave Aiken a cut of the money he stole. But some of Wheat’s testimony also contradicted statements he gave to police after his arrest.
During cross-examination by Senior Deputy Prosecutor John Castleton, Wheat testified that he provided Aiken with a statement sometime in the 1990s when Aiken was preparing a clemency petition. But Aiken, who took the stand after Wheat, said that was untrue.
One of the issues is whether Aiken filed his motion in a timely manner, with the state arguing nothing precluded him from bringing his motion decades ago.
Zulauf told the judge the issue of a clemency petition for Aiken only arose within the past year.
Wheat testified that what he told the magazine was a reiteration of what he had told the police and later said when he offered his assistance to Aiken in the 1990s.
“There’s no new information there, is there?” Castleton asked.
“I can’t think of anything,” Wheat replied.
Aiken later testified he considered Wheat to be “a snake” and said they never spoke about their murder cases when they were twice housed in the same prison. Before seeing the magazine article, Aiken acknowledged he never approached Wheat about testifying on his behalf but “could have.”
Galván is to hear legal arguments May 22 on whether Aiken should get a new trial for Harp’s killing.
Wheat, a then-20-year-old mess cook, and Aiken, who was 19 and worked in the gymnasium, were airmen assigned to the former Paine Air Force Base (now Paine Field) in Everett. According to court records and news accounts from the time, they went on their robbery spree over five weeks in spring 1965 and killed their victims solely to avoid being identified:
• Owen Fair, 55, was beaten and shot five times on March 26, 1965, at a gas station on what is now Martin Luther King Jr. Way in Seattle’s Rainier Valley.
• Daniel Wolf, 19, was shot once in each temple on April 12, 1965, at a gas station 1 ½ miles south of where Fair was killed.
The two killings had the city on edge and set off an intense manhunt.
Harp was shot three times in the head at a gas station on 15th Avenue Northeast, just north of Northeast 145th Street, in what is now Shoreline. He was found dead in the restroom around 5 a.m. on April 24, 1965.
A couple of friends of Harp’s had visited him shortly before he was killed and met Wheat, later providing police with a description of his car, a 1954 brown-and-tan Ford sedan with a black hood.
Later that afternoon, a Washington State Patrol trooper spotted the vehicle in the parking lot at Paine Air Force Base, which led to Wheat’s arrest. He implicated Aiken, who was arrested the next day, crossing the border on a trip back from Vancouver, B.C.
Both cases have been reviewed more than once by the state Supreme Court and the U.S. Supreme Court, and Wheat and Aiken’s convictions were affirmed each time.
During Aiken’s 1979 attempt to appeal his conviction, his motion was denied in U.S. District Court, then reversed by the U.S. Court of Appeals.
At the time, King County prosecutors said that they could not retry Aiken because they could only locate 30 of 87 witnesses and that most of the evidence, including guns, bullets, victims’ clothing and diagrams, had been lost or destroyed.
In 1983, the U.S. Supreme Court denied Aiken’s petition, and his appeal earned a rebuke by former Chief Justice Warren Burger, who complained of prisoners bringing before the high court “stale claims that were fully ventilated in state courts.”
Burger went on to write:
“Our society’s constant willingness to reopen cases long closed tells the public that we have no confidence that the laws are administered justly.”
Correction: A previous version of this story had an incorrect first name for homicide victim James Harp.