What prompts county to seek death penalty?

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On March 11, 2013, David Mazzocco shot three people in a bar in North Fayette, killing one and injuring two. The Allegheny County district attorney's office sought a first-degree murder conviction but did not pursue capital punishment.

On Feb. 28, 2013, Dorian Peebles and James Lawrence, according to police, shot two people who had just left a bar in Beltzhoover, killing one and injuring the other.

The district attorney announced months after charges were filed that he would seek the death penalty against both men.

Now, their defense attorneys want an explanation of why the DA pursued capital punishment against their clients, who are both black, but not against Mazzocco, who is white. They also cited two other recent high-profile cases involving white men.

Last week, Thomas N. Farrell, who represents Mr. Peebles, and Richard Narvin, who represents Mr. Lawrence, argued a motion before Common Pleas Judge Edward J. Borkowski explaining why they feel they are entitled to the specific details of how the prosecution makes such selections.

The DA's office has said that race plays no role in how the decision is made and further that the defense has failed to show any pattern of discrimination. Therefore, prosecutors contend, the defense is not entitled to the information it is seeking.

Judge Borkowski took the matter under advisement.

According to records provided by the DA's office, the death penalty has been sought in Allegheny County against 28 defendants since 1998. Of those defendants, 10 were white, and 18 were black.

It has been imposed in nine of those cases -- five times against white defendants, four times against black.

There are currently six death penalty cases pending -- five against black men, one against a white man.

Advocates against capital punishment have said that it seems Allegheny County is seeking death more often than it has in the past.

In Pennsylvania, Philadelphia files notice in more than 25 homicide cases each year, said Marc Bookman, who heads the Atlantic Center for Capital Representation.

"Pittsburgh has always been a city of restraint when seeking the death penalty, and that seems to be changing quickly."

But Stephen A. Zappala Jr., the county's district attorney, disagreed.

"I don't have that feeling. Every particular case is fact specific," he said. "I think we've been very consistent."

Among the cases where death is often sought in Allegheny County, Mr. Zappala said, are those that involve victims who are law enforcement officers, children, senior citizens or in cases with multiple victims.

According to investigators, Mr. Peebles and Mr. Lawrence were at Red's Bar in Beltzhoover when they had a dispute with people inside.

A short time after they left, a witness told police he was driving a car with Mr. Peebles and Mr. Lawrence when he was ordered to pull over. He did, and police said Mr. Lawrence and Mr. Peebles got out and started firing at the people from the bar.

They are accused of killing Tiona Jackson, 28, and seriously injuring a man with her.

"You have to look at the case first -- what this case is about," Mr. Farrell said. "What we're asking the commonwealth is: Why this case?"

'Aggravating factors'

Under Pennsylvania law, there are 18 aggravating factors that can permit imposition of the death penalty.

In the case involving Mr. Peebles and Mr. Lawrence, the DA's office cited three. They included that Jackson was killed during the commission of another felony, that the defendants created a grave risk of death to another, and that they have a "significant history" of violent felony convictions.

To be sentenced to death, a jury must find, unanimously, that at least one aggravating factor was proved beyond a reasonable doubt, and that it is not outweighed by any mitigating factors.

In the case of Mr. Lawrence, the DA's office is additionally seeking capital punishment in another case in which he is charged.

On March 30, police said Mr. Lawrence and another man were called by Samantha Powe, who was on a party bus early that morning and had a confrontation with people on the bus. Police said Mr. Lawrence met the bus in Sheraden and that he shot and killed a man involved in the confrontation.

Ms. Powe was later found shot to death in Homewood on July 16.

Mr. Farrell said his client, Mr. Peebles, had nothing to do with the party bus shooting, and he wondered why, based only on the circumstances of the Red's Bar shooting, the DA would seek the death penalty.

"I'm concerned about this. The district attorney's office of Allegheny County has a very excellent reputation of making sure they're very selective," he said.

During Thursday's hearing, Mr. Farrell listed for the court three recent cases in which capital punishment was not sought, even though aggravating factors could have applied. They included those against Mazzocco, Ken Konias and Robert Ferrante.

In the Mazzocco case, Mr. Farrell said the circumstances of the crime were very similar to those alleged against Mr. Peebles. Mazzocco was at the Fort Pitt Inn in North Fayette the night of March 11, 2013, and he was angry about a text message exchange he had with his girlfriend.

He went out to his truck, retrieved three guns, walked back into the bar and started shooting, randomly choosing his victims. James Adams, 29, who worked as a karaoke DJ at the bar, was killed. Joseph Quirk was blinded and left partially deaf.

A jury found Mazzocco guilty of first-degree murder, and he was sentenced last week to life in prison without parole plus 20 to 40 years.

In the case of Konias, he was found guilty of first-degree murder for killing his fellow armored car guard inside their work truck on Feb. 28, 2012, and then stealing more than $2 million. He, too, was sentenced last week to life without parole plus 10 to 20 years.

In the Ferrante case, which is still pending, the UPMC researcher is accused of killing his wife with cyanide on April 20, 2013.

Mr. Farrell, who submitted a letter to the lead prosecutor seeking records dating back three years -- including the race of the defendants for whom death was sought and for whom it was not -- noted that in the three examples he provided, the defendants were all white.

'You look at the evidence'

Assistant district attorney Robert Schupansky said during Thursday's hearing that to obtain the information Mr. Farrell was seeking, he had to show both a discriminatory intent and discriminatory effect in how death decisions were made.

The prosecutor said all of Mr. Farrell's cases were of "non-similarly situated individuals.

"There's been not one iota of proof presented at all of discriminatory intent," Mr. Schupansky said. "There's no evidence that anything related to race played any role in these decisions."

Mr. Zappala agreed.

"We're not talking about statistics. These are human beings," he said. "You look at the evidence of a particular case, and I try to apply that consistently with previous times we sought the death penalty."

When he evaluates a case, Mr. Zappala said he doesn't know the race of the victims or defendants.

In an interview on Friday, he explained the reasons why capital punishment was not sought in any of the cases cited by Mr. Farrell.

In the Mazzocco case, the prosecutor said, the defendant had a significant mental health history. In the Konias case, the victim's family asked that the death penalty not be pursued.

As for the Ferrante case, Mr. Zappala said he considered it.

"I, personally, thought that the torture aggravating factor could apply, but the courts have said it does not."

At the hearing, Mr. Narvin, who represents Mr. Lawrence, asked to join in Mr. Farrell's motion.

"The factual circumstances in this case are so different than the normal capital case," he told Judge Borkowski.

"That begs the question -- what is a normal capital case?" the judge asked.

A short time later, Mr. Narvin answered.

"The particular incident is so heinous as to distinguish itself from the 100 or so homicides that come through here each year, and that the perpetrator is such that the state would want to kill that individual.

"Overall, if you look at the individual cases here, I don't think you have those things."

As for Mr. Lawrence, he currently has additional charges pending for drugs, fleeing from police and possessing illegal body armor.

He was previously charged with attempted homicide from an incident on Aug. 4, 2010. In that case he was found not guilty in a nonjury trial.

When asked if Mr. Peebles -- whose previous adult charges included only a misdemeanor simple assault and a possession of marijuana charge -- got swept up in the death penalty issue because of Mr. Lawrence's background, Mr. Zappala said, "There's overlap in their individual and collective conduct."

While prosecutors often use plea deals to leverage co-defendants to testify against each other, Mr. Zappala said that does not happen in homicide cases.

"Just as a general proposition, murder cases have to [go to trial]," he said. "Ethically, I can't hold the death penalty over somebody's head to try to negotiate a plea -- whether for that guy or somebody else."

Whether Mr. Farrell's claims about potential discrimination in how the death penalty is applied has merit, he is obligated to broach them, said Jules Epstein, who teaches at the Delaware campus of Widener University's School of Law.

"In a capital case, a defense attorney has to raise every issue that has some foundation in the record," he said. "Without suggesting the prosecutor's office did act inappropriately, when a defense lawyer sees this kind of disparity, it's fair to ask why."


Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.

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