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Del. board backs clemency for man on death row

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.

Robert Gattis appears at his hearing with the Delaware Board of Pardons on Jan. 9, 2012 in Smyrna, Del. (AP Photo/The Wilmington News-Journal, Bob Herbert)

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.

One comment

  1. The Board was wrong.

    The Board’s majority recommendation, to commute Gattis’ death sentence to life, conflicts with justice.

    The Board seems to have forgotten that sanction is not provided as a matter of self defense, but as a matter of justice.

    It is immoral to consider “self defense” as the standard for sanction because it is a utilitarian concern, which does not take into account the primary purpose of sanction, which is that sanctions be earned by the criminal and be given by the fact finders, based upon the nature of the crime.

    How unjust would it be if we gave sanction based upon self defense, when the criminal did not, in fact, deserve it?

    The death penalty is, in addition, a greater measure of self defense, as living murderers do harm and murder, again, in prison, after escape and after improper release. Executed murderers do not.

    The death penalty is founded in justice, based upon the sanction being deserved and, secondarily, it is a greater protector of innocent lives.

    Any commutation of sentence in this case will just be a clear example that Gattis can be released at any time by any future governor who may find it appropriate, no matter what agreements are made, today — agreements which are, legally irrelevant, in any future executive clemency considerations. All bets are off, with any future governor., not matter what any agreement says, today. End of story.

    The Slay family should not be comforted by Gattis “never getting out”. It is a promise that no one can, honestly, make.

    Board members Strine and Bullock noted that other such murderers are subject to release, as if Gattis had the wrong sanction, when they can’t make that case. No worries, gentlemen, Gattis will always be subject to release, if his death sentence is commuted.

    As is clear, any alleged positive changes in Gattis are based upon him being sentenced to death. The only reason he has, now, finally stopped lying, about the “accidental” shooting, is because he is facing execution.

    Put another way, it was only because Gattis was given the death sentence that we see any alleged benefits in Gattis, today.

    Does anyone doubt that Gattis would still be lying about the “accidental” murder, had he been given a life sentence, as the Board, now, proposes?

    Everyone knows Gattis is only telling the truth to avoid a death sentence.

    In other words, this has nothing to do with a changed man, but is only about self preservation by a premeditated murderer.

    It is most likely that he is lying about the additional sexual, abuse, only because, again, he is facing the death penalty and wants commutation.

    Sexual abuse was part of his original trial mitigating factors. He waited 19 years to bring up the alleged additional evidence of sexual abuse, which if true, he would have brought up at trial, 19 years ago. He didn’t.

    Would Gattis lie to avoid a death sentence?

    Do both lying to avoid the death penalty and telling the truth to avoid the death penalty tell us anything about Gattis being a changed man? Of course it does. It tells us that a self serving murdered can get what they want with the Delaware Board of Pardons.

    The Board missed the boat on disparate sentencing.

    The disparity is not that Gattis received the death penalty for his crimes, but that other similar crimes did not. 99.9% of the victims of sexual abuse do not commit capital murder.

    If sentencing disparities are so important to the Board, why didn’t they take into consideration that most murderers get less than life and some get no prison time, all of which they could have considered?

    It is an insult to all victims that sentencing disparities should be used as a reason to mitigate this sentence, when the board has no way of knowing if any of the (19 years in hiding) claims of sexual abuse are true. If sentencing disparities are to be used in the context of victims, it should be used as a barometer to increase sentences, not to reduce them. Although the Board cannot do so, it seems they only viewed disparities in the light to benefit criminals, not victims. Unfortunate.

    It is no mystery that any murderer who would wait 22 years to tell the truth to avoid execution would also wait 19 years to lie to avoid execution.

    An additional commutation excuse, without reasoning, is the fact that the Board considered it important that the jury was not unanimous in their recommendation of death for Gattis.

    2 jurors, or 17%, voted for life.

    Why would the Board only show their majority support for 17%, but trash the other 10 jurors, or 83%, who found death more just?

    It is the same as saying, that the Governor should only pay attention to the 1 board member (20%) who voted to uphold the death sentence, but trash the 4 (80%) who voted for commutation.

    As ridiculous as that sounds, that is, precisely, what we are all being asked to swallow.

    Remember innocent abuse and murder victim Shirley Slay and remember the importance of justice. Both seem to have gotten less than their fair share of attention.