Zack Hoopes
The Sentinel, Carlisle, Pa.
PHILADELPHIA — The technicalities of the death penalty in Pennsylvania, despite its effective annulment in the state, feature heavily in the case of John Howard-Bee.
Pennsylvania law allows prosecutors to pursue the death penalty in any first-degree murder case that involves one of 18 aggravating circumstances. Death penalty charges in Howard-Bee’s case were initially pursed by former Cumberland County District Attorney David Freed, who later resigned to take a job as a federal prosecutor.
Current Cumberland County DA Skip Ebert continues to pursue the case as a capital offense, with his office saying it will pursue all cases that meet the aggravating circumstances to the fullest extent of the law.
“We are the executive branch, we are tasked with carrying out the law as it exists, as the Legislature makes it,” said Kimberly Metzger, the assistant district attorney who has most recently handled the Howard-Bee case.
“So long as the death penalty is on the books and there are statutory factors that exist in cases that say death shall be imposed or shall be considered by the jury, that’s something we’re going to pursue,” Metzger said.
Death penalty skeptics, however, have long disputed this characterization of the law by prosecutors.
“It’s unfortunate to see it described that way. It’s not mandatory,” said Marc Bookman of the Atlantic Center for Capital Representation, a nonprofit group that consults on death penalty defense. “The 18 aggravators only give them the legal right [to pursue the death penalty] if they’ve made a discretionary decision that the case and the defendant warrant it.”
Motion
One of the dozen outstanding motions that were recently resolved in Howard-Bee’s case, paving his way to trial, was an unsuccessful attempt by the defense to separate the guilt and penalty phases of Howard-Bee’s trial.
Judge Thomas Placey ultimately denied this in his May 22, 2019, ruling, noting that the argument in question has already been decisively adjudicated in prior Commonwealth decisions.
While not holding legal weight for Placey’s purposes, the argument in the motion made by John Abom, Howard-Bee’s court-appointed defender, features prominently in the political debate over the death penalty.
This is the statistical finding that a death penalty-qualified jury is more likely to take what is presented to them at face value, said Robert Dunham of the Death Penalty Information Center.
This is of particular concern in a case where the outcome could hinge on complex medical issues, Dunham said, such as the accusations of fatal child abuse Howard-Bee is facing.
For potential jurors to be selected for a capital case, they must confirm that they don’t have any moral objections to the death penalty and would be willing to impose it if the evidence presented in the case warrants it — a litmus test often known as “casting the first stone.”
“Unless you are willing to cast the first stone you are not eligible to serve on the jury, but if you are willing to cast the first stone, studies show those jurors are more likely to believe prosecution experts whether they’re telling the truth or not, and are more susceptible to crediting junk science,” Dunham said.
Use of the death penalty, under any circumstances, has been on the decline in Pennsylvania. A study done earlier this year by the Allentown Morning Call, using Pennsylvania Commission on Sentencing data, found that the ratio of murder cases being prosecuted as capital offenses declined from nearly 40 percent in 2004 to just over 12 percent in 2017.
The number of child abuse cases prosecuted as capital offenses is likely quite small, which Bookman attributed to the simple fact that capital murder requires intent, meaning the accused must be proven to have not only abused the child, but done so with the knowledge and explicit expectation that the abuse could kill.
Even assuming that the diagnosis of shaken baby abuse is accurate, Bookman said, “that’s traditionally not a case where you would think there was a specific intent to kill. It’s a horrible tragedy, but it’s very rare that someone intends to kill.”
Metzger said any change in the prosecution, such as taking the death penalty off the table, is dependent on what the defense presents.
“I’m waiting for a mitigation presentation from the defense,” Metzger said. “With the absence of that information I’m going on what I have right now. If the defense wants to come to me and say ‘this is the mitigation we would present,’ that’s when I would be able to take that information and determine what is warranted.”
Pennsylvania has 140 inmates on death row as of May 1, according to the Department of Corrections. But it’s unlikely that any of them will be killed, at least not before 2023, given that Gov. Tom Wolf has placed a moratorium on capital punishment in the state pending legal reform. A total of 33 inmates have had notices of execution issued since Wolf took office, according to the Department of Corrections, but Wolf has tabled signing the death warrants.
But even before Wolf, the death penalty was in a state of flux. While governors signed death warrants, the vast majority of executions were stayed pending appeal or re-hearing. The three men executed since the re-instatement of the death penalty in 1976 all waived their rights to appeal, intending to die.
“Right now, the death penalty is in extreme flux in Pennsylvania,” Bookman said. “The reality is that we haven’t had an involuntary execution in this state since 1962.”
Stats
In 2016, a study by the Reading Eagle found that 408 people had been sentenced to death in Pennsylvania since 1978. Of those, 191 were re-sentenced to life in prison or less upon appeal. Six of them were completely exonerated and freed.
“You take all of those things together and it certainly makes a person wonder if the death penalty is really necessary,” Bookman said.
Dunham ascribed the continuance of death penalty cases in Pennsylvania to politics, which appears to be at play in Cumberland County.
During a recent candidates’ forum, Ebert cited his success in death penalty cases in his opening pitch to voters.
“I have won, personally, more death penalties than any sitting district attorney in this state,” Ebert said.
Ebert emerged victorious in the Republican primary vote for district attorney last month, when he faced a challenge from Jaime Keating, the county’s former first assistant district attorney under Feed. Although Freed and Keating were at the helm when the death penalty was first brought against Howard-Bee, Keating expressed a more circumspect approach.
“No one should brag about how many death penalty cases they do or anything of that nature,” Keating said. “It’s not about numbers, it’s about doing the right thing.”
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©2019 The Sentinel (Carlisle, Pa.)