Death Penalty: A Law Unevenly Applied? -- It's Handed Out More Often In Some Counties, Study Finds

COPYRIGHT, 1993, Seattle Times Company

Unless halted by a last-minute court order, Westley Allan Dodd's scheduled execution Tuesday will be the first under a tightly drawn state law that reserves capital punishment for killers judged to be the worst of the worst.

But a Seattle Times examination of 125 aggravated-murder cases reported under the 1981 law raises questions about how consistently Washington's death-penalty law is applied:

-- Why is the death penalty sought more frequently in some counties than others?

Death sentences have been meted in three of 10 cases from Kitsap County and only two of 39 from King County. Pierce County has taken 12 death-penalty cases to trial while Snohomish has just one.

-- What separates one crime from another, especially when several circumstances in the crimes are similar?

In the 10 convictions involving contract killings the death-penalty was sought in five and returned by jurors in one. Of six cases involving the death of a law-enforcement officer, prosecutors sought the death penalty four times but got no death-penalty verdicts.

-- How could two men convicted of the same crimes get different sentences?

The two principal gunmen in Seattle's 1983 Wah Mee massacre were each convicted of 13 aggravated murders, but separate juries in King County ordered death for one and life in prison for the other. The death sentence of Kwan Fai "Willie" Mak was upheld by the state

Supreme Court but later overturned by a federal judge.

To help gauge how the law is applied, The Times conducted a computer-assisted analysis of information from reports submitted to the state Supreme Court by trial judges in aggravated-murder cases.

As intended, the death penalty is used sparingly.

Of the 125 aggravated-murder cases reported to the state Supreme Court, prosecutors sought the death penalty against 46 defendants and juries imposed it on 14.

Dodd, who is scheduled to be hanged at 12:01 a.m. Tuesday, is one of the 14. However, the state Supreme Court has agreed to hear oral arguments tomorrow morning in a lawsuit challenging the execution.

Plaintiffs in the suit contend that hanging is unconstitutionally cruel and unusual. The state has argued that hanging, if done properly, is not a torturous way to die.

Of the 14 sentenced to death, Dodd and 10 other men remain on death row. The sentences of two others, including Mak, were later overturned and another young man, Clark Hazen, hanged himself in his prison cell in 1988, two years after being sentenced to die for fatally shooting two Clark County neighbors.

In some cases, a single juror has saved a defendant from death.

Every time a death sentence is ordered, the state Supreme Court is required to review the case and determine, among other things, whether the sentence is proportionate to those given in similar convictions.

But when aggravated murders include such horrible and diverse cases as a Christmas Eve slaying of an entire family, child-killings, brutal attacks on elderly victims and cold-blooded contract killings, how can cases be compared?

None of Washington's death sentences has been reversed because it was found to be disproportionate, although such reversals have occurred in states with similar laws.

Even state Supreme Court justices differ over how a meaningful "proportionality review" should be conducted.

"Crimes, particularly the brutal and extreme ones with which we deal in death-penalty cases, are unique and cannot be matched up like so many points on a graph," wrote Justice Barbara Durham in upholding the death penalty for Brian Keith Lord, who raped and murdered a teenage Kitsap County girl in 1986.

But Justice Robert Utter, a frequent dissenter in death-penalty cases, said Lord's sentence was excessive.

"My analysis reveals nine rape-murder cases that are similar to Lord's case," Utter wrote. "None of the defendants in those nine cases was sentenced to death despite the fact that in eight of those nine cases the trial judge determined there was no credible mitigating evidence."

To aid the Supreme Court review, judges who preside over murder trials are required to submit forms describing the circumstances of every case resulting in an aggravated-murder conviction.

But no official method exists for compiling and comparing the information in those forms and determining what kind of cases deserve death and which merit the alternative sentence, life in prison without the possibility of release.

Some forms are filled out carefully and in great detail, others have only cursory information and in some cases, forms have been filed late or not at all.

"It's a completely useless and symbolic gesture," complains Michael Iaria, a Seattle defense lawyer who has handled several death-penalty appeals.

Iaria said most justices do what he called an "I-know-it-when-I-see-it kind of review, like `Gee, this is a horrible crime, so maybe it deserves the death penalty.' "

The forms do reveal glimpses of how the state's 11-year-old law has been applied.

All 14 of the people sentenced to death have been men. Seven women have been charged with aggravated murder and the death penalty was sought against one, Susan Kroll of Asotin County. She was convicted of hiring two men to kill her husband in 1989, but jurors spared her life.

Although studies in some states have shown that the death penalty is applied disproportionately against defendants of color, Washington prosecutors have sought the death penalty against 44 percent (37 of 84) of whites charged with aggravated murder and 22 percent (9 of 41) of minorities.

Of the 11 men now on Washington's death row, nine are white and two are African American.

Most people charged under the law have had a single victim. Eight of the 14 people sentenced to die had multiple victims.

LAST EXECUTION WAS IN '63

No Eastern Washington county has sent anyone to death row, although Spokane County sought the death penalty in three cases and Yakima and Asotin each had one. The last execution in Washington was in 1963, when Joseph Chester Self was hanged for the murder of a Seattle taxi driver.

Executions halted nationally in 1972 when the U.S. Supreme Court found existing state death-penalty laws unconstitutional. Five years later, they resumed under new laws with the execution of Gary Gilmore in Utah.

In 1975, Washington voters passed a death-penalty law that later was ruled unconstitutional. The current law, passed by the Legislature, was modeled after laws in other states that had been tested by the U.S. Supreme Court.

To qualify as aggravated first-degree murder, a killing must be premeditated and compounded by additional factors, such as being committed in connection with a rape, robbery or arson; or committed for hire, or involve the death of a law-enforcement officer, court witness or news reporter.

County prosecutors decide which cases to file as aggravated murders and in which cases to seek the death penalty.

To impose death, jurors must unanimously conclude the mitigating evidence presented on the defendant's behalf is insufficient to merit leniency.

In their reports to the Supreme Court, trial judges are invited to give their opinions on whether the sentences were appropriate.

Many judges declined to do so, but in nine cases, they felt the sentence was inappropriate. In five of those cases, judges said the jury's sentence of life imprisonment was too lenient. In one case in which jurors ordered the death penalty, the judge felt the sentence was inappropriate.

In that death-penalty case, a rape and murder by 17-year-old Michael Furman, Kitsap County Superior Court Judge Leonard Kruse said he didn't believe the penalty was in proportion to sentences in similar cases, but added he had no statistical basis for his conclusion.

The Furman case is one of several still under review by the Supreme Court.

PARALLELS WITH 1986 CASE

Many circumstances of the Furman case paralleled a 1986 Clark County murder by James Dykgraaf.

Both involved a rape, robbery and burglary in conjunction with the killing. Both were committed in the victim's home; both killers had prior criminal records.

Mitigating circumstances in the cases varied. Dykgraaf's lawyers told of a behavior disorder and history of abuse as a child. Furman's attorneys asked leniency based on the defendant's age.

In the end, Dykgraaf's life was spared by a single juror, who, according to the trial judge, said his decision was based on his own philosophical objections to the death penalty.

Unlike other crimes handled under rigid sentencing guidelines, the decision to seek and impose the death penalty is based as much on judgment as in law.

Defense attorneys contend the quality of representation, the politics of a prosecutor and the budget of a county all play roles in setting different paths for defendants. Prosecutors say the human element is a part of the law's strength.

"Any time you have the authority to make these decisions vested in 39 individually elected officials, there is only so much you can do to guide their discretion," said Assistant Attorney General Greg Canova, one of the law's three principal authors.

The Supreme Court review, he said, is designed to guarantee that local differences remain within constitutional bounds.

"People don't elect computers, they elect prosecutors," says Kitsap County Prosecutor C. Danny Clem, whose office helped draft the law. "We don't pick computers to listen to cases, we pick juries. No two sets of jurors will ever see the identical sets of facts in exactly the same way."

The process starts with the county prosecutor's decision to charge aggravated murder.

Before King County Prosecutor Norm Maleng decides, he meets with senior deputies to discuss the facts of the crime and the defendant's background. He gives the defense attorneys a chance to submit a "mitigation packet" that argues in favor of leniency.

Counting cases not yet reported to the Supreme Court, Maleng has asked for 10 death sentences in 47 aggravated-murder cases filed since 1981. He has yet to make a decision in two cases.

Maleng's office is pursuing its first death-penalty case in four years this spring against Cal Brown, an Oregon parolee accused of the strangulation death of a Burien-area woman.

The last time Maleng's office got a death-penalty verdict was for David Rice, who on Christmas Eve 1985 brutalized and killed the Charles Goldmark family in Seattle's Madrona area.

Despite claims by defense attorneys that Rice was mentally incompetent to fully understand his actions, neither Maleng nor the jury found a justification for leniency.

A few years later, Maleng declined to even ask for the death penalty for William Pawlyk, who hid inside an Issaquah house and slashed to death KIRO-TV personality Larry Sturholm and Debra Sweiger. Pawlyk's defense also raised mental-competency issues.

Pawlyk's killings were calculated and savage, but Maleng found factors meriting leniency. Pawlyk was a community leader in Richland who before the killings had no criminal history nor even rumors of uncharged crimes, and a stellar military record.

"You have to look closely at the individual facts about the crime and the person," Maleng said. "I think Pawlyk's was the unique case because he had a complete lack of antisocial behavior in his background."

In the two Wah Mee cases, Mak and Benjamin Ng were convicted of the same 13 murders in separate trials, but Mak got the death penalty and Ng got life in prison.

The Supreme Court, in its review, upheld the proportionality of Mak's death sentence, saying it fit the magnitude of the crime.

But U.S. District Judge William Dwyer noted the disparity between the two cases in his decision to overturn Mak's sentence. Attorneys in the Mak case did not call family members to speak in Mak's behalf, as Ng's attorneys had, Dwyer noted.

The differences in county prosecutors' approaches are probably no more evident than with Kitsap County's Clem and Seth Dawson, Snohomish County prosecutor.

Clem has filed the death penalty six times in the past decade; Dawson one time filed a notice he would seek the death penalty, but withdrew it when the killer pleaded guilty. Clem has sent three people to death row. Snohomish County, the state's third most populous county, has sent one, Charles Campbell, and he was prosecuted before Dawson took office.

Clem argues that the vast majority of Americans favor the death penalty in some form and it is his duty as an elected official to forward the option to the jury when he feels it appropriate.

"Sometimes the question of mitigation is a question the jury, and not the prosecutor, must answer," Clem says. "It is the government's role to punish wrongdoers and retribution is a recognized need in our society. It is nothing to be ashamed of."

Dawson believes juries dislike the death penalty and that asking for it can jeopardize conviction.

Pursuing it in anything other than the most exceptional cases would be a poor use of county funds, he said.

"Even in the Campbell case, jurors said they looked for mitigating factors and wanted to find them but couldn't," said Dawson.

Acknowledging that the proportion of death-penalty cases varies greatly from county to county, Dawson said the overall number of cases is still small, and he believes local differences may even out over time.

While surveys show overwhelming support for some type of death-penalty statute, prosecutors say attitudes change when jurors must pass judgment on a person sitting before them.

Pierce County Prosecutor John Ladenburg said he must also assess if his community wants to consider the death penalty in a particular case.

"Surveys will say that 80 percent of the people favor it," he says, "but you must have 12 for 12 in the jury box."