WILMINGTON, Del. — A judge on Wednesday refused to delay this month’s execution of a convicted killer whose attorneys are looking to commute his sentence, arguing the courts have never properly considered the abuse the man suffered as a child as factors against the death penalty.
Robert Gattis, 49, was sentenced in 1992 for the 1990 murder of his ex-girlfriend, Shirley Slay, 27. Prosecutors have said he shot Slay “execution-style” between the eyes in a jealous rage, but he initially claimed that the gun went off accidentally.
His attorneys are planning to pursue a clemency request with the state Board of Pardons, which meets on Monday, and an appeal with the U.S. Supreme Court.
Following a hearing Wednesday, state Superior Court Judge James Vaughn Jr. denied a request for a stay of the Jan. 20 execution. Vaughn said he does not have the authority to grant one to accommodate a Supreme Court appeal. He also declined the stay based on the pardon hearing to commute Gattis’ sentence to life in prison.
The Board of Pardons must recommend to Gov. Jack Markell whether he should grant the commutation request. Under state law, the governor can grant it only if a majority of the five-member board believes it is warranted.
“To my knowledge, no Delaware governor has ever granted clemency to a death-row inmate,” said John Deckers, an attorney who will represent Gattis at the hearing at the state’s maximum security prison in Smyrna.
In the most recent death-row cases, the board — consisting of the lieutenant governor, state treasurer, state auditor, secretary of state, and head judge of the Court of Chancery — rejected clemency requests for convicted killers Tanzil Hameen in 2001 and Brian Steckel in 2005. As state treasurer, Markell sat on both of those panels.
But Deckers and other attorneys representing Gattis say commutation is appropriate for him because the courts have never properly considered the physical and sexual abuse Gattis suffered as a child. In their clemency request filed Tuesday, defense attorneys provided a horrific account of Gattis’ childhood, including repeated anal rape and other molestation by family members, sexual abuse by other boys in his neighborhood, and frequent beatings by his father and stepfather.
“Robert’s years in violent, sexualized family surroundings had a devastating effect on his development, causing profound psychological problems,” they wrote.
Lawyers who represented Gattis at his trial and on appeal immediately after his conviction have submitted affidavits acknowledging that they did not adequately raise those issues. Arguments about Gattis’ abusive childhood were procedurally barred in later appeals because they had not been raised earlier in the case, according to his current attorneys.
The Board of Pardons will allow 90 minutes for Gattis and his attorneys to present their case, which is expected to include testimony from one or more family members. The Department of Justice will have 90 minutes to argue against commutation.
Besides testimony and arguments, the board also will consider a report from the state Board of Parole, which will hold a series of closed-door meetings on Thursday to consider Gattis’ case, a required step before a defendant appears before the pardons board.
Gattis’ attorneys were hoping Vaughn would issue a stay to give them more time to prepare their case for the Board of Pardons, which rejected a defense request to postpone Monday’s hearing until Jan. 16.
“If there was ever a case that was worthy of clemency, this is it,” defense attorney Claudia Van Wyk told Vaughn. “… We are seeking a stay because we want the Board of Pardons and the governor to consider it in a time frame that does not have a short execution date looming over it.”
Van Wyk also noted that Bart Dalton, an experienced trial attorney and former chief deputy attorney general who has offered to assist in Gattis’ clemency request, will not be available for the Jan. 9 hearing.
But deputy attorney general Elizabeth McFarlan argued that there was no need for Vaughn to issue a stay to ensure that Gattis gets a fair hearing.
“If the Board of Pardons wants more time, they will get more time, and the state would not be in a position to do anything about that,” McFarlan assured the judge.