Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, December 8, 1994 TAG: 9412080040
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER NOTE: above
DATELINE: LENGTH: Medium
If prosecutors seek the death penalty, as Wythe County Commonwealth's Attorney Tommy Baird indicated Tuesday, they would be launching an uphill legal battle.
Standing in their way is a U.S. Supreme Court ruling that prohibits the execution of someone who was younger than 16 at the time of the crime. The high court in 1988 ruled that would be cruel and unusual punishment.
That decision, Thompson vs. Oklahoma, was cited in October by a Norfolk judge who barred prosecutors from seeking the death penalty for a 15-year-old boy accused of killing a taxi driver in an attempted robbery.
Lawyers said the Thompson case likely would apply to the prosecution of Wheeler.
"I would say Thompson right now is the law of the land," said Tony Anderson, a Roanoke lawyer who has defended four capital murder defendants.
"As far as I know, no circuit court judge in Virginia has ever ruled that a 15-year-old can be executed," said Robert Frank, a Norfolk lawyer who successfully argued against the death-penalty prosecution of his client in the taxi robbery.
William Geimer, a Washington and Lee University law professor who assists lawyers in capital cases, said he knows of about five cases in the past few years in which Virginia prosecutors sought the death penalty for someone younger than 16 - all of them with the same result.
"In every one of those prosecutions, the death penalty goes out of the case," Geimer said.
In the Thompson case, which involved a 15-year-old convicted of brutally killing his brother-in-law, who had been abusing the boy's sister, Justice John Paul Stevens wrote in the court's majority opinion that "the execution of a person who was less than 16 years old at the time of the offense would offend civilized standards of decency."
Some argue that a 15-year-old still has a chance of rehabilitation, no matter how horrible his crime.
"A lot of people say that if you're old enough to commit the crime, you're old enough to suffer the penalty," Frank said. "But I'd like to think that society is more enlightened than that, and that kids can commit the same crimes as adults without the same mental capacity or maturity to understand the consequences of what they are doing."
Wheeler still could be tried as an adult and convicted of capital murder, lawyers said, but the most severe punishment he would face would be life in prison.
Even if prosecutors did seek the death penalty, Anderson pointed out, they would not be able to ask a jury to impose the sentence. Under Virginia law, all juveniles convicted as adults are sentenced by judges, not juries.
Since the Thompson decision, the U.S. Supreme court has decided in two other cases to allow the executions of killers who were 16 and 17 at the time of their crimes.
by CNB