Judge Says Rupe Is Too Heavy To Hang -- Death Sentence Also Overturned For 410-Pounder

State attorneys say they think they could find a way around a federal judge's decision that 410-pound death-row inmate Mitchell Rupe is too heavy to hang.

But for now, the question of how Rupe may be executed is moot: U.S. District Judge Thomas Zilly also overturned Rupe's death sentence because jurors who sentenced him weren't told a key witness failed a polygraph test.

"Obviously we're disappointed," said Scott Blonien, assistant attorney general. "But we recognize the judge had a very difficult decision to make."

Blonien said if Rupe's death sentence is reinstated, the state may alter its hanging method or ask the state Supreme Court to allow Rupe to be put to death by lethal injection.

In 108 pages of legal opinion entered yesterday, Zilly denied most of Rupe's appeal grounds but agreed that hanging him under present state plans would create "a significant risk of decapitation."

"Such a hanging would also violate basic human dignity," Zilly wrote.

Rupe, 40, was sentenced to die for the fatal shooting of two Tumwater bank tellers, Twila Capron and Candace Hemming, during a holdup in 1981. His original death sentence was thrown out by the state Supreme Court in 1984 because evidence about Rupe's gun collection may have prejudiced the jury.

In 1985, a new jury sentenced Rupe to die. But Zilly ruled the trial judge erred by not allowing jurors to hear that an important witness had failed a lie-detector test. The witness, a friend of Rupe's named Monte Yovetich, testified that Rupe admitted the bank robbery and asked him to hide the murder weapon.

Although polygraph results are typically not admissible in court, the state Supreme Court has held that they can, with some restrictions, be used by defendants facing the death penalty.

Zilly said Yovetich's failure on a polygraph test was "relevant mitigating evidence" Rupe's attorneys should have been allowed to present.

State attorneys have 30 days to decide whether to appeal Zilly's decision to the 9th U.S. Circuit Court of Appeals. If Zilly's ruling stands, Rupe would be automatically sentenced to life in prison without parole unless prosecutors ask a new jury to re-impose the death penalty.

Rupe's case gained international attention because of the arguments over whether Rupe is too heavy to hang. Rupe, who has had a life-long weight problem, weighed about 330 when he arrived at Walla Walla, prison officials say.

In addition to the three meals a day provided by the penitentiary, Rupe uses his own money to order candy bars, chips, soda, chocolate mints, popcorn and cookies from a prison store.

Some of the funds come from Rupe's job of stamping return addresses on blank envelopes, which he does in his cell for a token payment, said prison administrative assistant Mary Christensen.

At a hearing in July, Rupe's attorneys said the state's hanging plan, which lists the length an inmate should drop based on his weight, is inadequate because it only goes up to 220 pounds.

Medical experts called by Rupe's lawyers testified that the force generated by hanging would likely decapitate Rupe.

State attorneys argued there would be little chance of decapitation, and even if it did occur, death would be instantaneous.

In yesterday's ruling, Zilly did not say there is no acceptable method of hanging Rupe, merely that the rope size and drop length proposed by the state were unacceptable given Rupe's weight.

Attorney General Christine Gregoire said the case "illustrates how difficult it is to continue defending hanging as a method of execution."

State law gives condemned inmates the option to choose lethal injection, a choice Rupe says he would refuse to make.

Gregoire is asking the Legislature to change the law so that lethal injection, generally viewed as less traumatic for the inmate and prison staff, would be the primary method of execution.

"We need to get this issue off the table," said Gregoire, adding that the state has spent more than $300,000 in the last 18 months defending the constitutionality of hanging in three separate cases.

Todd Maybrown, one of Rupe's attorneys, issued a brief statement praising Zilly's ruling.

Even if state attorneys prevail in an appeal, Rupe's execution would be years away.

Since 1963, two men have been executed at the Washington State Penitentiary, both by hanging.

Westley Allan Dodd was hanged in January 1993 for the sex-related murders of three young boys. Charles Campbell was hanged in May for the 1982 fatal stabbings of two women and an 8-year-old girl in Snohomish County.