McVay lawyers: No death penalty
Defense lawyers for a confessed killer say South Dakota law doesn’t allow for the execution of a mentally ill inmate.
James Vernon McVay, 42, pleaded guilty but mentally ill to first-degree murder for cutting the throat of 75-year-old hospice nurse Maybelle Schein last summer.
McVay killed Schein and stole her car in what he’d later describe to investigators and television reporters as a plot to assassinate President Obama.
Among a series of recent motions filed in advance of his sentence hearing is one that claims an execution would be cruel and unusual because of his mental illness and is not allowed under South Dakota law.
The case raises thorny questions about the appropriate application of the death penalty for those diagnosed with mental illness, a term broad enough to include illness as serious as debilitating schizophrenia and as mild as depression.
No one who’s pleaded guilty but mentally ill in South Dakota has been sentenced to die, but prosecutors think a jury ought to decide the appropriate punishment.
In a “motion to preclude a pre-sentence hearing,” McVay’s public defenders say a jury hearing on a death sentence is specifically allowed only if a person is found guilty of murder by a separate jury or pleads guilty voluntarily.
Someone who pleads “guilty but mentally ill” in South Dakota must be sentenced by a judge, they say.
“The only sentence that can be imposed by a court (judge) under South Dakota law and the United States Constitution, absent a waiver of a right of trial by jury, which James McVay has not done, is life without parole,” the brief states.
The lawyers also say that of the states that both allow the death penalty and explicitly define the parameters of “guilty but mentally ill” as a plea, only four have issued death sentences to defendants who made such a plea.
However, plenty of inmates diagnosed with mental illness have been executed or sit on death row, according to the Death Penalty Information Center.
One of them, Roger Berget, the brother of South Dakota death row inmate Rodney Berget, was executed despite his being diagnosed with bipolar disorder. Roger Berget also attempted suicide before his sentence hearing.
He was executed in Oklahoma in 2000.
The U.S. Supreme Court has ruled that a person diagnosed as “insane” cannot be executed, but mental illness is viewed differently.
“The court has not said mental illness is something that bars a death sentence, but they have said it’s something that should be considered,” said Richard Dieter, director of the DPIC.
Minnehaha County State’s Attorney Aaron McGowan did not comment specifically Thursday on the briefs filed by McVay’s lawyers. No response briefs have been filed.
“The Public Defender’s Office has filed numerous motions that we disagree with that we will respond to and litigate in due course as this case proceeds,” McGowan said.
During a late January hearing in the case, McGowan did take pains to distinguish the mental illness afflicting McVay from that of a person who doesn’t know right from wrong.
McVay’s psychiatrist said the inmate meticulously planned and thought through his bizarre assassination plot during his time in disciplinary segregation and aggravated his mental illness by ingesting shoplifted Robitussin cough syrup and alcohol to induce hallucinations.
“So he stole the cough syrup and the alcohol to conjure up the liquid courage to carry out this plan he’d formulated in the penitentiary?” McGowan asked Dr. Michael Farnsworth during the hearing.
“That may be,” Farnsworth said.
McVay was caught near Madison, Wis., on July 2, 2011, the same day he killed Schein. Detectives used the OnStar tracking system in Schein’s car to track his location.
The inmate had been paroled out of disciplinary isolation into a minimum-security community transition program less than 48 hours before the murder.
He told Judge Peter Lieberman during a hearing last November that he’d spent his time in isolation listening to Rush Limbaugh and Sean Hannity on an AM radio and forming his plot.
Upon his release, he stole a knife, cough syrup and alcohol from Walmart then spent the night under a bridge in Sertoma Park hallucinating and praying to Satan, he said.
He climbed under an open garage door and walked into Schein’s home the following morning, woke her up and cut her throat, then watched her bleed to death before stealing her car.
Farnsworth also said during the January hearing that the inmate clearly is mentally ill but has a calculating nature and understands right from wrong.
In another motion, McVay’s lawyers said that if a death penalty hearing is held, jurors at the hearing should not be allowed to see the interview he gave to a Wisconsin television station shortly after his arrest.
On July 6, McVay was interview by WKOW of Madison’s Tony Galli. He told the reporter he’d planned to kill Obama on the golf course. He also said he had no regrets about killing Schein and that he didn’t care if he died for what he’d done.
“Allowing the state to use the interview, directly or indirectly, would persuade the jury in an unfair and illegitimate way,” the defense lawyers write.
The sentence hearing for McVay currently is scheduled for June 27, but the motions are likely to push back the date. Judge Lieberman has yet to rule on either one.
http://www.argusleader.com/article/2...NEWS/306150024
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