A Washington County woman convicted of starving to death her 7-year-old daughter in 1998 will get a new sentencing hearing.
Michelle Tharp, 45, who was sentenced to death in November 2000, argued to the state Supreme Court that her defense attorney’s failure to present any evidence in mitigation during the penalty phase of her trial prejudiced her when the jury contemplated choosing between life without parole and capital punishment.
The court, in a 60-page opinion written by Justice Max Baer, agreed.
Tharp was accused of starving her daughter, Tausha Lee Lanham, who was born premature in August 1990. According to police, Tharp withheld food from Tausha — though her three siblings were healthy — and during meals, the girl would be locked in a pantry or blocked into a corner of the kitchen with furniture.
Tausha often went without food for two or three days at a time, and neighbors and relatives repeatedly filed complaints with Children and Youth Services.
Tharp found her daughter dead in her bed on April 18, 1998. Instead of calling 911, she and her boyfriend, Douglas Bittinger Sr., loaded the girl and her siblings in the car and ran errands, eventually dumping her body, wrapped in garbage bags, on the side of the road in Follansbee, W.Va.
Tharp and Bittinger then drove back to Ohio and told authorities Tausha had been kidnapped from a mall. Eventually, though, they confessed and directed police to the body, which weighed 11.77 pounds and was 31 inches tall.
At Tharp’s sentencing hearing, former Washington County Common Pleas Judge Paul Pozonsky played a song by country singer John Michael Montgomery about an abused girl, which included the line, “Oh, what a sad little life.”
Tharp’s conviction on first-degree murder was upheld by the state Supreme Court in 2003, and she filed an appeal under the Post Conviction Relief Act in 2005 raising 30 issues. She supplemented the record repeatedly, and Judge Pozonsky held an evidentiary hearing in April 2010 and January 2011.
He ultimately rejected the appeal, and Tharp returned to the state Supreme Court. She contended that her defense attorney at trial, Glenn Alterio, failed to present evidence in mitigation during the penalty phase. Instead, he simply incorporated his client’s own testimony during the guilt phase in which she described abuse she had suffered. He did not call any family members to corroborate it or a psychologist who had completed an evaluation of her.
During the penalty phase, the jury found one aggravating factor — that the victim was younger than 12 years old — and two mitigating factors — that Tharp had no criminal record and another catch-all provision concerning the defendant’s character.
Still, the panel determined that the aggravating factor outweighed the mitigating ones.
During the Post Conviction Relief Act hearing, however, Tharp presented extensive evidence, including a history of mental illness, previous abuse throughout her childhood and adult life, as well as a borderline range for intellectual function.
“Under the circumstances presented, we conclude that there is a reasonable probability that at least one juror at [Tharp’s] trial may have struck a different balance had such mental health mitigation evidence been presented,” Justice Baer wrote.
Paula Reed Ward: email@example.com or 412-263-2620. First Published September 25, 2014 12:00 AM