Russell Wayne Wagner – Private First Class, United States Army

by

January 3, 2007

Killer’s ashes removed from Arlington cemetery

The cremated remains of a double murderer have been removed from Arlington National Cemetery and turned over to his sister, the cemetery’s Superintendent said Tuesday.

The removal of Russell Wayne Wagner’s ashes marks a victory for the son of his victims, who waged an 18-month campaign to get the ashes removed.

Vernon Davis of Hagerstown, whose parents were killed by Wagner in 1994, told The (Hagerstown) Herald-Mail he went to the cemetery Saturday morning, and the ashes had been removed.

“I’m pretty well satisfied,” Davis said Tuesday.

Senator Barbara Mikulski, D-Md., along with Senator Larry Craig, R-Idaho, chairman of the Senate Committee on Veterans’ Affairs, added a provision requiring removal of Wagner’s ashes to a veterans’ bill, which President Bush signed into law last week.

“The removal of Russell Wagner’s ashes closes this tragic chapter for the Davis family,” Mikulski’s office said in an e-mail statement. “My promises made to the Davis family were promises kept, and I am so proud to have not only helped them but to have created a law to ensure that nothing like this will ever happen again.”

Wagner, 52, a Vietnam veteran, died of a heroin overdose in prison in 2005. He was sentenced in 2002 to consecutive life terms for killing the Davises during a burglary. They were found bound and stabbed in their ransacked home.

Wagner’s sister, Karon Anderson of Silver Spring, arranged for Wagner’s remains to be placed at Arlington National Cemetery. He qualified for the privilege because he had been honorably discharged from the Army in 1972.

John C. Metzler Jr., the cemetery’s Superintendent, said Deputy Superintendent Thurman Higginbotham delivered the urn containing Wagner’s ashes to Anderson on Friday.

A NOTE FROM THE WEBMASTER

4 August 2005

While I certainly cannot speak for officials of either the United States Army or Arlington National Cemetery, I do have some insight into how a person convicted of a serious felony could be approved for burial in Arlington National Cemetery. Therefore, the statements made below are mine alone and may not reflect the views of others, including employees or officers of the United States Government.In a case such as this, where the individual served in the military for a three (3) year enlistment and was honorably separated from the military, there would be no way for Arlington National Cemetery officials to know of his subsequent criminal behavior or of his his eventual sentencing to two consecutive life terms in prison.

Arlington National Cemetery officials would, upon receiving a request for inurnment from a family member, would check the records of the Veterans Department in order to ensure eligibility for such inurnment. Once that information regarding the service of the deceased is verified, there is no subsequent criminal background investigation conducted.

While there are possibly some rules and regulations against certain types of convicted felons being buried in a National Cemetery (those being established on a Federal level after it was learned that there was a possibility of Oklahoma City-bomber Timothy McVeigh being laid to rest in a National Cemetery based on his prior military experience), these rules and regulations do not give the Department of the Army or Arlington National Cemetery either the authorization or the ability to conduct a nationwide criminal record search prior to approval for inurnment.

This is indeed an emotional matter, and one which will be carefully reviewed by the applicable government officials before any next steps are taken. We will, of course, continue to follow this situation and will provide updates here as they become available.

30 December 2006:

The U.S. Army is aware of a new order to evict a Hagerstown murderer’s remains from Arlington National Cemetery, but has no timetable yet for removing them, an Army spokesman said Thursday.

Lieutenant Colonel William Wiggins said it will take time to work out the details of removing Russell Wayne Wagner’s ashes.

Wiggins said the Army typically assigns a casualty assistance officer to work with a family after a soldier dies, and might do the same thing in this case. He didn’t know if Wagner’s family had been contacted yet.

The veterans’ bill that President Bush signed into law December 22, 2006, orders the Secretary of the Army to have Wagner’s ashes taken out of the cemetery, but it doesn’t specify when.

Jeff Schrade, a spokesman for Sen. Larry Craig, R-Idaho, the chairman of the Senate Committee on Veterans’ Affairs, said in an e-mail on Thursday that people who might know more about the situation had the day off.

Craig had the Wagner provision nestled into a $3.2 billion veterans’ health care and benefits package. The Senate and the House of Representatives passed identical versions of the bill in the final hours of Congress’ 2006 session.

An Arlington National Cemetery spokeswoman was not available this week. A woman who answered a phone at the cemetery said no one else would talk about the matter.

Other Army officials said arrangements for President Ford’s funeral have been a higher priority this week.

Wagner was convicted in August 2002 of murdering Daniel and Wilda Davis in their home on West Wilson Boulevard in Hagerstown.

Wagner was serving consecutive life sentences when he died of a heroin overdose in prison in 2005. His sister had his ashes placed at Arlington National Cemetery.

Because he was honorably discharged from the Army in 1972, Wagner qualified to have his remains at the cemetery.

29 December 2006:

A convicted murderer’s ashes will be removed from Arlington National Cemetery under an order contained in a veterans’ bill signed by President Bush on Friday.

The exact date for the removal of the remains is not known.

An omnibus veterans’ measure providing improved benefits and hospital facilities also has a provision ordering that the cremated remains of Russell Wayne Wagner, an Army veteran, be removed from the columbarium at the national cemetery.

Wagner, a Vietnam veteran who died of a heroin overdose, had his remains placed at Arlington in 2005. At the time of his death, Wagner was serving a life sentence for the 1994 stabbing deaths of a Hagerstown, Md., couple, Daniel and Wilda Davis, who were both in their 80s. Their son, Vernon G. Davis, appealed to Congress to have the remains removed.

“It made a pretty good Christmas for us,” Davis said Wednesday during a phone call from his home in Hagerstown, Md. Davis said his family hopes to be there when the remains are taken from the columbarium. “We just want to see him removed,” Davis said.

Davis, who once served on an honor guard for President John Kennedy, said when he heard Wagner was to be buried at Arlington, he didn’t believe it.

“I kind of shrugged it off because I didn’t think they’d ever do something like that,” he said.

In 1997, a law was enacted prohibiting veterans convicted of capital offenses from being buried or having their remains interred at a military cemetery. Previously, the burial ban applied only to those with death sentences or life without a chance of parole. This did not apply to Wagner because his life sentence included a chance for parole beginning in 2017.

Congress changed the law after the Davis family appealed to two senators, Barbara Mikulski, D-Md., and Larry Craig, R-Idaho, who worked on revised language.

“I was appalled to discover that the law enacted in 1997 to deny capital offenders burial in national cemeteries did not apply to Wagner,” said Craig, chairman of the Senate Veterans Affairs Committee. “While we moved swiftly to close the loophole that permitted Wagner’s burial in the first place, the question remained: should his remains continue to be included among the scores of honored dead in Arlington? For me and Senator Mikulski, who joined me in this effort, the answer was ‘no,’” he said.

Under terms of the new law, the Army, which is responsible for Arlington National Cemetery, has to remove Wagner’s remains, which would either by given to his next of kin or be placed in another appropriate place. Additionally, the Army would have to review all burials and internments at Arlington since 1997, when Congress first attempted to prevent convicted killers from being interred there, to make certain there are no others.

“The inclusion among the honored dead interred at Arlington National Cemetery of persons who have committed particularly notorious, heinous acts brings dishonor to those honored dead and disrespect to their loved ones,” the bill reads. “The removal from Arlington National Cemetery of the remains of a person who has committed a heinous act would not be an act of punishment against that person, but rather an act that would preserve the sacredness of the cemetery grounds.”

Davis said even if it hadn’t been his parents that Wagner had murdered, he still would have been furious because of Davis’s own time as a soldier.

“I had a right to go there, too, in a sense,” he said. “It just didn’t make sense that a convicted killer would be there.”

16 Decembe 2006:

The $3.2 billion veterans bill approved Friday by Congress includes a provision ordering the removal of a convicted double murderer’s remains from Arlington National Cemetery.

News of the bill’s passage was welcomed by Vernon Davis, whose elderly parents, Daniel and Wilda Davis, were fatally stabbed by Russell Wayne Wagner at their Hagerstown home on Valentine’s Day 1994. Davis fought for 16 months to have Wagner’s remains removed from the military cemetery.

“Right to this day, I just can’t believe it,” Davis told The [Hagerstown] Herald-Mail for a story in Sunday’s editions. “I didn’t think it would ever happen.”

Wagner, a Vietnam veteran, was sentenced in 2002 to life in prison. He died of a heroin overdose in 2005, and his body was cremated. At the request of his sister, Karen Anderson, Wagner’s ashes were placed at Arlington National Cemetery.

Vernon Davis objected to the honor for Wagner and testified before the Senate Veterans’ Affairs Committee. In January, President Bush signed into law a ban on burial at national cemeteries for veterans convicted of capital crimes, eliminating the loophole that allowed Wagner’s remains to be placed at Arlington.

The Senate approved a veterans bill in August that included a specific order to remove Wagner’s remains from the cemetery, but the bill didn’t pass the House.

The provision was inserted again into a $3.2 billion package to improve veterans’ benefits and health care. The bill passed the House on Friday morning by a voice vote, and the Senate approved it around 3 a.m. Saturday.

The bill goes to President Bush for his signature, and Davis said he will continue to monitor it until then.

“To believe it, I just have to see it,” he said.

24 September 2005:

Senator aims to prevent military burial for BTK killer
A U.S. senator on Thursday said he will try to close a loophole in a law that would allow convicted BTK serial killer Dennis Rader to be buried in a national military cemetery.

At a hearing of the Senate Veterans’ Affairs Committee in Washington, Sen. Larry Craig, R-Idaho, said he would introduce legislation to ensure that people such as Rader, an honorably discharged Air Force veteran, wouldn’t be buried alongside military heroes.

Craig said he wants to close a “parole” loophole in a 1997 law. That law was designed to keep Oklahoma City bomber Timothy McVeigh, an Army veteran, out of a military cemetery after his execution.

The law prohibits veterans who have been convicted of capital crimes from being interred in national cemeteries if they are sentenced to death, or to life in prison without the possibility of parole.

Rader, who pleaded guilty to killing 10 people in the Wichita area, was sentenced to 175 years in prison. But the death penalty did not apply to any of the murders, and Rader, 60, is technically eligible for parole.

The state lists a parole eligibility date of Feb. 26, 2180.

In his opening statement, Craig, the committee’s chairman, said he asked the Congressional Research Service to analyze Rader’s sentence. The research service concluded that Rader was not barred from interment in a national cemetery, Craig said.

“If the 1997 law cannot prevent the interment of a notorious serial killer, what good is it?” Craig said.

Craig said he called the hearing after discovering that the cremated remains of a man convicted of two murders in Maryland had been placed in Arlington Cemetery in July.

The murderer, Russell Wagner, had been sentenced to two life terms with the possibility of parole. He died of a heroin overdose in prison.

“How could an individual who committed such heinous acts be placed in the same hallowed ground as Chief Justice (William) Rehnquist, Justice Thurgood Marshall, President Kennedy and hundreds and hundreds of service members to whom this country owed its eternal respect?” Craig said.

After the hearing, Craig announced that he would introduce a bill to get Wagner’s remains removed from Arlington.

One difficulty that national cemetery administrators have in enforcing the 1997 law is that states define capital crimes differently, and also differ on imposition of the death sentence, said Richard Wannemacher, acting undersecretary for memorial affairs for the National Cemetery Administration.

Dennis Cullinan, a spokesman for the Veterans of Foreign Wars, speaking on behalf of the VFW, the American Legion, Disabled American Veterans, Vietnam Veterans of America, and the Paralyzed Veterans of America, expressed support at the hearing for closing the loophole.

He also cautioned the committee to be careful in making changes to the law so it doesn’t take away rights from deserving veterans.

Craig said he will work with VA officials and veterans organizations to craft changes in the bill.

Friday September 23, 2005:

The U.S. Senate hearing room was thick with anticipation as Vernon Davis of Hagerstown sat down to talk about the horrific murder of his parents 11 years ago.
The ashes of the killer, Russell Wayne Wagner, are at Arlington National Cemetery, a resting place for presidents and heroes.
With all eyes upon him, Davis cracked the tension with levity.

“By the way, I’m Santa Claus,” he told Senator Larry Craig of Idaho, who was presiding over a Senate committee hearing on national cemetery burial standards.
Davis, a star witness, explained the white beard he was growing.

“I do Santa Claus in December,” he said to a roomful of grins.

vernon-davis-photo-01

Just as quickly, the mood turned grim as Davis described how his parents – Daniel Davis, 84, and Wilda Davis, 80 – were killed February 14, 1994.

“My mother and daddy was getting ready for bed at seven o’clock,” he said, pausing every few words to collect himself.

He described the knock at his parents’ door, the knife and gloves Wagner had, the pillowcases Wagner put over their heads when he tied them up.

He talked about how Wagner stabbed Daniel and Wilda Davis “14, 15 times,” robbed them and left.

He recalled how their great-granddaughter found their bodies when she delivered their newspaper.

Soft sobs came from the back of the room.

“I was sitting back there, bawling my eyes out,” Vernon’s daughter, Julie Gehr of Big Pool, said later. “It just never gets any easier.”

Vernon Davis said he didn’t rehearse his speech; he went with his heart and said what he thought the committee needed to hear.

Still, his sister, Virginia Davis, said Vernon was nervous beforehand and went over some notes.

She said she was glad he was the one to speak to senators; he’s more of a talker than she is.

Virginia Davis said she didn’t want to relive the nightmare of that Valentine’s Day but she knew she needed to be at the hearing “to back my brother.”

Vernon’s wife, Vivian, watched him speak at the hearing, too. Virginia’s son, Walter, was there. So were family friend Maurice Tedrick and Philip Stotelmyer, the commandant of the Marine Corps League in Hagerstown.

Vernon Davis – Valley Mall’s Santa Claus for the second straight year – said he will be glad when he can think about his parents without having to talk at length about who killed them.

“Maybe, after this, maybe we can put ’em to rest,” he said.

Bill would bar convicted murders

22 September 2005 : A bill introduced Thursday in the U.S. Senate would bar veterans convicted of capital murder from burial in national cemeteries, closing what lawmakers said was a loophole that allowed the interment of a killer earlier this year at Arlington National Cemetery.

The legislation, drafted by Senator Barbara Mikulski, D-Maryland, would exclude veterans from national cemeteries if they are convicted in state court of capital murder and sentenced to life in prison. A previous law applied only to those who were given life without the possibility of parole.

The earlier law made it possible for the cremated remains of Russell W. Wagner, a 52-year-old Army veteran of Vietnam, to be placed in July at Arlington. Wagner died of a heroin overdose in a Maryland state prison where he was serving two life sentences for killing an elderly Hagerstown, Maryland, couple in 1994. Wagner would have been eligible for parole in 2017.

At a hearing Thursday of the Senate Veterans’ Affairs Committee, the son of the slain couple said he was shocked when he learned Wagner had been laid to rest at Arlington.

“I thought that was totally wrong,” said Vernon Davis, his voice wavering as he testified. “That’s an honorable place for people to go, not a murderer.”

In 1997, Congress drafted cemetery regulations largely to prevent Oklahoma City bomber Timothy McVeigh, an Army veteran, from burial at Arlington.

But committee Chairman Sen. Larry Craig, R-Idaho, noted that the law would theoretically allow serial murderer and Air Force veteran Dennis Rader, known as the BTK killer, to be buried in a national cemetery. Rader pleaded guilty to murder earlier this year in Wichita, Kan., and was sentenced to a minimum of 175 years in prison, although he has a parole eligibility date in 2180.

“If the 1997 law cannot prevent the interment of a notorious serial killer, then what good is it?” asked Craig, who also plans legislation on national cemetery burial rules.

Officials from the Department of Veterans Affairs, which oversees the national cemetery system, said the agency does not ask questions about the criminal history of an applicant for burial, relying instead on media reports and other sources. In Wagner’s case, Arlington received only a cremation certificate. It did not list a prison as his place of death, according to Thurman Higginbotham, deputy superintendent of Arlington.

Dennis Cullinan, director of legislative services for the Veterans of Foreign Wars, said a distinction should be made between those convicted of especially notorious crimes, such as the BTK killer, and those sentenced for less heinous acts.

“It is our concern … that just as veterans must face the same justice as other citizens, that they are not subject to more severe or stringent penalties as a consequence of having served their nation,” he said.

Daniel Davis, 84, and Wilda Davis, 80, were getting ready for bed on February 14, 1994, when Wagner knocked on their door. He tied the pair up on kitchen chairs, placed pillowcases on their heads and stabbed them about 15 times. He then robbed them and fled. Wagner was convicted in 2002.

Wagner, who served in the Army from 1969 to 1972 and was honorably discharged, died Feb. 7 at the Maryland House of Corrections Annex in Jessup. He was buried July 27 at Arlington at the request of his sister.

21 September 2005: As promised last month, the U.S. Senate Committee on Veterans’ Affairs will conduct a hearing Thursday on the policy for interment in national cemeteries.

The hearing comes as a result of protests over the inurnment this summer at Arlington National Cemetery of the remains of a man convicted in the 1994 murders of a Hagerstown couple.

The couple’s son, Vernon Davis of Hagerstown, is scheduled to testify at the hearing. It begins at 10 a.m. Thursday in Room 418 in the Russell Senate Office Building. The hearing can be seen live on the committee’s Web site – http://veterans.senate.gov. Audio only will be available on the C-SPAN hearings Web site – www.capitolhearings.org – according to committee spokesman Jeff Schrade.

The committee agreed to review the burial policy after learning this summer that the ashes of Russell Wayne Wagner had been inurned in the cemetery’s columbarium. Wagner died in February while serving two life sentences for the Feb. 14, 1994, murders of Daniel Davis, 84, and his wife, Wilda Davis, 80. The Davises were repeatedly stabbed in their West Wilson Boulevard home.

Wagner, 52, served in the U.S. Army from 1969-72 and was honorably discharged. The cause of his death was listed as heroin intoxication.

His ashes were permitted to remain at Arlington because of a loophole in a 1997 regulation that prevents some convicted murderers from being interred at national cemeteries. Approved in anticipation of a death sentence for convicted Oklahoma City bomber Timothy McVeigh, a decorated Gulf War veteran, the regulation stipulates that anyone receiving a death sentence or a sentence of life without parole may not be buried in a national cemetery.

Since Wagner was serving two consecutive life sentences, he could have been considered for parole starting in 2024 – assuming he received the maximum time off for good behavior and other credits, Raymond Smith, operations administrator for the Maryland Parole Commission, said last month.

Thursday’s hearing is “directly in response” to a request from U.S. Sen. Barbara Mikulski, D-Md., according to Mikulski spokeswoman Melissa Schwartz. Reviewing the interment policy was a priority for the committee, Schwartz said. Mikulski, scheduled to be the first speaker at the hearing, will introduce Davis.

Davis, himself a veteran, had protested Wagner’s inurnment at Arlington. Davis said he was contacted about the hearing last week.

“I’m glad I’m at this point,” he said. “Whether it’ll do any good, I don’t know.”

21 September 2005: Maryland Senator Barbara Mikulski is scheduled to testify at a congressional hearing that’s being held at her request to review the rules and regulations for burying convicted murderers in national cemeteries.

Mikulski will testify Thursday before the Senate Veteran Affairs Committee.

Last month, Mikulski requested the inquiry after the controversial placement of convicted killer Russell Wagner’s remains in Arlington National Cemetery.

Wagner was convicted of stabbing to death two elderly Hagerstown residents. He was sentenced to two life sentences. He died from a heroin overdose while in prison

Also testifying will be Vernon Davis of Hagerstown, whose parents were killed by Wagner.

Thursday September 1, 2005:

Snook offers burial plot for killer’s ashes

A Washington County Commissioner has offered space at his Williamsport cemetery for the ashes of convicted double-murderer Russell Wayne Wagner, should Wagner’s family want the remains moved from Arlington National Cemetery.

County Commissioners President Gregory I. Snook said Wednesday he made the offer about three weeks ago after controversy arose surrounding the acceptance of Wagner’s ashes at a national cemetery.

The ashes would be placed at Snook’s Greenlawn Cemetery for no charge should Wagner’s family decide to do so, Snook said.

He made the offer after being contacted by a man who has spoken with Wagner’s sister, Snook said.

Snook said he made the decision so Wagner’s family “could have a place for a loved one.”

The man – Snook didn’t remember his name – was supposed to contact Wagner’s sister and inform her of Snook’s offer, Snook said.

Snook said he has not yet heard from Wagner’s family.

Wagner was convicted of murdering Daniel Davis, 84, and Wilda Davis, 80, of Hagerstown, in their West Wilson Boulevard home in 1994.

He was sentenced to consecutive life terms in 2002.

He died in prison in February as a result of heroin intoxication.

Wagner served in the U.S. Army from 1969 to 1972 and was honorably discharged. At his sister’s request, his ashes were placed in an urn at Arlington National Cemetery in July with standard military honors.

A U.S. Army spokeswoman told The Herald-Mail last month the ashes were properly placed and would remain there, despite objections from the victims’ family and several veterans.

State and federal elected officials have spoken out against Wagner’s remains being at Arlington National Cemetery, and the Senate Veterans Affairs Committee is investigating the placement.

On Tuesday, veteran Ed Davis submitted to the Washington County Commissioners a petition bearing the signatures of more than 400 veterans asking the commissioners to support changes to Arlington National Cemetery’s policy.

“We want you to represent us now to let us know the county is behind the veterans.” Davis told the commissioners.

He said he was representing more than 1,700 veterans in Washington County.

Davis said some veterans are talking about not be buried at Arlington National Cemetery because of its policy.

“They don’t want to be buried there, and I don’t blame them one bit,” he said.

Commissioner John C. Munson, a veteran, signed the petition at Tuesday’s meeting.

Commissioners Vice President William J. Wivell said Wednesday the signatures on the petition were all from local veterans.

Snook said he wasn’t anticipating receiving any criticism should Wagner’s family want his ashes at his cemetery.

“Mine’s not anything like Arlington Cemetery,” Snook said. “It’s basically a community cemetery here.”

21 August 2005:
State investigates death of inmate at Jessup HAGERSTOWN – State correction officials are investigating the death of a convicted murderer whose remains were placed at Arlington National Cemetery as a homicide.

Russell W. Wagner, 52, died of a heroin overdose while serving two life prison terms for killing Daniel Davis, 84, and Wilda Davis, 80, in their Hagerstown home. His death at the Maryland House of Correction Annex in Jessup on February 7, 2005, is being investigated as a homicide and the heroin supplier could face murder charges, Correction Commissioner Frank Sizer Jr. said.

The placement of Wagner’s remains at Arlington National Cemetery sparked a dispute that caught the attention of a Senate committee.

4 August 2005:The military is having second thoughts about Arlington National Cemetery as the final resting place for an Army veteran who turns out to have been a convicted murderer.

The cremated remains of a 52-year-old Russell Wagner were placed at famed Virginia cemetery last month at the request of his sister. That’s even though at the time of his death, Wagner was in prison for killing an elderly Maryland couple eleven years ago.

Their son found the Arlington honors disturbing. A Hagerstown newspaper, the Herald-Mail, picked up the story and brought it to the attention of cemetery officials. An Arlington spokeswoman agrees a murder conviction would normally rule out burial there. She says the Army’s top lawyer will review the case after the military confirms Wagner’s conviction.

31 July 2005:The state’s second highest court has held that a form of DNA evidence defense attorneys claim is unreliable can be admitted into evidence in Maryland courts.

The Court of Special Appeals held in a case of first impression that the trial judge did not abuse his discretion in allowing mitochondrial DNA evidence, known as mtDNA, to be used against Russell W. Wagner, who was subsequently convicted on two murder counts.

Wagner’s life sentences for the murders of Daniel B. Davis, 84, and Davis’ 80-year-old wife, Wilda, were therefore upheld by the court in Monday’s opinion.

Both died from stab wounds on Valentine’s Day, 1994, at their Hagerstown home.

Anne Arundel County State’s Attorney Frank R. Weathersbee, whose office was the first to use mtDNA evidence in Maryland in the 1997 trial of Scotland E. Williams, welcomed the court’s decision.

It’s important that the Court of Special Appeals has recognized it, Weathersbee said. It will be more important that the Court of Appeals recognizes it.

However, he added that courts throughout the country have ruled in favor of using mtDNA evidence in recent years. They don’t think there’s any doubt about it, he said.

Wagner was convicted in part thanks to mtDNA evidence obtained by FBI scientists from a single strand of hair found on a glove recovered from a neighbor’s back porch

mtDNA provides less definitive results than DNA because it is retrieved from material surrounding cells rather than the cell nucleus itself. It can also be detected in dead cells, such as hair.

As Murphy noted in the opinion, it has been described to be a test more of exclusion than of identification.

Defense attorneys argued that one of the reasons mtDNA is unreliable is the risk of contamination in the laboratory, something they say mtDNA is particularly susceptible to.

The appeals court concluded that Washington County Circuit Judge Frederick C. Wright III did not abuse his discretion in allowing the evidence to be admitted.

This is because the use of mtDNA meets the standard of scientific reliability established by the Frye-Reed test (as described by the Court of Appeals in 1978 in Frye v. State).

Murphy wrote this week that the court agreed with Wright’s conclusion that the specific procedures that were used by the FBI – in this case to identify characteristics of another’s genetic material was certainly reliable.

Despite losing on the mtDNA issue, Wagner did prevail on another.

The court held that Wright incorrectly sentenced Wagner to a life sentence for the first degree felony murder of Wilda Davis, because Wright had already sentenced Wagner to life for her premeditated murder.

Both of Wagner’s convictions for premeditated murder and burglary will, however, stand, as all his other claims were rejected by the appeals court.

The Davises were both stabbed multiple times in the chest and back after being bound by the arms and legs.

Their bodies were discovered next day by their granddaughter, who delivered their newspaper.

The Davises, who had two properties they rented for cash, were known to keep all their money in the house, according to the opinion.

When police searched the property, they found Wilda Davis’ empty wallet on the kitchen table, along with an empty bank envelope.

The opinion did not state how much money was stolen.

The appellate attorneys for both parties could not be reached for comment yesterday.

WHAT THE COURT HELD

Case:

Russell Wayne Wagner v. State. CSA No. 2034, September Term 2002. Reported. Murphy, C.J. Filed January 3, 2005.

Issue:

Did the trial court err in ruling that mitochondrial DNA could be admitted in evidence against defendant?

Holding:

No. Judgment affirmed. Mitochondrial DNA evidence satisfies the requirements of the Frye-Reed test of scientific reliability.

Counsel:

Stacy W. McCormack, for appellant; Shannon E. Avery, for appellee.

Killer’s remains buried at Arlington cemetery

4 August 2005:HAGERSTOWN, Maryland – The remains of an Army veteran convicted of stabbing an elderly couple to death were interred at Arlington National Cemetery with full military honors.

Russell W. Wagner, 52, died February 2, 2005, in prison, where he was serving two consecutive life sentences for the Valentine’s Day 1994 killings of Daniel Davis, 84, and Wilda Davis, 80. Both were bound and repeatedly stabbed.

Wagner’s cremated remains were inurned July 27, 2005, at the request of Wagner’s sister, Karen Anderson, Arlington spokeswoman Lori Calvillo said.

When told by the (Hagerstown) Herald-Mail that Wagner had been convicted of killing two people, Calvillo said, “That would usually prevent you, to tell you the truth,” from having a service at Arlington.

She added that if the cemetery received confirmation of Wagner’s conviction, the records would be forwarded to the Army General Counsel, which reviews rules for the cemetery.

Vernon Davis, the son of the couple Wagner killed, is himself an Army veteran and was disturbed to hear that his parents’ convicted killer was given military honors.

“It disturbed me when I heard it,” he said. “I thought it was completely wrong.”

The sister, Anderson, could not immediately reached for comment. There was no listing under her name in Silver Spring, where her brother’s obituary said she lived.

Prosecutors said Wagner killed the Davises to settle a debt of back rent he owed to their son-in-law. He was tried on murder charges in 1996, but a mistrial was declared when jurors could not reach a verdict.

He was arrested again in 2001 after FBI scientists obtained DNA from a single strand of hair found on a glove recovered from a neighbor’s back porch. He was convicted in 2002.

Killer Interred at Arlington With Full Military Honors

Thursday, Aug. 4, 2005HAGERSTOWN, Maryland  – The remains of a man convicted of killing an elderly couple were interred at Arlington National Cemetery during a ceremony with full military honors.

Russell W. Wagner, 52, was convicted in 2002 on two counts of first-degree murder of the 1994 killings of Daniel Davis, 84, and Wilda Davis, 80, of Hagerstown. Both were found bound and repeatedly stabbed.

Wagner served in the Army from 1969 to 1972, and was honorably discharged. He was found unresponsive in his cell at the Maryland House of Correction Annex in Jessup on Feb. 2 and efforts to resuscitate him were unsuccessful, according to a spokesman for the Maryland Division of Correction.

Wagner’s cremated remains were inurned at in a columbarium during a service at Arlington on July 27. The service was authorized in June at the request of Wagner’s sister, Karen Anderson, according to Lori Calvillo, public affairs officer for the cemetery.

When told by the (Hagerstown) Herald-Mail that Wagner had been convicted of killing two people, Calvillo said, “That would usually prevent you, to tell you the truth,” from having a service at Arlington. She added that if the cemetery received confirmation of Wagner’s conviction, the records would be forwarded to the Army General Counsel, which reviews rules for the cemetery.

Vernon Davis of Hagerstown, the son of the couple Wagner killed, told The Herald-Mail that he heard a rumor that Wagner’s ashes were going to be buried at Arlington. “It disturbed me when I heard it …” he said. “I thought it was completely wrong.” Davis, himself an Army veteran, said he didn’t complain because he thought he had no recourse.

Daniel and Wilda Davis were killed on Valentine’s Day, 1994. Wagner was tried on murder charges in the case in 1996, but a mistrial was declared when jurors could not reach a verdict.

Wagner was freed, but arrested again in 2001 after DNA evidence became available. He was convicted in August 2002. In January, Maryland’s second-highest court upheld the use of the mitochondrial DNA evidence used during Wagner’s second trial, which critics claim is less reliable than DNA obtained from the nuclei of cells.

Paper Exposes Convicted Killer Buried at Arlington National Cemetery

By Editor & Publisher Staff
Published: August 04, 2005A convicted murderer found his final resting place at Arlington National Cemetery, with full military honors, last week but may not remain there long, thanks to a Maryland newspaper.

The cremated remains of Russell Wagner, 52, were placed at the Virginia cemetery at the request of his sister. At the time of his death, Wagner was in prison serving two life sentences for killing an elderly Maryland couple in 1994.

Their son, Vernon Davis, felt outrage over the Arlington honors. His local paper in Hagerstown, the Herald-Mail, brought the matter to the attention of cemetery officials. An Arlington spokeswoman, Lori Calvillo, told the paper a murder conviction would normally rule out burial there, promising that the Army’s top lawyer will review the case after the military confirms Wagner’s conviction.

She said that the cemetery had no paperwork indicating Wagner’s conviction.

Wagner was an Army Private 1st Class who served from September 13, 1969, to September 1, 1972, and was discharged honorably. His service at Arlington included a bugler who played taps, a firing party that gave Wagner a three-shot salute, and the traditional folding and unfolding of the American flag, Calvillo told the Herald-Mail.

August 05, 2005

Victims’ family protests murderer’s Arlington interment

Courtesy of the Army Times

HAGERSTOWN, Maryland — Convicted double murderer Russell Wayne Wagner died February 7, 2005, of a heroin overdose in prison. Nearly six months later, his cremated remains were placed at Arlington National Cemetery with full military honors.

On Thursday, as cemetery officials reviewed the situation, the son of Wagner’s victims said he’d like Wagner’s ashes removed from the vault in which they were placed July 27, 2005.

“With the heroes we’ve got coming back from this war now, he don’t need to be down there,” Vernon G Davis said. “It’s almost ridiculous.”

Wagner died while serving two consecutive life terms at the Maryland House of Correction Annex in Jessup for the murders of Daniel Davis, 84, and Wilda Davis, 80, on Valentine’s Day 1994. They were found bound and stabbed in their ransacked Hagerstown home, victims of a burglary that turned brutal.

Cemetery spokeswoman Lori Calvillo said Friday that Wagner’s Army service, from 1969 to 1972, qualified him for Arlington. She said Army officials were reviewing the case, but that Wagner’s crimes do not necessarily exclude him from an Arlington burial.

“A capital crime and being sentenced to life in prison without parole, or a death sentence, would preclude him from being buried in Arlington, provided we knew about it before the service,” Calvillo said Friday.

Wagner’s remains took a convoluted route to the sprawling military cemetery in northern Virginia where more than 260,000 military members, veterans and dignitaries are buried. He was found unresponsive in his cell February 2, 2005, and died February 7, 2005, at age 52 of what the state medical examiner determined was a heroin overdose.

Eight days later, the Office of the Medical Examiner turned Wagner’s unclaimed remains over to the State Anatomy Board, which takes custody of unclaimed remains and cremates them for interment in a pauper’s cemetery in Sykesville.

But on the same day it received Wagner’s remains, the board received an e-mail from a family member, Bill Anderson of Silver Spring, Maryland, whose wife Karon is Wagner’s sister, according to documents obtained by The Associated Press. Anderson told Anatomy Board Director Ronald S. Wade that the family couldn’t afford a regular funeral but wanted to receive Wagner’s ashes after cremation.

Anderson also mentioned that Wagner had been a prisoner.

Wade said Thursday that family members of deceased inmates often seek funeral assistance from the state; unclaimed military veterans who die behind bars can be buried in a state veteran’s cemetery, for example. But Wade said the request for Wagner’s ashes was unusual.

“I called Mr. Anderson. I explained that we’re not a cremation service. And they were notified that there would need to be some sort of exceptional situation — that I would take that into consideration,” Wade said.

So Anderson sent another e-mail, stating that another of Wagner’s sisters, Marian Stull, was a diabetic invalid who hoped to scatter her brother’s ashes in the Hagerstown area.

“We are planning to have a memorial service for Russell in the hospital chapel and then dispose of the ashes as she wishes,” Anderson wrote.

Wade found those circumstances so compelling that he honored the Andersons’ request on April 23 and waived the fees — as much as $300 — normally charged to family members who claim remains after learning belatedly of a death.

“The idea when we released the ashes was that it would be a private family service. There was no indication it would be a military service,” Wade said.

The service at Arlington was authorized June 29, 2005, at Karon Anderson’s request, Calvillo said.

Marian Stull died July 25, two days before the service, according to an obituary in The Herald-Mail.

Jailed in Murders, Buried in Honor

Maryland Veteran Interred At Arlington Cemetery
By Tara Bahrampour
Courtesy of the Washington Post
Friday, August 5, 2005

When the cremated remains of Russell Wayne Wagner, a 52-year-old U.S. Army veteran who served for three years during the Vietnam War, were laid to rest last week in Arlington National Cemetery, he was honored with military pallbearers, a bugler playing taps and a three-shot volley from a firing party.

After that, things got complicated.

Wagner was honorably discharged from the Army in 1972, but he spent the last 2 1/2 years of his life serving two consecutive life sentences for the 1994 murders of an elderly couple in Hagerstown, Maryland.

The couple’s son, Vernon G. Davis, said he did not believe it when first his niece, and then a reporter from the Herald-Mail of Hagerstown, told him this week about the July 27, 2005, Arlington burial.

“I said: ‘Nah, that ain’t true. That ain’t right,’ ” he said. “I just didn’t want to believe it.”

A veteran himself who served in an honor guard for President John F. Kennedy, Davis, 66, said that knowing someone was buried at Arlington would connote certain things for him.

“As a veteran, I would think that he loved his country, that he loved the people, that he loved the United States and was willing to die for it — not to do what he done to Mom and Dad.”

“There’s no sense in him being down there like that,” Davis added. “Not with the heroes we’ve got coming back from the war.”

Wagner was convicted in 2002 in the stabbing murders of Daniel Davis, 84, and Wilda Davis, 80, in their Hagerstown home. A previous trial ended in a hung jury.

Wagner died February 2, 2005, at the Maryland House of Corrections Annex in Jessup. A prison spokesman said that Wagner was found unresponsive in his cell and that foul play and medical conditions had been ruled out. Steven Kessell, deputy state’s attorney for Washington County, said the cause apparently was a heroin overdose.

All that cemetery officials knew was that the sister of a deceased veteran had requested that her brother be buried there and that she had hand-carried the ashes to the cemetery.

Lori Calvillo, a spokeswoman for the cemetery, said that she first heard about Wagner’s criminal past Wednesday and that Army officials were gathering details of the case and would decide whether his burial was appropriate.

She said it would not be difficult to remove his ashes from the columbarium, a structure for housing cremated remains. She added that the marble “niche cover,” similar to a headstone, had not been delivered.

Davis, a retired maintenance mechanic who lives with his wife in Hagerstown, said he planned to go to the cemetery this weekend with his family to see the site and push for Wagner’s removal. “What they do with him after they pull him out of there,” he said, “that’s up to them.”

But the ashes might not be going anywhere. Although Wagner’s criminal history came as a surprise to the cemetery, his crimes do not necessarily exclude him from an Arlington burial.

“A capital crime and being sentenced to life in prison without parole, or a death sentence, would preclude him from being buried in Arlington,” Calvillo said. Anything lesser would not.

According to a spokeswoman at the Washington County judiciary, Wagner was eligible for parole.

Furthermore, as someone who served on active duty in the armed forces and was honorably discharged, he was eligible for a “standard” burial there (for “full” honors — including a band, a caisson and a military escort — more stringent requirements have to be met). For an Army private first class, as Wagner was, pallbearers for his service would have been provided by the 3rd Infantry at Fort Myer.

The cemetery does not do background checks on those buried there, Calvillo said, adding that it is up to their families to share such information. Wagner’s sister could not be located for comment.

In the 1960s, the Department of Defense denied an Arlington burial to a decorated World War II veteran who had been chairman of the New York State Communist Party and had been convicted for advocating the overthrow of the U.S. government.

After a three-year legal fight by his family, he was buried at Arlington.

In 1997, Congress passed legislation barring those convicted of capital crimes from being buried in a national cemetery. The law was enacted to preclude any possibility that Oklahoma City bomber Timothy J. McVeigh, a Persian Gulf War veteran, would be buried at Arlington.

For most convicted criminals, however, there are no restrictions.

So does this mean that others among the 290,000 people buried in the cemetery could be convicted killers?

“It is definitely a possibility,” Calvillo said. “If you’re eligible, you’re eligible.”

5 August 2005:

Arlington National Cemetery says being a double murderer doesn’t necessarily disqualify someone from being buried there.

But a spokeswoman says the Army is reviewing the case of Russell Wagner, whose ashes were interred at Arlington July 27th after he died in a Maryland prison. He was serving life for murdering an elderly couple in 1994.

The son of Wagner’s victims has complained, saying that with the heroes we’ve got coming back from the war, it’s “almost ridiculous” for Wagner to be buried at Arlington.

But the cemetery spokeswoman says Wagner’s Army service, from 1969 to 1972, qualified him for Arlington.

She says exceptions would include a capital crime, or being sentenced to life in prison without parole, or a death sentence — quote — “provided we knew about it before the service.”

Congress OKs burial rule for veterans

22 December 2005The defense spending bill approved by Congress this week includes a provision that would prohibit convicted criminals who could have been sentenced to death or to life in prison for their crimes from being interred or inurned at national cemeteries, according to information from the U.S. Senate Committee on Veterans’ Affairs.

The Senate approved a defense bill Wednesday night; the House approved the spending bill Thursday afternoon. The bill is on its way to President Bush for signing, according to a release from Veterans’ Affairs Committee spokesman Jeff Schrade.

According to the release, the measure “applies to both national cemeteries run by the federal government and cemeteries for veterans run by state governments which were funded with (Veterans’ Administration) grants. It also prohibits the military from playing Taps or presenting an American flag at such funerals at both public and private cemeteries.”

The amendment to the Defense Authorization Bill was sought by committee Chairman Larry Craig, R-Idaho, in response to the inurnment at Arlington National Cemetery of the remains of a Vietnam War-era veteran convicted in the 1994 murders of an elderly Hagerstown couple. Sen. Barbara Mikulski, D-Md., co-sponsored the amendment.

In August, The Herald-Mail reported that Russell Wayne Wagner’s ashes had been inurned at Arlington (Va.) National Cemetery. The issue gained national attention.

Wagner was sentenced in October 2002 by Washington County Circuit Court Judge Frederick C. Wright III to serve consecutive life terms for the stabbing deaths of Daniel Davis, 84, and Wilda Davis, 80, in their West Wilson Boulevard home.

Wagner died Feb. 7 from a heroin overdose while serving his sentences at the Maryland House of Correction Annex in Jessup, Md.

At the request of his family members, Wagner’s remains were inurned with standard military honors at Arlington’s columbarium on July 27. After learning of Wagner’s criminal record, the U.S. Army ruled that his remains would stay there because his sentence left open the possibility for parole.

Because he was serving two consecutive life sentences, Wagner could have been considered for parole starting in 2024 – assuming he received the maximum time off for good behavior and other credits, Raymond Smith, the operations administrator for the Maryland Parole Commission, said in August.

Wagner was honorably discharged from the Army in 1972.

Craig and Mikulski had introduced separate bills to close the loophole that allowed such offenders to be interred and inurned in national cemeteries. Mikulski’s office said last month that amending the provisions into the Defense Authorization Bill would be the best way to get them passed.

A bill Craig introduced in September that would require Wagner’s remains to be removed from Arlington still is pending in the Senate committee. Congress has until the end of its term next summer to act on it.

At a hearing in September, Vernon G. Davis, the Davises’ son, testified in support of stricter criteria for interment and inurnment at national cemeteries.

24 June 2006:

Panel passes bill ordering killer’s remains out of Arlington

Legislation ordering the removal of a convicted killer’s cremated remains from Arlington National Cemetery has cleared a hurdle in the U.S. Senate.

The measure is a provision of a bill approved yesterday in the Senate Veterans Affairs Committee. The bill now heads to the Senate floor, but Maryland Senator Barbara Mikulski’s office says there is no timetable for a vote.

Army veteran Russell Wagner died of a heroin overdose last year in prison while serving two life sentences for the 1994 stabbing deaths of Daniel and Wilda Davis in Hagerstown, Maryland.

At the request of Wagner’s sister, his remains were placed at Arlington last July. Federal law at the time allowed murderers who were eligible for parole to be buried at Arlington. That law has since been amended.

June 23, 2006:

Vernon Davis broke into elated tears on the phone Thursday upon hearing news that the U.S. Senate Veterans’ Affairs Committee passed a bill that includes an order to have the cremated remains of the man convicted of killing his parents removed from Arlington National Cemetery.

Through muffled sobs, Davis said over the phone Thursday, “I didn’t think that would ever happen … I just told someone the other day, they ain’t never gonna take him out of there.”

Davis said he realizes the passage Thursday is just the first step in the Senate committee’s attempt to have the cremated remains of Russell Wayne Wagner removed from the national cemetery.

The Veterans’ Choice of Representation and Benefits Enhancement Act of 2006, which includes the order to have Wagner’s ashes removed, now will move to the Senate for a vote, but a time frame for that presentation has not been determined, said Melissa Schwartz, spokeswoman for U.S. Sen. Barbara A. Mikulski, D-Md., who co-sponsored the bill with Sen. Larry Craig, R-Idaho, chairman of the committee.

In a statement issued through a written release, Mikulski said, “I promised the Davis family that I would fight to remove the remains of this brutal killer from the hallowed grounds of Arlington National (Cemetery). I will continue to work with my colleagues to move this proposal forward … We must preserve our national cemeteries as places of honor for our veterans. Arlington is for heroes, not convicted murderers.”

Wagner, 52, died of a heroin overdose in February 2005 at the Maryland House of Correction Annex in Jessup, Md. He was serving two life sentences with the possibility for parole for the Valentine’s Day 1994 stabbing deaths of Davis’ parents, Daniel, 84, and Wilda Davis, 80, in their West Wilson Boulevard home.

After Wagner died, his sister, Karen Anderson, received his cremated remains and requested that her brother, who served as a U.S. Army private 1st class from Sept. 13, 1969, to Sept. 1, 1972, be placed at Arlington, a request approved by the cemetery on June 29, 2005.

Wagner’s ashes were placed with standard military honors in a columbarium, a structure for cremated remains, during a July 27, 2005, service there. Wagner was discharged honorably from the military, a qualification for the cemetery’s columbarium service.

After learning of Wagner’s criminal background, cemetery administrators said he still was entitled to the honor since his sentence included the possibility of parole. Under the law at that time, placement in a national cemetery was denied to anyone who received a death sentence or a life sentence without the possibility of parole.

Vernon Davis, 67, has seen that loophole closed.

In January 2005, President Bush signed into law a separate bill co-sponsored by Mikulski and Craig that took away burial eligibility for any veteran convicted of a capital crime in either state or federal court, regardless of parole eligibility.

“When they passed the first bill, that was to keep everybody from going in,” Davis said Thursday. “They said it would take another bill to do this (remove his ashes).”

He later said, “I thought, well, they’ll just shove it under the desk and forget about it, but somebody didn’t forget about it.”

Davis expressed thanks to the committee, and to Mikulski and Craig for their help moving the bill forward.

He testified at a Senate committee hearing on national cemetery burial standards in September 2005 to talk about his parents’ murders in response to Wagner’s placement. He said Thursday that he is prepared to do it again if it means Wagner will be removed from the cemetery.

“I’m tickled to death on what happened,” he said. “I’m really, really pleased.”

A message left for Anderson, Wagner’s sister, seeking comment was not immediately returned Thursday.

Killer May Be Unearthed From Arlington Cemetery
Senate Approves Bill Restricting Veterans’ Burials

By Rama Lakshmi
Courtesy of The Washington Post
Monday, August 7, 2006

The Senate has approved a bill that could result in the removal of the remains of convicted killer Russell Wagner from the Arlington National Cemetery.

Wagner, a retired Army veteran, died last year while serving two life sentences for the 1994 murder of Daniel Davis, 84, and Wilda Davis, 80, in Hagerstown, Maryland. Responding to objections by their son, Vernon Davis, the Army and the Senate Veterans’ Affairs Committee agreed to take up the matter.

The proposal to bar veterans convicted of capital crimes from the national cemetery was included in the veterans’ benefit bill that was passed late last week by the full Senate.

Applauding the unanimous passage of the bill, Senator Barbara Mikulski (D-Md.), who co-sponsored the bill in the Senate Committee, said she will continue to work to see the proposal becomes law. The House’s Veterans Affairs Committee still must take action on its version of the bill.

“My promises made to the Davis family will be promises kept,” Mikulski said in a written statement today. “The remains of this brutal killer do not belong in the hallowed grounds of Arlington National Ceremony. We must preserve our national cemeteries as places of honor for our veterans. Arlington is for heroes, not convicted murderers.”

Wagner, 52, died of a heroin overdose two years after he was convicted of stabbing of the elderly couple. Although he was serving two life sentences, he was eligible for parole, which is sister argued allowed him to be buried in the national cemetery.

But Vernon G. Davis, also an army veteran, asked to have the laws changed and the ashes of his parents’ killer removed from Arlington.

In 1997, Congress passed a law that barred the burial at Arlington and other military cemeteries of those convicted of capital crimes and sentenced to death or life without parole. The law was designed to block the possibility of Oklahoma City bomber Timothy McVeigh, a veteran, being buried at Arlington.

Mikulski’s office said today that the new provision takes away burial eligibility for any veteran convicted of a capital crime, in federal or state court, regardless of whether parole is a possibility. It also denies funeral honors to veterans buried in private cemeteries if they have lost eligibility due to a capital conviction.

The bill was co-sponsored Larry E. Craig (R-Idaho), chairman of the Senate Veterans Affairs Committee. Some veterans argued that veterans should not be barred for crimes committed after their service.

WAGNER, RUSSELL WAYNE

  • PFC   US ARMY
  • DATE OF BIRTH: 06/21/1952
  • DATE OF DEATH: 02/07/2005
  • BURIED AT: SECTION 5-PP  ROW 27  SITE 6
  • ARLINGTON NATIONAL CEMETERY

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