Tuesday, January 28, 2020
Jan. 28, 2020

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State declares death penalty unconstitutional

Supreme Court finds it to be ‘racially biased,’ used arbitrarily

By , Columbian Assistant Metro Editor
Published:

Washington became the nation’s 20th state to end capital punishment Thursday after the Washington Supreme Court ruled it unconstitutional, finding it to be “racially biased” and used arbitrarily.

The decision did not come as a surprise to local attorneys who have litigated death penalty cases.

“Over the last decade, I’ve been expecting this result at some point or another,” Clark County Prosecuting Attorney Tony Golik said. “I think anybody who takes a hard look at the application of the death penalty over the last two decades can see that proportionality clearly has been an issue.”

Aggravated murder — the most serious type of homicide in the state — is the only crime that carried the possibility of capital punishment.

A glaring example of the proportionality issue, Golik said, is Robert Lee Yates Jr., a convicted serial killer who was sentenced to death in 2002 for killing two Tacoma prostitutes. However, in the same year, Yates avoided the death penalty in the killings of 13 women in Spokane, Walla Walla and Skagit counties by taking a plea deal.

8 men occupy death row at the Washington State Penitentiary

There are currently eight men on death row at the Washington State Penitentiary in Walla Walla. Five are white and three — Jonathan Gentry, Cecil Davis and Allen Gregory — are black.

They are:

• Dayva Michael Cross, for stabbing his wife and two teenage stepdaughters to death March 6, 1999, in King County. He has been on death row for 18 years.

• Cecil Emile Davis, for rape and murder by asphyxiation and suffocation of an elderly woman while burglarizing her home Jan. 25, 1997, in Pierce County. On death row for 21 years.

• Clark Richard Elmore, for the rape and murder of his girlfriend's teenage daughter April 17, 1995, in Whatcom County. On death row for 24 years.

• Jonathan Lee Gentry, for the murder by bludgeoning of a 12-year-old female June 13, 1988, in Bremerton. On death row for 28 years.

• Allen Eugene Gregory, for rape and murder of a 43-year-old woman July 26, 1996, in Pierce County. On death row for seven years. Thursday's Supreme Court decision abolishing the death penalty involved his case.

• Byron Eugene Scherf, for the murder of a correctional officer Jan. 29, 2011, inside the state prison at Monroe. On death row for six years.

• Conner Michael Schierman, for the murders of a mother, her two young children, and the woman's sister July 16, 2006, in King County. On death row for nine years.

• Robert Lee Yates Jr., for the murders of two women in 1997 and 1998 in Pierce County. On death row for 17 years. Also concurrently serving 408 years for the serial murders of 13 other women, mostly in the Spokane area.

 — Nicolas K. Geranios

Now, Yates’ death sentence and the sentences of seven other death row inmates will be converted to life in prison without the possibility of parole.

The eight death row inmates are housed at the Washington State Penitentiary in Walla Walla. All are men; five are white and three are black.

Thursday’s ruling came in Allen Eugene Gregory’s case, a black man who was convicted of raping, robbing and killing 43-year-old Geneine Harshfield in 1996 in Pierce County. His attorneys argued that the death penalty is arbitrarily applied and not applied proportionally, as the state Constitution requires.

The high court agreed.

“The use of the death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” Chief Justice Mary Fairhurst wrote in the lead opinion.

“Our capital punishment law lacks ‘fundamental fairness,’ ” she added.

Citing the same issues, Democratic Gov. Jay Inslee, a one-time supporter of capital punishment, in 2014 placed a moratorium on executions in the state while he was in office.

“Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. The court makes it perfectly clear that capital punishment in our state has been imposed in an ‘arbitrary and racially biased manner,’ is ‘unequally applied’ and serves no criminal justice goal. This is a hugely important moment in our pursuit for equal and fair application of justice,” Inslee said in a written statement Thursday.

However, the decision does not preclude the Legislature from crafting another statute to impose capital punishment, as long as it’s found to be constitutional.

Attorney General Bob Ferguson said he would press the Legislature to make the sole punishment for aggravated murder life in prison without release.

“The court recognized that Washington state’s death penalty is broken. We should act quickly to remove the death penalty from state law once and for all,” he said in a written statement.

Ferguson first proposed bipartisan legislation in 2017 to do away with the death penalty. Earlier this year, the state Senate passed a measure to abolish the death penalty, but it did not make it out of the House.

Local cases

Seventy-eight offenders have been executed in the state since 1904. None were women. Five men have been executed at Walla Walla since 1981, when Washington’s current capital punishment law was enacted, according to the Washington Department of Corrections.

In the last few decades, there have been three Clark County cases in which the death penalty was pursued.

Westley Allan Dodd was sentenced to die after pleading guilty to molesting and killing Vancouver brothers William and Cole Neer, ages 10 and 11, and Lee Iseli, 4, of Portland. Dodd, who was hanged in 1993, was the first person to be executed in Washington since 1965. He declined his court appeals.

Clark Hazen was sentenced to die in 1986 for the murder of two Fargher Lake residents, but he killed himself in prison while his case was on appeal.

James Leroy Brett was condemned to die after he killed Kenneth Milosevich Sr., a Hi-School Pharmacy executive, during a botched robbery at the victim’s Mount Vista home in 1991. Brett’s sentence was reversed, and he is serving a life term at Stafford Creek Corrections Center near Aberdeen.

In his career, Golik has twice considered whether to pursue capital punishment — for Dennis Wolter, who brutally stabbed to death his estranged girlfriend in May 2011, and most recently, for Brent Luyster, a violent, known white supremacist, who killed three people in July 2016.

Golik opted not to pursue the death penalty in either case and said Thursday he’s still comfortable with his decisions.

“I have always been cautious when making these decisions … that I wouldn’t let my personal opinions play in analysis and that we would follow the law. I certainly respect the court’s opinion and understand it,” Golik said.

He added that he doesn’t think the death penalty will be “reinstated or reaffirmed by the (state) Supreme Court in the reasonably foreseen future.”

‘A watershed moment’

W. Keith Goody, the only defense attorney left in Clark County qualified to try a death penalty case, called Thursday’s ruling a miracle.

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“It’s a very long time coming,” Goody said. “All of us in the death penalty defense bar have been striving for that kind of result forever. I mean forever. This is surely a watershed moment, even nationally.

“Death is different, as they say. There is no way that the capital murder system can be administered fairly. There are just terrible things in the death penalty system, racism for one. It just makes no sense,” he added.

Death penalty cases are also expensive, he said, often costing taxpayers millions of dollars.

Goody, 70, has offices in Battle Ground and Portland, and he is qualified to handle death penalty cases in Oregon. In fact, in his 40 years handling death penalty cases — including in Wyoming, Utah and Idaho — he’s never tried one in Washington, because when he’s been called, he’s always been tied up with one elsewhere.

“I would have liked to but never did,” he said.

In all of his years of practice, two of Goody’s clients were executed — one in Wyoming early in his career and one in Utah by a firing squad.

“It’s really crushing because they are all people, and every one of them had redeeming features. You’re not the sum total of the worst thing you ever did,” Goody said.

Defense attorney Bob Yoseph wrote Luyster’s death penalty mitigation package. He retired from law Aug. 1 after wrapping up two aggravated murder cases in Thurston County, neither called for the death penalty.

He had handled eight aggravated murder cases since 2001, he said, and the prosecution in all of those cases opted to pursue life sentences without the possibility of parole rather than capital punishment.

Yoseph said that on its face, the death penalty was “arbitrary and capricious, and the imposition of a death sentence depended more on your color and where you live than any equal application of the law.”

“I don’t think that the government should be allowed to conspire to kill one of its citizens, particularly when most have a mental disease or disability or brain impairment,” he said.

He called Thursday’s ruling “a huge victory for citizens of Washington.”

“Every taxpayer should be grateful the government won’t be throwing good money at an unconstitutional criminal penalty,” Yoseph said.

The Associated Press contributed to this report.

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