Idaho prosecutors opting not to seek death penalty

Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005

porr@idahostatesman.comNovember 3, 2009 

For Elmore County prosecutor Kristina Schindele, the decision was simple: The only way Mexico would extradite accused triple-murderer Jorge Orozco to Idaho was if the county agreed not to pursue the death penalty.

But as Ada County Prosecutor Greg Bower faced one of the most high-profile murder cases in his decades-long career, the call was much tougher.

He ultimately wouldn't detail "the many legal and factual reasons" why he is not seeking the death penalty for Daniel Ehrlick and Melissa Jenkins, saying he didn't want to prejudice the jury pool.

But trying to predict exactly what that jury will do is likely a major factor why Bower won't seek the death penalty in the beating and murder of 8-year-old Robert Manwill.

Because in death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.

Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho - double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.

And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial.

Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others - including one in a child-death case with many similarities to the Manwill case.

In Canyon County in 2006, a jury spared the life of Ora Ray Carson, after finding him guilty of first-degree murder for beating a 3-month-old boy to death in 2004.

AGGRAVATING VS. MITIGATING FACTORS

To impose the death penalty, a jury must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh the mitigating factors offered by the defense.

Mitigation is not as strictly defined. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma - including mental, physical and sexual abuse.

Last month, Latah County Prosecutor Bill Thompson decided not to seek the death penalty for murder suspect Silas Parks, 25, who is accused of killing his pregnant wife, 28-year-old Sarah J. Parks, and setting her bed on fire. Her charred body was found June 24 in a spare bedroom in Moscow. If found guilty, Parks could spend life in prison, but he won't end up on Idaho's Death Row.

"Basically, we felt we would only be able to address one or two of the aggravating factors, and (that evidence) wasn't really strong," Thompson said. "We felt any kind of mitigating evidence (collected by Silas' attorneys) would outweigh that.

"The case just didn't seem to fit what the law was contemplating."

Thompson said he did not know the details of the Manwill case. But he said if Bower decided not to pursue the death penalty, he had a good reason.

"(Bower's) senior staff is really experienced and very level-headed - they make good, reasoned decisions," Thompson said. "Every defendant is different. Every scenario is different. You have to make these decisions on a case-by-case basis."

LEARNING FROM THE PAST IN ADA COUNTY

Recent experience has shown Ada County prosecutors how difficult it is to persuade jurors to hand out a death sentence.

In 2004, juries called for the execution of convicted killers Azad Abdullah and Erick Hall, but in 2005 spared the lives of Jason McDermott and Ignacio Sanchez even after finding both guilty of first-degree murder.

In McDermott's case, one juror out of 12 could not get past defense evidence that showed McDermott had a brain injury from being shot in the head, mitigating his execution-style slaying of 18-year-old Zachariah Street in May 2003.

After Sanchez was found guilty of beating his girlfriend's 2-year-old daughter to death over a period of weeks in 2003, defense attorneys showed he had been physically abused as a child, had battled with depression and other mental illnesses, and had used methamphetamine since he was 12.

A harrowing past doesn't always sway a jury.

Hall raped and murdered visiting flight attendant Lynn Henneman along the Boise Greenbelt in September 2000 and did the same thing to Cheryl Ann Hanlon in the Boise Foothills three years later.

Defense attorneys in the Henneman case explained that Hall's childhood was marred by sexual abuse, incest, insolation and hunger. Some jurors were so moved they cried during the testimony, but the jury still sentenced Hall to death. A second Ada County jury dismissed much of the same mitigating evidence two years later to give Hall a second death sentence for the murder of Hanlon.

CUTTING A DEAL

Such uncertainty has helped lead to settlements in a number of death penalty cases in Idaho since the 2003 law change.

Former Canyon County Prosecutor Dave Young dropped pursuit of the death penalty against Alofa Time in 2007 in exchange for a guilty plea to first-degree murder. Time is now serving life in prison, without the possibility of parole, for killing and beheading his ex-wife, Theresa, in 2006.

Young said he made the deal "to spare the family from a lengthy trial and being forced to relive this horrific crime."

That decision was made after a Canyon County jury spared the life of Ora Ray Carson in 2006.

In 2004, former Elmore County Prosecutor Aaron Bazzoli decided against pursuing the death penalty against Albert Ciccone, who had run over and killed his pregnant wife in rural Elmore County the year before.

Bazzoli said he was influenced by similar cases across the country where juries did not put the defendant on death row.

In 2006, Jim Junior Nice avoided the death penalty after cutting a deal with Twin Falls County Prosecutor Grant Loebs to plead guilty to murdering his three young children in Twin Falls the year before.

Prosecutors say Nice used rat poison and over-the-counter medication to kill 6-year-old twins Justin and Spencer and their 2-year-old sister, Raquel.

Loebs said he made the deal in the Nice case for a variety of reasons - including the fact that Nice's guilty plea means he will never leave prison. But he did say Nice's attorneys would have put on mitigation evidence that their client suffered from mental illness.

Figuring out whether or not to seek the death penalty "is a tough, tough calculation to make," said Loebs. "It's one of the toughest things you have to do as a prosecutor."

WHAT'S NEXT FOR JENKINS AND EHRLICK

Neither police nor prosecutors have released much information on Jenkins or Ehrlick or their backgrounds - and it is unclear what kind of aggravating or mitigating evidence could be brought.

Before the arrests in August, Jenkins was on probation for fracturing the skull of Robert's infant half-brother, and Ehrlick had been convicted of burglary, battery and possession of drug paraphernalia.

Ehrlick and Jenkins will return to court Thursday to find out when a jury trial will be scheduled. The trial is expected to last several weeks and likely will be set for some time next summer.

Patrick Orr: 373-6619

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