Supreme Court: Executions off for those on death row

Court's decision to vacate police killer's death sentence will extend to the others on death row in Delaware.

Jessica Masulli Reyes

Delaware News Journal

Chief Justice Leo E. Strine, Jr., asks questions during the oral arguments in the case of D. Powell vs. State at the Delaware Supreme Court in Dover.

Twelve men on Delaware's death row will no longer be executed after the state Supreme Court found its ruling declaring the state's death penalty law unconstitutional should be applied retroactively.

The unanimous 15-page decision released Thursday only mentions the state's youngest death row inmate, Derrick Powell, but will apply to all the defendants sentenced to death. They will now be sentenced to life in prison without probation, parole or any other sentence reduction.

Brendan O'Neill, the state's chief defender, and Powell's attorney, Patrick Collins, applauded the decision.

"Obviously we are very pleased and relieved by today's decision," Collins said. "Our Supreme Court today confirmed the fundamental right to a jury trial in Delaware, which our state has cherished from the very beginning."

O'Neill added: "It seems only just to correct a sentence of death, which was imposed under a system that has been deemed unconstitutional."

State prosecutors declined to comment.

A portrait of Georgetown Patrolman Chad Spicer lays among cards and candles at a makeshift memorial near where he was shot in September 2009. The Delaware Supreme Court has ruled the state's capital punishment law is unconstitutional, and therefore the men on death row – including the man convicted in his death – should not be executed.

The court's ruling was no surprise for many who heard he justices during arguments in Dover just one week ago.

The arguments stemmed from a U.S. Supreme Court ruling in January that struck down Florida's death penalty law, saying it violated the U.S. Constitution by giving judges – not juries – the final say to impose a death sentence. Alabama and Delaware were the only other states that, like Florida, allowed judges to override a jury's recommendation of life.

Following the ruling, the Delaware Supreme Court found Delaware's capital punishment law was also unconstitutional. The ruling made it clear courts could no longer hand out death sentences unless the General Assembly garnered enough support to change the law to eliminate the judicial override.

The court, however, did not say in its August decision whether the men already sentenced to death should still be executed. The court considered the issue separately by accepting the case of 29-year-old Powell, who was convicted in the fatal shooting of Georgetown police officer Chad Spicer.

The shooting occurred in September 2009 when Powell and two men arranged to rob another man during a marijuana deal. The robbery attempt went awry, and Powell fired at the fleeing man in the parking lot of a Georgetown McDonald's, according to court documents.

The incident led to a police chase that ended when Powell fired a shot at a police car, fatally wounding the 29-year-old officer and father, court documents said.

Powell was found guilty of first-degree murder and other charges in February 2011. He was sentenced to death in May of that year.

Spicer's mother, Ruth Ann, has been vocal in the past about the court not overturning Powell's death sentence, but a person who answered the phone at her house Thursday said she was not available to comment.

Justice James T. Vaughn Jr., listens to oral arguments in the case of D. Powell vs. State at the Delaware Supreme Court in Dover.

"All the evidence was submitted, and everything was there in black and white," she told the News Journal in August. "He [Powell] was guilty. The charges were found and they were applicable to the death penalty. So I feel that those people that went through a trial and their sentences were given to them, that is the sentence they were given. That is the sentence they deserve."

Some of the men whose lives have now also been spared along with Powell include James E. Cooke Jr., convicted in the 2005 rape and murder of University of Delaware sophomore Lindsey Bonistall, and Craig Zebroski, convicted of killing a New Castle gas station attendant during a botched robbery attempt in 1996.

Otis Phillips, the man convicted in the fatal shootings at a soccer tournament in Wilmington's Eden Park, was previously on death row, but prosecutors said he is no longer eligible for the death penalty since his case is still being heard on direct appeal.

At the heart of the issue before the court was whether the convicted murderers sentenced to death should be executed under a rule against retroactively applying new rulings on constitutional issues.

The five justices, including Justice James T. Vaughn Jr. who dissented in the August ruling, found that their prior decision to invalidate the death penalty law constituted a "new watershed procedural rule" that must be applied retroactively.

That decision is consistent with two prior ones in Delaware where the court vacated all death sentences after finding the law was unconstitutional. It occurred in 1973 when three prisoners were let off death row and then again four years later when nine prisoners had their sentences vacated.

"In my view, there was really no other alternative than to invalidate Mr. Powell's death sentence," O'Neill said.

Contact Jessica Masulli Reyes at 302-324-2777, jmreyes@delawareonline.com or Twitter @jessicamasulli.