THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Thursday, September 22, 1994 TAG: 9409220414
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
LENGTH: Long : 159 lines
Last week, Toronto McCall's lawyer went to court in Norfolk prepared to fight for his client's life.
As it turned out, he didn't have to. Prosecutors agreed not to seek the death penalty against McCall, who was 15 when he was charged with capital murder in the March shooting death and robbery of Brian Garland, a 19-year-old Norview High School student.
McCall faces a possible life sentence if convicted.
Reginald Evans may not be so lucky.
Norfolk Deputy Commonwealth's Attorney Lisa Caton said she is considering asking for the death penalty against Evans, who also was 15 when he was charged with killing cab driver Donald J. Reynolds. The victim was shot in the back five times during an attempted robbery.
Caton, who is prosecuting both McCall and Evans, said that the heinous nature of the cab driver's murder may enable her to successfully seek the death penalty. She said she needs to do more research before making a decision.
As ever-younger criminals are charged with ever-more-serious crimes, prosecutors, defense attorneys and legal experts debate this question: When is a person who committed a violent crime too young to be subjected to the ultimate punishment of death by the state?
Many believe the U.S. Supreme Court already has answered that question, and that no one under 16 can be sentenced to death. A 1988 case, Thompson vs. Oklahoma, is considered by many legal experts to be the prevailing case law.
``They've drawn a bright line,'' Virginia Beach Commonwealth's Attorney Robert Humphreys said of the high court. ``Right now it's not flexible at all.''
William S. Geimer, a law professor at Washington & Lee University, said: ``You can't execute 15-year-olds. It's generally accepted that unless a legislature gets up and says we want to execute 15-year-olds, you can't do it.''
But not everyone agrees. Geimer said that if Caton seeks the death penalty in the Evans case, she won't be the first Virginia prosecutor to do so in recent years. He said he has seen about five cases in the past two years in which state prosecutors have sought the death penalty in cases of 15-year-old offenders, despite the Thompson opinion.
None of those cases got beyond pretrial motions in Circuit Court, Geimer said. But prosecutors in Florida won a death penalty conviction for a 15-year-old before the case was overturned in the state Supreme Court in March.
A growing number of prosecutors across the nation is seeking tougher punishment for younger and more violent offenders, given a growing climate of fear of crime.
In Norfolk, Caton believes she may be able to successfully argue for the death penalty in the Evans case. Evans ``was only 15 days short of his 16th birthday. I think given the facts of the case, it would be a death penalty case,'' she said. She acknowledged that ``it's going to be a rough road for me.''
Even Humphreys agreed that standards can change, noting the the Supreme Court has ``drawn lines before and moved them.''
What kind of case can Caton and other prosecutors make for seeking the execution of a 15-year-old?
Andrew A. Protogyrou, who represents McCall, said a prosecutor could base an argument on language contained in the Thompson decision that says cruel and unusual punishment is dictated by ``evolving standards of decency that mark the progress of a maturing society.''
``Children are living lives of adults at early ages - that's what prosecutors would argue in an effort to go after the death penalty for children under 16,'' Protogyrou said. ``The defense argument is that an evolving society is nurturing. We have lost that.''
Robert E. Frank, representing Evans, plans to argue that his client was only 15 at the time of the offense, and he should not be subject to the capital murder statute at all - not for the death penalty or life in prison, the other possible penalty in a capital case. He and Protogyrou both said the maximum charge allowable for 15-year-old offenders should be first-degree murder.
Frank said the climate of the times has changed and blames much of the new attitude on pressure from the public to get tough on crime. ``It's unfortunate that the office would consider the death penalty for a 15-year-old,'' he said, ``regardless of the nature of the crime.''
The most recent example of a 15-year-old on death row in the United States was the Florida case of Jerome Allen, said Victor Streib, a law professor at Cleveland State University and an expert on the death penalty. Florida prosecutors had argued that the death penalty could apply to children as young as 7.
When the Florida case reached the state high court, Assistant Attorney General Kellie Nielan argued that the Florida legislature intended that juveniles could be executed. She cited this language: ``A child of any age who is convicted of a crime punishable by death shall be treated in all respects as if they were an adult.''
Allen, a cousin and friend had loaded a shotgun and set off to rob a gas station attendant, Nielan said. They demanded money, then Allen ordered that the attendant be shot because he would be able to identify them.
Cleveland State's Streib said he sees no deterrent value in seeking the death penalty for 15-year-old offenders.
``Getting tough with 15-year-olds might make headlines, but the idea that you can get a 15-year-old's attention by executing another 15-year-old doesn't work,'' he said.
Streib said he is troubled when prosecutors seek the death penalty for 15-year-olds. Since 1973, there have been 13 cases of 15-year-olds being sentenced to death in the United States, but none was executed. All were reversed on appeal.
``I'm a little concerned about prosecutors who attempt to do this when they have one chance in a million of winning,'' Streib said. ``It's the nearest thing to a waste of taxpayers' money that there is.''
The execution of youthful criminals seems to be a peculiarly American custom in recent years. In the last 15 years, 14 people worldwide have been executed for crimes they committed when they were juveniles. Nine were in the United States, Streib said. The others were in Bangladesh, Rwanda, Barbados and Iran.
The death element of a capital murder case can be removed by prosecutors at the stage when a juvenile is certified to stand trial as an adult in court. Such a maneuver can save taxpayers a lot of money, Geimer said.
``As long as the possibility of a death sentence remains, it's more expensive,'' he said. Here's why:
A capital case in which death is a possibility requires two defense attorneys, and there is no fee cap for court-appointed lawyers. Once death is not an element, only one lawyer is needed and there is a maximum fee allowable. Also, an indigent defendant who faces death must have an expert appointed by the state to look for mitigating factors. And if a capital murder case goes to trial and death is a possibility, three times more prospective jurors must be called.
Capital murder charges against 15-year-olds are rare, but not unprecedented, in Virginia. In 1979, Patrick Schooley Jr. pleaded guilty to capital murder in Suffolk. Circuit Court Judge James C. Godwin opted against the death penalty, saying: ``(W)ith his age, I do not feel that he should be given capital punishment, as horrible as the crime is.''
Prosecutors said Schooley, who lived in Louisiana, was visiting relatives when he went to the home of 78-year-old Bessie Rountree and asked to use her telephone. Once inside, he robbed her at knifepoint and forced her to ride in a car with him. After they returned, he raped her and stabbed her several times in the chest, killing her.
Suffolk Commonwealth's Attorney C. Phillips Ferguson had argued that the crime was ``extremely heinous.''
``There's no way that someone 20, 25 or 30 could have committed any act more violent and devoid of human feeling,'' he said.
Schooley received three life terms and was eligible for parole 20 years from the sentencing.
Douglas Christopher Thomas, who was 17 when he killed his girlfriend's parents in Middlesex County in 1990, currently is the only person on Virginia's death row who was a juvenile at the time he was convicted.
And in Suffolk, there is the case of Dwayne Markee Reid, who was 16 when he was charged with robbing and killing a man during a foiled drug deal last year. He has been convicted of capital murder, but prosecutors are waiting for a psychological profile before they decide whether to seek the death penalty.
Reid was convicted in 1992 - when he was 14 - of robbing and murdering a man while he was with friends who were testing a new gun. That juvenile court verdict was later reduced to armed robbery. He served 11 months in juvenile detention before returning to the streets. ILLUSTRATION: Photo
Cab driver Donald J. Reynolds was shot in the back five times during
an attempted robbery.
KEYWORDS: MURDER SHOOTING CAPITAL PUNISHMENT VIRGINIA by CNB