CAPITAL PUNISHMENT

Deadly Choices

Prosecutors face a gamut of tough decisions when the death penalty is an option. Critics say varying standards for decision-making can be unfair to defendants.

BY JOHN GIBEAUT

ABA Journal, May 2001

Daniel Ray Averett cut a tragic, pathetic figure as he took the witness stand in January and told a jury how he murdered a man he never had met before.

First, Averett splashed pool acid in Kurt Imel’s face after a confrontation the night of July 28, 1999, outside the Tucson, Ariz., home of Imel’s estranged wife, Teresa Suzanne Imel. Imel screamed with pain as he tried to retreat inside the upscale ranch home, only to have his wife slam the door on him.

Armed with a kitchen knife, Averett began wildly stabbing Imel, inflicting largely superficial wounds before puncturing the femoral artery and rendering Imel unconscious. The job still wasn’t finished.

"I had never done this before, and I didn’t know what was supposed to happen," Averett, 25, told the jurors in Pima County Superior Court in a soft yet deliberate voice, noticeably slowed as the result of brain damage suffered in a car crash 12 years earlier. "He was lying on the ground making weird noises, so I picked up a rock and hit him on the head with it."

Not only did prosecutors allege that it was a clear case of first-degree murder, they also charged that it was one of those rare murders deserving of the death penalty.

But Averett wasn’t on trial. He already had pleaded guilty in exchange for a life sentence with no chance of parole for at least 25 years.

Instead, prosecutors were seeking death for Teresa Imel. They say she hatched a plot to kill her husband, a 37-year-old Wal-Mart executive, after he threatened to take custody of the couple’s three young children during divorce proceedings. Averett was to get $500 for carrying out the murder.

Although a mistrial was declared in February after jurors deadlocked 11-1 in favor of guilt, prosecutors were no less adamant about seeking death for Imel, 36, as they prepared for her retrial, which began in late March.

But in going for the death penalty against her, prosecutors had to cut breaks for Averett and another co-defendant. Those decisions on who should live and who should die are a prosecutor’s most serious duty.

The Imel case illustrates how one prosecutors office undertakes that task. The choices made are similar to decisions other prosecutors face hundreds of times each year in the 38 states that use capital punishment, as well as in the federal and military justice systems.

Yet the decision-making procedure varies widely, not only from state to state, but even among Arizona’s 15 counties, where each elected prosecutor ultimately must determine which defendants deserve to die.

"You go to a different jurisdiction at a different time, and Teresa gets the deal," says veteran Tucson defense lawyer Michael L. Piccarreta. A former state bar president, Piccarreta has represented capital murder defendants at trial throughout Arizona and on appeal all the way to the U.S. Supreme Court.

Call of the Law

The Imel case also coincides with unprecedented scrutiny of the death penalty that ranges from studies on its fairness in several states, including Arizona, to a moratorium on executions in Illinois to outright calls for abolition. Critics complain that the states’ deadly selection process amounts to nothing more than a lottery where race, wealth and geography place a thumb on the scale. Prosecutors insist that it’s a delicate, painstaking search for fairness in a haystack of facts and circumstances where no two cases are alike.

But such lofty debates are largely irrelevant to the prosecutors, defense lawyers and judges who must deal with life and death every day when they arrive at work.

Idealists on either side find little room in the lunch-bucket world where capital cases begin.

One thing remains constant: As long as the death penalty stays on the books, most prosecutors can be expected to enforce it.

"I don’t have a lot of strong feelings about the death penalty," says Rick A. Unklesbay, deputy Pima County attorney and the lead prosecutor on the Imel case. "In fact, my job would be a lot easier if we didn’t have the death penalty. But it’s the law. And as long as it’s the law, we have to apply it as fairly as we can."

Applying the law fairly means winnowing down murder cases to the worst of the worst to avoid the untrammeled discretion in sentencing that led the Supreme Court to declare the death penalty unconstitutional in 1972. Although the schemes differ depending on the jurisdiction, prosecutors must allege the existence of aggravating factors, characteristics that set certain murders apart from the rest to make defendants eligible for death.

Arizona’s statute limits prosecutors to a list of 10 aggravators. They must prove at least one beyond a reasonable doubt. On the other side, defendants present mitigating factors that weigh against the death penalty, such as mental health or lack of a criminal record. The state places no limit on mitigators.

Sentencing does not hinge on whether aggravators outnumber mitigators, or vice versa, but on a weighing of the strengths of those factors. Thus, a death sentence can result even if the state presents just one aggravator powerful enough to overcome a host of lesser mitigators.

Besides the law and the evidence against a defendant, prosecutors considering the death penalty typically take into account the wishes of victims’ families and any mitigation the defendant may raise. But beyond death penalty statutes themselves, standards and procedures for life-and-death decisions vary considerably.

Prosecutors and Policies

At one extreme are jurisdictions where the elected prosecutor has the first and last word. At the other extreme are prosecutors offices with complex written policies—a few of which even allow defense lawyers to make formal presentations to prosecutors.

Pima County probably falls somewhere in the middle of that continuum. Though the county attorney’s office has no written policy, it has used a committee since the 1970s to study whether death is appropriate in individual cases. Today the homicide panel consists of seven senior prosecutors and the prosecutor who will try the case.

"I listen closely to the trial prosecutor because that person knows the case better than anybody else in the room," says Pima County Attorney Barbara LaWall, who makes the final decision. "Over the years we’ve been doing this, we’ve become comfortable with it because we’ve developed a process that’s more considered and more deliberate. It takes a lot of the emotion out of it, and I just think it’s fairer."

Thus the decision to seek death for Teresa Imel and cut the other defendants some slack wasn’t especially difficult, prosecutors say. Besides her and Averett, the state also charged Tiffanie Marie Imel, 19—Imel’s daughter from a previous relationship —and Tiffanie’s boyfriend, Troy Alexander Bertling, 20.

"You look at it in terms of who’s the most culpable," Unklesbay says. "That was a fairly easy call for the panel to make."

Three aggravating factors became clear early on. First came financial gain. Besides keeping custody of the children, Teresa stood to profit from the slaying by collecting on Kurt Imel’s insurance. Second, offering Averett $500 made it murder for hire. Third, because he splashed acid in Kurt’s face, stabbed him, then hit him with the rock, prosecutors allege that Averett murdered the victim "in an especially heinous, cruel or depraved manner." As a co-conspirator, they say that factor would impute to Teresa, even though she may not have known exactly how Averett would commit the murder.

Still, prosecutors had to get a conviction in the first place. That’s where they had to make choices. Averett, the actual killer, provided the key. Defense lawyers presented prosecutors with extensive documentation of Averett’s brain damage. Although a psychological evaluation determined Averett was competent to stand trial, it also showed him as socially inept, easily manipulated and eager to please others.

"I thought I was helping my friends—or people I thought were my friends," Averett later explained on the stand. He also had only a short criminal record with no violent offenses, which could have served as aggravators.

Litigation, Mitigation ...

Arizona doesn’t foreclose the death penalty for defendants with mental defects or brain damage. But faced with such powerful mitigation, prosecutors didn’t like their prospects.

"The chances of us being successful with the death penalty in his case were slim," Unklesbay says. "You can see how easily he was led into it by the other folks, especially by Tiffanie and Mrs. Imel. Averett had never met the guy before. He had no interest in having him dead."

Averett’s lawyer, Leslie A. Bowman, says she doesn’t always like to tip her hand early in a case and share mitigation with prosecutors. But with a 168-page confession and shoeprints from Averett’s Nike cross-trainers linking him to the scene, Bowman says she had little choice. And before she documented Averett’s brain damage for prosecutors, Bowman wasn’t so sure her client would escape death if he went to trial.

"If there really is a defense, I’d rather defend," Bowman says. "But if it’s obvious that everything is going against my client, I immediately start working on mitigation."

However, prosecutors doubted that the brain-damaged Averett would be enough to put Teresa in the death chamber—nor would other prospective witnesses.

Averett had been selling the powerful stimulant crystal methamphetamine, or speed, to Teresa, Tiffanie, Bertling and their friends, who regularly hung around the Imel home getting high. Many of the state’s witnesses would claim that a drug-induced haze left them unable to recall important details.

So Bertling, whom Averett described basically as a spokesman for Teresa and Tiffanie, also was offered a deal. Unlike other witnesses with no incentive to help the state, Bertling’s memory would be clear at trial. He bit on the offer and pleaded guilty to second-degree murder in exchange for his testimony and a 10- to 22-year sentence.

"We aren’t going to prove the case on Mrs. Imel ... with Averett and all the other drug addicts you’ve seen paraded up there," Unklesbay says "We needed someone on the inside. He corroborated what Danny said about Teresa setting the whole thing up."

That left Tiffanie, whom Kurt adopted after he married Teresa. She was 17 when the slaying occurred and also lacked a criminal record, both factors weighing against death.

Evidence showed that she had chauffeured Averett around Tucson in a failed attempt to buy a gun, and that she also had driven him to the scene of a bungled effort to blow up a recreational vehicle where Kurt slept during trips to Tucson to see the other children. Although prosecutors suspect that Tiffanie was even more deeply mixed up in the plot, the rest of the evidence suggested that she largely acted as a cheerleader. So she escaped the possibility of death.

"What I think about her involvement and what I can prove about her involvement are two different things," Unklesbay says. But after Tiffanie rejected an offer to plead to second-degree murder, prosecutors tried her together with her mother, although they only sought life.

Teresa’s lawyers, Thomas G. Hippert and Julie C. Duvall, say the state only sought death to pressure their client into a guilty plea. They say Teresa knew nothing of the plot. If she’s guilty of anything, they say, it’s being a single mother unable to keep tabs on a house full of drug-abusing teenagers while trying to mind three young children.

"I think it was just a gut thing from the prosecutors that she was a responsible adult, and she must have known what was going on," Duvall says.

First-degree murder in Arizona is punishable by one of three sentences. They are death by lethal injection, life with no chance for parole for 25 years (which Averett received), or natural life with no parole. Prosecutors did briefly entertain a plea offer from Teresa, but they say talks went nowhere fast when her lawyers insisted that the state back down from natural life.

Other local defense lawyers say it would be a mistake to believe Pima County’s prosecutors merely use the death penalty for leverage. More often than not, those lawyers say, prosecutors mean business when they say they’re seeking death. Unlike Averett and Bertling, defendants who don’t have anything the state wants had better be ready to go to trial.

"I don’t think it’s a bargaining chip. They really want to [execute] these guys," says Bowman, who has handled a dozen capital cases and currently has only one client on death row. "They’re right there in your face. You always know where they stand."

Defense lawyer Michael J. Bloom agrees. "We try more cases than anywhere else in Arizona," Bloom says. He attributes that to particularly influential victims advocacy organizations, including Arizona Homicide Survivors, a private support group that uses office space donated by the county attorney.

"In many cases, they have the power to veto any plea agreement," Bloom says. "If they say take it to trial, it usually goes to trial."

State law does require prosecutors to consult with homicide victims’ families, but they are not bound to follow families’ wishes. While those desires may make a difference in an especially close case, Unklesbay says they typically receive no more weight than input from other players, including police and defense lawyers.

Why Families’ Viewpoints Change

Katherine L. Weir learned that through experience. She remembers the changes she went through after her brother, Tucson Pizza Hut manager Robert Curry, 44, was gunned down Jan. 17, 1999, during a robbery, along with waitress Melisa Moniz, 20, and dishwasher James Bloxham, 17. Sentenced to death were Christopher "Bo" Huerstel, 19, and Kajornsak "Tom" Prasertphong, 22.

Weir unsuccessfully tried to dissuade Unklesbay and LaWall from seeking the death penalty.

"I was a proponent of the death penalty before this happened," says Weir, 53, president of a local telecommunications company. "Now I’m very anti-death penalty, but not for the obvious reasons. My opposition is what it does to me."

Weir wants to avoid the likely drawn-out appeals of a death case. She doesn’t want to see the defendants become media martyrs for anti-death penalty groups as their executions approach, while her brother’s memory fades into the background. Moreover, Weir says, if the defendants had gotten life and wound up in the general prison population, they stood a better chance of being beaten, raped and killed sooner and more horribly than the creaking machinery of the state can do it.

"I pleaded with Rick," Weir recalls. "I said, ‘Rick, there’s no doubt these kids did it. Why don’t you just take a plea and get it over with? Why subject us to this?’ "

Usually the situation is reversed, Unklesbay says. Survivors most often are unhappy when the state doesn’t seek death. While he acknowledges that victims’ families from the Pizza Hut robbery "aren’t particularly bloodthirsty," he adds that the law must cut both ways if prosecutors are to apply it fairly. And that includes sometimes seeking death against survivors’ wishes.

Indeed, in Pima and elsewhere the role of victims in capital sentencing ranks among the most pervasive and contentious issues in the debate over the death penalty. Victims won a major victory in 1991 with the landmark Supreme Court decision in Payne v. Tennessee, 501 U.S. 808, which allowed them to speak at capital sentencing hearings.

Since then, state courts have limited such testimony to the effects of the murder on the victim’s family, holding that survivors’ opinions of the defendant or of the appropriate punishment are irrelevant.

But even the prosecutors themselves disagree over just how much influence victims should have in the initial decision to seek the death penalty.

Some say the law should pay more attention to victims. Special prosecutions chief Michael D. Wims of the Utah Attorney General’s Office says family members persuaded him not to seek the death penalty for Duchesne County rancher John R. Pinder, 43, convicted last August of murdering two of his ranch hands, then using explosives to destroy the bodies.

"They unanimously told us they didn’t want the death penalty," says Wims, a member of the ABA Criminal Justice Section Council. "We didn’t negotiate it with the defendant or anything. We just dropped the death penalty."

In dropping the death penalty, however, Wims acknowledges that other capital cases could be jeopardized if the Utah Supreme Court determines that the sentences are disproportionate to the life term Pinder is expected to receive when he’s sentenced on May 29.

In other words, the court may ask whether death ever is appropriate punishment if it’s unsuitable for someone who not only murders two people but also blows their bodies to smithereens. Wims says the courts need to catch up and include victims’ needs in such analyses. "That’s a heavy factor."

From where Florida Circuit Judge Susan F. Schaeffer sits, prosecutors who excessively defer to victims can become blind to the evidence and box themselves into pursuing death sentences that they won’t win anyway. A nationally recognized expert on death penalty trial practice, Schaeffer hears cases in Pinellas and Pasco counties in the St. Petersburg-Tampa area.

In 19 years on the bench, Schaeffer says she’s ordered about 10 death sentences. Although she’s had one case come back on the issue of guilt, she’s never had a sentence reversed, perhaps a singular feat in a system where as many as two-thirds of the cases nationwide are remanded for new trials or resentencing.

"I think too many prosecutors rely on victims’ wishes when they should take the lead here," Schaeffer says. "If the prosecutor thinks the case isn’t a death penalty case, he needs to tell the victim that from the beginning. If more prosecutors would do that, there would be fewer death penalty cases going through the courts."

A former Maryland state’s attorney, Andrew L. Sonner of Montgomery County, says survivors’ desires provided him with a crutch that kept him from coming to grips with his developing opposition to the death penalty. He spent 30 years as top prosecutor in the suburban Washington, D.C., county until 1996, when he was named to a judgeship on the Maryland Court of Special Appeals. His court does not hear capital cases.

Although he asked for death in about 20 cases, Sonner says he was only "reluctantly willing" to do so. He finally became an outright opponent after he concluded that neither he nor any other prosecutor could apply the penalty fairly.

One milestone along that path was the case of Bruman Stalin Alvarez, who was 20 in 1995 when he used a hammer and knives to viciously murder five people in a Potomac home. While he also was faced with a potentially successful insanity defense, Sonner says the survivors’ insistence against the death penalty carried the day. Alvarez pleaded guilty in 1996 to five counts of first-degree murder and one count of rape and received six consecutive life terms, which prosecutors at the time said was the stiffest prison sentence ever meted out in the state.

"I think I was too sensitive to the wishes of families," says Sonner, a former chair of the ABA Criminal Justice Section. "If they didn’t want the death penalty, it was too easy not to ask for it. In fact, I didn’t seek it for one of the worst murders we ever had."

Plenty to Ponder

Back in Arizona, Pima County prosecutors aren’t shy about their aggressive pursuit of death

sentences.

With a population of a little more than 800,000, Pima is Arizona’s second-largest county, though it’s dwarfed by Phoenix-Maricopa County, where nearly 60 percent of the state’s residents live. But a survey conducted for a state commission on capital punishment demonstrates the willingness of Pima’s prosecutors to both seek death and take those cases to trial.

With only 17.5 percent of Arizona’s population, Pima had 29.1 percent of the state’s murder arrests from 1990 to 1998. During the same period, Pima judges condemned 31 defendants to die, accounting for 35.6 percent of inmates on death row. By comparison, Maricopa had 47.3 percent of murder arrests, but sentenced only 35 inmates to death.

"Once we file these, we don’t plead them out," says Unklesbay, who serves on the commission with defense lawyers, judges, legislators and other officials. "It doesn’t surprise me at all that we have that many people on death row. We target violent offenders, sure, and if you’re going to target violent offenders, murder’s a good place to start."

Nor is LaWall, the county attorney, bashful when asked to name the hardest aspect of sorting out defendants who should get death: "The decisions that are the most difficult for me are whether to remove a death notice from someone who really deserves it in order to get other defendants who may be more culpable."

But perhaps most important, Unklesbay says, prosecutors who want to try capital cases need to be certain they can handle it. Talking about the death penalty is one thing. Seeking it is another.

"If you’re going to do these kinds of cases, you need to attend an execution," says Unklesbay, who has seen two. "You need to know that this is real before you file one of these things. You need to be really sure that you want to walk down that road."

An Open Door on Death

How Los Angeles became a model of access to the decision-making process

Some of the cases that have crossed Curt W. Livesay’s desk would curdle the blood of even the most jaded prosecutor.

There was Richard Ramirez, Southern California’s "Night Stalker," convicted of 13 satanic-laced murders in which the victims were strangled, shot or had their throats slashed. "I will be avenged," Ramirez vowed in a packed Los Angeles courtroom as he was sentenced to die in 1989.

There was William George Bonin, the notorious "Freeway Killer," convicted of raping, torturing and murdering 14 boys and young men. Then-Gov. Pete Wilson called him a "poster child for capital punishment" when refusing to block Bonin’s 1996 execution.

They are just two of the more than 1,300 murder defendants whose fates Livesay helped determine for more than a decade as the sole prosecutor responsible for deciding when the Los Angles County District Attorney’s Office would seek the death penalty. He’s probably made more life-or-death calls than any other prosecutor before or since.

His czar-like powers earned Livesay the moniker "Dr. Death." But along the way, he also managed to gain a distinctive reputation for candor and fairness, even among defense lawyers, who sometimes choke on those words when they try to pronounce them in the same sentence with "prosecutor."

Today, Los Angeles has one of the most open and detailed death penalty policies in the country. "We endeavored to set up a transparent decision-making process in capital murder cases ... so anyone could look at it and see why we were seeking the death penalty," says Livesay, who returned to the office in December after 10 years of private practice and partial retirement. He came back on an interim basis to help newly elected district attorney Steve Cooley start his administration, though he no longer makes death penalty decisions.

A prosecutor since 1965, Livesay inherited the job as the district attorney’s death penalty arbiter when he became chief deputy in 1979. California reinstated capital punishment in 1977, and officials in the Los Angeles DA’s office realized that they had to have the confidence of the defense bar and the public if they were going to ask juries to condemn defendants to death. The DA’s office decided the best way to deal consistently and fairly with capital punishment was to place the decision in the hands of a single prosecutor.

"We wanted to make sure we weren’t faced with any bias or prejudice problem," Livesay recalls. That meant opening the files so defense lawyers could compare decisions in similar cases. It meant having defense lawyers come in and plead their case against the death penalty before prosecutors made up their minds. In the early days, it also meant that Livesay would testify in court when defendants challenged his decisions.

The Los Angeles prosecutors office, the largest in the country, didn’t exactly receive raves with its open-door policy. "It caused some friction among the DAs in California," Livesay acknowledges.

Courts allow prosecutors nearly unfettered discretion in both their charging decisions and in deciding whether to seek the death penalty.

The California Court of Appeal drove that point home in 1981 for San Francisco murder defendant Maurice John Keenan when it told him the prosecutor’s general death penalty policy and supporting documentation for specific decisions were none of his business. Keenan v. Superior Court, 126 Cal. App. 3d 576.

The ruling didn’t deter Los Angeles prosecutors. For another 10 years, defense lawyers eagerly checked their mail for "Livesay letters" telling them the DA had declined to seek death for their clients.

"They didn’t have to give us any of this," says Charles A. Gessler, retired head deputy public defender.

In all, Livesay approved the death penalty in about a third of the cases he reviewed. Only about a third of those actually resulted in death sentences, however. But Livesay says figures like that show that the system works. He adds that prosecutors shouldn’t cherry-pick the juiciest cases based on notoriety or substitute their judgment for a jury’s.

"We should not make a decision on death based on whether a judge or jury is going to mete it out," Livesay says. "It’s not whether a judge or jury would do it. It’s based on the facts and the law. So we try cases where we know we’re not going to get the death penalty.

"If you look at a jurisdiction where they’re getting the death penalty eight or nine out of 10 times, they’re picking the cases," he says. "They’re not letting the jury do it. They’re making the decision for the jurors."

To Livesay, some decisions to seek death are no-brainers. For example, say a robber with no criminal record walks into a convenience store, his gun misfires and the clerk is killed. For Livesay, that’s probably not a death case.

On the other hand, say a robber with a long criminal past walks into a convenience store, forces the clerk to kneel and shoots him in the back of the head. That’s a death case.

Then there are infinite gray areas, such as this scenario posed by Livesay’s old adversary, Gessler: A prostitute sets out to pull a "trick roll," where she lures a customer to a hotel room, intending to rob him. But the customer ends up killing the prostitute instead. The prostitute’s participation in her own demise may weigh against the death penalty.

By no stretch of the imagination is Gessler a fan of the death penalty. But he is a fan of Livesay’s. "No matter how much people of good will try to manage a death penalty process, there are always going to be problems and inequities," says Gessler, who in 1996 kept Lyle Menendez off death row in his retrial with brother Erik in the shotgun murders of their parents. "But as long as you’re going to have a death penalty, I can’t think of anyone I’d rather have doing it than Curt."

Mission Accomplished

As Livesay prepared to leave the office in 1991, court challenges to death penalty decisions had become a thing of the past. Because they had gotten used to him and probably knew what to expect, fewer and fewer defense lawyers stopped by to try to dissuade him from seeking death for their clients.

"We’d made our point," Livesay says. "It was an evolutionary process for us."

So with Livesay’s blessing, the office set up a committee of senior prosecutors to deliberate death cases, though the panel’s chairman still makes the final choice.

The portions of the DA’s files reflecting thought processes, trial strategy concerns and other work-product matters no longer are open. But defense lawyers still are asked for input, and they receive an evaluation form explaining why prosecutors believe the death penalty is appropriate.

Today, the office’s standards and procedures for seeking the death penalty cover seven pages in the DA’s policy manual. While the method has changed, Los Angeles prosecutors still try to follow Livesay’s model.

"We try to be open, and we try to tell the defendant and anybody else who’s interested what the hell we’re doing," says death penalty committee chairman Lawrence E. Mason.

"This is not guesswork," he says. "We don’t do it off the top of our heads."

—John Gibeaut