NM Jury to Decide If Death Penalty Is an Option

Fugitive John McCluskey is taken into custody
by the U.S. Marshals in 2010, at eastern Arizona
Photo: www.lehighvalleylive.com

November 4, 2013: John McCluskey is not the vicious pit bull or three-time loser that prosecutors have made him out to be, according to his defense attorneys. Rather, they said Monday that the Arizona inmate convicted of killing an Oklahoma couple while on the run in New Mexico is a remorseful animal lover unable to properly reason because of his abusive childhood and brain defects.

"Like all of us in this room, he is a human being," attorney Teri Duncan said in closing arguments in the first phase of McCluskey's sentencing trial in federal court. "With flaws, but a human being nonetheless."

Duncan also quoted one of her favorite childhood books, "Bless Me, Ultima," where one of the characters teaches that "when you understand, you see it is not evil."

She said jurors should spare McCluskey the death penalty not of out of sympathy, but out of understanding of how his brain works and his inability to control his impulses.

Prosecutor Michael Warbel, however, argued that McCluskey was thinking clearly when he planned his escape from prison and the resulting violent rampage that included the carjacking and murders of Gary and Linda Haas of Tecumseh, Okla., as they passed through New Mexico in August 2010 on an annual camping trip to Colorado.

"We are talking about what he intended when he pointed that gun at Gary Haas and shot him in the head. We are talking about what he intended when he pointed that gun at Linda Haas and pulled the trigger twice," Warbel said.

Warbel reminded jurors that in the first phase of the sentencing trial they are simply deciding whether McCluskey is eligible for the death penalty, not whether to impose it. It's a fact-finding exercise, not an emotional one, the prosecutor said.

McCluskey, 48, was convicted by the same jury on Oct. 7 of 20 counts of aggravated murder, carjacking and other charges.

The panel began deliberating his eligibility for the death sentence midday Monday.

In an effort to spare McCluskey from the possibility of execution, the defense called several neurological experts over the last week in support of their argument that McCluskey is incapable of controlling his impulses and making reasoned decisions due to brain abnormalities, emotional and physical abuse, and a long history of drug and alcohol abuse.

Duncan said McCluskey loves dogs and horses, and as a teen got a job at a horse track until his father made him quit because of "alcohol issues."

"You have to wonder had John been able to finish at the racetrack would we be sitting here today?" she asked.

Prosecutors on Thursday called to the witness stand Johns Hopkins neurologist Barry Gordon, to dispute the defense's experts. He told jurors he had interviewed McCluskey, conducted an exam and reviewed the convict's brain imaging scans and health history and concluded McCluskey does have the capacity to control himself.

McCluskey was serving 15 years for attempted second-degree murder, aggravated assault and discharge of a firearm when he and two other prisoners escaped from a medium-security prison near Kingman, Ariz., in July 2010 with the help of his cousin and fiancee, Casslyn Welch.

One inmate was quickly captured after a shootout with authorities in Colorado, while McCluskey, Welch and inmate Tracy Province headed to New Mexico.

Testimony showed the trio, hot and cramped from three days in a small car without air conditioning, targeted the Haases at a rest stop near the New Mexico-Texas state line for their truck and travel trailer.

Province and Welch pleaded guilty last year to charges of carjacking resulting in death, conspiracy, the use of a firearm during a violent crime and other charges. They both said McCluskey was the triggerman.

Courtesy: ABC News