Death request raises ethical, legal questions

Somewhere in the Charlottesville Office of the Commonwealth’s Attorney sits a plea agreement that could lead to the execution of a city man accused of killing an 11-year-old boy.

One of Waverly “Eddie” Whitlock’s defense attorneys has said in court that his client wants to sign the agreement, which would request the death penalty as punishment for a capital murder conviction. If Whitlock receives less than the death penalty, he could rescind his plea under the agreement.

The act of volunteering for the death penalty, although uncommon, has raised legal, ethical and moral issues for others involved in capital cases.

According to the Death Penalty Information Center, 133 of the 1,168 people executed since 1976 in the United States have requested the death penalty. Of those 133 volunteers, eight were executed in Virginia.

The most recent person on death row to request and receive an execution was Marco Allen Chapman, who was convicted of killing two children in Warsaw, Ky. Chapman pleaded guilty to the murders and told authorities that he wanted to be put to death. The Kentucky Supreme Court rejected requests to stop the execution, deeming Chapman competent to choose his own death. Chapman was executed by lethal injection in November.

Whitlock, 28, was charged with capital murder and other counts in connection with the fatal shooting of 11-year-old Aziz Damar Booth and the wounding 23-year-old Rueben Lewis III on June 3, 2008, at 330 Sixth ½ St. S.W.

The motivation behind Whitlock’s apparent interest in the plea agreement has not been revealed. Richard Dieter, the executive director of the Death Penalty Information Center, said a defendant’s wish to control his own fate, his age and notoriety are some reasons why a person would seek death.

“It is counterintuitive that the death penalty is offered as a way to prevent murders, but for some people, the death penalty is a fatal attraction,” Dieter said. “You get a life sentence for murder; you’re lost in obscurity for your life. The death penalty gives you some short notice. People start paying attention and sending in doctors and lawyers and having hearings.”

Dieter said mental illness can cause someone to choose the death penalty, although a person still can make that choice rationally while suffering from a mental illness. Death row itself can be a reason, Dieter said, because people are isolated and never know when they will get the final word on their fate.

Techniques to get the death penalty invoked include ceasing appeals and firing lawyers. The center does not track how many people volunteer for the death penalty but ultimately are not executed.

An ethical issue

The Virginia State Bar issued a legal ethics opinion in 2005 to answer the question of whether an attorney must comply with a client’s request to not present a defense if the client is suicidal.

The hypothetical situation involved a client charged with capital murder whom wants a jury trial because he thought jurors would be more likely to sentence him to death. The client also asked his attorney not to present a defense.

In that imaginary situation, the advisory opinion stated that the attorney may seek another competency evaluation, request that a guardian be appointed and present a defense against a client’s wishes under the Rules of the Supreme Court of Virginia. However, the opinion also states that requesting the death penalty is not an unlawful act, and “a client’s preference for the death penalty is not ‘state-assisted suicide’ as the state’s imposition of the penalty is not a homicide.”

An attorney’s perspective

Following a client’s wishes can be more difficult if he wants to die.

August “Gus” Cahill, the chief deputy of the Ada County Public Defender’s Office in Idaho, represented death penalty volunteer Keith Eugene Wells in the early 1990s. Wells, who was killed by lethal injection in 1994 at age 31, was the first and only person to be executed in Idaho since the death penalty was reinstated in 1976.

Cahill, who attended the University of Virginia, said Wells was found guilty of felony murder. Wells killed 23-year-old John Justad and 20-year-old Brandi Rains with a baseball bat at a Boise pub in December 1990.

After a judge sentenced Wells to death, Cahill said the case was reviewed and affirmed by the Idaho Supreme Court. Once the post-conviction process began, Cahill said Wells asked to drop any further appeals and fired the lawyers appointed after his sentencing.

“He wasn’t suicidal,” Cahill said. “He didn’t want to be dead so much as go through a process that he thought would ultimately be fruitless.”

Cahill and his partner stepped back into the case. It was a difficult ethical decision for the lawyers, Cahill said, because they are against the death penalty. Cahill said the attorneys believed that Wells had legitimate grounds for appeal and wanted Wells to be patient. The lawyers also faced criticism from local defense bars, who questioned how someone could “help this guy commit suicide by government injection.”

“Probably the thing that made it possible for us to get through it is that Keith was with it,” Cahill said. “He said that we shouldn’t beat ourselves up about it, that this is OK and that ‘I’m going to do this. It’s not about you. It’s my case.’”

The attorneys’ research showed that Wells probably could decide his fate as long as he was competent.

Cahill said Ada County hasn’t had any death penalty volunteers since Wells, although about a half-dozen people have been sentenced to the death in the last 15 years in Idaho. Still, the possibility has crossed Cahill’s mind in every death penalty case since.

“You have to think about it in ever other case,” Cahill said. “You’re waiting for someone else to do it.”

Competency

During Whitlock’s June 12 court appearance, defense attorney David Baugh said in court that a local psychologist and a Richmond psychiatrist both have evaluated Whitlock’s competency. Circuit Judge Paul M. Peatross Jr. requested that both doctors testify about their findings for a competency hearing, which is scheduled for Friday in Charlottesville Circuit Court.

Competency evaluations focus on a defendant’s functional capacities and voluntary decision-making abilities, said Thomas L. Hafemeister, director of legal studies at the University of Virginia’s Institute of Law, Psychiatry and Public Policy. Hafemeister said competency evaluations usually are done to determine whether a defendant is competent enough to stand trial, but also can assess if a defendant is competent enough to waive his Miranda rights, testify, confess or be executed.

The evaluation itself varies in length. Hafemeister said that the defendant is asked a series of questions designed to get him to talk.

“The evaluator will be neutral in approach and objective,” Hafemeister said. “They recognize that they are not there as a clinician, just to answer a legal question before the court.”

After the meeting is done, Hafemeister said, an evaluator may try to talk to third parties and review records before writing up a report for the court. If the prosecution and defense don’t agree with the results, Hafemeister said, they can request a competency hearing and present further evidence.

Hafemeister said that a mental-health professional is looking for three things to determine competency — the capacity for rational thought in connection with court proceedings and external and internal compulsions.

Rational thought, also called intelligence, has nothing to do with being smart, Hafemeister said.

“It means if the person has a rational understanding to what is going on and the possible penalties,” Hafemeister said. “Do they have a rational understanding that when you plead guilty, you waive several constitutional rights?”

An external compulsion could be spurred by threats from others to convince a person to plead guilty or else. Hafemeister said internal compulsions can be driven by a mental illness, which may mean that the choice is not voluntary.

The basic issues are the same if a defendant’s plea would lead to the death penalty, although Hafemeister said judges should look at these case more carefully.

Local issues

Public information about Whitlock and his reasons for wanting to sign the plea agreement is scarce. After Baugh announced his client’s wishes in court last month, he requested a gag order be placed on attorneys, court staff and others involved in the case to prevent them from speaking with the media.

Although there are few answers, some experts who have heard about Whitlock have suggested questions that they think should be answered as Whitlock’s case unfurls.

Cahill said that it will be important for someone to clarify Whitlock’s motivation for why he wants the death sentence. Whitlock may change his mind later, Cahill said.

“It has been very common in my experience at earlier stages of a case that if a defendant is going to get life, they want death,” Cahill said. “As you work a case with a client, they start understanding that it’s not how it is. They can have a life behind bars. They will affect their families if they are gone.”

In Wells’ case, Cahill said, he had family members who didn’t want him to choose execution.

Hafemeister said it is more common for someone to request the death penalty at some point after the trial. Before Whitlock’s case goes forward, Hafemeister said, someone should address whether a capital defendant has less of a right to enter a guilty plea than any other defendant.