DATE: Wednesday, September 17, 1997         TAG: 9709170017

SECTION: LOCAL                   PAGE: B10  EDITION: FINAL 

TYPE: Editorial 

                                            LENGTH:   63 lines

CAPITAL PUNISHMENT CAPRICIOUS JUSTICE

Three years after Mario Murphy was scheduled to die for his role in a 1991 murder-for-hire scheme in Virginia Beach, a senior assistant attorney general declared in court that Murphy was no more culpable than his co-defendents in the killing.

That statement, made while arguing a legal point in an unrelated case, adds poignancy to tonight's scheduled execution of Murphy. Six people participated to different degrees in the vile 1991 beating and stabbing of Navy cook James Radcliff.

Only Murphy is scheduled to die.

The others are serving life terms. Convicted before the abolition of parole, all retain the possibility of being granted it at some future date.

There are reasons for Murphy's having been singled out. They are grounded in points of law, in the psychology of courtrooms, and in the judgments that must be made by prosecutors and others in the course of trying a legal case.

But it is hard to weigh the relative involvements of the participants and not reach the conclusion, promoted by Murphy's attorneys, that he is ``simply the loser in a lottery of life and death.''

The primary reason for the fate of Murphy, who was age 19 at the time of the crime, is this: Of the two who actually drove a knife into into Radcliff's body, Murphy was the only adult.

However, the conclusion that he alone should die leaves out several important points. Besides him, the three most culpable individuals were: Robin Radcliff, wife of the slain man; Gerardo Hinojosa, her lover, whom she married a week after Radcliff's death and who was the individual who recruited Murphy; and Aaron Turner, who joined in the stabbing.

Robin Radcliff and Hinojosa, who were in their mid-30s, conceived the murder-for-hire scheme and stood to gain most from it. It allowed them to marry and it made Mrs. Radcliff the beneficiary of $100,000 in insurance money.

According to testimony, she opened the window to let in Murphy and Turner. She smeared herself with her husband's blood to substantiate her claims of a break-in. And she delayed calling 911 because her husband was still alive after Murphy and Turner left.

The primary difference between Murphy and Turner is that one was 19 and the other was 17. Roommates and best friends, the pair participated equally in the stabbing, although Turner, not Murphy, made an initial blow and he took the added step of attempting to slash Radcliff's throat.

Weighing against Murphy is the fact that he introduced Turner to the plan. Weighing for him is the fact that he alone acknowledged the truth from the first moment of contact with police, and that Turner cooperated only after Murphy urged him to do so.

At a minimum, Robin Radcliff should share Murphy's fate, or he hers. The differences in culpability with Turner and Hinojosa seem as razor thin as well.

Inequities in the administration of justice are inevitable. They are least tolerable when life and death hang in the balance. This is an uncomfortable fact with which supporters of the death penalty, if they are honest, must come to terms.

The case of Mario Murphy, who is booked for death tonight, demonstrates it more clearly than most. That is a compelling reason for Gov. George F. Allen to take the unusual step of changing Murphy's sentence to life in prison. Capital sentences that are inconsistent or lack a clear rationale undermine our entire judicial system.

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