DOVER, Del. — The state Board of Pardons is recommending that Gov. Jack Markell grant clemency to a man facing execution this week for the 1990 murder of his former girlfriend.
The state is scheduled to execute Robert Gattis, 49, by lethal injection on Jan. 20.
But the Board of Pardons announced Sunday that it had voted 4-1 that the Democratic governor commute Gattis’ death sentence to life in prison without parole, provided that Gattis agrees to spend the rest of his life in prison and not seek further appeals or pardons.
“The governor will consider the board’s written decision and carefully review the case,” Markell spokeswoman Cathy Rossi said in a prepared statement. Rossi gave no timetable for when Markell will make his decision.
Gattis was sentenced to death in 1992 for the murder of Shirley Slay, 27, who was shot between the eyes at close range after years of physical abuse by Gattis. Prosecutors argued at trial that Gattis shot Slay execution-style in a fit of jealous rage, while Gattis maintained for years that her death was an accident.
Gattis has exhausted state and federal court appeals, but his lawyers told the pardons board that commutation was appropriate because the courts never considered the sexual abuse Gattis now says he suffered as a child, and that the courts did not have a full appreciation of the physical abuse he suffered.
“In considering the full record, we accept that if even half of what has been submitted about Mr. Gattis’s childhood is true, he was victimized physically, emotionally, and sexually by family members who owed him a duty of care,” the board said in its decision. “There is evidence in the record that Mr. Gattis complained to medical professionals of mental illness and involuntary violent impulses over a year before Ms. Slay’s murder. Although Mr. Gattis knew right from wrong and was guilty of first-degree murder, we, in the exercise of conscience required of us as members of this board, believe that these are sufficiently mitigating facts to warrant consideration for clemency.”
John Deckers, an attorney representing Gattis, said the defense team was pleased with the decision and will urge Markell to follow the board’s recommendation.
“We think that the board made the right decision and a just decision, which balances Delaware’s renewed commitment to protecting all victims of domestic violence and child sexual abuse, but that at the same time ensuring that those who commit those types of crimes are brought to justice,” Deckers said.
Disappointment and resignation
Slay’s parents, Willie and Shirley Slay, expressed both disappointment and resignation.
“They bought his story, I guess,” said Shirley Slay, who had urged the board at a hearing last week to “do the right thing.”
“Whatever way it goes, we’ve prayed about it and asked the Lord to give us the courage and the strength to accept it,” added the victim’s mother, who was reached by telephone at her Georgia home.
Deputy attorney general Paul Wallace, whose agency is still dealing with the aftermath of the child sexual abuse scandal involving scores of young patients of former Delaware pediatrician Earl Bradley, said at last week’s hearing that the state Department of Justice is “incredibly sensitive” to child sexual abuse but was not convinced that Gattis is a victim of such abuse. Prosecutors also noted that Gattis only recently admitted that Slay’s murder was not an accident.
Board members acknowledged in their opinion that they struggled with aspects of the case.
“State prosecutors and the Slay family are correct to harbor suspicions about some of the testimony on Mr. Gattis’s background,” the board decision reads. “The board weighed heavily that Mr. Gattis did not come forward with the full extent of his sexual abuse until 2009 despite having used elements of a child abuse defense twenty years earlier.”
“The recommendation for clemency was a very close call for several of us,” the board added. “One factor that made the decision so difficult is that Mr. Gattis did not take full responsibility for intentionally killing Ms. Slay until earlier this month, leaving doubt as to his contrition.”
Gattis told the board that he took responsibility for killing Slay and was sorry, but that he hoped the board would see fit to spare his life.
“I was an abuser. I stalked Shirley and eventually I killed her,” said Gattis, who nevertheless insisted he’s a changed man.
“I am not the Robert Gattis who killed Shirley Slay. That’s not who I am,” he said.
Sentencing disparities a factor
In addition to considering Gattis’ background, the board said other factors not specific to his case weighed heavily in their decisions.
The board said the four members voting for commutation are concerned that state law does not require a unanimous jury verdict for a death sentence. In Gattis’ case, two jurors voted not to impose the death penalty.
Some board members also are concerned about sentencing disparities in murder cases, noting that defendants in other clemency requests arising from domestic disputes that end in murder not only have been permitted to live, but likely will be released from prison eventually.
“The sentencing disparity in these cases has become too great and offends a moral sense of proportionality,” the board said.
Finally, the board said one member fundamentally believes that once a prisoner has been “incapacitated” and poses no more threat to society, there is no moral justification for killing him.
“When the taking of life is not required as a matter of self-defense, that member believes that one cannot ethically or morally take that act,” the board said.
Joe Rogalsky, a spokesman for the attorney general’s office, issued a statement saying his agency respects the time and careful deliberation that went into the board’s decision, but that it would not be appropriate to comment further until the decision has been reviewed in its entirety and with Slay’s family.