
DATE: Monday, September 8, 1997             TAG: 9709080074

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY LAURA LaFAY  and JON FRANK, STAFF WRITERS 

DATELINE: VIRGINIA BEACH                    LENGTH:  264 lines

TO LIVE OR DIE: BEACH PROSECUTOR DEFENDS DIFFERENT SENTENCINGS

After James Radcliff was stabbed and beaten to death in his sleep in 1991, six people were charged with his capital murder. Five were offered deals by Commonwealth's Attorney Robert J. Humphreys: Plead guilty and the state won't seek the death penalty.

With one of the defendants, however, Humphreys was intransigent: Mario Murphy, a 19-year-old high school drop-out, would get no deal. Humphreys sought the death penalty, and on Oct. 19, 1992, standing before Circuit Judge Jerome Friedman, he got it.

Five years after the Radcliff slaying, former Virginia Beach Sheriff's Deputy Dana T. Driscoll was charged with capital murder. In September 1996, Driscoll blasted his way into his ex-wife's home, murdered her boyfriend and then - after a four-hour standoff with police - fatally shot his ex-wife in the head.

Humphreys gave him a deal.

In an agreement that shocked some of Humphreys' own prosecutors, Driscoll was allowed to plead guilty in exchange for three life sentences.

Driscoll, 42, has begun serving his prison term. Murphy, now 25, will die by lethal injection Sept. 17 unless the U.S. Supreme Court or Gov. George F. Allen intervenes.

For some - including one of the families of those killed by Driscoll and the lawyers who represent Murphy - the two cases illustrate a stark point about the death penalty in America: It can be inconsistently and arbitrarily applied, making it appear unfair, and weakening support for it, even among its defenders.

Prosecutors play a Godlike role in deciding who lives and who might be sent to death row. Before a judge or jury sees a capital murder case, prosecutors can target someone for death, as Humphreys did with Murphy. Or they can choose to offer a plea agreement, which lets the person avoid the death penalty, as Humphreys did with Driscoll.

``In these two cases, the probability of conviction was the same,'' said William H. Wright Jr., a lawyer for Murphy. ``They both made confessions. They both had no prior record of violence. They both stood up in court and took responsibility for their actions and said they were sorry. Those things are identical. But when you compare these cases, you see that the defendant who committed the less aggravated crime got the more severe penalty.''

Initially, Driscoll also was heading toward a death-penalty trial.

Prosecutor Cathleen Pritchard, an assistant under Humphreys when the crime occurred, said she had no doubt that Driscoll deserved to be executed. He had killed William D. Cartwright with two shotgun blasts, then tortured and murdered his ex-wife. Several of her fellow prosecutors agreed, she said.

Pritchard came to that conclusion after several months of investigation and extensive consultation with the families of the victims.

``I very much think it was a death-penalty case,'' said Pritchard, who retired this year. When Humphreys took over as lead prosecutor, he changed the direction of the case, away from death and toward life in prison.

``He said there were problems with the case,'' Pritchard remembered. ``I said I didn't see the problems. I told him the only problem was that he didn't want to try it.''

The Driscoll case had all the necessary elements required for prosecutors to seek death, Pritchard believed.

Driscoll went to his wife's townhouse, intending to deliver ``not only death but pain and terror,'' she said. ``If all he had wanted to do was kill her, all he had to do was take the small-caliber pistol and put it to her head or her heart. But he played with her like a cat with a mouse. He enjoyed her terror.''

Humphreys, however, stands by his decision. He has much more experience in these matters than Pritchard, he said.

``With all due modesty, there are probably very few prosecutors in the state who have handled as many death penalty cases as I have,'' Humphreys said. ``I probably have more people on death row than just about anybody around right now.''

Every day, prosecutors decide what to do with cases based on the evidence, the credibility of witnesses, the law, their burden of proof and dozens of other, sometimes intangible, factors. No one disputes the necessity of this arrangement, in general. But death, some argue, should be different.

``Prosecutorial discretion is a recognized aspect of the law,'' said David Baugh, a former federal prosecutor who now does criminal defense work in Richmond. ``Sometimes it's arbitrary. When death is an option, it looks real arbitrary. I don't think we should give people - especially elected officials - the power to make those kinds of subjective decisions.''

James Broccoletti, a Norfolk criminal lawyer who has represented about 20 capital defendants, agreed. ``The whole process is arbitrary and capricious,'' he said. ``It depends on the prosecutor. It depends on the city. It depends on the victim.''

It might also depend on the defendant.

Driscoll, who grew up in a military family, spent part of his youth in Virginia Beach, in the middle-class neighborhood of Woodstock off Indian River Road. Driscoll and his family lived across the street for several years from Frank Drew, now sheriff of Virginia Beach.

Drew said in a recent interview that he became close friend of the Driscoll family during those years.

That relationship has continued. Even though Drew moved from the neighborhood years ago, the sheriff still pays the Driscoll family a holiday visit every Christmas Eve.

The personal relationship eventually developed into a professional one. Dana Driscoll worked as a sheriff's deputy for about a year after he retired from a distinguished career as an enlisted man in the Army. His father, Timothy ``Pop'' Driscoll, remains employed as a part-time librarian for the Sheriff's Department. Driscoll's sister also works for Drew.

Murphy, in contrast, was a troubled youth searching for a sense of belonging. A 19-year-old high school drop-out, he had been living with friends on and off since age 16.

Humphreys said he was unaware of any connection between Drew and Driscoll. The difference in the fates of the two men is a clear matter of law, he said. Such matters, he feels, are complicated and not easily comprehended by the public.

``There is a tremendous public misunderstanding about capital murder and what it is,'' he said.

Virginia prosecutors are never required to seek the death penalty in a capital case. By law, they can seek it only if they can prove one or both of two aggravating factors:

That there is a probability the defendant will constitute ``a continuous, serious threat to society.'' Lawyers refer to this precept as ``future dangerousness.''

That the crime was ``outrageously or wantonly vile, horrible or inhuman.'' This precept is known as the ``vileness'' standard. According to the statute, any capital murder involving aggravated battery, depravity of mind or torture can qualify as ``vile.''

In the cases of both Murphy and Driscoll, Humphreys said, future dangerousness was not an issue because neither Murphy nor Driscoll had a violent criminal record.

That left the vileness factor.

Virginia case law defines aggravated battery as ``more . . . than the minimum necessary to accomplish an act of murder.''

Because James Radcliff was beaten and stabbed excessively, Humphreys said, his murderers were eligible for the death penalty under the vileness standard.

There was also evidence of depravity, Humphreys said, because Murphy, who was 19 at the time, recruited a 17-year-old friend into the murder scheme. In addition to that, Humphreys said, Murphy was ``absolutely remorseless.''

Proof of this, he said, was Murphy's ``demeanor every time we had a hearing. The matter-of-fact way he testified at sentencing. . . . It was obvious to everyone in the courtroom that day that for all Mario Murphy felt about the death of James Radcliff, he might as well have stepped on a bug.''

Court records, however, indicate that Murphy was the only defendant to confess immediately, that he took police to the place where the weapons had been dumped into the Chesapeake Bay, and that he talked another defendant, Aaron Turner, into confessing to police. According to a court transcript of his sentencing hearing, he said he was sorry six times.

``I take full responsibility,'' he told Judge Friedman. ``It's just I'm sorry that it happened. I can't take it back. He can't come back. I'm just sorry. There's no amount of times I can say I'm sorry.''

Other defendants in the case seemed less contrite.

Robin Radcliff, who was married to the victim and planned the crime, denied at her trial that she had anything to do with the crime. Her lover, Gary Hinojosa, launched into a lengthy diatribe at his sentencing hearing, blaming the police, the media and ``the law system'' for his predicament.

Like Murphy, Radcliff and Hinojosa recruited other people into the murder scheme. Hinojosa recruited his roommate, James Hall, and Murphy. Robin Radcliff recruited her son-in-law.

Next to Murphy, Robin Radcliff was most deserving of the death penalty for her role in the crime, Humphreys said. A jury, however, sentenced her to life instead.

``She planned it,'' Humphreys said of Radcliff's role in her husband's murder. ``She actually watched her husband being beaten to death, and rolled around in the blood afterward to make it look like she was a victim as well. . I think the evidence bears that out.''

In a recent interview, Humphreys insisted that he never offered Robin Radcliff a deal. But when a reporter referred him to a court transcript in which Radcliff rejected a deal, he conceded that the transcript was accurate.

``The only thing I can say is there was never a case in Virginia of someone other than the triggerman getting the death penalty,'' he said. ``That had to be the basis for making any sort of a plea offer to her. That the chances of her getting the death penalty were remote.''

The same went for Hinojosa. Because he didn't participate in the murder, and because he was not present when it occurred, Humphreys said, the chances of procuring the death penalty for him were also remote.

However, there has been at least one Virginia case in which a man who hired someone to commit murder, but did not commit the murder himself, was sentenced to death.

David Lee Fisher was sentenced to death in 1987 for hiring another man to kill his friend, David Wilkey, in Bedford County in 1983. The crime, planned to look like a hunting accident, came to light in 1985. Fisher remains on death row.

According to Humphreys, Dana Driscoll got a deal because it would have been impossible to prove vileness in his case.

Driscoll shot Cartwright with a sawed-off shotgun when Cartwright opened the door of Susan Driscoll's townhouse on Sept. 20. He shot Cartwright a second time as the wounded man tried to crawl away. Leaving Cartwright dead in the living room, Driscoll climbed the stairs in search of his ex-wife.

He found a terrified Susan Driscoll crouched behind, a bed weeping and whispering to a 911 operator. He hog-tied her and held her hostage for four hours as a SWAT team waited outside. Then he shot her in the back of the head.

Because Driscoll shot his ex-wife only once, Humphreys said, there was no aggravated battery. Tying her up with an electrical cord, he said, did not meet the standard. That left depravity of mind and torture.

Because a stun gun found at the scene had never been deployed, Humphreys said, he couldn't prove torture. As for the possible psychological torture Susan Driscoll suffered from being tied up and threatened for four hours, Humphreys said it was unlikely he could prevail with a jury on that point.

``We have people that are tied up and restrained in some way all the time,'' he said. ``That doesn't make it a capital case.''

As a matter of law, Humphreys said, he could not in good conscience ask for the death penalty for Driscoll. If he failed to win, it would be a waste of taxpayer money. And if he did win, the decision probably would be overturned by the Virginia Supreme Court.

But in 20 years, the Virginia Supreme Court has only once overturned a capital case based on improper application of vileness or future dangerousness. In that case, the court found that while the crime was not vile, the defendant did qualify for the death penalty based on future dangerousness. He has since been executed.

In light of this, Humphreys' explanation falls short, said William Geimer, a professor in the School of Law at Washington and Lee University.

``It's one thing to say, `The court permits me to exercise discretion in whether to seek death,' '' Geimer said. ``Or even to say, `I would have had difficulty getting a death sentence, and that's why I decided not to ask for death.' But to say, `My hands are tied by the law . . . is just disingenuous.''

The Virginia Supreme Court discussed psychological torture in two cases involving Peninsula serial killer Syvasky L. Poyner. In one of the cases, Poyner killed a Newport News woman after she had given him money and begged him to spare her life.

``Poyner's conduct in shooting a defenseless woman in the back of the head, a woman begging for her life after she had complied with all his demands,'' constituted ``psychological torture,'' the court said. ``He made her know that her fate dangled from the end of his trigger finger.''

In the other case, Poyner abducted a Hampton woman in her car and then killed her. The woman ``cried and begged that her life be spared. He shot her anyway. . . . He engaged in psychological torture,'' wrote the court.

The way Pritchard, the former prosecutor, sees it, Driscoll's actions fulfill the requirements of the Virginia death-penalty law in at least two ways.

``Whether you call Dana Driscoll's action depravity of mind or torture, that is probably splitting hairs,'' Pritchard said. ``But what Dana Driscoll did, that is torture by whatever label you put on it.'

In Humphreys' view, the decisions he makes about whether to seek the death penalty are merely preliminary. Twenty-one people - the judge, the 12 jurors and a majority of the Virginia Supreme Court - must agree with him.

``It's not like I sit there like Caligula in the arena,'' he said. ``It's not like I'm the guy that sits up there with the entire Roman Colosseum shouting one way and I'm going the other way. That's not the way it works. I'm just the first step in the process. Admittedly, the process doesn't proceed if I say no. It doesn't go any further.''

But that is precisely the point, said Stephen B. Bright of the Southern Center for Human Rights in Atlanta.

``The two most important decisions in any death case are the prosecutor's initial decision whether to seek the death penalty and then whether to allow a plea for a sentence less than death,'' he said.

``And it's completely subjective.'' MEMO: [For a related stories, see page A8 of THE VIRGINIAN-PILOT for

this date.] ILLUSTRATION: [Color Photos]

TWO CASES

Mario Murphy was sentenced to death for the 1991 murder of James

Radcliff. Murphy and three others had been hired by Radcliff's wife,

Robin, and her lover to kill him. Prosecutors made deals with the

three other hired killers and with Robin Radcliff's lover in

exchange for life sentences. Robin Radcliff turned down a similar

deal, but the jury still gave her a life sentence. Prosecutors would

not make a deal with Murphy.

Dana T. Driscoll received a life sentence for the 1996 murder of

his ex-wife, Susan, and her boyfriend, William D. Cartwright. He had