Death Penalty Not a Given in Serial Killings

Some believe that Washington State serial killer Robert Yates Jr. and reputed “Dr. Death” Michael Swango got off easy.

Yates admitted to murdering 13 women. He is accused of killing two more, and is being looked at in connection with the deaths of 11 other women who shared characteristics with his known victims. Swango, who had already been sentenced to life in New York for poisoning three patients, admitted to poisoning an injured Ohio gymnast in 1984. He is also linked to numerous other deaths in a book that accuses him of 35 killings.

Neither of these serial killers will face the death penalty under plea agreements formally reached this week.

That has some victims’ advocates wondering why, given the nature of the crimes, prosecutors were willing to spare Yates and Swango. And why the death penalty isn’t always used in multiple-murder cases.

“I don’t know why prosecutors [in the Yates case] wouldn’t pursue the death penalty,” said Dianne Clements, president of the Houston-based victim rights group, Justice For All. “You would think that if anyone ever deserved the death penalty, it would be this guy. … If the evidence is there and the determining factor [in death penalty cases] really is guilt, heinousness of the crime, then this man should go to trial and let a jury make that decision at sentencing. Let a jury get the facts and make the decision on those facts instead of making that decision for them.”

Not Just a Life or Death Question But prosecutors in both cases say their decisions were not that simple, and seldom are in such circumstances.

In Swango’s case, prosecutors said he may never have been charged in the first place if they had not cut a deal. During negotiations with New York prosecutors, Swango agreed to admit to three deaths at a veteran’s hospital and confess to killing Cynthia Ann McGee at Ohio State University’s hospital if federal and Ohio officials agreed not to pursue the death penalty.

Ohio prosecutor Edward Morgan said they needed Swango’s confession to even charge him with aggravated murder, and said that under Ohio law, prosecutors can only pursue the death penalty if they can prove the suspect is involved in two or more slayings. But in Swango’s case, Morgan said they only had evidence for one death, and the evidence was circumstantial at best.

“We couldn’t have pursued the death penalty because we only had evidence for one body,” Morgan said. “And we felt we didn’t have the evidence to charge him. With his confession, we had an in-court statement and we were able to then charge him.”

After Swango’s sentencing for the New York deaths, Ohio prosecutors simultaneously charged him with McGee’s murder and announced he had agreed to plead guilty. A formal plea and sentencing of life with parole after 20 years — the maximum penalty for aggravated murder at the time of the crime in 1984 — was fixed. However, he must still serve his sentence of life without parole for the New York slayings, making the Ohio sentence moot.

Morgan said McGee’s family was happy and relieved not to have to relive their daughter’s death at a trial.

“We contacted them before we made the agreement,” Morgan said. “They were happy that they didn’t have to go through the process of experiencing what they went through again. They just wanted to go on with their lives and were happy to get some closure to this.”

Divided Over Relief In Spokane, Wash., some relatives of the victims of Robert Yates, Jr., were not as relieved or satisfied. On Thursday, Yates pleaded guilty to 13 counts of murder and one count of attempted murder. The family of one victim, Laurie Wason, a 31-year-old dog breeder whose body was found dumped in an old gravel pit southeast of Spokane on Dec. 26, 1997, bitterly complained about the plea agreement after the hearing.

“There’s no sense of relief,” said Shari Flores, a sister of Wason, who drove 130 miles from Eastern Washington’s Tri-Cities to attend the hearing. “Mr. Yates took the easy way out … It’s something we’ll have to live with every day.”

Another of Wason’s sisters, Darcy Arcevedo, sent e-mails to the media this week saying Yates should pay with his life.

A former National Guardsman, Yates was arrested in April after investigators uncovered DNA and other physical evidence in a 1977 white Corvette he once owned that linked him to a series of murders in the 1990s. Witnesses said that Yates liked to drive in areas frequented by prostitutes. Most of Yates’ victims lived in Spokane and Tacoma, and had a history with drugs and prostitution.

Yates pleaded guilty to seven Spokane slayings he was charged with; three Spokane slayings he was suspected of; the 1975 slaying of a couple in Walla Walla County; the 1988 murder of a woman in Skagit County, and the attempted murder of Spokane resident Christine Smith, the only known woman to escape one of Yates’ attacks.

Agonizing Decision As part of the plea, Yates agreed to tell investigators where to find the body of a woman missing for two years if Spokane County prosecutors agreed not to seek the death penalty. The body was exhumed Monday, and while DNA tests on the remains of the woman, Melody Murfin, proved inconclusive, her relatives were able to identify some of the possessions found on the corpse.

Spokane County prosecutor Steve Tucker said he agonized over the plea agreement, but felt he didn’t have enough evidence to prove the aggravating circumstances he needed to convince a jury to impose death. Under state law, Tucker said he would have had to prove the victims were killed to cover up a robbery, and he had no evidence. Tucker told ABC affiliate KXLY in Spokane he agreed to the plea to give peace to victims’ families.

“I would have no problem carrying out a death sentence with Mr. Yates, except for the other issues,” he said.

But Tucker conceded that some of the victims’ families were not pleased with his decision and would have liked to see Yates go on death row. Still, he did receive support from at least one victim’s family.

A sister of victim Shawn McClenahan, a Spokane native and former hospital worker whose body was found dumped near Wason’s, agreed the harshest sentence for Yates was life in prison.

“I think 40-50 years of never seeing the outside world will be harder on him [than the death penalty],” said Kathy Lloyd. “I think that he would suffer more in the long run. I sometimes think the death penalty for some people would be an easy way out.”

Yates still faces two other charges of first-degree aggravated murder in neighboring Pierce County, and the prosecutors there may still pursue the death penalty.

And Justice For All? According to some experts, in cases like those of Yates and Swango, the best option for prosecutors is to not seek the death penalty and to try to find a solution that will benefit the community as a whole.

“Whether or not prosecutors decide to seek the death penalty depends on how strong they think their case is, how prone it is to reversal,” said Stephen Bright, director of the Southern Center for Human Rights. “With this case in particular [Yates], and in general, you eliminate the process of trying the case, the years of appeal, and you spare families the pain of reliving their loved ones’ deaths. And the way some maximum security prisons are today, suspects are not getting a cakewalk, and are not coming out for a long, long time or sometimes not at all. So, you’re also achieving safety for the community, not revenge.”

Bright also added that generally, in death penalty cases, the mercy of the victim’s family plays a critical role when prosecutors opt not to seek the death penalty.

While Michael Swango serves his life sentence for the New York killings, Robert Yates awaits his sentencing for 13 murders. Next week, he is expected to be sentenced to 447 years for all the charges. Yates’ attorney has already expressed concern for his client’s safety, saying that Yates has been threatened by inmates who dated some of his victims.

ABC affiliate KXLY in Spokane, Washington contributed to this report.