In another rather slow edition, for cases decided from March 27 to April 3, 2006, one win is noted,Nealy v. Dretke, however, that matter is merely a Certificate of Appealability that was granted on sufficiency of the evidence of capital murder.

Perhaps the most significant case this edition, however is a loss. Few people have left as great of a wake of carnage as Gary Ridgway, the so-called "Green River Killer." InWashington State Office of Public Defenseand are also available at Westlaw:WA-SCT-BRIEF.

In news of the week, theBirmingham News again turns to the death penalty, this time noting judicial override had led Alabama to become the leading, state,per capita,in sending to people to death row. In Texas, Senior (state) District Judge Larry Gist signed an order March 28 vacating Marvin Lee Wilson's death warrant in light of further litigation. In North Carolina(more here). The rehearing of the SCOTUS oral arguments inKansas v. Marsh (04-1170) has been reset for Tuesday April 25 at 1 P.M.

Looking ahead, theU.S. Court of Appeals for the Fourth Circuitthis week denied rehearing en banc inRobinson v. Polk, on the issue of how much, if any, Biblical verses should play in capital cases (more here). InRosales vs. Dretkea Fifth Circuit panel remands to the district court on a Batson related claim, this despite the Texas Court of Criminal Appeals holding the issue to be procedurally defaulted. Staying in Texas, Court of Criminal Appeals has ordered additional briefing inEx parte Charles HoodandEx parte Raymond Martineon the ability of jurors in Texas to give effect to the mitigation proffered in those cases in light ofPenry v. Johnson(Penry II) andSmith v. Texas, 543 U.S. 37 (2004).

As always thanks for reading. - k

Archived on the net athttp://capitaldefenseweekly.com/archives/060403.htm

Pending Executions

April18 Richard Thornburg (Oklahoma)

21 Willie Brown (North Carolina)

25 Pedro Sosa (Texas)

26 Daryl Mack (volunteer) (Nevada)

27 Derrick Frazier (Texas)

27 Dexter Lee Vinson (Virginia)

More Execution information

In Favor of Life & Liberty

Nealy v. Dretke, 2006 U.S. App. LEXIS 7481 (5th Cir 3/27/2006) COA granted on sufficiency of capital murder.

Favoring Death

Hedrick v. True, 2006 U.S. App. LEXIS 7904 (4th Cir 3/31/2006) (dissent) Relief denied on claims relating to whether: (1) he received ineffective assistance of counsel; (2) the government failed to disclose information favorable to Hedrick in violation of Brady v. Maryland; and (3) mental retardation. Dissent over whether the issue of Hedrick's mental retardation was procedurally defaulted.

Williams v. Stewart, 2006 U.S. App. LEXIS 7550 (9th Cir 3/27/2006) Relief denied on numerous claims including: (A) failure to compel material witnesses to appear at a sentencing hearing; (B) suggestiveness of pretrial identifications; (C) Miranda; (D) other bad acts evidence' (E) prosecutor engaged in misconduct by submitting false evidence to the grand jury; (F) judicial misconduct on account of the trial judge's display of bias and hostility; (G) jury selection was unduly "restrictive in scope;" (H) IAC "when his appointed counsel failed to challenge false grand jury testimony and to provide the time, money, and assistance needed to represent him;" (I) failure to fund "expert mental health assistance that was needed to prepare a defense;" (J) trial court's determination not to fund certain investigations when the defendant asserted factual innocence; (K) sufficiency and (L) failure of trial court to consider mitigation evidence.

State v. Cross, 2006 Wash. LEXIS 268 (Wash 3/30/2006) (dissent) The Washington Supreme Court the court sharply and divisively splits on the issue of proportionality. Gary Ridgway, in the guise of his personae of the "Green River Killer" murdered dozens. Cross, who has a long history of mental illness, killed three people. Ridgway received a life sentence, albeit without parole. Cross got death. Note that there is also an interestingPenry IIissue &Bush v. Goreissue.

State v. Mitchell, 2006 Ohio 1601 (2nd Ohio App. 3/31/2006) Relief denied holding the trial court properly granted the state's motion to dismiss a successive petition for postconviction relief. The new rule of law upon which the petitioner sought to rely did not apply retroactively.

Martinez v. Dretke, 2006 U.S. App. LEXIS 7993 (5th Cir 3/31/2006) Relief denied on numerous claims relating to whether: counsel was ineffective when they failed to argue that Casey Ashford was an accomplice witness; counsel's performance in the penalty phase by calling just two witnesses; "jury instruction that did not perfectly track the mitigation special issue;" application of Ring to the Texas special question regime; and "jury instruction on the special issue of future dangerousness fails to give the jury sufficient guidance in understanding the term "'probability'."

State v. Riels, 2006 Tenn. Crim. App. LEXIS 273 (Tenn Crim App 3/31/2006) Relief denied on claims including: "(1) whether the trial court erred by overruling his motion to suppress, (2) whether the trial court erred by permitting the State to cross-examine him regarding the circumstances of the offenses, (3) whether the trial court erred by permitting the introduction of a post-mortem photograph of one of the victims, (4) whether the trial court's instruction that the appellant's prior offenses were offenses whose statutory elements involved the use of violence violated the United States Constitution, (5) whether the trial court's instruction on victim impact evidence constituted a coercive jury instruction, and (6) whether Tennessee's death penalty scheme is unconstitutional."

State v. Johnson, 2006 Ore. LEXIS 226 (Ore 3/30/2006) Relief denied on numerous issues including those relating to: (1) search & seizure; (2) motions to exclude statements; (3) motion to suppress subpeonaed records; (4) Rule 404(b) / prior bad acts evidence; (5) hearsay; (6) Defendant's request for appointment of new counsel; (7) motion for access to law library, legal materials & other resources; (8) challenges to indictment; (9) voir dire; & (10) motion for judgment of acquittal.

Other

Yee v. Duncan, 2006 U.S. App. LEXIS 7553 (9th Cir 3/28/2006) In a sexual assault case the People repeatedly struck men from the venire. The prosecutor couldn't remember any reason why she struck one of the male jurors. As precedent requires where that absent a permissible explanation by the prosecutor relief be granted, writ issues. [ Shaun Martinhas more here.]

LeClerc v. Webb, 2006 U.S. App. LEXIS 7544 (5th Cir 3/27/2006) (en banc denied) Seven judges dissenting from the Fifth Circuit's denial of rehearing en banc on the constitutionality of Louisiana's court rule barring most foreign born attorneys. This court rule was

specifically aimed at foreign-born capital defense counsel.

Selected Excerpts from this Edition's Cases

State v. Cross, 2006 Wash. LEXIS 268 (Wash 3/30/2006) The Washington Supreme Court the court sharply and divisively splits on the issue of proportionality. Gary Ridgway, in the guise of his personae of the "Green River Killer" murdered dozens. Cross, who has a long history of mental illness, killed three people. Ridgway received a life sentence, albeit without parole. Cross got death.

Majority Opinion

Since Cross's trial, the Green River Killer, Gary Ridgway, was caught, prosecuted, [*55] and sentenced to life in prison. We cannot begin to calculate the harm his abhorrent murders caused. The fact he will live out his life in prison instead of facing the death penalty has caused many in our community to seriously question whether the death penalty can, in fairness, be proportional when applied to any other defendant.

We do not minimize the importance of this moral question. But it is a question best left to the people and to their elected representatives in the legislature. Under the United States Constitution (the only constitution plead here), Washington's death penalty is constitutional and nothing about Gary Ridgway changes that.

It may be that there will always be aberrations like Ridgway. We do not believe that these horrific aberrations make a statute unconstitutional. We look at the entirety of first degree aggravated murder prosecutions, not just at whether any particular case is within an order of magnitude of the worst we have known. RCW 10.95.120.

We do not agree with those who say that no rational explanation exists for Gary Ridgway escaping a death sentence and Dayva Cross not. See generally Matthew R. Wilmot, Note, [*56] Sparing Gary Ridgway: The Demise of the Death Penalty in Washington State? 41 Willamette L. Rev. 435 (2005). Ridgway was spared because a highly respected, honorable, and thoughtful prosecutor made the decision to stay the hand of the executioner in return for information that would otherwise have died some midnight within the walls of the state penitentiary. The information received in return for a life sentence allowed so many families to, at long last, know what happened to their loved ones. While many may disagree with that prosecutor's decision, no one should deny that it was highly rational.

126 Wn.2d at 210-11; Under Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and its progeny, the death penalty is constitutional only if it is properly constrained to avoid freakish and wanton application. See generally Gregg v. Georgia, 428 U.S. 153, 169, 173, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). To be constitutionally valid, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to[*57] minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189. We have repeatedly held that our statutes meet this standard. They properly constrain prosecutorial discretion in seeking the death penalty; they properly direct the jury to consider appropriate factors; and they provide for meaningful mandatory appellate review in every case. See Brett,State v. Rupe, 101 Wn.2d 664, 697-701, 683 P.2d 571 (1984) (Rupe I); cf. In re Pers. Restraint of Brown, 143 Wn.2d 431, 460, 21 P.3d 687 (2001).

Our proportionality review is only one way Washington State law prevents arbitrary and capricious application of the death penalty. Other statutory protections may be just as effective.

First, the death penalty may only be sought in the most egregious of killings. RCW 10.95.020. This limitation does much to constrain the possibility of arbitrary and capricious application. Second, the prosecutor is instructed to seek the death penalty only when "there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(1)[*58] . That requires the prosecutor to consider seriously whether, in any particular case, it would be inappropriate to seek the sentence at all. Third, the State bears the heavy burden of convincing all 12 jurors that the death penalty is appropriate. RCW 10.95.060(4). Unanimity sets a high threshold. Fourth, Washington juries are informed that if they do not recommend a death sentence, the defendant will automatically be sentenced to life in prison without the possibility of parole. RCW 10.95.030(1), .080(2). This assures the jurors that if they exercise mercy, a brutal killer will not someday be set free. Fifth, the jurors are asked whether they are "convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.060(4). This gives the defense considerable opportunity to plead for mercy on any theory they can conceive or that the facts support. Sixth, jurors are specifically instructed to consider eight separate, but nonexclusive, criteria in deciding whether mercy is warranted. RCW 10.95.070. This ensures that jurors'[*59] will have their attention drawn to specific reasons to exercise mercy. Seventh, we collect data on all death-eligible convictions. RCW 10.95.120. This allows us and other interested parties to analyze the actual patterns and practices of capital sentencing. Finally, the legislature has directed this court to review all death sentences, whether or not the defendant would otherwise appeal, to independently review the evidence supporting a death sentence and to determine whether the sentence is disproportionate. RCW 10.95.100, .130. Should a death penalty be the result of arbitrary and capricious conduct, the defendant will have a meaningful opportunity to get relief from the highest court in the state.

Ridgway's abhorrent killings, standing alone, do not render the death penalty unconstitutional or disproportionate. Our law is not so fragile. But his killings are not irrelevant to our analysis, and will be considered as part of our statutorily mandated review of every future death penalty case.

B. BUSH V. GORE

Cross also argues that the statute delegates too much authority to local prosecutors to decide who is eligible[*60] for the death sentence. This is a variant of arguments made to this court many times. E.g., Benn, 120 Wn.2d at 667 (rejecting argument and collecting cases); Rupe I, 101 Wn.2d 664, 683 P.2d 571 (grant of discretion to prosecutors does not result in standardless application); cf. Gregg, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (affirming constitutionality of Georgia's death penalty).

Since we decided these cases, the United States Supreme Court has looked disapprovingly at the various exercises of discretion by county officials in applying state law. See Bush, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388. In Bush, the Supreme Court halted ballot recounts that would have been done under procedures outlined by the individual counties. The court explicitly stated it was not deciding whether counties could have different standards, but whether a state supreme court with the power to mandate uniformity erred in failing to require uniformity. Id. at 109. While the Supreme Court attempted to severely limit the scope of its holding, id., it has obvious implications every time state law vests discretion in the hands of county officials. [*61] It is clear to us that counties in Washington do have different standards for when they seek the death penalty, given the distribution of cases across the state.

But we have already found that this prosecutorial discretion does not offend equal protection.

[T]he grant of discretion to prosecutors does not result in a standardless death penalty statute. The court may assume that prosecutors exercise their discretion in a manner which reflects their judgment concerning the seriousness of the crime or insufficiency of the evidence. Consequently, the prosecutor's decision not to seek the death penalty, in a given case, eliminates only those cases in which juries could not have imposed the death penalty. We believe that this analysis accurately portrays the function prosecutorial discretion plays in our death penalty statute. This discretion is not unconstitutional.

Rupe I, 101 Wn.2d at 700; accord State v. Campbell, 103 Wn.2d 1, 26, 691 P.2d 929 (1984).

On the other hand, underlying Bush is the principle that regularity in some things is too important to leave to the discretion of county officials. Reasonably, it is more important [*62] to establish regularity in the imposition of the death penalty than the method of recounting ballots. Mistakes made in the former are permanent and irreversible, while mistakes in the latter have only a temporary effect that can be corrected. When this court decided previous cases, this principle had not been so clearly pronounced. E.g., Rupe I, 101 Wn.2d at 700.

However, at this time, we decline to apply the principles annunciated in Bush outside of election law. The Supreme Court clearly indicated it did not intend application outside of that narrow realm. Bush, 531 U.S. at 109. There are good reasons to vest this discretion in the hands of local officials in the local area. Cross has not established that doing so here was constitutional error. n14

Dissenting Opinion

The majority abandons any rational attempt to fulfill our statutory responsibility to conduct a proportionality review, effectively rendering the statutory duty meaningless. Properly recognizing and analyzing what has happened in the administration[*90] of capital cases in this state inevitably leads to the conclusion that the sentence of death in this case, and generally, is disproportionate to the sentences imposed in similar cases. Contrary to what we had expected to find when we established an analytical framework to conduct our statutory review, that the worst of the worst offenders would be subject to the death penalty, what has happened is the worst offenders escape death. When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not "stand alone," as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty.

Our task in conducting a proportionality review as provided under RCW 10.95.130(2)(b) requires us to determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." "Similar cases" is defined within the statute as all "cases reported in Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge[*91] or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120." RCW 10.95.130(2)(b). RCW 19.95.120 requires the trial court to file a report "[i]n all cases in which a person is convicted of aggravated first degree murder." Thus, the pool of cases we review includes all aggravated murder convictions. One commonality exists in these cases: they are all the worst existing crimes. Proportionality review is intended to provide a basis to explain how a sentence of death rationally compares to the other cases in the pool. Reviewing the history of this court's proportionality review reveals how the administration of capital cases defies any rational analysis.

Since the enactment of the statute in 1981, our proportionality jurisprudence has embodied many analytical forms. We first characterized the objective of proportionality review on appeal as "to assure that 'wholly arbitrary, capricious, or freakish sentences' are minimized." State v. Campbell, 103 Wn.2d 1, 30 n.2, 691 P.2d 929 (1984).[*92] However, even with this goal in mind, we did not articulate the method by which we were to minimize the imposition of arbitrary or freakish sentences through this proportionality review. In conducting our proportionality review in Campbell, we found no other case where four aggravating factors were present. Thus, rather than comparing Campbell's case with "similar cases" as required under the statute, we concluded that these circumstances "would, with great frequency prompt a jury to impose the death penalty." Campbell, 103 Wn.2d at 30.

Shortly after Campbell, in State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722 (1986), we concluded that proportionality review under RCW 10.95.130(2)(b) does not include cases where the prosecutor did not seek the death penalty. We compared Jeffries' sentence of death with the sentences imposed in four other cases: State v. Rupe, n1 State v. Bartholomew, n2 State v. Hawkins, n3 and State v. Quinlivan. n4 Without significant explanation, we concluded that "[t]hese four cases strongly establish that the death penalty here is not disproportionate." Jeffries, 105 Wn.2d at 430.[*93]

In State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986), we noted that the proportionality statute provides "little guidance to determine at what point a death sentence becomes proportionate or disproportionate." However, we turned to Georgia's interpretation of its own proportionality statute, which is identical to Washington's statute, as a useful guideline. The test for proportionality in Georgia is to determine whether[*94] death sentences have been imposed "generally" in similar cases.

"[T]his court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generallyand not 'wantonly and freakishly imposed,' . . . "

Harris, 106 Wn.2d at 798 (quoting Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829 (1975)). We adopted this standard and have generally employed it in our subsequent proportionality reviews.

In 1987, contrary to what we said in Jeffries, we included in the pool of comparable cases all cases in which the defendant was convicted of first degree aggravated murder. In State v. Rupe,108 Wn.2d 734, 743 P.2d 210 (1987) ( RupeII) we stated, "'similar cases' include cases where the defendant was convicted of first degree aggravated murder regardless of whether the death penalty was sought and imposed." 108 Wn.2d at 767. RupeII represented[*95] a significant step in our proportionality review. In that case, we singled out a number of cases that presented at least two of the three aggravating factors present in the case before us. After comparing Rupe's case with eight other cases, n5 we concluded that "we do not find any characteristics about Rupe's crime, nor a lack of characteristics found in similar crimes, which suggest that the death penalty is excessive or disproportionate in Rupe's case." RupeII, 108 Wn.2d at 769-70.

In State v. Lord, 117 Wn.2d 829, 907-14, 822 P.2d 177 (1991), we reviewed the history, impetus, and purpose of the proportionality statute. Acknowledging again that there is no clear test or guidance[*96] given to the court in the text of the statute, we concluded that our proportionality statute serves to prevent caprice in deciding whether to impose the death penalty, and, while not constitutionally required, it "provides a safeguard against arbitrarily imposed death sentences." Lord, 117 Wn.2d at 908. In this process, however, we did not require precise uniformity. "Our review is not intended to ensure that there can be no variation on a case-by-case basis, nor to guarantee that the death penalty is always imposed in superficially similar circumstances." Lord, 117 Wn.2d at 910. We characterized our comparison of similar cases as a search for "family resemblances."

In State v. Benn, 120 Wn.2d 631, 678-93, 845 P.2d 289 (1993), we conducted the most extensive search for first degree aggravated murder cases. After a survey of 31 cases from the trial court reports, we selected a pool of comparable cases in the same "genus or family" as Benn's n6 and concluded that this group of similar cases did not contain an arbitrary frequency of life without parole sentences over the death sentence.

In State v. Brett, 126 Wn.2d 136, 212, 892 P.2d 29 (1995) (conviction vacated and remanded in In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001)), we characterized proportionality review as providing "a 'check' or 'additional assurance' against arbitrary imposition of the death penalty." We noted our struggle in the past in conducting proportionality review and attributed this difficulty to attempting to define "similar cases" without adopting standards requiring mathematical identity. Additionally, we acknowledged that we had struggled to define what makes a case proportional. We stated that proportionality review continues to broaden in approach, and we focused on two systemic problems in death sentences: random arbitrariness and sentences based on the defendant's race.

In State v. Pirtle, 127 Wn.2d 628, 687, 904 P.2d 245 (1995), ( rev'd in part and remanded in part sub nom.Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002), we abandoned Lord's "family resemblance" test, stating the approach "grew somewhat unwieldy as more and more cases were reported" and "the result was dependant on the cases selected" [*98] for comparison. . In proportionality review, "we assume [cases] can be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors." Pirtle, 127 Wn.2d at 686. When determining whether Pirtle's death sentence was excessive or disproportionate to the penalty imposed in similar cases, we articulated the proper review as follows:

In reviewing an individual case, we look for disproportionality. We are not concerned with whether a given crime can be matched with one or more of the fifteen other death penalties. Instead, our job is to weed out those cases in which the crime and the defendant's mitigation most closely match the less serious of the 129 cases which did not result in death.

Pirtle, 127 Wn.2d at 686 (emphasis added). In considering the defendant and the crime, we employed four factors in our examination: (1) the nature of the crime, (2) the aggravating factors, (3) the defendant's criminal history, and (4) the defendant's personal history.

In State v. Elmore, 139 Wn.2d 250, 308, 985 P.2d 289 (1999) (quoting State v. Brown, 132 Wn.2d 529, 555, 940 P.2d 546 (1997)),[*99] we reaffirmed that our objective in proportionality review is to determine whether "death was imposed ' generallyin similar cases, and not imposed wantonlyand freakishly.'" Unlike our review in Pirtle, however, we stated that "[i]f the facts of Elmore's case are similar to some of the facts taken from cases in which the death penalty was upheld, the proportionality review is satisfied." Elmore, 139 Wn.2d at 308. We then employed the four factors set out in Pirtleto analyze the defendant and the crime in relation to similar cases, comparing Elmore's case to only those cases in which the death penalty was imposed. Six of the cases we relied on for proportionality review had previously been vacated on appellate review. However, we stated that our reliance on these cases was appropriate because none of them was overturned based on proportionality.

In State v. Elledge, 144 Wn.2d 62, 79-80, 26 P.3d 271 (2001), we again rejected the argument that we should include only cases in which the death penalty was ultimately affirmed in our review of "similar cases," relying on Elmore. In Elledge, the defendant was convicted of first[*100] degree aggravated murder for strangling and stabbing a woman after binding her wrists and ankles, and the jury imposed the death penalty. In comparing the nature of the crime with other "similar cases," we stated that "Elledge's crime was at least as vicious and brutal as others in which the death penalty was imposed," relying on Rupe, Benn, and Harris. Elledge, 144 Wn.2d at 81. Although there was only one aggravating factor present, we did not find Elledge's case disproportionate on this basis, citing to State v. Gentry, n7 Harris, and Bennin which the death penalty was upheld where one aggravating factor was found. Elledge had an extensive criminal record, including one first degree murder conviction, which we found to be "among the most extensive of any within the pool of similar cases." Elledge, 144 Wn.2d at 83. No mitigating factors were presented.

Despite the different analytical forms we have employed in our proportionality review since the enactment of RCW 10.95.130(2)(b) in 1981, the ultimate objective of our search for "similar cases" has consistently been to achieve our statutory mandate to determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases." In accomplishing this task, we must put a particular case in context; our review is to assure us that the sentence of death is somehow quantifiable or comparable in view of all the other cases where the sentence of death was imposed or where an individual was convicted of first degree aggravated murder. In executing this comparative review, as stated in Pirtle, we expect to find that our pool of comparable cases can "be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors." 127 Wn.2d at 686.

Since chapter 10.95 RCW was enacted, four people convicted of aggravated murder in the first degree have been sentenced to death and executed. Three of the individuals executed chose not to pursue the avenues[*102] of appeal available to them. In addition, one individual who had been sentenced to death committed suicide while incarcerated. Several individuals are currently sitting on death row awaiting the exhaustion of their appeals. There are approximately 268 trial court reports on file with this court for individuals convicted of first degree aggravated murder.

As stated above, from our discussion in Pirtle, we assume the individuals sitting on death row constitute the far end of the spectrum, representing the most serious offenders who committed the most atrocious crimes in our state. However, a review of the current pool of cases reveals serious problems with the administration of our state's capital cases. Contrary to what we expected to find in the "spectrum" of serious cases, we now see that the most serious offenders either pleaded guilty and escaped the death penalty or were not sentenced to death by a jury.

Gary Ridgway is the most prolific serial killer in our state's history. In 2003, he pleaded guilty to 48 counts of first degree aggravated murder. He killed mainly prostitutes and runaways, often strangling them, dumping their bodies to return later to rape their corpses. [*103] Ridgway's plea was part of an agreement forged with prosecutors in which he agreed to help locate the remains of the women he killed in order to escape the death penalty. He was sentenced to life without the possibility of parole. n8

If the Ridgway case was the only case at the far end of the spectrum, perhaps his penalty of life in prison rather than death could be explained or dismissed. Ridgway, however, is not the only case in which a mass murderer escaped death. Benjamin Ng killed 13 people, resulting in 13 convictions of first degree aggravated murder. The aggravating factors found in his case were: the murders were part of a common scheme[*104] or plan, there was more than one victim and the murders were committed in the course of a robbery. Ng hog-tied his victims prior to shooting them execution style. Mitigating factors presented to merit leniency were diminished capacity, Ng's youth, and lack of a prior criminal record. The jury could not unanimously agree to impose the death penalty, and Ng was sentenced to life in prison without the possibility of parole.

In addition to Ridgway and Ng, who were not initially sentenced to death, over the course of time an overwhelming number of the cases we have relied on as "similar cases" where death was imposed for the purposes of proportionality review have been vacated on appeal. The death penalty has not been imposed on remand in any of these cases even though a number of them constitute the most atrocious crimes by the most serious offenders. Since the enactment of the existing death penalty statute in 1981, juries have imposed the penalty of death in 31 cases where an individual was convicted of first degree aggravated murder. However, in 19 of those 31 cases the conviction or sentence has been vacated by either the Washington State Supreme Court or by federal courts. In at[*105] least 13 cases, the individual was resentenced to life without the possibility of parole on remand. n9 Several cases are still pending in superior courts. One of the 19 individuals was released, n10 and one committed suicide. n11 Even though our previous cases have relied on cases where the death penalty was not reimposed, the fact remains that these cases are, or should be, placed at the far end of the most extreme crimes for purposes of our comparison. These cases no longer involve the death penalty.

Among those retried and sentenced to life without parole are two individuals convicted of killing three or more persons. Kwan Fai Mak, Ng's codefendant, committed 13 murders and was sentenced to death in the sentencing phase of his first trial. [*106] However, Mak was sentenced to life without the possibility of parole after his sentence was vacated and a new sentencing proceeding was held. David L. Rice was convicted of four counts of first degree aggravated murder. His conviction and sentence of death were overturned by the Ninth Circuit Court of Appeals, Rice v. Wood, 44 F.3d 1396 (9th Cir. 1995). Rice subsequently pleaded guilty and was sentenced to life without the possibility of parole. Again, the State elected not to seek the death penalty on remand.

Robert Yates pleaded guilty to 13 counts of premeditated first degree murder, not aggravated murder, in Spokane County pursuant to an agreement with prosecutors. Yates pleaded guilty in order to escape the death penalty. Like Ridgway, Yates was a serial killer who preyed on prostitutes. He hired prostitutes for sex then shot them in the head and stole their money. In addition to his convictions in Spokane County, Yates was later convicted of two counts of first degree aggravated murder in Pierce County where the prosecutor sought and the jury imposed the death penalty. Thus, the only trial court report on file by which we can conduct our proportionality review[*107] under the statute is for the two aggravated murder convictions in Pierce County. Though aggravating factors were apparently present, the prosecutor in Spokane County allowed Yates to plead guilty to 13 counts of premeditated first degree murder, rather than first degree aggravated murder, therefore the Spokane County case is not included under the statute. It is well established that prosecutors exercise their discretion in determining whether to pursue the death penalty in any aggravated murder case and for plea bargaining or other reasons they may not seek capital punishment. The exercise of this discretion however has inhibited our ability to conduct a meaningful proportionality review. No cases exemplify this problem more than those of Ridgway and Yates.

We have continually grounded our proportionality review on the principles set forth in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), construing it as an additional safeguard to ensure that the death penalty is not imposed arbitrarily or capriciously. In Harris, we stated that "[t]he impetus for proportionality review derives from the Supreme Court decision in Furman. . . [*108] " 106 Wn.2d at 797. Additionally, in Lordwe declared that our concern in conducting proportionality review is "with alleviating the types of major systemic problems identified in Furman: random arbitrariness and imposition of the death sentence based on race." Lord, 117 Wn.2d at 910. Thus, Furmanpresents the bedrock principles underlying our statutory review. To ensure that the sentence of death is not arbitrarily or capriciously imposed as required under Furman, we perform our proportionality review to determine whether "the death penalty has been imposed generallyand not 'wantonly and freakishly imposed.'" Harris, 106 Wn.2d at 798 (quoting Moore, 233 Ga. at 864).

As the above discussion of our proportionality jurisprudence indicates, our appellate review as required by RCW 10.95.130(2)(b) has not only evolved but has continued to limit the focus of comparison to other death penalty cases. This approach ignores the statutory mandate to include all cases in which the defendant was convicted of first degree aggravated murder as "similar cases" for comparison. When we factor[*109] in all the cases required by statute and review the outcome of our previous cases, no rational basis exists to explain or conclude that the sentence of death in any given case is imposed generally in similar cases. Not only have we not generally included all cases where the defendant has been convicted of first degree aggravated murder in our review, the majority of the death penalty cases we have declared to be "similar" for comparison in proportionality review are no longer death penalty cases. Where, in previous cases our analysis has focused on "similar" cases where the death penalty was imposed, when those "similar" cases are no longer death penalty cases, our prior comparability analysis is undermined. This outcome renders it impossible to find that the death penalty is imposed generally in similar cases and leads to the conclusion that our historical approach to proportionality review is no longer viable.

With Ridgway, Mak, Ng, Yates, Rice, and others in our pool of similar cases, our proportionality review reveals the staggering flaw in the system of administration of the death penalty in Washington. As stated earlier, the dual objectives of our proportionality review are[*110] to proscribe random arbitrariness in the imposition of the death penalty and to ensure that the sentence of death is not imposed because of a defendant's race. We accomplish this object through conducting a proportionality review to guarantee that "no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generallyand not 'wantonly and freakishly.'" Harris, 106 Wn.2d at 798 (quoting Moore, 233 Ga. at 864). Comparing Ridgway, Mak, Ng, and Rice with the imposition of the death penalty in Dayva Cross's case, and including all other cases required by that statute as similar cases, the penalty of death is not imposed generally in similar cases.

These cases exemplify the arbitrariness with which the penalty of death is exacted. They are symptoms of a system where statutory comparability defies rational explanation. The death penalty is like lightening, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Ben Ng, and Kwan Fai Mak, who represent the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed? No[*111] rational explanation exists to explain why some individuals escape the penalty of death and others do not.

THE SMALL PRINT

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