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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW
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Determining Death Penalty Prosecution

08-Jul-2013

Ariel Castro has made a name for himself as the perpetrator of a horrific crime--the abduction, captivity, and sexual abuse of three young women in Cleveland. Before Amanda Berry, Gina DeJesus, and Michelle Knight escaped Castro's clutches, they were repeatedly and savagely beaten and raped, with one woman claiming to have suffered at least five miscarriages as a result of Castro's brutality. Ariel Castro is likely to face life in prison as a result of his crimes, but Cuyahoga County Prosecutor Tim McGinty is considering filing death penalty charges connected to the miscarriages.While few outraged citizens consider the death penalty to be too severe for Castro, many wonder if filing first degree murder charges against the man is political grandstanding that will unnecessarily complicate the trial.

In Oklahoma, Garvin County District Attorney Greg Mashburn is also considering the death penalty for a man accused of first degree murder, but he is uncertain that he will be able to prove the aggravating elements necessary to elevate first degree murder to capital murder. Justin Hammer, 31, is charged with first degree murder in the death of his girlfriend's ex-husband, Brian Duran, 32, in 2002. Hammer, who has pleaded not guilty to first degree murder and says he shot the man in self-defense, admits to dismembering Duran's body, putting the body parts in buckets full of cement, and disposing of them in a pond on his property in Elmore City. When asked why he severed the head, arms, and legs from the body, Hammer told investigators he "freaked out" after killing Duran as he attempted to break into Hammer's home.

That dismemberment is key to whether or not Mashburn can seek the death penalty against Hammer.

Not every first degree murder case is eligible for the death penalty. Capital cases must meet certain criteria about the defendant and the aggravated nature of the crime. Under federal law, a defendant cannot be sentenced to death if he or she is mentally retarded, generally indicated by an IQ of 70 or less, or if the defendant was under the age of 18 at the time he or she committed the crime.

Under Oklahoma law, one or more aggravating factors must be present in order to seek the death penalty against a defendant. These elements are delineated under 21  O.S. § 701.12:

Aggravating circumstances shall be:

  • The defendant was previously convicted of a felony involving the use or threat of violence to the person; 
  • The defendant knowingly created a great risk of death to more than one person; 
  • The person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remunerationor the promise of remuneration; 
  • The murder was especially heinous, atrocious, or cruel; 
  • The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 
  • The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony; 
  • The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; or
  • The victim of the murder was a peace officer as defined by Section 99 of this title, or correctional employee of an institution under the control ofthe Department of Corrections, and such person was killed while in performance of official duty.

In the Garvin County case, in order to make a capital case, the prosecution must be able to demonstrate that the victim, Brian Duran, suffered during the dismemberment, making the murder "especially heinous, atrocious, or cruel." If the gunshot wounds killed Duran, and he was dead before being dismembered, then the murder does not meet the aggravating circumstance, and would therefore not be punishable by death. Mashburn must determine whether or not there is enough evidence of suffering to warrant pursuing a capital case.



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