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James Homer ELLEDGE





Classification: Murderer
Characteristics: Argument - Rape - Revenge
Number of victims: 2
Date of murders: 1975 / 1998
Date of arrest: April 21, 1998
Date of birth: 1943
Victims profile: Bertha Lush (motel manager) / Eloise Jane Fitzner, 47
Method of murder: Beating with a ball-peen hammer / Stabbing with knife
Location: King County/Snohomish County, Washington, USA 
Status: Executed by lethal injection in Washington on August 28, 2001


In a full confession, Elledge stated that he made arrangements for dinner with Eloise Fitzner and another woman.

They agreed to meet at the church where he worked as a custodian. When they arrived, he gave them a tour, eventually directing them to the Bible-Study Room, where he pulled a knife and bound them with rope. When Eloise struggled, Elledge strangled her, then stabbed her in the neck.

Elledge claimed she had interfered with a relationship he had a year earlier. The other woman was taken forcibly to a mobile home and sexually assaulted.

The following day, Elledge released her. She immediately went to police. Elledge confessed, pled guilty, and waived appeals.

At the time of his arrest, Elledge was on parole for a 1975 first-degree murder conviction in King County. He had other prior convictions, including a 1965 armed robbery conviction in New Mexico.


Attorney General of Washington Death Penalty Cases

Background of the James Elledge Case

On April 18, 1998, James Homer Elledge invited Eloise Fitzner and her friend, referred to in court proceedings as "S.C.," for a night out that was to include gifts and dinner.

Plans were made to meet around 8:30 p.m. at the Lynnwood church where Elledge worked. After a tour of the church, Elledge guided the women to a Bible-study room and closed the door. He pulled a knife and expressed anger over Ms. Fitzner’s alleged interference in his marriage.

Elledge was unhappy with a letter Ms. Fitzner wrote to his then-girlfriend approximately one year earlier, in which Ms. Fitzner urged the woman to leave him and accused Elledge of sexual advances towards Ms. Fitzner.

In the Bible-study room, Elledge bound the two women’s wrists and ankles. He then put S.C. on a riser facing the wall, with a sweatshirt over her head. S.C. could hear struggling behind her and attempted to see what was going on.

When Elledge caught her, he threatened to kill S.C. next if she did not turn around. Elledge then strangled Ms. Fitzner with his hands. Uncertain whether she was dead, he also fatally stabbed her in the neck. After concealing the body, Elledge abducted S.C. and drove to his home in Ms. Fitzner’s car.

On April 19, S.C. was released after Elledge threatened to find her if she contacted the police. S.C. immediately called police and an investigation began. On April 21, Elledge called police from a Tacoma hotel room and surrendered.

In subsequent interviews with the police, he confessed to killing Ms. Fitzner and described the slaying in detail. At the time of his arrest, Elledge was on parole for a 1975 first-degree murder conviction in King County. He had other prior convictions, including a 1965 armed robbery conviction in New Mexico.

Elledge Asked His Jury to Impose the Death Penalty:

From the time he voluntarily surrendered to police, Elledge has acknowledged murdering Ms. Fitzner. He first pled guilty in Snohomish County Superior Court on May 27, 1998, after which the State filed a notice of special sentencing seeking the death penalty. At the special sentencing proceeding on Oct. 20, Elledge expressed remorse for the killing and asked the jury to impose the death sentence, asserting that "this wicked part of me needs to die." On Oct. 21, the jury decided that there were not sufficient mitigating circumstances to merit leniency and the court sentenced Elledge to death.

Appeals and Mandatory Review:

The state Supreme Court conducted its mandatory review of the Elledge case and on July 5, 2001, upheld the verdict and death sentence. The Court found that Elledge "knowingly, voluntarily, and intelligently" waived his rights to appeal both his conviction and sentence and was mentally competent to do so. The Court then verified that: 1) there was sufficient evidence to justify the finding that there were not sufficient mitigating circumstances to merit leniency; 2) the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases; 3) the sentence of death was not brought about through passion or prejudice; and 4) the defendant was not mentally retarded. On July 17, Snohomish County Superior Court Judge Joseph A. Thibodeau signed the death warrant setting Elledge’s execution date for Aug. 28, 2001.


James Homer Elledge (1943 – August 28, 2001) was an American murderer who was executed by lethal injection in Washington State Penitentiary for the murder of 47 year old Eloise Jane Fitzner.

The crimes

In 1965, Elledge robbed a Western Union office in Albuquerque, New Mexico. During this robbery, he also kidnapped a female attendant. He was sentenced to prison in Santa Fe, New Mexico and, after his parole, he wound up in Seattle, Washington, where he killed motel manager Bertha Lush in 1974 by beating her to death with a ball-peen hammer in an argument over his bill. While in prison for that crime, he got paroled three times, the last of which happened in August 1995.

On April 18, 1998, Elledge invited Eloise Fitzner and her friend, only referred to as "S.C.", into a Bible-study room of a church where he worked as a custodian. After closing the door, he pulled a knife and bound the two women’s wrists and ankles. He put a sweatshirt over S.C.'s head and made her face the wall. When S.C. heard struggling behind her, she tried to see what was happening.

Elledge noticed this and threatened to kill S.C. next if she did not remain faced to the wall. Elledge first strangled Ms. Fitzner with his hands and then, not sure if she was dead, he fatally stabbed her in the neck. After hiding the body, Elledge abducted S.C. and drove them home in Ms. Fitzner’s car. At his home, he sexually assaulted S.C. and released her the following day. S.C. immediately went to police. Elledge was arrested two days later and confessed.

Trial and Execution

On July 28, 1998, after being found guilty, Elledge was sentenced to death. Waiving all his rights to appeal, he was executed by lethal injection on August 28, 2001 at Washington State Penitentiary.

As a young man, James Homer Elledge went to prison in Santa Fe, N.M., for robbing a Western Union office, where he also kidnapped a female attendant.

After his parole, he wound up in Seattle in 1974, where he killed Seattle motel manager Bertha Lush by beating her to death with a ball-peen hammer, in an argument over his bill. In the years that followed, he won parole 3 times, most recently in August 1995.

The 55-year-old Everett man surrendered to police in Tacoma three days after stabbing and strangling Eloise Jane Fitzner, 47, in a church basement on April 18, 1998.

Elledge promised gifts and dinner to lure his victims to the basement of The Lighthouse church in Lynnwood, where he worked as a custodian. Once there, Elledge pulled a large knife and ordered the women not to scream or he would slit their throats. Both women were bound with rope, blindfolded and their mouths taped shut.

The 39-year-old woman said she could hear Eloise struggling and Elledge dragging something from the room. The woman said Elledge told her he had "taken care of" Eloise, because she interfered with his attempts to get close to her.

Elledge then took the 39-year-old woman to his mobile home in Everett, where she was sexually assaulted. He released her the next morning, and she reported the abduction and attack to Seattle police. Eloise's body later was found in the church basement.

An autopsy showed she could have survived the stab wound to her neck had she not been strangled. Elledge called the Tacoma Police Department's homicide division at 9:30 a.m. three days after the murder to say he wanted to surrender and was staying at a motel. When the detectives pulled into the parking lot, Elledge walked out with his hands up. Earlier the same day, Tacoma police found Eloise's car, which Elledge had stolen after he killed her.

People who know Elledge said they were stunned by these events. Former Lynnwood City Council member Bill Hubbard roomed with Elledge between January and March 1997, when he lived at the same Lynnwood apartments as Eloise. "Eloise lived two floors above us," Hubbard said. "She was a very sweet in her church at University Presbyterian Church."

Elledge often did repair work at Eloise's apartment but never accepted payment, Hubbard said. Hubbard said he knew of Elledge's murder conviction and talked with a church elder at The Lighthouse before allowing Elledge to move in. Elledge proved to be a responsible roommate and confided in Hubbard about his past, Hubbard said.

Hubbard said Elledge told him his sister had died when he was young. He also told Hubbard that his wife died in the 1960s while trying to help someone in a car crash and that their 2 girls were raised by relatives. "Jim just never quite recovered from that whole thing," Hubbard said.

In March 1997, Elledge's daughter died, but he wasn't able to attend the funeral services because he didn't have the money to travel to the South, Hubbard said Elledge told him. "Considering everything he'd been through, he was showing signs of progress and mainstreaming back into society," said Hubbard, adding that he hadn't seen Elledge for several months.

Elledge later confessed that he walked into the basement of the church with precut sections of nylon rope and plans to kill a woman he simply didn't like.

Elledge admitted he was carrying a large, folding knife and a long-simmering grudge against Eloise. In a tape-recorded statement to police, Elledge admitted purchasing rope, and precutting it into sections for binding the wrists and ankles of Eloise, and another woman, 39, from Seattle.

The longtime convict, who is on parole for the 1975 beating murder of another woman, also described in detail how he used his knife to threaten Eloise and the Seattle woman into silence, and then tying them up. "The defendant told police that Fitzner did not attack him or resist him in any way," according to court papers. "He said that 'She ... she was trying...she was trying to cooperate. But she didn't know what she was cooperating for."

The Seattle woman has told police she was abducted to Elledge's Everett mobile home, sexually assaulted and later set free. Prosecuting Attorney Jim Krider said before the trial, "So far, the criminal justice system has failed the public in protecting the from Mr. Elledge." The task for prosecutors now is to make sure "that the system does not fail again," he added.

Elledge has prior convictions for robbery and 1st-degree murder for beating a Seattle motel owner to death in 1975.

The woman he killed roughly 2 decades ago was struck 28 times with a ball-peen hammer, according to court papers. Eloise's killing and the other woman's abduction touched of a brief, but intense, manhunt for Elledge.

He surrendered to Tacoma police after trying at least twice to commit suicide in his hotel room, according to court papers. Elledge told the police that he killed Eloise because he was angry with her for meddling in his relationship with his wife about a year ago.

On the taped statement he gave police Elledge can be heard admitting that because of something he describes as 'evil' in his nature, he is sometimes filled with rage he can't control.


James Elledge was executed early this morning at the Washington State Penitentiary. His course toward death was a speedy one, and Elledge, 58, hastened it at every opportunity.

James Homer Elledge went quietly to his execution early this morning, getting the sentence he pleaded for after murdering a woman in the basement of a Lynnwood church.

Elledge told a friend earlier that he had no intention of making a final statement, however in a prison interview last year, Elledge said said one reason he wanted to die was because he was a Christian, and was remorseful for his sins. He has steadfastly maintained that he deserved to die.

He instructed his lawyer to present no evidence in the penalty phase of his trial that might encourage jurors to spare his life. Those close to him said he viewed his impending execution as a sort of redemption.

The victim's brother planned to spend the evening with his mother and to wait up until he heard it was over. He had hoped Elledge's final words would be to say he was sorry for Fitzner's murder.

At the trial, Elledge told jurors those words wouldn't bring Fitzner back. "He had an opportunity to choose his words very carefully then, so I just don't think that was an oversight on his part," Mr. Helland said.

Prosecutors and some jurors said the brutality and pre-meditated nature of the crime, as well as a long criminal history, which included a 1974 murder, clearly justified both the decision to seek the death penalty and the verdict.

Jury forewoman M.L. DeMorett said in a recent letter that Elledge deserved to die for a cold, calculated murder. "We looked for areas where the system may have failed him," she said of jury deliberations. "Comment was made that he had several chances in life to get beyond the past. He still lost control and killed another person, took another life."

The 2 detectives who investigated Fitzner's disappearance and found her body chose to attend the execution, as did the Snohomish County prosecutors who persuaded jurors to impose the death sentence.

Lynnwood police Detective Jim Nelson said he feels little sympathy for Elledge. "I feel a lot worse about her than I do about him. He knows what's coming, he's had a chance to make his peace with whatever he feels he needs to do. And he did this to himself. He committed his second murder, he's been given chance after chance."


National Coalition to Abolish the Death Penalty

James Elledge - Scheduled Execution: 8/28/01, 3:01am EST.

James Elledge is awaiting execution by the state of Washington, with his death presently scheduled for August 28. Elledge pled guilty to the April 1998 murder of Eloise Fitzner, receiving a death sentence later that summer.

The Washington State Supreme Court recently affirmed Elledge’s death sentence despite Elledge’s willing confession and guilty plea at trial. The Court has also acknowledged the potential influence of the mitigating evidence which was never presented at trial.

Elledge requested that his attorney not present mitigating evidence on his behalf during the appeal phase following his trial. Counsel chose to respect the wishes of his client, yet it seems unfortunate and somewhat misleading that the jury was never made aware of several significant aspects of Mr. Elledge’s past.

While serving an earlier prison sentence, Mr. Elledge saved the life of a prison guard during a violent inmate riot. Elledge’s early years were filled with abuse and neglect. He started abusing alcohol as a young child and was sent to a juvenile facility at age ten for breaking and entering.

His father was often hospitalized for mental illness, leaving his mother alone with five young children. She also turned to alcohol in the painful time that followed. Elledge was traumatized at a young age by the death of his sister.

The family continued to suffer as Elledge’s father killed himself when James was thirteen, subsequently followed by the suicides of two half-brothers. James Elledge left home at fifteen to lead a life of repeated incarcerations and hospitalizations for mental illness.

Elledge pled insanity at a 1975 trial, and though his claim was rejected, the court stated that his mental illness should be considered a mitigating factor.

In recent years, Elledge married a day-care worker at his church and became known throughout his community as a gentle and caring individual. He continues to be a devout Christian who believes in a God who “has forgiven me for what I’ve done”. He is clearly repentant for his crimes and more than willing to accept whatever punishment is handed down.

For a state that has executed four people in twenty years, it is the general belief, even among death penalty supporters, that the punishment should be reserved for only the most terrible criminals.

If Elledge dies, he will have received his death sentence from a jury that was never informed of his mitigating circumstances. One juror in James Elledge’s trial stated that if he had known any of what was later reported in the media, “I could have seen it changing my mind.” Legal advocates wonder if Elledge’s decision to block the jury from hearing such favorable evidence allowed the imposition of a “state-sanctioned suicide”.

A dissenting judge in Elledge’s appeal disputed the court’s finding that the death penalty was commonly imposed in cases similar to Mr. Elledge’s.

Judge Sanders challenged this finding based on the fact that the death penalty was commonly proposed, but most often not imposed, in the cases considered comparable by the state court. Sanders feels it is unfair to use “cases in which death was never imposed at all to support imposition of death in later cases.”

By preventing the presentation of any mitigating evidence at trial and waiving all his final appeals, Mr. Elledge consents to a punishment that may affect the way state prosecutors decide to apply the death penalty in the future.

Elledge’s submission only fosters the state’s inconsistent imposition of capital punishment. It is vital to speak out against the execution of James Elledge, even if only to ensure that future punishments are handed down fairly, and not merely at the state’s convenience.


James Elledge executed

OPB Radio

A double-killer from Snohomish County, Washington is a step closer to becoming the fourth man executed by Washington State since the reinstatement of the death penalty. A closely-divided Clemency and Pardons Board recommended yesterday that the execution proceed. Correspondent Tom Banse reports.

Convicted murderer James Elledge wants to die. But should society grant his wish? Elledge is scheduled to die by lethal injection later this month at the Walla Walla Penitentiary.

The only thing that could still save his life is a campaign by death penalty opponents. And they're running out of avenues for appeal. Washington's four Catholic bishops dispatched prison ministry director Kevin Glackin-Coley to Olympia to plead for mercy.

Glackin-Coley: Mr. Elledge has clearly stated a degree of remorse about this crime which has led him to believe -- in his own words – that there's an evil part of him which needs to die and therefore by extension, he needs to die.

We believe that a commutation to life without the possibility of parole would give him an opportunity to deepen in that remorse in a way that could help him recognize the ability to heal and to become a productive person within prison.

Glackin-Coley directs his appeal to the members of the state Clemency and Pardons Board. The church and a dozen other anti-death penalty groups are intervening in the case against the wishes of the convict. James Elledge had his personal attorney restate his guilt.

Public defender Bill Jaquette: He wants the penalty imposed because he shares the judgment of the jury and the Supreme Court that that's the just and reasonable punishment in this case. Elledge is being executed for the carefully planned murder of a woman he lured to a Lynnwood church basement in 1998.

Jaquette did not present any mitigating evidence at sentencing on orders from his client, even though the attorney concedes it might have spared the killer's life. The jury never heard about Elledge's horrific upbringing or that he once protected the life of a guard during a prison riot.

Jaquette: He'd had an advocate trying to produce one result. If he'd had an advocate trying to produce the other one, he might have had a different result. He may well have convinced one juror not to execute him. Critics seize on this twist as evidence of how hard it is to apply the death penalty in a fair and consistent manner. Gonzaga University Law School professor Speedy Rice contends the citizens are condoning a "state-assisted suicide."

Rice: Who's in control of the execution of James Elledge? Well, from the beginning James Elledge has been in control of this. And he's now the third person who's chosen this route of using the state to accomplish the goal of death.

Two of the five members of the Clemency Board express grave reservations about the impending execution. But the other three say the law as written has been followed.

The Snohomish County prosecutor offers reassurances that the death penalty is highly appropriate for this defendant's long record of murder, violent attacks, and attempted escapes. James Elledge's fate now rests with Governor Gary Locke. Democrat Locke has never stopped an execution and there's little reason to believe now that he would commute this death sentence.


Killer Elledge is executed

By Rebekah Denn, David Fisher and Scott Sunde

Seattle Post-Intelligencer reporters

Tuesday, August 28, 2001

WALLA WALLA -- James Homer Elledge went quietly to his execution early this morning, getting the sentence he pleaded for after murdering a woman in the basement of a Lynnwood church.

After midnight, Elledge was strapped to a gurney, and prison officials began administering a combination of four chemicals that would render him unconscious, then kill him. He declined an offer for a sedative to calm him.

Elledge was declared dead at 12:52 a.m., according to Assistant Attorney General Gregory Rosen in Olympia. Witnesses said he had no last words.

Shortly after 12:30 a.m., a white curtain in the execution chamber rose. Through a clear glass window, witnesses saw Elledge lying on his back on a gurney, a dark blue sheet covering him up to his neck, eyes closed.

Prison Superintendent John Lambert announced that “Inmate Elledge has no last words.” The lethal combination of drugs began flowing at 12:39 a.m., with saline solution followed by a relaxant, then by a drug that impairs the nervous system, then finally potassium chloride to stop his heart. Elledge was pronounced dead at 12:52 a.m.

His movements were barely noticeable; his jaw was at first tight, then more relaxed, then his mouth opened slightly. He appeared to take one deep breath a few minutes into the process. All in all, he appeared asleep both at the beginning and at the end.

One execution witness, Warren Cornwall of the Herald of Everett, said that “if there were any other movements he made, they were so gradual and so slight it was like watching the hour hand on a clock.”

In his will, the man who strangled and stabbed Eloise Fitzner made it clear he believed he'd been forgiven for his crimes.

"I commit myself to God's care, secure in His love for me and trusting in the salvation purchased for me through the suffering and death of His Son, Jesus Christ," he wrote. "I leave those who survive me the comfort of knowing that I have died in this faith, and have now joined my Lord in eternal glory."

Elledge's execution at the Washington State Penitentiary is the fourth since the state reinstated capital punishment in 1981. He is the third of the four who wanted to die.

He pleaded guilty to aggravated murder, admitting he lured Fitzner, an acquaintance, to the church where he worked as a janitor. Since then, he has steadfastly maintained that he deserved to die. He instructed his lawyer to present no evidence in the penalty phase of his trial that might encourage jurors to spare his life.

Those close to him said he viewed his impending execution as a sort of redemption.

Others saw different religious overtones to the case. Fitzner's brother, Michael Helland, said yesterday he saw the murder as a "Good Samaritan" killing, since his sister, like the biblical figure, had tried to help others down on their luck without regard to her own safety. And Jim Johnson, pastor of The Lighthouse, a Free Methodist church, compared the crime in the church that had befriended him to Judas' betrayal of Jesus.

Elledge, 58, met with his court-appointed defense attorney, Bill Jaquette, throughout the night. He also had frequent visits from prison chaplain Gil Alden.

At 4 p.m., prison guards moved him without incident to an execution holding cell to which was added only a pillow, a mattress, two sheets, two towels and three blankets.

He declined to eat his last supper. His final meal was the breakfast he had at 6 a.m.: apple juice, oatmeal, hashbrowns, toast, a boiled egg, coffee and milk. Prison officials then gave him two hours -- an hour longer than normal -- of exercise time outside.

Lawyers were ready to file appeals at a moment's notice if he changed his mind, but he didn't give them the opportunity. The process went far more calmly than the state's last execution, of 27-year-old Jeremy Sagastegui in 1998. Sagastegui's mother had tried to intervene on his behalf, and his execution was on hold until early evening while last-minute appeals were debated.

Sagastegui raped and killed a child, then killed the child's mother and a family friend. The other men executed here, Westley Allan Dodd and Charles Campbell, were also triple-murderers who had killed at least one child.

Outside the century-old walls of the prison, sparse crowds showed up to either protest or praise Elledge's death.

About 100protesters gathered for a candlelight vigil, culminating in 45 minutes of silent prayers and reflection.

"When it's over, we go home," said Kevin Glackin-Coley, director of the detention ministry for the Catholic Archdiocese of Seattle. "Tomorrow, we wake up and start trying to figure out a way that we don't have to come back to Walla Walla for another execution."

He said opponents will probably ask the Legislature for a moratorium on executions to buy time to look at problems with Washington's death-penalty law.

By 11 p.m., only four people had showed up in an enclosure the size of a football field set aside for death-penalty supporters. Kelly Budau, a clerk at a Walla Walla Albertson's, said he watched the news about previous executions on television and decided to turn out this year.

"If they done a murder and that, they should die," he said.

Death penalty opponents said Elledge's desire to die pushed a more common murder case that wouldn't normally have resulted in execution over the edge. The jury heard nothing about his past except his long criminal history, and were never told potential mitigating information from his past, including that he appeared to have a history of mental illness and that he had saved a prison guard's life during a riot.

"This one is really, really disturbing to me because of who this individual is and what his background is. He's just not a person who qualifies or should be executed -- he did a bad thing, he belongs in prison, and I'm very sorry for the family (but) he is just not a death case," said Gonzaga University Law Professor Speedy Rice, who wrote the clemency petition.

On Friday, Catholic Archbishop Alex Brunett called on Gov. Gary Locke to reconsider his decision not to grant clemency. The request was met with silence.

"Clemency is called for when there is some extraordinary circumstance that might require intervention or an act of grace from the governor ...," Locke's counsel, Everett Billingslea, said yesterday. "While we certainly are cognizant of the arguments about 'volunteers' and the problems that presents, particularly in this case, the governor doesn't believe those circumstances are present here."

Elledge had no doubts about the course he chose.

"I don't look at this as an execution, I look at it as a separation," he told the Seattle Post-Intelligencer earlier this year. "There's a dirty part of my soul, and I want it destroyed."

Helland, the victim's brother, planned to spend the evening with his mother and to wait up until he heard it was over. He had hoped Elledge's final words would be to say he was sorry for Fitzner's murder. At the trial, Elledge told jurors those words wouldn't bring Fitzner back.

"He had an opportunity to choose his words very carefully then, so I just don't think that was an oversight on his part," Helland said.

Prosecutors and some jurors said the brutality and pre-meditated nature of the crime, as well as a long criminal history, which included a 1974 murder, clearly justified both the decision to seek the death penalty and the verdict.

Jury forewoman M.L. DeMorett said in a recent letter that Elledge deserved to die for a cold, calculated murder.

"We looked for areas where the system may have failed him," she said of jury deliberations. "Comment was made that he had several chances in life to get beyond the past. He still lost control and killed another person, took another life."

The two detectives who investigated Fitzner's disappearance and found her body chose to attend the execution, as did the Snohomish County prosecutors who persuaded jurors to impose the death sentence.

Lynnwood police Detective Jim Nelson said he feels little sympathy for Elledge. "I feel a lot worse about her than I do about him. He knows what's coming, he's had a chance to make his peace with whatever he feels he needs to do. And he did this to himself. He committed his second murder, he's been given chance after chance."

But at least one juror who voted for execution had reservations about his decision after hearing what Elledge would not allow to be presented at his trial: that he saved the life of a guard during a prison riot, that he may have suffered from mental illness and that he had a childhood so bleak that he asked to stay in reform school rather than be sent home.

"I could have seen it changing my mind," said Jon Sherrell, the juror, told the P-I earlier this year.

For opponents of the death penalty, Elledge's execution also underscored a continuing flaw in capital punishment -- the volunteer. He was put to death a little more than three years after Fitzner's murder, which is practically light-speed for a justice system that can take years to decide questions of life and death.

Elledge's own family did not attend the execution, and had honored his wishes that none of them intervene in the case.

"I said years ago that if he doesn't change his life, turn it around, he's going to end up dead. And like I say, it's sad and I hate it, but there's nothing I can do about it," a brother, Allen Elledge, said earlier this year.

The murder took place on April 18, 1998, when Elledge invited Fitzner and her friend to the church. He had presents waiting for them , he said, and would take them to dinner afterward. It was a trap.

Fitzner, 47, had infuriated Elledge the year before by sending a letter warning his girlfriend, who later became his wife, against Elledge, "that horrible man." Elledge's anger at Fitzner simmered for months, then blew up. He planned the murder, pre-cutting lengths of cord to bind the women; then strangled Fitzner in the church basement and stabbed her in the throat to make sure she was dead. Her friend, ordered to face a wall, heard Fitzner say "No, stop, I can't breathe," before a brief struggle.

Fitzner's body was discovered the next day, crammed in a church storage space, her hands clasped as if in prayer. Elledge turned himself into police after trying to kill himself twice, sounding bewildered at his own reasons for the murder and already determined not to fight his punishment.

Elledge spent most of his life behind bars, starting at age 10 when he was sent to a youth prison for breaking and entering.

He grew up in poverty and difficult times, court documents said, once asking to go back to reform school because he was starving at home. He went to prison in Santa Fe, N.M., for robbing a Western Union office, where he also kidnapped a female attendant.

After his parole, he wound up in Seattle in 1974, where he killed Seattle motel manager Bertha Lush in an argument over his bill.

Elledge said one reason he wanted to die was because he was a Christian, and was remorseful for his sins.

He believed God had forgiven him, he said in a prison interview last year.


Some Killers More Than Ready to Die

But Opponents Say When They Volunteer for the Death Penalty, the Whole Process is Held Hostage

By Rebekah Denn - Seattle Post-Intelligencer reporter

Tuesday, August 7, 2001

James Elledge tried to kill himself twice after committing murder in 1998. Failing in both attempts, he asked a jury to let him die. It has taken longer than he wanted, but Elledge is getting his wish. He's scheduled to be executed by lethal injection Aug. 28 for the murder of Eloise Fitzner.

Elledge would be the fourth person executed since the state reinstated its death penalty in 1981. And he would be the third who wanted to die, presenting no defense and refusing appeals. These are the so-called death penalty "volunteers," who have taken the fastest and surest route to execution in Washington.

James Elledge didn't let a jury hear mitigating facts in his case. The state Supreme Court has no legal problem with killers seeking execution. In all three cases, it ruled that mentally competent defendants are not required to put up a fight -- because they have a fundamental right to direct their own defense.

But the issue raises concerns that death-penalty volunteers are short-circuiting a system meant to ensure that only the worst possible criminals face execution. "I think it's frightfully dangerous that it's happening, and, more importantly, I think it's grotesquely irresponsible for the courts to allow it to happen," said Thomas Hillier, director of the Federal Public Defender's Office for the Western District of Washington.

He said some killers are using the system to help themselves commit suicide. Triple-murderer Jeremy Sagastegui, he noted, claimed he committed his horrific crimes so the state would execute him. Sagastegui's mother tried unsuccessfully to save his life, saying the jury should have heard evidence that he was mentally ill and had been abused as a child. Sagastegui was executed by lethal injection in 1998.

Triple-murderer Westley Allan Dodd, who was executed by hanging in 1993, also fought for a speedy execution for raping and killing three children. Elledge told his attorney not to present any reasons to spare his life, and the jury heard none.

Dodd and Sagastegui's crimes were ghastly by any standards. Sagastegui was babysitting for Mellisa Sarbacher in November 1995 when he raped, stabbed and drowned her 3-year-old son, Kieven, and then shot Sarbacher and her friend, 26-year-old Lisa Vera-Acevedo when they returned home to Finley, a town southeast of Kennewick.

Dodd killed William Neer, 10; his 11-year-old brother, Cole; and 4-year-old Lee Iseli. Dodd, who had a record of pedophilia, pleaded guilty to stabbing the Neer brothers in a Vancouver park on Sept. 4, 1989, and strangling Iseli in Portland the following month. He raped one of the boys and sexually molested another.

But in Elledge's case, attorneys argued unsuccessfully that the crime itself resembled many killings that do not earn the death penalty -- but his death wish pushed the sentence over the edge. Prosecutors say Elledge's criminal history, which included a 1974 murder, contributed to the decision.

A recent Seattle Post-Intelligencer examination of Elledge's life showed that, although Elledge chose not to let the jury hear mitigating facts about his past, such facts did exist -- such as records that Elledge had suffered from mental illness, or that he had once risked his life to save the life of a prison guard.

The issue of "volunteer" defendants raises contentious questions among defense attorneys, who have no explicit national guidelines on where their obligations lie. Bob Mahler, a Seattle lawyer and former executive director of the North Carolina Death Penalty Resource Center, finds the volunteer issue troubling on several counts, saying that "the whole constitutional process is held hostage by one individual."

The state's argument that defendants have the ultimate right to direct their own defense doesn't hold up, he said, because the Eighth Amendment to the U.S. Constitution compels the court system to treat death-penalty cases differently from other cases in all other respects. At the least, he thinks, independent attorneys should be appointed to seek out potential mitigating evidence for jurors to hear.

"The sentencer in Washington state is the jury, not the defendant. ... Neither the defense lawyer in the case, nor the trial judge, should permit the defendant to usurp the jury's critical function in these cases," he said.

Beyond that, the life or death decision in each case gets used later by the state Supreme Court when it conducts its mandatory review of whether each death sentence is proportional to cases where death is not imposed. "So one defendant's refusal to present mitigating evidence ends up skewing the balance for others who come in his wake."


Witness to an Execution

I Watched James Elledge Die in Walla Walla

By Michael Hood - Seattle Weekly

September 6-12, 2001

It was only nine o'clock and they weren't going to kill him until after midnight.We were in a makeshift media room inside the walls of the state penitentiary at Walla Walla. We'd had to prove our identities, empty our pockets, walk through a metal detector, and be patted down to wait here for the execution of twice- convicted murderer James Homer Elledge, now known to the Department of Corrections as "the ISCP" (Inmate Subject to Capital Punishment). A few of us would be culled from the herd of our peers to witness the lethal injection, as DOC procedures require.

Elledge, 58, admitted that he killed Eloise Fitzner, 47, who was, from all reports, a nice, if naive, church lady. With promises of gifts and dinner, he lured her and a friend to Lynnwood's Lighthouse Free Methodist Church, where he worked as a janitor.

His rage had simmered for over a year after she'd tried to sabotage his relationship with a woman whom he later married. In the church basement, he tied up and duct-taped the women, strangled and stabbed Fitzner, and stuffed her in a closet.

The police say Elledge then sexually assaulted the other woman and released her, and she went directly to the authorities.

"There's something wrong with my nature," he later told authorities. It wasn't the first time he'd confessed to murder. He'd been serving a life sentence for beating a 63-year-old woman to death in 1974 with a ball peen hammer when a member of the Lynnwood church befriended him.

When he was paroled in 1995, church members welcomed him into their fold, found him a room, gave him a job, and included him in parish life. In return for their loving kindness, they got a bloody betrayal and a lawsuit from the surviving victim.

Elledge told the court, "There is a very wicked part of me, and this wicked part of me needs to die." Against his wishes, death-penalty opponents petitioned the Clemency and Pardons Board, arguing that the jury should have been told that in 1987 Elledge saved a prison guard's life during a prison riot, and that he once tipped off prison officials to the escape plans of other inmates. The board voted against clemency, and Governor Gary Locke, a former prosecutor who had the final call, denied it as well.

On this long Walla Walla night, two people could still stop this seemingly inevitable sequence of events: Locke and Elledge himself.

There's a live telephone in the death chamber for any "legal impediments" to the execution--like a last-minute gubernatorial clemency. Since Elledge had waived his rights, they were his to reclaim at any time. Neither man had a change of heart. Executions are relatively rare in Washington; this is the fourth since the penalty was reinstated in 1981.

Child-killer Westley Allan Dodd was hanged in 1993, as was triple murderer Charles Campbell in 1994; triple murderer Jeremy Sagastegui was lethally injected in 1998.

PEEKS UNDER THE SHROUD of secrecy draped over the capital punishment process are carefully controlled by the state, personified here by our evening's natty, chatty, and informative master of ceremonies, Department of Corrections information officer Veltry Johnson.

The details of Elledge's last day were few and mundane, but details are what we were there for. It was like the Fox News coverage of Gary Condit--too much time, too little news. Questions from bored newsies went from the tedious to the ridiculous. Q: What is he wearing? A: Orange prison-issue "felony pajamas," T-shirt, sneakers. Q: Brand of sneakers? A: That information is not available. Q: His mood? A: Somber. Q: Is he cooperative? A: Very. His last meal, that hallowed tradition for the condemned, took on vital significance. We were apprised that Elledge had chosen scrambled eggs, bacon, hash browns, waffles, sweet roll, OJ, milk. And cold cereal: Was it Wheaties? Special K? Inquiring minds of the free press needed to know. We were scrounging for irony here, but the shroud came down again--Johnson couldn't or wouldn't say. Then a bombshell. Elledge had declined his last meal--AND the prison lunch offered him that day. Why? "No reason given," said Johnson. What then, did Elledge have for his 6 a.m. breakfast, essentially his last meal? Johnson began the litany of boiled eggs, oatmeal, and hash browns he was to chant throughout the evening. A reporter pushed to find out what Elledge didn't eat by refusing lunch. There was a lot of eye-rolling, and Johnson said he'd check into it.

NO ONE MADE US, the media witnesses, do this. We all applied and were picked by some mysterious process. Eight all together, we represented wire services, two TV stations, the Seattle and Everett dailies, and small-town papers. I covered it not only for Seattle Weekly but also for Agence France-Presse, a French international wire service always hungry for the gory details of American barbarity.

As we waited in a nondescript room once used by the parole board, Veltry Johnson, ever the host, led a wide-ranging conversation about executions past, notorious inmates, and capital cases. There was plenty of the nervous black--sometimes called gallows--humor that reporters, medics, and cops indulge in at times like this. And plenty of waiting.

Execution was ordered for August 28 and scheduled for a little after midnight. Legally, Johnson pointed out, it could have been carried out at any time during that 24 hours. We groaned and waited some more. Midnight came and went. So did the deadlines for the morning papers. Reporters looked pained, cell-phoning shrugs through the ether to cursing editors.

Finally, the phone rang: Elledge was ready. Stripped of our watches and tools of the trade (lest our notebooks and ballpoints contain cameras or microphones), we were given prison-issue pens and paper and led through a maze of gated, locked, and razor-wired chain-link fence along the 20-foot cement outer walls bearing stenciled signs:

Out of Bounds - Inmate presence is unauthorized and will be considered an escape - Lethal force will be used.

The high-ceilinged, double-duty viewing room has two curtained windows, one for each choice provided the condemned: one near the ceiling for hangings, another low for lethal injection.

The death house has a gallows unused since triple murderer Charles Campbell was stretched in 1994. Elledge got to choose not only that he would die, but how he would die. Before Campbell's execution, U.S. Supreme Court Justice Harry Blackmun criticized Washington state for its gallows. "Hanging," he wrote, "is a crude and imprecise practice," noting that "the only three jurisdictions in the English-speaking world that impose state-sponsored hangings are Washington, Montana, and South Africa." Montana has since gone to injection, and South Africa has abolished capital punishment.

Washington has spent lots of money over the years defending its gallows. Campbell, the last man hanged, appealed his case for years, claiming that hanging is cruel and unusual. The 9th U.S. Circuit Court of Appeals barely rejected his claim by a 6-5 majority, and the U.S. Supreme Court declined to intervene.

In 1994, a federal judge ruled that 410-pound Mitchell Rupe was so heavy he'd be decapitated if he were hanged. (In Rupe's third sentencing trial last year, jurors deadlocked on his death sentence, effectively sentencing him to life without parole.) In 1996, the state Legislature passed a law that prisoners sentenced to death will receive lethal injection unless they ask for hanging.

We sat down on folding chairs, a wooden handrail between us and the window. We were joined by four men from whom we'd been scrupulously separated--two Snohomish County detectives and deputy prosecutor John Adcock.

The other was William Jaquette, Elledge's court- appointed attorney and friend. After shrinks found Elledge competent, Jaquette represented his client's death wishes, which was difficult because of his passionate opposition to the death penalty.

Everybody in a free society, Jaquette says, has the right to choose and direct his own defense. But, he told a reporter, "the death penalty makes killers of us all. "It is bad law, a terrible law," he says. "It's such a waste of human energy." Elledge believed his Christian faith required him to die as redemption for his crimes. Jaquette tried to convince him he was legally and theologically wrong. Elledge was unmoved.

Jaquette says he represented his client as his professional ethics require, and he's taken a lot of heat from death penalty opponents. The clemency petition declared, "Mr. Jaquette and the prosecution have acted as one throughout this case . . . this has resulted in a complete failure of the adversarial balance essential to our criminal-justice system." "He shouldn't have had this as an option," Jaquette says.

WE SAT ON THE EDGES of our seats like kids waiting for a puppet show. Then the curtain went up, revealing the shitty little room with its exposed electrical conduits, elevated now to the dramatic status of "death chamber." A small one-way glass window behind Elledge's head concealed the anonymous "injection team."

These "licensed medical practitioners" are chosen by prison superintendent John Lambert, their identities known only to him. Elledge lay on his back on the old wooden gurney.

The clear plastic intravenous lines coming out of the wall behind him led to catheters stuck in his arms under a dark blue sheet covering him feet to chin. His arms sat on rests angled away from his sides, hands completely covered with black tape. With his eyes and mouth closed, he looked already dead. His scraggly beard was shaved, leaving one of those bushy 1970s mustaches favored by cops. His thin, graying hair was combed forward and looked blow-dried; his skin appeared very white. He was laid out like a corpse at a mortuary viewing.

Lambert, a balding man in shirtsleeves, came out and said hurriedly into a microphone, "Inmate Elledge has no last words." There's more drama in putting down a dog, anesthetizing a frog, or salting a slug than there was in watching this human die. I stared at his chest with the dark sheet against the light wall to detect a breath. I saw no movement. Some reporters said they saw a breath, some said an eyebrow twitched; we all saw his jaw relax and mouth open.

The first drug, two grams of thiopental, a sedative, was so massive that even if they had stopped the other chemicals, it would have been over. Then came a load of pancuronium bromide, which paralyzed him from the neck down; finally, potassium chloride stopped his heart. In these amounts, any one of these drugs would be fatal.

They wanted to prevent a "Rasputin phenomenon," an uncomfortable situation named after the mad monk who wouldn't die. We witnessed very little. There was no beginning, and we knew it was over only when the curtain fell and Veltry Johnson told us Elledge had been pronounced dead at 12:52 a.m.

I felt ripped off. It seemed a mockery of the witness requirement--we were supposed to view the alleged humanity of this process, but we had no real access to it. His attorney had left him at 11 p.m.

For all we know, in the next hour and a half he could have changed his mind, tried to stop his execution, been wrestled down by guards, had a needle stuck in his arm to shut him up, and then been laid out for us to "witness."

I HAVE NO REASON to think this scenario happened--nor that this Department of Corrections is evil. But I can't say that about Texas, Florida, or some future DOC. The awesome power given the state, with so much secret discretion in this life-and-death duty, is for me the overriding argument against capital punishment.

Even if the judicial process could somehow be made perfectly just and fair, the power to put to death should not be in human hands. Two of the last three men executed since the death penalty was reinstated here in 1981 have been "volunteers," waiving their rights to appeal. Is it state-sanctioned suicide? Nancy Nelson, a demonstrator from Seattle, won't let us off that easy. "We, the citizens of this state, are killing him," she says.

Mike Helland, the brother of Elledge's victim, never lobbied for or against Elledge's execution. But the role Elledge played in deciding his own punishment bothers him. "I hope that I get the justice that Eloise got. And that's death," Elledge told police. "I want it so bad you can't believe it." Is the killer getting what he wants? Is death the worst punishment? "He had a choice," Helland says. "That's why my emotions on the death penalty are so confused."

Elledge's execution drew far less attention and protest than the previous three. The judicial system, usually so pokey, went very quickly this time. And Elledge was a quiet, guilt-ridden man who made no waves, said very little.

Outside the prison a handful of people waited in an area designated for death penalty supporters: a couple with their 8-year-old daughter, tourists drawn to the lights, and Don Earney of Spokane, who said, "The Lord willing, there'll be an eye for an eye."

In the area designated for those opposed, 100 demonstrators held signs that read "Revenge is bitter" and "Two wrongs do not make one right." They prayed, lit candles, and made the arguments against state- sanctioned vengefulness, the state's completion and complicity in the circle of violence, racial disparities, and the unique irreversibility of this punishment. "This one's been very quiet," Timothy Kaufman-Osborn, vice president of the American Civil Liberties Union of Washington, told The Seattle Times. "And that's a problem, because it becomes all too easy for us to forget that officials acting in our name are killing for punishment."

A Harris Poll found that national support for the death penalty dropped to 64 percent this year, down from 75 percent in 1997 and 71 percent in 1999. "The recent debate about the quality of justice in murder trials, the overturning of several convictions as a result of DNA tests, and the resulting moratorium on executions in Illinois have clearly had an impact on public attitudes to the penalty," said Harris Poll chairman Humphrey Taylor.

The poll also found that 94 percent believed that some innocent people have been convicted of murder. Only if these numbers continue to decline will there ever be a change.

Judging by the present U.S. Supreme Court, the probable philosophies of George Bush's court appointees, and the southern Republican stranglehold on the U.S. Congress, the abolishment of the death penalty must happen at the state level.

Nancy Nelson's T-shirt asks the question that we must press the American public to address: "Why do we kill people who kill people to show people that killing is wrong?"


Dispute embroils killer's request to die

Critics say Elledge's good side kept from jurors, resulting in 'state-sanctioned suicide'

By Rebekah Denn - Seattle Post-Intelligencer Reporter

Saturday, July 7, 2001

There were a lot of things the Snohomish County jury didn't know about James Elledge when they sentenced him to die.

They knew he was a two-time killer, but they didn't know about the man whose life he once saved.

They were told he was competent to stand trial, but they didn't hear that he had pleaded insanity in a previous case.

They didn't hear about a childhood so harsh he once asked a parole officer to let him stay in reform school rather than go home; or about a criminal justice system that was warned he could kill again if let loose, and let him loose anyway.

The jury didn't know these things, because Elledge didn't want them to know. Convinced he deserved to die for killing Eloise Fitzner in Lynnwood in 1998, he pleaded guilty to aggravated first-degree murder, and instructed his lawyer not to present any defense in the penalty phase of his trial.

The Washington Supreme Court affirmed Elledge's death sentence on Thursday, and Elledge will not appeal the decision. If all goes as expected, he will die by lethal injection later this year.

"It's gotten to the point that's the only thing I believe -- that I should pay the maximum penalty for what I done," the 58-year-old Elledge said in a recent interview at the Washington State Penitentiary in Walla Walla.

"I don't look at this as an execution, I look at it as a separation. There's a dirty part of my soul, and I want it destroyed."

But information about Elledge's past raises questions about the way the death penalty was applied in his case -- renewing an argument over whether a defendant's right to control his own defense should trump the state's obligation to apply a death sentence to only the most terrible criminals.

Some say the distorted picture the jury received in the Elledge case flies in the face of the neutral application the state is supposed to guarantee when it imposes its harshest punishment. "Had this all been presented, it sounds like a very good mitigating case, far better than many that have resulted in life sentences (rather than execution)," said Katie Ross, who co-chaired the death-penalty committee of the Washington Association of Criminal Defense Lawyers during the Elledge case and unsuccessfully tried to intervene on his behalf.

"Wouldn't you want to know those things if you were deciding whether a person should get the death penalty or life in prison?"

The issue is particularly troubling because Elledge is not an isolated case. If all goes as expected, he will become the third "volunteer" out of four people executed in Washington since 1993. More than 10 percent of the people executed nationwide since the death penalty was restored in 1977 after a five-year moratorium have wanted to die, and the number is increasing, according to Richard Dieter, head of the Death Penalty Information Center in Washington, D.C. In Elledge's case, the jury's job would have been far more difficult if Elledge's attorney had presented the information the Seattle Post-Intelligencer reviewed in his case. One juror, Jon Sherrell, said he might have gone with life imprisonment instead of death.

"I could have seen it changing my mind."

A troubled life

There's no doubt that Elledge is guilty of Fitzner's murder. The question is whether his crimes were as ghastly as others that led to the death penalty in this state, and whether his choice to block favorable details from the jury resulted in, as several lawyers put it, "state-sanctioned suicide."

As the jury was told during the trial, Elledge was in and out of reform school from the time he was 10. His first serious crime came at age 21, when he kidnapped a Western Union clerk during an armed robbery in New Mexico in 1964. He killed a motel manager in Seattle in 1974, serving 21 years in prison.Each time he returned to society through work release or parole, he got in more trouble Finally, after his last parole in 1995, it seemed as if he was getting his life in order.

He claimed to be sober. He had a loving girlfriend, Ann Wesseler, who later became his wife. He held a steady job as janitor in a church, opened a maintenance business on the side. He was part of his church community and was even recommended for the position of trustee.

"I know there's a good part to me," he said when pressed. "When I was outside this last time, I displayed a lot of it."

Then his girlfriend received a letter from Fitzner, a former friend and neighbor who urged her to have nothing to do with Elledge. "Please don't stay with that awful man anymore. He does not even love you," Fitzner wrote.

"The hate and the anger that was inside of me just came up," Elledge would tell police.

It boiled over, months later, after he and Ann had married. On a weekend when his wife was out of town, Elledge invited Fitzner and a friend out to dinner. Fitzner, an invalid, dressed up for the rare night out in a fancy blue outfit. Elledge lured them to the basement of the church where he worked by telling them he had "presents" for them. Instead, he bound them with lengths of pre-cut rope.

Elledge then gagged and strangled the terrified Fitzner. He stabbed her in the neck, crammed her body into a storage space. He drove off with her friend and sexually assaulted her at his apartment, police reports say. Elledge denies the assault.

He released the friend the next day and drove to Tacoma. Three days later, he turned himself in, saying he had tried to kill himself twice. He pleaded guilty to aggravated murder, a charge that carries only two possible penalties in Washington: life without parole or death.

Elledge was represented by one of the most experienced death penalty attorneys in Snohomish County, Bill Jaquette, head of the county public defender's office. Jaquette is personally opposed to the death penalty but passionately believed in Elledge's right to control his own defense and used all his skill to help him.

Crimes fueled by alcohol

Three years behind bars hasn't changed Elledge's resolve to die for Fitzner's murder.

The attack destroyed his lifelong hopes that he would someday be free of prison. Even if Fitzner had miraculously survived the attack, he said he would have wanted to die. He considers himself a Christian, and his 1974 crime still weighed on his soul.

"Bertha. Bertha Maude," he said when asked if he remembered the victim's name. "Every time I'd drive by the graveyard out there where she's buried at, well, I just felt so damned guilty."

Despite the apparent success of his parole, life on the outside was as strange at times as life on the inside was terrible.

"I still didn't feel comfortable out there at all," he said.

His prison records alone could have predicted the disconnect. They draw a clear picture of an "institutionalized" man who invariably ran into trouble during his brief periods of freedom.

"No use," wrote one corrections officer after Elledge violated parole in another state in 1990. "Might as well go get him and attempt to save another life."

"It is obvious that Mr. Elledge cannot adjust to life outside of prison," a community corrections supervisor wrote in 1994. He warned a state review board to "be extremely careful" in considering whether to ever let Elledge out of prison, writing that he strongly believed Elledge was "at high risk" to kill again. And a 1995 report after his release clearly held little hope for Elledge's redemption, saying a community corrections officer will "keep a close eye on this fellow until he escapes again."

Most of his crimes were fueled by alcoholism. "I started so durned young in drinking," Elledge said. "Hell, I'm talking about a little kid, 7, 8 years old. I think that's what destroyed me."

Born and raised in rural Louisiana, he was jailed when he was 10 for breaking and entering, shortly after his father was hospitalized for mental illness. His mother was unable to cope with raising five children and turned to alcohol, leaving a home environment "void of either economic or emotional security," according to a presentencing report in Elledge's 1974 murder.

He was traumatized at age 6 or 7 by the death of a beloved sister whom he says he loved "more than my mother or daddy."

Then, Elledge's father died when he was 13. A sociologist's report says two of his half-siblings killed themselves after his father's death, and that his mother attributed Elledge's troubles to the loss of the father he loved.

He was hospitalized for months with severe burns after an accident in a reform school kitchen, and progress reports say he once asked his parole officer to return him to reform school "so that he could escape the unhappiness and poverty at home."

Once home, he dropped out of school and got a job to help support his family. He told a psychiatrist in 1974 that he was "starving" at home -- then left home at age 15.

Although many of his medical records are sealed, psychiatric evaluations over the past 35 years suggested he was a man of average to above-average intelligence who was mentally ill. One diagnosis was a "sociopathic personality disturbance"; another says "he has a number of characteristics consistent with a serious personality disturbance"; another suggested he was brain damaged.

The 1975 jury did not accept that Elledge was insane, convicting him of first-degree murder, but the legal definition of insanity is narrow. A defendant can be mentally ill -- which could have been considered a mitigating factor by Elledge's 1998 jurors -- without being legally insane.

And even if his mental health was sound, other factors could have influenced jurors toward leniency:

- Elledge has family and friends who could have tried to convince jurors his life was worth sparing.

"He was sweet, he was funny. He always made me laugh," said his wife, Ann, a former day-care worker at Elledge's church who now lives with her mother in south King County. Ann describes herself as "slow" and said Elledge was always there to take care of her.

Duane Grooters, a friend, respects Elledge for not fighting the death sentence and said he believes there's a price to be paid for murder. But he said he would have talked to the jury if Elledge had wanted him to.

"He had made many friends within our church, within our community. They were probably all equally shocked when this happened," Grooters said. "He is not a raging, violent person. He's got two distinct sides to him, and I guess I would like people to know he is not a violent murderer like so many murderers that we think about."

- Elledge risked retaliation from other inmates by alerting jail officials that high-profile criminals were plotting to tunnel out of the Walla Walla penitentiary in 1977. The tip led to "substantial threats against his life," corrections documents said, and he was moved to an Atlanta prison for his own safety.

- In the 1987 Cuban prison riots in Atlanta, Elledge was credited with risking his life to save a guard. A prison lieutenant wrote that Elledge came to his aid "to help avoid the Cubans from taking me hostage and gaining control of my security keys." Elledge barred a door in the lieutenant's defense, the memo said, stating that "he would fight for as long as he could hold out."

- Elledge was frequently praised for his work ethic and attitude while in prison, receiving commendations and letters of support. He completed his high school equivalency exam in prison and took classes for anger management and substance abuse.

- His other crimes were committed in an alcoholic haze. He insists to this day that his 1974 murder was not premeditated and should have resulted in a lesser conviction than first-degree murder. His original attorney still believes the jury made a mistake in that case.

"I feel sorry for him, and I feel sorry for the victims," said Lish Whitson, his 1975 attorney.

But Snohomish County Deputy Prosecutor Mark Roe, one of two prosecutors who tried the 1998 capital case, reviewed Elledge's prison records and says the "what-ifs" weren't relevant given Elledge's wishes. There is no question that Elledge was mentally competent to make the decisions -- meaning he was able to understand the charges against him and assist in his own defense. That, for Roe and public defender Jaquette, is the key point.

"Once you are (deemed) competent as a criminal defendant, it is up to you to decide whether to raise those other issues. And if you don't want to ... you've got the right to make that decision," Roe said.

State-assisted suicide?

Elledge waived his appeals, but the state Supreme Court was required to automatically review all death penalty cases, in part to make sure the penalty isn't given in cases where similar crimes or criminals generally receive a lesser sentence. Two court-appointed attorneys argued it was impossible for the court to conduct that kind of review fairly when the justices, like the jury, knew virtually nothing about Elledge beyond his crimes.

Legally, the state has no problem with Elledge's approach. The Supreme Court's Elledge decision was the third time it has ruled that a competent defendant is not required to present mitigating evidence in his own defense.

Triple-murderer Jeremy Sagastegui, executed in 1998, offered no defense at his trial and later tried to block family members from intervening with evidence that he was mentally ill and had been abused as a boy.

Child rapist and murderer Westley Alan Dodd, who became the first person executed in Washington state in 30 years when he was put to death in 1993, pleaded guilty in his trial, called no witnesses in the death penalty phase and waived all rights to appeal the jury's death sentence.

But opponents say the issue touches the same nerve that the U.S. Supreme Court recognized when it temporarily banned the death penalty in 1972, saying existing laws offered no way to distinguish the criminals whose crimes and history did call for the death penalty from those whose crimes and history did not.

It was an issue that wracked a former state Supreme Court judge, Robert Utter, who resigned in 1995 in part because prosecutors did not seek the death penalty in a savage Seattle double murder. Utter said prosecutors had sought death in far less brutal crimes, and he believed the death penalty was being applied inconsistently.

Legal precedents conflict, and likely will continue to do so unless the U.S. Supreme Court addresses the issue.

Until then, lower courts have dealt with the problem in different ways.

The California Supreme Court ruled in 1985 that an attorney had not adequately represented his client because he agreed to his client's request not to present mitigating evidence in a death penalty case. The 9th U.S. Circuit Court of Appeals, though, ruled in 1996 that a Montana court was correct in allowing a murder defendant and his attorney to withhold all mitigating evidence in a case. And the New Jersey Supreme Court, in a 1999 case, insisted on hearing mitigating factors in a murder case over a defendant's wishes, but heard them in a closed-door hearing.

The attorneys trying to intervene in Elledge's case, Carl Sonderman and Paul Wasson, unsuccessfully asked the state Supreme Court to appoint independent lawyers who would seek out whatever mitigating evidence they could find and present it to the court. That would allow defense lawyers to avoid violating the wishes of their clients, but allowing the jury to hear the evidence.

Otherwise, opponents argue, volunteers like Dodd, Sagastegui and Elledge make a mockery of the adversarial process that forms the basis of the criminal justice system in the United States. In essence, Wasson and Sonderman wrote, "the prosecutor and the defense attorney become a team seeking the death penalty."

Defense attorney Jaquette takes issue with that characterization. The end goal for Elledge and for the prosecution may have been the same, he said, but that doesn't mean they were on the same side. His interest, he said, was to protect Elledge's dignity and fulfill his wishes.

Besides, Jaquette said, there could also be strategic reasons for a defendant to block mitigating evidence. "Frequently, information that is mitigating is not presented because it opens the door to something else," Jaquette said.

Considers himself a Christian

Behind bars in Walla Walla, Elledge is trying to live quietly while he hastens the path to his death.

"I try to get along with everybody. When I spend time I like to spend it quietly," he said from behind safety glass on death row.

When he came to the prison in 1999, he spent time with his Bible, memorizing favorite Psalms. Now he spends more time reading, watching TV, and writing letters, including those to his two daughters and to the grandchildren he's never met.

Asked if had ever done anything in his life he is proud of, he points to his children. "Boy, they turned out super-good." But he has not added their names to his list of approved visitors. He doesn't want his loved ones coming to argue him out of his decision, even though he says "I miss not being with my people."

Fitzner, the murder victim, once wrote that Elledge was an "awful man," someone who claimed to be a Christian but didn't live a Christian life.

Despite his crimes, Elledge still considers himself a Christian, and believes in a God that "has forgiven me for what I've done" and will not fault his decision to seek death.

"The Bible talks about how you should not learn to love this life. And ... I don't love it, for particular reasons. I'm a convicted criminal. I'm looking for a way out of this," he said. "I thought the last time I was going to change. I'd done everything I thought I could. "I just kept getting worse."



No. 67342-0


En Banc Filed July 5, 2001

MADSEN, J.--James Homer Elledge pleaded guilty to one count of aggravated first degree murder in Snohomish County Superior Court.  A special sentencing jury concluded there were insufficient mitigating circumstances to merit leniency, and the trial court sentenced him to death.  Elledge waived his right to a direct appeal and asserts before this court that he wishes to be executed.  We appointed amicus to brief the statutory review criteria enumerated in RCW 10.95.130.  We affirm Elledge's sentence of death.


a.   Facts of the Crime

On the afternoon of April 18, 1998, James Elledge invited Eloise Fitzner and her friend, 'S.C.,' for a night out, promising them gifts and dinner.1  Verbatim Report of Proceedings (RP) at 1547; Ex. 43.  They arranged to meet at Elledge's church, the Lighthouse Methodist Church in Lynnwood, Washington, at around 8:30 p.m.  When Ms. Fitzner and S.C. arrived Elledge gave them a brief tour of the church, during which they met the pastor.  After the pastor left, Elledge continued with the tour.

Eventually, he guided the two women to Room 102, a bible study room with risers around its perimeter.  After they entered the room, Elledge closed the door, pulled out a knife, and told Ms. Fitzner 'that {he} didn't appreciate what she had done about a year ago, as far as trying to mess the marriage up between {he} and {his} wife.'  Ex. 43; RP at 1549.

Elledge and Ms. Fitzner were former neighbors in the same apartment complex.  Approximately one year earlier, Ms. Fitzner wrote a letter to Elledge's then girl friend, urging her to '{not} stay with that awful man any more,' and asserting that '{Elledge} does not even love you' and that She is just using you for sex, and because he needs the income from your job.' Ex. 4.  The letter further accused Elledge of making sexual advances toward Ms. Fitzner.  Id.  At some point, shortly after Elledge's girl friend received the letter, Elledge read it.

Despite the letter, Elledge and his girlfriend later married, but Elledge did not forget about the letter.  In Elledge's words: I had been carrying around . . . anger inside of me for over a year {and it} just got to the top and it just spewed out.

. . . .

That Saturday. Uh, I don't know, twelve, twelve-thirty, something like that was when this whatever it is inside of me came out.  The rage uh whatever it is.

Ex. 43.

That rage led to a decision to murder Ms. Fitzner.  Id.  Elledge went to Fred Meyer to buy some rope, visited the church to prepare for the murder, and wrote two letters, one to his wife and the other to his employer.  Id.; RP at 1603-04.  As Elledge stated, '{i}t was premeditated {t}he whole thing was.'  Ex. 43.

After Elledge confronted Ms. Fitzner in the prayer/bible study room, he bound the two womens' wrists and ankles with nylon cord.  Ex. 43.  He then put S.C. on an upper riser, placed a black sweatshirt over her head, and had her face the wall.  RP at 1549.  Elledge placed a Bible next to S.C., telling her it would keep her safe.  RP at 1550.  S.C. could hear a struggle and peeked a few times, noticing Elledge ripping off a piece of duct tape on one occasion.  When Elledge caught S.C. looking he told her to turn around or she would be next.  RP at 1551.  The last words heard from Ms. Fitzner were, 'No, stop, I can't breathe,' as Elledge placed a strip of duct tape over her mouth.  Id.  Elledge then manually strangled Ms. Fitzner.  Ex. 43.

Elledge then dragged Ms. Fitzner underneath the riser.  In his taped confession, he explains his next actions:

Uh, after I ??? choked her to death, uh there appeared to be some kind of movement still going on with the body.  I guess that the body was just settling or something but I didn't uh want to take any chances and I put a knife in her neck.

Ex. 43.

Immediately thereafter, Elledge covered up Ms. Fitzner's body with 'several blankets and shirts' and placed 'boxes and packages and stuff like that on top of her.'  Id.  The medical examiner testified that either the strangulation or stabbing injury alone would have caused Ms. Fitzner's death and that she was probably alive when she was stabbed, but may have been unconscious.

Elledge then fled the scene, took Ms. Fitzner's car, abducted S.C., and drove to his home.  The next day, Elledge drove S.C. to her vehicle and released her, threatening he would find her if she contacted the police. Immediately upon her release, S.C. contacted the authorities and an investigation began.  Police located Ms. Fitzner's abandoned car in Tacoma on the morning of April 21.  On the same day, Elledge telephoned the police from a Tacoma hotel room and surrendered.

Tacoma police detained Elledge and detectives from Lynnwood came to Tacoma to interview him.  The detectives informed Elledge of his Miranda rights, and obtained a written and oral waiver.  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  Elledge confessed to killing Ms. Fitzner, describing the crime in great detail.  Elledge stated the reason for making his confession, and recounted his mental state at the time leading up to the killing.

{T}he thing is uh I've already been convicted once of a first degree murder and I'm still on parole for that.  Uh, the Parole Board is obviously gonna revoke my parole uh and that is still carrying a life sentence . . . {s}o I don't feel that I have anything to uh gain or lose by holding back . . . . I've already made my bed, now I've gotta sleep in it the rest of my life . . . .

. . . .

I don't really think I'm looking for any you know kind of insanity plea or anything like that but I'm just saying that there's something wrong with my nature.  I don't know where it comes from or what it is uh, but at times uh this particular type of nature comes up in me uh, an evil that I can't control uh.  This happened several times in the past few years but I had been able to control a lot of it by uh power or prayer.  I am a Christian but this particular time, Saturday, uh, it was just something I couldn't control.

Ex. 43.

b.   Procedural History

On April 24, 1998, Elledge was charged by information with one count of aggravated first degree murder, based on the aggravator of kidnapping in the first degree.  At his arraignment on April 28, 1998, the court entered a plea of not guilty on Elledge's behalf, and Elledge was held without bail.  On May 27, 1998, the State filed an amended information and a notice of special sentencing seeking the death penalty.  That same day, Elledge entered a plea of guilty.  The following typewritten statement was included in his guilty plea:

On April 18, 1998, in Snohomish County, Washington, with the intent to inflict bodily injury upon Eloise Fitzner, I tied up both she and S.C. (DOB 11/01/58) and held them in a place where they were not likely to be found, and threatened them both with the use of deadly force, and in the course of and in furtherance of such crime, I choked Eloise Fitzner and stabbed Eloise Fitzner with the premeditated intent to kill her . . . .

Clerk's Papers (CP) at 226.

Elledge acknowledged the above statement in open court and the trial judge assessed Elledge's competency, as well as the voluntariness of his plea. The court accepted the plea, found Elledge guilty, and scheduled a jury sentencing proceeding for June 19, 1998.  Following several continuances, voir dire began on September 30, 1998.  The majority of the venire panel was informed that Elledge would not be contesting the death penalty.

A special sentencing proceeding commenced on October 20, 1998.  Following an opening statement by the prosecution (the defendant reserved), the State presented its case.  Three witnesses were called.  First, Detective Jim Nelson, the lead detective on the case, provided general testimony regarding the crime.  Second, Dr. Daniel Selove, the medical examiner, presented testimony regarding the autopsy and examination of Ms. Fitzner, as well as the cause of her death.  Finally, the State called Michael Helland, Ms. Fitzner's brother, who provided victim impact testimony.

Following the State's presentation, Elledge's attorney gave an opening statement and introduced Elledge, who delivered a statement of allocution. Elledge expressed remorse for the killing, but asked the jury to impose the death sentence asserting that 'this wicked part of me needs to die.'  RP at 1721.  On October 21, 1998, the jury returned with an affirmative answer to the question: '{h}aving in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.'  CP at 34.

That same day, the trial court sentenced Elledge to death.  Elledge was apprised of his right to appeal, which he waived.  Before this court, both Elledge and the State advocate affirmance of Elledge's death sentence. We appointed amicus to brief the mandatory statutory review criteria enumerated in RCW 10.95.130.  We affirm Elledge's sentence of death.


Elledge waived his right to appeal both his conviction and sentence. CP at  7-11.  As such, the scope of this court's review is guided by State v. Sagastegui, 135 Wn.2d 67, 954 P.2d 1311 (1998) and State v. Dodd, 120 Wn.2d 1, 838 P.2d 86 (1992).

First, we must determine whether Elledge's waiver of his right to appeal was made 'knowingly, voluntarily, and intelligently.'  Sagastegui, 135 Wn.2d at 82; Dodd, 120 Wn.2d at 18.  If it was, we must next conduct the statutory review mandated by RCW 10.95.130, which requires us to answer four questions: (1) Was there sufficient evidence to justify the finding that there were not sufficient mitigating circumstances to merit leniency; (2) Was the sentence of death excessive or disproportionate to the penalty imposed in similar cases; (3) Was the sentence of death brought about through passion or prejudice; and (4) Was the defendant mentally retarded?2


For purposes of assessing the validity of a waiver of the right to appeal this Court utilizes the test approved by the United States Supreme Court in Whitmore v. Arkansas, 495 U.S. 149, 165, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990).  Sagastegui, 135 Wn.2d at 83 (citing Whitmore).  This requires 'review of the trial court's determination, made following a hearing, that the defendant made a knowing, voluntary, and intelligent waiver of his right to appeal.'  Id.  Specifically, we must assess whether the trial court erred in concluding that 'the defendant had 'the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.''  Dodd, 120 Wn.2d at 22 (quoting Whitmore, 495 U.S. at 165).  As we stated in Sagastegui,

This requires us to determine if the record supports its holding that the defendant (1) had the capacity (or competency) to understand his options, and (2) was provided with the requisite information to enable him to make a knowing, voluntary, and intelligent decision to waive a general appeal.

Sagastegui, 135 Wn.2d at 83.

The record amply supports the conclusion that Elledge was competent to waive his right to appeal.  In determining a defendant's competency this court has referred to myriad factors, including the defendant's demeanor, statements by the trial judge, statements by counsel, and psychiatric reports.  Dodd, 120 Wn.2d at 23.  Dr. Kenneth Muscatel, a clinical and forensic neuropsychologist, conducted a psychiatric evaluation of Elledge prior to entry of Elledge's guilty plea.  In his sealed report, Dr. Muscatel candidly describes Elledge's mental condition, ultimately concluding that Elledge is competent to make informed decisions regarding the course of his defense.

Elledge's competency was also assessed by Judge Thibodeau at the time Elledge's guilty plea was entered on May 27, 1998.  After engaging in an extensive colloquy with Elledge regarding his rights and the voluntariness of his plea, Judge Thibodeau asked Elledge's attorney for his opinion.

THE COURT: Mr. Jaquette, there's no issue from your perspective as to the competency of the defendant in this particular case?  He appears to be coherent and with me here this afternoon. Is there anything from your perspective that you would question at this time, sir?

MR. JAQUETTE: No, Your Honor. Mr. Elledge is competent and we have had a number of intelligent conversations about this whole matter and I'm satisfied that he knows exactly what he's doing.

THE COURT: There was an evaluation done, I assume, in this case?

MR. JAQUETTE: There was.

THE COURT: And I would just ask that be made part of the record and will seal it at this point in time.

MR. TOWNSEND: The State will certainly be agreeable to that, Your Honor.

THE COURT: The Court would--yes?

MR. TOWNSEND:  Your Honor, I'd also indicate on the competency issue that my office has received reports from the Department of Corrections in connection with Mr. Elledge's prior incarceration and those records would confirm the evaluation and observations by Mr. Jacquette, indeed, that Mr. Elledge has consistently been competent and of above-average intelligence.

RP (May 27, 1998) at 10-11.

In this case, unlike in Dodd and Sagastegui, the trial court did not call expert witnesses to testify as to the defendant's competency prior to making its determination that a valid waiver had occurred.  See Dodd, 120 Wn.2d 10-11; Sagastegui, 135 Wn.2d at 84-85.  Nevertheless, following the sentencing proceeding the court did conduct an on the record hearing during which time Elledge was informed of his rights and options in appealing his
conviction and sentence.  The court also revisited the issue of Elledge's competence, and made a specific determination that Elledge's waiver was made 'knowingly, voluntarily, and intelligently.'  Sagastegui, 135 Wn.2d at 82.  After the court explained to Elledge his right to appeal, the following exchange occurred:

THE COURT: The question I have for you as it relates to the general appeal, you understand, of course, the difference between life and death and what's happening in this particular case, don't you?


THE COURT: You also understand that Mr. Jaquette has represented to this Court, according to Dr. Muscatel, that you are competent to do what you are doing here today. Do you understand that as well?


THE COURT: In order to do this you must waive this right to general appeal knowingly, intelligently, and voluntarily.  Do you understand that?


THE COURT: Similar to the same way we went through the plea, that you knowingly understood the plea, you voluntarily entered into it, and you were advised of all your rights. Do you understand that as well?


MR. JAQUETTE:  I'd like to read {Elledge's written waiver} to the Court. I've gone over this with Mr. Elledge. I'm satisfied he understands what he's doing and that he is knowingly and intelligently waiving his right to a general appeal.

1. Article I, section 22, of the Washington State Constitution guarantees me the right to appeal my conviction and sentence.

2. If I choose to exercise my right to appeal, the Washington Supreme Court will review the record of the proceedings and determine if any legal errors have been made.

3. Since I am indigent, I have the right to have an attorney appointed to represent me.  That attorney would review the complete record of this case and prepare a written brief detailing all possible claims of legal error in the proceedings and would present oral argument on my behalf.

     . . . .

9. I do understand the difference between a life sentence and the death penalty.

a.   If I were to have been sentenced to life without the possibility of release or parole, I understand that I would serve the rest of my life in confinement and that that sentence could not be deferred or suspended.

b.   Because I have been sentenced to death the laws of Washington require that I be put to death by means of lethal injection unless I choose the lawful alternative of hanging.

10. Before my death sentence can be carried out, the laws of Washington (RCW 10.95.100 and 10.95.130) require that the Washington Supreme Court determine:

{Recitation of statutory review criteria}

With all of these facts in mind, I hereby waive my right to a general appeal of my conviction and sentence.

MR. JAQUETTE: Mr. Elledge signed that in my presence.  I'm satisfied he understands what he said.

THE COURT: Is that true? Anybody force or threaten you today, Mr. Elledge, to sign this particular document, sir?


THE COURT: Did you go over the document in detail with Mr. Jaquette?


THE COURT: Did he fully explain to you the ramifications of this particular document?

THE DEFENDANT: Yes, he did.

THE COURT: You are still comfortable and satisfied with this? This is really what you want to do here today?


THE COURT: You want the Court to accept this waiver?


THE COURT: The Court will file the waiver for the record.

RP at 1773-78.

We are convinced that the hearing, coupled with Dr. Muscatel's psychological report, is sufficient to satisfy the Whitmore test even in the absence of expert testimony.  Indeed, the waiver hearing approved by the United States Supreme Court in Whitmore was less thorough than the one conducted in this case.  In Whitmore {the defendant} was questioned by counsel and the trial court concerning his choice to accept the death sentence, and his answers demonstrate that he appreciated the consequences of that decision. He indicated that he understood several possible grounds for appeal, which had been explained to him by counsel, but informed the court that he was 'not seeking any technicalities.'  In a psychiatric interview, Simmons stated that he would consider it 'a terrible miscarriage of justice for a person to kill people and not be executed,' and there was no meaningful evidence that he was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.

Whitmore, 495 U.S. at 165-66 (citations omitted).

It is also notable that Elledge has been unequivocal in his intent to seek the death penalty since the time of his original guilty plea in May 1998. As recently as May 1999, Elledge filed another written waiver, this time with this court, urging this court to expedite execution of his death sentence.

We hold that Elledge's waiver of his right to appeal was made 'knowingly, voluntarily, and intelligently.'  Sagastegui,  135 Wn.2d at 82.


A.   Sufficiency of Evidence

As required by RCW 10.95.130(2)(a), we must determine whether there was sufficient evidence to justify the jury's determination that there were not sufficient mitigating circumstances to merit leniency.  The test applied is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found sufficient evidence to justify this conclusion beyond a reasonable doubt.  State v. Rice, 110 Wn.2d 577, 623, 757 P.2d 889 (1988); State v. Stenson, 132 Wn.2d 668, 757, 940 P.2d 1239 (1997); State v. Brown, 132 Wn.2d 529, 551, 940 P.2d 546 (1997); State v. Gentry, 125 Wn.2d 570, 654, 888 P.2d 1105 (1995). We have explained our review process in the following manner:

We do not weigh the aggravating factors against the mitigating factors the way the jury did; rather we consider the circumstances of the crime and any mitigating circumstances and determine whether a rational jury could have concluded that mitigating circumstances do not outweigh the circumstances of the crime.

Dodd, 120 Wn.2d at 24 (citing Rice, 110 Wn.2d at 624-25).  In addition to the circumstances of the crime, this court has looked to the defendant's criminal history in making its sufficiency determination.  Gentry, 125 Wn.2d at 654.

This case is unique in that Elledge presented no mitigating evidence.  In Sagastegui and Dodd we held 'that a competent defendant may elect not to present mitigating evidence.'  Sagastegui, 135 Wn.2d at 88.  See also State v. Woods, 2001 WL 544002 at 24.  Amicus concedes this point and notes that 'it is not an understatement to say there is no evidence of mitigating circumstance to merit leniency in the trial record.'  Amicus Br. at 23.

Nevertheless, amicus urges this court to depart from its holdings in Dodd and Sagastegui and adopt a position whereby 'special counsel' would be appointed to investigate and present mitigating evidence.  Id. at 24 (citing Sagastegui, 135 Wn.2d at 87).  In Sagastegui we rejected this same argument and we do so again today.  Sagastegui, 135 Wn.2d at 88 ('This argument is nothing more than a request that we overrule Dodd and hold that a competent defendant cannot   decide to not present mitigating evidence to the jury').

We believe the jury was justified in its determination.  Elledge manually strangled and stabbed Ms. Fitzner.  Indeed, as the medical examiner testified, the crime involved an element of torture, as Ms. Fitzner's '{s}uffering was both physical and psychological as strangulation was occurring   the fear of the terror of having your airway cut off, your--an assault occurring.'  RP at 1653.  The crime was premeditated; Elledge had contemplated its commission for over a year.  Ex. 43. 

However, the most significant aggravating circumstance in this case is Elledge's criminal record.  Elledge was on parole for a prior first degree murder conviction at the time that he killed Ms. Fitzner.  The following stipulation was read to the jury and provides an accurate and objective description of Elledge's significant criminal background:

1.   James Elledge was convicted of breaking and entering in Louisiana in 1953 at the age of 10 and was sent to a juvenile corrections facility.

2.   He was convicted of another breaking and entering and a theft charge in Louisiana in September, 1954, and again was sent to a juvenile correctional facility.

3.   He was also convicted of a theft charge in 1956 and once again placed in a juvenile corrections facility.

4.   In 1964, at the age of 21, Elledge committed an armed robbery in October, 1964, in Roswell, New Mexico and was convicted thereof in February, 1965.

The crime involved a robbery at a Western Union office, in the course of which he took the woman clerk hostage, hit her over the head with a gun rendering her unconscious, and poured gasoline on her. For this crime Elledge was sentenced to prison for a term of 10 to 50 years.  He served 7-and-a-half years . . . .

5.   While in prison he escaped.  He was convicted of an attempt to commit a felony and was given a concurrent 2 to 10 year sentence.

6.   Elledge was released from prison on parole in 1972.

7.   In May, 1974, in Seattle, Washington, Elledge committed a murder and was convicted of first degree murder in April, 1975.  He had killed 63 year old Bertha M. Lush by hitting her with a ball-peen hammer.  Ms. Lush was the night manager of the El Dorado Motel where Elledge was staying and the killing occurred in the course of an argument over the rent. He received a life sentence with eligibility for parole for this crime.

8.   Elledge remained in prison until July, 1989, when he was released on parole to live with his daughter in Ruston, LA.

9.   His parole was revoked because of charges of attempted burglary of a bar in November, 1989, and he went back to prison until he was again paroled in April, 1994.

10.  His parole was again revoked in September, 1994, and he went back to prison until he was again released in August, 1995.

RP at 1717-19.

Given the complete absence of any mitigating evidence, and the presence of several severe aggravating circumstances, we hold that the jury was justified in its determination that leniency was not merited.

B. Proportionality

RCW 10.95.130(2)(b) requires us to undertake a proportionality review in each capital case to determine '{w}hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.'4  The pool of similar cases includes those 'reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120.'  RCW 10.95.130(2)(b).  RCW 10.95.120 requires filing of reports '{i}n all cases in which a person is convicted of aggravated first degree murder.'  This includes those cases 'in which the death penalty was sought and those in which it was not.'  Brown, 132 Wn.2d at 554.5

Our proportionality review is guided by two fundamental goals: to avoid 'random arbitrariness and imposition of the death sentence in a racially discriminatory manner.'  Id. at 555.  Consistent with these objectives, we have noted that our proportionality review does not guarantee there will be no variations from case to case, nor that a sentence of death will be uniformly imposed in all superficially similar circumstances.  Mathematical precision is unworkable and unnecessary. 'There is no constitutional or statutory requirement to ensure an unattainable degree of identity among particular cases which are invariably unique.'  Instead, we must determine whether a death sentence has been imposed generally in similar cases, and not imposed wantonly and freakishly.

Id. (footnotes omitted).

In ascertaining whether a death sentence is disproportionate, and thus wantonly and freakishly imposed, we utilize a four part test that considers both the 'crime and defendant' in relation to similar cases.  The four factors are: ''(1) the nature of the crime, (2) the aggravating circumstances, (3) the defendant's criminal history and (4) the defendant's personal history.''  State v. Elmore, 139 Wn.2d 250, 308, 985 P.2d 289 (1999) (quoting Brown, 132 Wn.2d at 555-56).

1.   Nature of the Crime

Elledge manually strangled and stabbed Ms. Fitzner after binding her wrists and ankles.  He had contemplated the crime for over a year.  According to the medical examiner, Ms. Fitzner's '{s}uffering was both physical and psychological as strangulation was occurring   the fear of the terror of having your airway cut off, your--an assault occurring.'  RP at 1653.  As we have stated previously, '{a} brutal murder involving substantial conscious suffering of the victim makes the murderer more deserving of the death penalty.'  Stenson, 132 Wn.2d at 759 (citing Gentry, 125 Wn.2d at 657).

Comparing this case with other 'similar cases,' it is apparent Elledge's crime was at least as vicious and brutal as others in which the death penalty was imposed, thus making it not disproportionate.  See Report of the Trial Judge, State v. Rupe, No. 81-100-316-1 (Thurston County Super. Ct. June 7, 1982) (single gunshot wound to the head, no torture); Report of the Trial Judge, State v. Benn,  No. 88-1-01280-8 (Pierce County Super. Ct. June 12, 1990) (gunshot wounds to the head and trunk, no torture); Report of the Trial Judge, State v. Charles Harris, No. 84-1-01190-6 (Pierce County Super. Ct. Jan. 14, 1985) (gunshot wounds to the head and neck, no torture, contract killing).

2.   Aggravating Circumstances

Elledge pleaded guilty to one count of aggravated first degree murder based on the sole aggravator of kidnapping in the first degree.  '{A} single aggravator will support the death penalty .'  Elmore, 139 Wn.2d 309 (citing Brown, 132 Wn.2d at 558).  This is the lowest number of aggravators possible and places this case in the very low range of the pool of similar cases in this category.  However, we do not view this case as disproportionate in light of other cases in which the sentence of death was upheld based on a single aggravator.  See Report of the Trial Judge, State v. Gentry, No. 88-1-00395-3 (Kitsap County Super. Ct. July 22, 1991); Report of Trial Judge, Harris; Report of Trial Judge, Benn (each finding the death penalty not disproportionate based on a single aggravating factor).

3.   Defendant's Criminal History

Elledge's criminal history is extensive, consisting of convictions for four juvenile offenses and three adult felonies.  Two of Elledge's adult felonies were violent: first degree murder and robbery.  In Gentry we found a prior manslaughter conviction to be 'particularly important' in conducting our proportionality analysis.  Gentry, 125 Wn.2d at 658.

In the pool of similar cases, only a small number of other defendants had a prior conviction for murder or manslaughter.  See State v. Vidal, 82 Wn.2d 74, 508 P.2d 158 (1973) (two murders); State v. Braun, 82 Wn.2d 157, 509 P.2d 742 (1973) (each defendant had a prior murder conviction); Report of Trial Judge, State v. Hughes, No.  82-1-01979-4 (King County Super. Ct. Mar. 14, 1984) (murder); Report of Trial Judge, State v. Benjamin Harris, No. 84-1-01190-6 (Pierce County Super. Ct. Jan. 18, 1985) (manslaughter); Report of Trial Judge, State v. Charles E. Harris, No. 85-1-00093-1 (King County Super. Ct. Oct. 31, 1985) (murder); Report of Trial Judge, State v. Dennis Curtis Williams, Jr., No.  85-1-00158-3 (Mason County Super. Ct. Aug. 29, 1986) (murder); Report of Trial Judge, State v. Christopher Leo St. Pierre, No.  84-1-00992-8 (Pierce County Super. Ct. July 22, 1987) (murder); Report of Trial Judge, State v. Brian Keith Lord, No. 86-1-00470-8 (Kitsap County Super. Ct. Sept. 10, 1987) (murder); Report of Trial Judge, State v. Gentry, No. 88-1-00395-3 (Kitsap County Super. Ct. Oct. 10, 1991) (manslaughter); Report of Trial Judge, State v. Charles B. Finch, No. 94-1-0113-2 (Snohomish County Super. Ct. July 24, 1995) (manslaughter); Report of Trial Judge, State v. Michael Kelly Roberts, No. 94-C-03249-2 SEA (King County Super. Ct. July 14, 1997) (murder); Report of Trial Judge, State v. Dennis Keith Smith, No. 96-1-00957-1 (Clark County Super. Ct. Sept. 28, 2000) (murder).  Over half of these defendants were sentenced to death.  See Vidal, Braun, Benjamin Harris, Lord, Gentry, Finch, Roberts.

Additionally, the penalty of death has been imposed in cases where the defendant had little or no violent criminal history.  See Report of Trial Judge, State v. Mitchell Edward Rupe, No. 81-1-316-1 (Thurston County Super. Ct. July 12, 1982) (no history); Report of Trial Judge, State v. Mak, No. 83-1-00504-0 (King County Super. Ct. Oct. 19, 1983) (no history); Report of Trial Judge, State v. Bartholomew, No. 81-1-00579-1 (Pierce County Super. Ct. Dec. 21, 1981) (non-violent theft, trespass, possession of stolen property); Report of Trial Judge, State v. Rice, No. 85-1-01004-0 (King County Super. Ct. July 21, 1986) (lewd conduct, grand theft auto); Report of Trial Judge, State v. Benn, No. 88-1-01280-8 (Pierce County Super. Ct. June 12, 1990) (nonviolent thefts, grand larceny, numerous misdemeanors); Report of Trial Judge, State v. Stenson, No. 93-1-00039-1 (Clallam County Super. Ct. Aug. 19, 1994) (drug convictions).

Elledge's criminal history is among the most extensive of any within the pool of similar cases 'and shows a pattern of violence towards others.' Brown, 132 Wn.2d at 559.  This factor weighs very heavily in our holding that his sentence of death was not disproportionately imposed.

4.   Personal History

There was no mitigating evidence presented to the jury in this case.  In fact, Elledge, through his counsel, argued there were no mitigating circumstances to consider.

In sum, we have affirmed a verdict of death in cases with less brutal crimes and the same number of aggravating factors.  Given the fact that Elledge's criminal record of violent offenses is among the most significant of all 'similar cases,' we hold that Elledge's sentence was not wantonly and freakishly imposed and therefore not disproportionate.

C.   Passion or Prejudice

Next, we must assess whether Elledge's sentence of death was brought about through passion or prejudice.  RCW 10.95.130(2)(c).  As an initial matter, the jury was instructed that it was not to be influenced by passion, prejudice, or sympathy.  Nothing in the record indicates that this instruction was disregarded. See Sagastegui, 135 Wn.2d at 94 ('{o}ur review of the record discloses no evidence that the jury violated the trial court's instruction to 'not be influenced by passion {or} prejudice'' (alteration in original) (quoting Clerk's Papers at 147)).  Second, Elledge, Ms. Fitzner, and all 12 jury members were Caucasian, so there is no issue in this case as to racial bias.

Amicus contends that because Elledge's attorney and the State were both advocating imposition of the death penalty, the jury's verdict was 'obviously brought about through passion or prejudice.'  Amicus Br. at 63. Specifically, amicus points to the admission of evidence relating to the facts of Elledge's prior criminal convictions, as well as admission of a letter from Elledge to his wife explaining the crime, as examples of how the adversarial process broke down.  Amicus contends that admission of these evidentiary items was in violation of the rules of evidence and hence, because their admission was uncontested, the jury was influenced by passion or prejudice.

Initially, whether or not admission of these items of evidence violated the evidence rules is irrelevant in a case where a defendant has validly waived his right to appeal.  The sole statutory question is whether the sentence was brought about through passion or prejudice, and therefore, the only issue before this court is whether the evidence was of the kind that could have produced this result.  It was not.

In Rice we held that the State is generally entitled to admit evidence related to "the circumstances of the crime.'  Rice, 110 Wn.2d at 607. Indeed, in a death penalty case, the 'very nature of the crime renders its narration an emotional event.'  Id. at 606.  We have also held that a defendant's criminal history, both juvenile and adult, is admissible in capital sentencing proceedings.  State v. Pirtle, 127 Wn.2d 628, 666-67, 904 P.2d 245 (1995).  A broad exclusion of facts germane to the defendant's crime and background would impair the jury's ability to reach an informed decision as to whether the sentence of death should be imposed. '{A}t the penalty phase the jury decides a question the resolution of which turns not only on the facts, but on the jury's moral assessment of those facts as they reflect on whether defendant should be put to death.  It is not only appropriate, but necessary, that the jury weigh the sympathetic elements of defendant's background against those that may offend the conscience.'

Rice, 110 Wn.2d at 608 (quoting People v. Haskett, 30 Cal. 3d 841, 863-64, 640 P.2d 776, 180 Cal. Rptr. 640 (1982).

Amicus further contends that because defense counsel argued in favor of imposition of the death penalty to the jury, the sentence was brought through passion or prejudice.  We disagree.  Arguments that courts characterize as improper appeals to passion or prejudice include arguments intended to 'incite feelings of fear, anger, and a desire for revenge' and arguments that are 'irrelevant, irrational, and inflammatory that prevent calm and dispassionate appraisal of the evidence.'  Bennett L. Gershman, Trial Error and Misconduct sec. 2-6(b)(2), at 171-72 (1997); see also Rice, 110 Wn.2d at 608; State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984) (prosecutor referred to defendant as liar four times, stated defense had no case, and implied defense witnesses should not be believed because they were from out of town and drove fancy cars); United States v. McRae, 593 F.2d 700, 706 (5th Cir. 1979) ('turn him loose, and we'll send him down in the elevator with you and his gun' (quoting final argument)).  No such arguments were made in this case.

In this case, there was testimony, evidence, and argument likely to incite an emotional response on the part of the jury; however, it was limited to the circumstances of the crime and the criminal history of the defendant. See Brett, 126 Wn.2d at 214 ('Arguments which may evoke an emotional response are appropriate if restrict{ed} to the circumstances of the crime').  There is no indication the jury was swayed by passion or prejudice.

D.  Mental Retardation under RCW 10.95.030(2)

The final statutory question is '{w}hether the defendant was mentally retarded within the meaning of RCW 10.95.030(2),' which provides: 'Mentally retarded' means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period.

RCW 10.95.030(2)(a).  The defendant bears the burden of proving he is 'mentally retarded' by a preponderance of the evidence and expert testimony is required to meet this burden. RCW 10.95.030(2).  Since Elledge does not contest his death sentence, he advances no affirmative argument on this issue.

Regardless of this burden, there is no evidence in the record that Elledge is mentally retarded.  The most that amicus can contend is that Elledge's statement of allocution, as well as his taped confession, indicate he was suffering 'from some sort of mental aberration or abnormality.'  Amicus Br. at 70.  Specifically, amicus focuses on Elledge's statements that his killing of Ms. Fitzner was prompted by uncontrollable rage.  Whether or not this is true, it clearly does not meet the statutory definition of mental retardation.

Indeed, all indications are that Elledge is of at least average intelligence.  At Elledge's guilty plea hearing his lawyer assured the court that Elledge was 'competent' and that they had engaged in a 'number of intelligent conversations.'  RP (May 27, 1998) at 10. Furthermore, at the same hearing, the prosecutor noted that he had 'received reports from the Department of Corrections   and those records would confirm   that Mr. Elledge has consistently been competent and of above-average intelligence.' Id. at 10-11.  The trial judge also notes in his final report that Elledge 'seems like a bright man.'  Dr. Muscatel did not specifically assess Elledge's intelligence level, nor did he make a finding as to whether Elledge is 'mentally retarded.'  However, Dr. Muscatel did find Elledge to be legally competent and there is nothing in his report indicating that Elledge may be of subaverage intelligence.  While none of the above comments and reports definitively establish that Elledge is not 'mentally retarded,' they are more than this court has required in prior cases.  See Elmore, 139 Wn.2d at 311 ('mental disability was never an issue in this case and Elmore never claimed it was.  In fact . . . Elmore's attorney assured the court Elmore was mentally competent').  Nevertheless, in future cases, we advise counsel that if a competency evaluation is conducted, an evaluation of whether the defendant is mentally retarded within the meaning of RCW 10.95.030 should also be made.


We hold that Elledge's waiver of his right to appeal was made 'knowingly, voluntarily, and intelligently.'  We further hold that: (1) there was sufficient evidence for the jury to determine that there were not sufficient mitigating factors to merit leniency; (2) Elledge's sentence of death is not disproportionate to the sentences imposed in similar cases; (3) the verdict was not brought about through passion or prejudice; and (4) Elledge is not mentally retarded.  Accordingly, Elledge's sentence of death is affirmed.


1 'S.C.' is a surviving victim in this case.

2 Amicus argues that this court is constitutionally mandated by article I, section 14 of the Washington Constitution and the Eighth Amendment to the United States Constitution to engage in a more expansive review of Elledge's case than that set forth in RCW 10.95.130.  See Amicus Br. at 11- 22.  We rejected this exact argument in Dodd and we do so again today. State v. Dodd, 120 Wn.2d 1, 20, 22, 838 P.2d 86 (1992)  (holding that neither the Eighth Amendment nor article I, section 14 mandates appellate review beyond the statutory criteria of RCW 10.95.130 if there is a valid waiver by the defendant).

3 The verbatim report of proceedings attributes the answer 'yes' to Mr. Jaquette, Elledge's attorney.  Given the fact that the question was directed specifically by the trial judge to Elledge, this would appear to be a typographical error on the part of the court reporter.

4 Amicus raises several due process challenges to Washington's proportionality review based on Harris ex rel. Ramseyer v. Blodgett, 853 F. Supp. 1239 (W.D. Wash. 1994), aff'd on other grounds, 64 F.3d 1432 (9th Cir. 1995).  In Harris, a federal district court judge held that this court's application of the statutorily mandated proportionality review in RCW 10.95.130 violates due process.  As an initial matter, these arguments exceed the boundaries of this court's statutory review and are improperly raised by amicus.  However, even if such arguments were properly raised, they have been previously rejected by this court in In re Personal Restrain of Benn, 134 Wn.2d 868, 952 P.2d 116 (1998), habeas corpus granted on other grounds sub nom. Benn v. Wood, 2000 WL 1031361 (W.D. Wash. Jun. 30, 2000). In In re Benn we explicitly rejected the district court's decision in Harris noting that '{t}he existence of an analytically flawed federal district court decision is not a compelling reason to vacate this defendant's death sentence or reconsider the proportionality review in his case.'  Benn, 134 Wn.2d at 928.

5 Amicus contends that the pool of 'similar cases' should include only those in which a sentence of death was ultimately affirmed.  Amicus Br. at 48.  This court has directly rejected this argument, noting that it will continue to utilize cases in which the death penalty was ultimately vacated, so long as the penalty determination was not overturned on the basis of the penalty being disproportionately imposed.  State v. Elmore, 139 Wn.2d 250, 311 n.26, 985 P.2d 289 (1999).  Along these same lines, amicus' argument that proportionality review is impossible unless the trial judge reports are updated to indicate that a sentence of death has been vacated is also rejected.

No. 67342-0


SANDERS, J. (dissenting)

Proportionality review is vital to the capital process because arbitrary or discriminatory imposition of the death penalty is repugnant to the Eighth Amendment to the United States Constitution and article I, section 14, of the Washington Constitution.  In re Personal Restraint of Rupe, 115 Wn.2d 379, 393-94, 798 P.2d 780 (1990).  These provisions set forth the minimally acceptable constitutional floor which our legislature may exceed by statute.  This, I argue, is exactly what RCW 10.95.130(2)(b) accomplished.  That statute requires us to consider: Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

RCW 10.95.130(2)(b).

Notwithstanding this plain language our statutorily required review has degenerated through numerous iterations1 into the current 'wanton and freakish' standard, finally becoming little more than lip service to the important protection proportionality review was originally intended to offer.  I posit this subverts the statute contrary to the appropriate function of the judiciary.

Ordinarily we do not subject unambiguous statutes to the canons of judicial construction.  See Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999) ('When words in a statute are plain and unambiguous, statutory construction is not necessary, and this court must apply the statute as written unless the statute evidences an intent to the contrary.').  Therefore let us initially focus on the plain meaning of the words.

'Excessive' is defined as 'exceeding the usual, proper, or normal.' Webster's Third New International Dictionary 792 (1981). 'Disproportionate' means 'out of proportion,' id. at 655, where 'proportional' is defined as 'corresponding in size, degree, or intensity,' id. at 1819.  Thus, the clear language of the statute requires us to consider whether the sentence of death exceeds the usual sentence imposed for similar conduct.  If so, it is disproportionate.

However, rather than determine whether death was generally imposed in similar cases, the majority now begins with the premise the defendant is 'qualified' for the death penalty so long as it is not 'wantonly and freakishly' imposed, notwithstanding how many others may have engaged in similar conduct who were not executed.  State v. Elmore, 139 Wn.2d 250, 308, 985 P.2d 289 (1999) ('If the facts of {the defendant's} case are similar to some of the facts taken from cases in which the death penalty was upheld, the proportionality review is satisfied.'); State v. Brett, 126 Wn.2d 136, 210-11, 892 P.2d 29 (1995) ('{T}he legislative guidelines contained in RCW 10.95 within which the jury must exercise its discretion ensure proportionality and eliminate the ability of the jury, in all but the most aberrant case, to impose the death sentence in a wanton and freakish manner.  Thus, our review, to be constitutionally sufficient, need only find that aberrant or 'disproportionate' case.'). As Justice Utter so eloquently stated:

What that opinion characterizes as 'an increasingly broad approach' to defining 'similar cases' is more aptly described as the gradual degeneration of judicial review in capital cases, a process which reaches its low point with the introduction into our proportionality analysis of a new, and curiously elusive, concept: all murders falling within the purview of RCW 10.95 are, ipso facto, proportionate--except when they are not . . .

Id. at 227 (Utter, J., dissenting).2  Perpetuating this illusory 'proportionality' standard, the majority now asks only whether the sentence was wanton, 'marked by or manifesting heedless disregard of justice or of the rights . . . of others,' Webster's Third New International Dictionary at 2575, and freakish, 'being or befitting a freak : markedly odd or abnormal,' id. at 904.  I posit this new standard is, itself, 'wanton and freakish' in its disregard for the plain language and intent of our mandatory proportionality review under RCW 10.95.130(2)(b).  I challenge the majority to find any accepted definition of any term used in the proportionality statute which incorporates 'wanton' or 'freakish.'  Rather it is plain these terms were lifted from Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which described the minimum process due under the Fourteenth Amendment, not that process due under our statute.  See State v. Harris, 106 Wn.2d 784, 797-98, 725 P.2d 975 (1986) (citing Furman, 408 U.S. at 310 (Stewart, J., concurring)).

Even if the mandatory language of RCW 10.95.130 were ambiguous, which it is not, the rule of lenity would require this criminal statute to be strictly construed against the state, resolving all ambiguities in favor of the accused.  State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993).  The proposition that 'our review, to be constitutionally sufficient, need only find {a single} aberrant or 'disproportionate' case' is a far cry from lenity, especially in this, the most critical of contexts.  Brett, 126 Wn.2d at 211.

I also take exception to the majority's continuing erroneous consideration for proportionality review purposes cases in which the death penalty was ultimately vacated.  Although this practice impermissibly skews the database review in favor of death, the majority dismisses the issue in a mere footnote, defending its position 'so long as the penalty determination was not overturned on the basis of the penalty being disproportionately imposed.'  Majority at 16 n.5.  This approach is utter nonsense since the proportionality statute instructs us to consider the penalty actually 'imposed' in similar cases, not the penalty 'proposed.'

Prior death cases are cited in the majority's proportionality review only to justify the death sentence in the present case, and only because death was proposed in the prior case, without regard to whether a death sentence in the instant case is generally proportional, i.e., the same as, the penalty imposed in all other cases involving like conduct.  See, e.g., Elmore, 139 Wn.2d at 308-11; State v. Davis, 141 Wn.2d 798, 882-84, 10 P.3d 977 (2000).  When the death sentence is reversed, and is never imposed, the case must be considered as one where the death penalty wasn't imposed, not one where it was--Brett, for example.  See In re Personal Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001); Stephanie Thomson, 'Guilty Plea Brings Life Without Parole,' The Columbian (Vancouver, Wash.), Mar. 23, 2001, at 1.

Nonetheless, the majority summarily rejects these arguments and would apparently allow cases in which death was never imposed at all to support imposition of death in later cases.

Beyond that, the proportionality database is itself flawed because it (1) does not contain any cases in which first degree aggravated murder could have been charged but was not; (2) is not updated to reflect the subsequent reversal of the cases it contains; and (3) is missing a staggering number of cases required by RCW 10.95.130 in which defendants were convicted of aggravated first degree murder but no death penalty was imposed.  Even if the court were to consider whether death was generally imposed in similar cases (which it no longer apparently does), the universe of cases we are supposed to consider is markedly skewed by these factors against the defendant, in favor of imposing death, and contrary to the statute.

Absent any demonstration in the instant case that the death sentence is imposed more often than not for similar conduct, I dissent.


1 See, e.g., State v. Lord, 117 Wn.2d 829, 911, 822 P.2d 177 (1991) (suggesting a 'family resemblances' approach); State v. Benn, 120 Wn.2d 631, 680-93, 845 P.2d 289 (1993) (suggesting a statistically based approach).

2 See also State v. Benn, 120 Wn.2d 631, 697-98, 845 P.2d 289 (1993) (Utter, J., dissenting); State v. Lord, 117 Wn.2d 829, 939, 822 P.2d 177 (1991) (Utter, J., dissenting); In re Personal Restraint of Jeffries, 114 Wn.2d 485, 505, 789 P.2d 731 (1990) (Utter, J., concurring in part, dissenting in part).



James Homer Elledge

(Photo: Dan DeLong/Seattle Post-Intelligencer)



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