Recent murder cases put Beach prosecutor on spot

VIRGINIA BEACH

Two weeks ago, Commonwealth's Attorney Harvey Bryant agreed to a plea bargain with the man who gunned down a newlywed outside a Hilltop store - a case that many who espouse eye-for-an-eye justice thought was a perfect candidate for the death penalty.

But these never are easy decisions, said Bryant, who earlier this month unsuccessfully sought the death penalty in another case and is now weighing the possibility in the slaying of undercover police Detective Michael Phillips this summer.

"I tell everyone that the ultimate decision is mine," Bryant said. "Asking a judge or jury to sentence someone to death is a very serious thing. No one is going to take it lightly."

Bryant initially sought Christopher Hagans' death in the Hilltop case but said he reluctantly accepted his offer to plead to the crime if the state wouldn't demand his execution.

Bryant said he had wrestled with whether to seek a capital murder indictment in the case. There was one victim, no eyewitnesses, just strong circumstantial evidence.

On the other hand, Bryant had proof that Elisabeth Kelly Reilly, 25, had been shot in the back as she tried to escape.

The prosecutor said he foresaw defense attorneys arguing after a conviction that Hagans was not a "future danger" because he previously had released the victim in a carjacking case relatively unharmed. Bryant also had to evaluate whether the defense would contend that Hagans had panicked or accidentally shot Reilly during a struggle. Then there was Hagans' youth; he was 20.

Bryant accepted Hagans' offer to plead guilty, he said, because it guaranteed a conviction and brought some finality for the victim's relatives.

The prosecutor said he had a much easier time asking that Marcus Garrett be put to death for killing three people at an Oceanfront condominium in May 2005, even though some of the victims' relatives had asked him to end their ordeal by dropping the demand.

Bryant said he felt that the number of deaths in the case was compounded by the fact that Garrett had calmly moved and shot a total of five people, two of them mothers. He said he believed that Garrett knew what he was doing when he coldly told one survivor that she would be the first to die.

At first, victims' relatives wanted Garrett, 31, executed. But the legal process took an emotional toll. As it dragged on, the mother of one victim told Bryant she would prefer allowing Garrett to get a life sentence if it would end the process.

But Bryant never wavered. He was sure death was the appropriate punishment and argued for it in court.

With his client's life in his hands, attorney Andrew Sacks pored over the evidence, investigating every aspect of Garrett's life. He focused on the defendant's intoxication the night of the crime and his emotional deprivation as a child.

Sacks believed that a judge might better understand Garrett's behavior. He tried to show that his client had snapped and killed his ex-lover and her friends after she told him he might never see their daughter again.

After Garrett expressed his remorse, Circuit Judge A. Bonwill Shockley on Oct. 3 sentenced him to life in prison. The judge said prosecutors had not convinced her that Garrett was likely to murder again.

"Death should be reserved for the worst of the worst," Sacks said. "Being stuck in a box for 23 hours a day is no reward. To some people, I suspect that it might be worse than death itself."

Not all killings qualify for the death penalty. The law gives prosecutors the authority to seek it in homicides that meet 15 specific criteria, such as a premeditated killing during a robbery or rape.

Since parole in Virginia was abolished in 1995, 80 percent of those who fit those criteria have been indicted on capital murder charges. But the death penalty has been sought by prosecutors in about three out of 10 cases, according to a review of the state's capital punishment system by the Joint Legislative Audit and Review Commission.

After a murder conviction, prosecutors who seek a death penalty must convince a judge and jury that the crime was particularly vile and the defendant poses future danger to society.

"I believe its use in limited cases shows the value our society puts on human life," Bryant said. "It is so precious that one who takes life in these limited statutory situations, especially multiple murders, forfeits their own."

He listens to the families of victims, he said, on whether to seek death, then decides.

In the Hilltop shooting, one of Reilly's relatives had wanted Hagans to get the death penalty, or at least a trial so Hagans would know what it felt like to fight for his life, Bryant said. He told the relative he could note his objections to the deal to the judge. That person later decided not to voice his sentiments, Bryant said.

After Hagans received two consecutive life terms plus 15 years, several people told Bryant that although they did not agree with the death penalty, Hagans should have gotten it.

Elisabeth Reilly's mother, Nancy King, was not among those clamoring for Hagans' execution. "I'm not in the business of judging anyone else," King said.

" I think in this case, he got punished to the fullest extent the law allowed," she said.

"Frankly," she said, "there is nothing that can change what happened or make it right."

The last person to be executed for a murder in the city was Michael D. Clagett, who died by lethal injection in 2000. He and his girlfriend, Denise Holsinger, killed four people during a robbery at the Witchduck Inn in 1994. She was sentenced to five life terms plus 23 years.

Bryant said he has not decided whether to seek a capital indictment against the two men accused of killing Detective Michael Phillips during an undercover drug buy on Aug. 7.

Two capital murder cases in Virginia Beach are still awaiting trial. Bryant hasn't said whether he will seek the death penalty if there are convictions in those cases.

"I can't comment on the evidence because of ethical rules," he said. "I can say that each of those cases has two victims and involves multiple gunshots, a distinguishing factor from Hagans."

Duane Bourne, (757) 222-5150, duane.bourne@pilotonline.com