Greene County prosecutor may seek death penalty for Craig Wood

February 21, 2014

Friday, February 21, 2014

Good afternoon:

According to KMOV.com, Greene County Prosecuting Attorney, Dan Peterson, has announced that he intends to seek the death penalty against Craig Michael Wood for the kidnap and murder of 10-year-old Hailey Owens.

If true, such an announcement is premature and improper.

For the following reasons, a prosecutor’s decision to seek the death penalty should be delayed until defense counsel has had a reasonable opportunity to prepare and submit a report regarding the evidence that it would present to a jury in support of a request for an LWOP sentence instead of the death penalty.

First, the United States Supreme Court (SCOTUS) has ruled that the death penalty can only be imposed in some, but not all murder cases, and there is no murder, no matter how aggravated, gruesome or depraved, that automatically warrants the death penalty.

Instead, the jury or the judge in a case where the defendant waives his right to a jury trial, must decide whether to impose the death penalty by weighing evidence in aggravation (i.e, the manner in which the crime was committed and the defendant’s criminal record) against evidence in mitigation (e.g., youthful age, immaturity, developmental disability, mental illness, diminished capacity, minimal role in a multiple defendant case and absence of a criminal record are some, but not all of the factors that might call for a sentence of LWOP rather than the death penalty).

Second, since there is no murder for which the death penalty is automatic, a prosecutor’s decision to seek it should be based on a thoughtful consideration of both the aggravating and mitigating evidence in the case.

Third, since the prosecution must necessarily rely on defense counsel to discover and disclose the mitigating evidence before it decides to seek or not to seek the death penalty, it must give defense counsel an adequate period of time to prepare a mitigation report.

Pursuant to current practice in most jurisdictions, the prosecution initiates the process of deciding whether to seek the death penalty by obtaining an indictment for a death-penalty eligible murder. The prosecutor then has a specific period of time (typically at least 30 days) following the defendant’s arraignment on the charge or charges in the indictment within which to decide whether to file a notice that it intends to seek the death penalty, if the defendant is convicted of the death penalty eligible murder.

This deadline is often extended by agreement of the parties for a period of months (1) to allow the defense a reasonable opportunity to prepare a mitigation report and (2) to allow the prosecution a reasonable opportunity to review it.

A meeting usually takes place a day or so before the deadline during which lawyers for both sides discuss the relative merits and demerits of their respective positions. These meetings are surreal because they are discussions that presuppose the defendant will be convicted and focus on whether he should live or die.

Sometimes the prosecution decides not to seek the death penalty, in which case it does not file the notice.

Sometimes it does.

If followed in good faith, this process assures that the decision to seek the death penalty will not be based on a defendant’s refusal to plead guilty.

Indeed, ethical prosecutors should be opposed to using the death-penalty as a bargaining chip in plea negotiations.

Plead-guilty-as-charged-and-agree-to-a-sentence-to-life-without-possibility-of-parole (LWOP)-or-I-will-seek-the-death-penalty is extortion of the worst sort because it forces a defendant to gamble with his life, if he wants to exercise his right to a jury trial. We have seen far too many wrongful convictions of innocent people to allow a prosecutor to extort guilty pleas in premeditated murder cases.

There is one important exception to this process and that occurs when a defendant seeking to avoid the death penalty offers to plead guilty in exchange for an LWOP sentence. In this situation, the defendant’s desired outcome is an LWOP sentence and he is not being forced to accept it.

For example, in the Green River Killer case in Seattle, Gary Ridgway offered to plead guilty to 48 premeditated rape murders in exchange for providing information about the location of missing bodies. The prosecution accepted his offer, so he is serving LWOP.

Craig Michael Wood is charged with kidnapping and murdering 10-year-old Hailey Owens. This is potentially a death-penalty-eligible offense under Missouri law because it is a premeditated murder committed while engaged in a kidnapping offense and the victim was a witness or potential witness against him.

The offense probably also qualifies as a murder “outrageously or wantonly vile, horrible or inhuman.”

Whether Dan Peterson has already made up his mind or will follow the process I have described in good faith or eventually use the death penalty as a bargaining chip in plea negotiations remains to be seen.

Ironically, such an offer might be quickly snapped up by the defense, if the evidence of guilt is as overwhelming as it now appears to be.

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