Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 23, 1995 TAG: 9504240007
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
Since Virginia resumed its practice of killing the worst of its killers, 25 men have been executed and another 56 are waiting on death row.
None has received his death sentence from a Roanoke Valley judge or jury.
"Whether you consider it good or bad - and I would consider it good - Roanoke city has not experienced the kinds of crimes that, when you consider all the circumstances, have just cried out for the death penalty," Roanoke Commonwealth's Attorney Donald Caldwell said.
It's not that a capital murder case has never been brought in the Roanoke Valley; there have been at least 22 such charges filed in Roanoke and Roanoke County since Virginia passed legislation in 1977 that reinstated the death penalty.
In a few instances, Roanoke Valley juries have declined to convict defendants of capital murder, settling instead on first-degree murder and life sentences in prison. But in most of the cases, prosecutors have agreed to reduce the capital charges in exchange for guilty pleas and long prison terms.
Lawyers and prosecutors say that in most of the valley's cases, there simply has not been enough evidence, or the right kind of evidence, to make a capital charge stick - much less convince a jury that the defendant should pay for the crime with his or her life.
"There's an old axiom that, in order to get the death penalty, the guilt of the defendant has to be a foregone conclusion," Caldwell said. "A case on paper is one thing. But what looks good on paper and what actually comes out in court are many times two different things."
Many of the city's capital murder cases have been clouded by factors that could sway a jury: victims who place themselves in danger by purchasing drugs or engaging in other illegal activities; co-defendants who muddy the waters by blaming each other; key prosecution witnesses with criminal ties that make them subject to credibility attacks.
The only death sentence returned by a Roanoke jury since 1977 was later overturned by the Virginia Supreme Court. Of 19 capital murder charges brought since 1977 in Roanoke, three went to a jury as capital murder, but came back as first-degree. Twelve capital murder defendants pleaded guilty to, or were convicted of, reduced charges. Three cases still are pending.
The only person sentenced to die for a crime in Roanoke County since 1977 was Danny King, convicted in 1991 of luring a real estate agent to a house for sale before killing and robbing her. But King's death sentence was handed down by a jury in Chesterfield County after the case was moved because of extensive publicity.
Three other capital murder defendants in Roanoke County have pleaded guilty to reduced charges in exchange for life sentences.
There have been no capital murder charges placed in Salem since the death penalty was reinstated, Commonwealth's Attorney Fred King said.
Even when someone is convicted of capital murder, some say, a jury in an urban area like Roanoke might be less inclined to impose the death sentence than one in a more rural, peaceful locality.
"I think that people in Roanoke are more accustomed to, and more hardened to, the things that happen here that are not as common in the rural areas," said David Damico, a Roanoke lawyer who has defended three capital murder suspects.
"Whereas in the rural areas, juries may be trying to send a message that they might put up with that in Roanoke, but we're not putting up with it here."
In 1972, the U.S. Supreme Court ruled in Furman vs. Georgia that the death penalty was unconstitutional as it was applied in Georgia and, by implication, in most other states.
The ruling put an end to executions in Virginia, where more than 200 people had been put to death since the turn of the century. Several years later, the General Assembly went to work to rewrite the state's capital punishment laws to address concerns raised by the high court.
Virginia reinstituted capital punishment in 1977, with several changes. No longer was the death sentence mandatory for a certain crime; a judge or jury has the choice between life or death as the only two available punishments.
In order for judges or juries to learn more about a defendant's background, trials were divided into two parts - one to determine guilt or innocence and a second to hear mitigating or aggravating factors before setting a sentence.
And the number of crimes punishable by death - which had previously included offenses such as rape, robbery and attempted murder - was narrowed. Murder in the commission of another crime, such as rape or robbery; killing of a police officer; and killing of more than one person in a single act were included among the capital offenses.
Once someone is convicted of capital murder in Virginia, prosecutors must prove one or both of two elements to obtain the death penalty: that the crime was especially brutal and vile, and that the defendant represents a continued threat to society.
It didn't take long for Roanoke to use the new law.
In 1978, Major Henry Johnson Jr. was convicted of the execution-style shooting and robbery of his landlord, Realtor John Gardner, at his office on Jefferson Street. Robert Rider, a Roanoke lawyer who was commonwealth's attorney at the time, was less than enthusiastic when he talked to the jury about a death sentence.
"I do not ask for it ... don't demand it," Rider told the jury.
The jury nonetheless sentenced Johnson to die in the electric chair, making him just the third person in Virginia to receive the death sentence under the new law. But the Virginia Supreme court overturned his conviction in 1979, ruling that the jury was improperly instructed that they could find Johnson guilty of capital murder even if he had not actually pulled the trigger of the gun.
A second trial was held in Alexandria, and Johnson again was convicted of capital murder. But after the jury failed to agree on a sentence, Judge Kenneth Trabue took the decision out of its hands and sentenced Johnson to life.
No one else in a Roanoke Valley courtroom has since come so close to death.
Yet in surrounding localities, death sentences are much more common.
Bedford County has gained a reputation in recent years for sensational murder trials, three of them ending with death sentences. Some lawyers attribute that not so much to the flashy style of prosecutor Jim Updike as to the simple, shocking facts of each case.
Facts like murder-for-hire defendant David Lee Fisher putting his hand into the shotgun wound of the victim to make sure he would die, or Kenneth Stewart killing his estranged wife and infant son and then placing the dead child in his mother's arms for family members to discover.
"When have we had anything like that happen in the Roanoke Valley?'' asked William Cleaveland, a Roanoke lawyer who has been involved in capital cases as both a prosecutor and defense attorney. In most trials that result in a death sentence, Cleaveland said, "there's a fact that really grips your gut."
Two capital cases pending in Roanoke Circuit Court contain allegations that are arguably more "gut-gripping" than in previous prosecutions.
Robert M. May, 27, is charged with fatally shooting five people during a drunken New Year's party in an Old Southwest apartment - the worst mass killing in Roanoke since 1973. May is scheduled to be tried in June.
And Paul D. Thompson, a 25-year-old drifter accused of beating Virgie Green to death and dumping her body in a car trunk behind her Old Southwest home, has an extensive prior record that prosecutors could point to in arguing that he is a future threat.
Thompson is waiting to be brought to Roanoke from a Florida prison, where he is serving time for trying to kill a man during a robbery near Tampa several days after Green's death. He is also a suspect in the murder of a West Virginia man.
Roanoke prosecutors have not said whether they will seek the death sentence for either May or Thompson, and declined to comment about their cases for this story.
At the Virginia Capital Case Clearing House at Washington & Lee University, law Professor William Geimer often fields calls and questions from attorneys appointed to represent capital murder defendants.
From his vantage point, Geimer sees a trend.
"If you drew a map of Virginia, west of the Blue Ridge would be the area where you seldom see the death sentence," he said.
Geimer and other lawyers were not certain why that is, but offered several theories.
"There are lots of folks here who are not privileged; they're not silk- stockings folks," Geimer said. "They understand human failures, domestic tensions and family breakups."
But others say rural areas should be more likely to produce death-sentencing juries.
In Alleghany County, for example, a jury deliberated less than two hours before recommending that Gregory David Fry be sentenced to death for killing a state trooper during a traffic stop in 1984.
The Virginia Supreme Court ordered a new sentencing hearing, citing improper remarks made to the jury by the prosecutor and trial judge. The second sentencing was moved to Fairfax County, where Frye received a life sentence from a younger and more affluent jury.
Such juries are sometimes favored by defense attorneys in capital cases, especially when it comes to putting on psychological testimony about what went wrong in a defendant's life.
On the other hand, "rural juries might be more likely to see things in terms of absolute right or wrong, not whether or not [the defendant] is the victim of his alcoholic father," said Botetourt County Commonwealth's Attorney Rob Hagan.
In some Roanoke cases, there may not be as much sympathy for a victim who died while involved in the criminal subculture, such as a drug user looking for a fix or an alcoholic wandering the streets.
"You see it all the time at the courthouse," Damico said. "People just don't get as worked up about a wino" who is the victim of a violent crime.
"Maybe it's not as scary to the average jury, because they say, 'That couldn't happen to me.' "
And while some parts of Roanoke are accustomed - even numbed - to drug dealing and the violence it breeds, a rural jury might be shocked to hear the words "crack cocaine" associated with a murder.
"That very same murder in Roanoke city, or that very same drug deal in Roanoke city, might not be worth as much," said Ray Ferris, a Roanoke lawyer who has both prosecuted and defended capital cases.
But Ferris also cautioned that "it's very dangerous to generalize."
"To assume that a human life is worth any less in Roanoke than it is in Salem, or anywhere else, can be a fatal mistake by the defense attorney who makes that assumption," Ferris said.
Several years ago, one of Ferris' clients received a life sentence from a jury for a drug-related killing similar to ones in which other juries had recommended relatively light sentences.
"The predictability is not there" in the city, Ferris said, and that often leads to plea agreements that are favorable to both sides.
"As a prosecutor you're worried that you'll only get 10 or 12 years," Ferris said, "and as a defense attorney you're worried that the hammer will drop and you'll get a life sentence."
Although plea agreements have been reached in Roanoke capital murder cases, Caldwell has encountered no public criticism in the way his office has handled the cases.
"I take a lot of pride in that we always sit down with the families of the victim and give them the honest pros and cons of what is likely to happen in court," Caldwell said.
Several lawyers credited Caldwell for his discretion in agreeing to reduce charges that conceivably could be tried as a capital case.
"In my experience in working with him both as a prosecutor and a defense lawyer, Don is at the top of the list when it comes to exercising discretion," Ferris said.
"This is not a decision you make based on political considerations," he said. "This is a decision that needs to be made based on all of the facts and the circumstances, because we're talking about a man's life."
Keywords:
ROMUR
by CNB