DAY ONE

Death still arbitrary

Page 3 of 3

Several factors alter outcomes

District attorneys say many cases are not suitable for the death penalty because of weak evidence.

Juries will not impose death unless guilt is irrefutable, prosecutors say. Seeking death without the certainty of a conviction, they add, would waste resources on protracted court proceedings and years of appeals.

"The type of punishment should be the only thing in question," said Joseph Campbell, district attorney for Bartow and Gordon counties.

This means killers who are crafty enough to dispose of the murder weapon, careful enough to leave no evidence or lucky enough to escape the notice of witnesses will probably never face a capital prosecution.

The evidence against Miles Dempsey seemed powerful, but prosecutors said it wasn't enough to seek death.

One night in March 2001, Jennifer Causey, a 17-year-old desk clerk at an Acworth hotel, told a friend over the phone she was scared of Miles, the maintenance man. He had cursed at her the previous morning. Causey told her friend to call 911 if something happened to her.

A few minutes later, the friend heard Causey scream "Miles!" and drop the phone, then what sounded like a baseball bat hitting the desk several times. Causey was found dead with a fractured skull. The cash drawer was cleaned out.

Police found Dempsey in his room and Causey's blood on a pair of his jeans. The murder weapon was never found.

But Cobb County DA Pat Head chose not to seek the death penalty. The case, he said, was solid enough to win a conviction but too circumstantial to obtain a capital sentence.

"How many 'Miles' are there in the Acworth area?" Head asked.

Because Dempsey was the maintenance man, Head added, jurors could have been led to believe the blood got on his pants another way.

Dempsey was convicted of murder in 2002. Because he had a previous violent felony conviction, he was sentenced to life without parole.

Even when guilt seems certain, DAs don't always go for death. The newspaper found they did not seek death for at least 225 eligible killers who confessed.

Sometimes a DA will not pursue death against a co-defendant who cooperates. A victim's family that opposes capital punishment may persuade a prosecutor from seeking death, as will questions about a defendant's mental health.

Another reason is mercy, seeing a redemptive quality in the heart of a killer.

"If you believe the death penalty is reserved for the worst of the worst, true remorse and accepting responsibility can take you out of that category," Gwinnett District Attorney Danny Porter said.

Spotlight can shift to victim

Some DAs also consider the nature of the victim in deciding whether to pursue death. Did he deal drugs? Did he have a prison record?

In DeKalb County, a late-night intruder stabbed a screaming woman while her terrified children cowered in the next room.

Willie James Robinson climbed through the window of Stacey Miller's duplex before 5 a.m. one morning in 2000, court records show. Robinson stabbed her in the neck and chest with a butcher knife.

Miller's screams awoke her 10-year-old son, who feigned sleep in the next room. Her 8-year-old daughter hid in the closet.

Robinson, believing the children were asleep, took Miller's money and jewelry, disabled the smoke alarm and set the duplex on fire. The children slipped out a window.

Police found Robinson outside, watching the flames, with Miller's blood on his shoes. He later was convicted of raping another woman in a similar incident five months earlier.

The murder qualified for the death penalty three ways because it involved an armed robbery, a burglary and arson. But prosecutors allowed a plea deal for life in prison because they believed Miller had a prior romantic relationship with Robinson.

"It's really tough to get the death penalty unless it's stranger-on-stranger," said former DA J. Tom Morgan, whose office told the parole board Robinson should never be released.

Time, costs considered in cases

Busy caseloads and the mounting costs of capital prosecutions also hinder DAs from seeking death.

Prosecutors with more murder cases sought death less frequently, the newspaper's analysis showed. Circuits with the fewest murder cases sought death about twice as often as circuits with the highest volumes.

Muscogee County had two pending death penalty cases when Lucille Henderson Smith was murdered in March 2001.

Smith was in her apartment, on the phone with a friend, when she screamed "New York!" and cried out for help.

Police found her dead in the pouring rain, lying face down behind her apartment. She had been stabbed 45 times. The 49-year-old foundry worker had told friends to remember the name "New York" if something happened to her.

Police quickly identified "New York" as Hayden McCloggan, a former co-worker of Smith's. He had once gone to prison in New York for sexual abuse.

Voluminous evidence tied McCloggan to the slaying — DNA, blood, stolen items from Smith's purse and his watch at the crime scene. Police even matched a diamond-shaped imprint on Smith's forehead to the sole of McCloggan's boots.

McCloggan later told police he was infatuated with Smith and watched through the window that night as she undressed. He said he entered her apartment, picked up a knife and wanted to "see what it was like to kill someone."

John Gray Conger, the Muscogee district attorney who agreed to a plea bargain for life in prison, said it is too costly to seek death in every case.

"That's the unfortunate truth," he said. "It costs a lot of money to try a death case. It takes a lot of resources. It takes a lot of people."

Death penalty prosecutions can be enormously expensive and time-consuming. The law requires two defense attorneys, extensive pretrial hearings and lengthy appeals. An extended jury selection process precedes a trial to decide guilt or innocence and then a hearing to determine punishment.

The sheer cost of mounting a capital case gives some DAs pause.

That wasn't a problem in Clayton County in the late 1990s. Assistant district attorney Brandon Hornsby, given the time and resources, obtained four death sentences in four years.

"We were able to devote one person to these cases," Hornsby said. "Most counties don't have the ability to do that."

Bob Keller, the former district attorney in Clayton County and now a member of the state parole board, said he embraced Hornsby's decision to focus primarily on death penalty cases.

But Keller said the disparities found by the newspaper are unsettling.

"I'm not so sure we don't need to revisit how we do this," Keller said.

"How do you justify in one county a horrific case that gets life and in another county a not-so-horrific case the death penalty is sought?" asked Keller.

"The answer is you don't."

— Staff writer Cameron McWhirter contributed to this article.

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