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N.H. prosecutor: Evidence does not support death penalty charge

E-mail|Link|Comments () October 7, 2009 02:56 PM

By John R. Ellement and Andrew Ryan, Globe Staff

The predawn attack and killing of Kimberly Cates in her isolated home in Mont Vernon, N.H., may have been premeditated and particularly brutal, but the crime does not appear to meet the state's specific criteria that would warrant the death penalty, according to the prosecutor in charge of the case and a legal expert.

The New Hampshire death penalty statute enumerates six conditions for a capital murder charge, including a paid assassination, a killing that involves kidnapping, and a homicide that entails sexual assault. Assistant Attorney General N. William Delker said in a telephone interview today that while investigators continue to search Cates's home and the bedroom where she was killed, no evidence has been discovered of a sexual assault or other aggravating factor that would merit the death penalty.

“We don’t see that any of those categories fit the facts of this case,’’ Delker said. “We don’t have any evidence of that at this point.’’

New Hampshire state law also prohibits the execution of anyone under age 18 on the date a crime is committed. That excludes 17-year-old Steven Spader, who faces first-degree murder and attempted murder charges for allegedly attacking Cates and her 11-year-old daughter with a machete. Christopher Gribble, 19, also faces first-degree murder and attempted murder charges for allegedly using a knife in the assault early Sunday morning.

The two teens from Brookline, N.H., are being held without bail, but have not yet formally entered a plea to the charges. They will both be tried as adults under New Hampshire law, because they are age 17 and older.

Two other teens -- William Marks, 18 and Quinn Glover, 17, both of Amherst, N.H., -- have been charged with robbery and burglary, and are being held on $500,000 cash bail. Marks and Glover have been accused of taking part in the break-in, but not the actual attack or killing.

The last execution in New Hampshire was in 1939. There is currently only one man on death row, Michael Addison, who was convicted of the 2006 killing of a police officer, which is one of the six criteria for the death penalty. Addison, a former Dorchester resident, has appealed and his execution has not been scheduled. In December, a jury convicted him of killing Manchester Police Officer Michael Briggs.

Earlier this year the New Hampshire Legislature created a 22-member committee to review the state's death penalty statute. Its findings are due in December 2010. A bill to repeal the law passed the House and Senate in 2000 but was vetoed by then-Governor Jeanne Shaheen, now a US senator.

Regardless of what happens in Concord, it is unlikely to have an impact on the prosecution of the teens accused of the Mont Vernon break-in and attacks.

"Unless something really new or significant develops in terms of the evidence they gathered, this is not a capital case," said Albert E. Scherr, a former public defender who teaches criminal law at the Franklin Pierce Law Center in Concord, N.H.

The one avenue for pursuing the death penalty may be the kidnapping prong of the statute if the 11-year-old daughter were to tell investigators that the attackers prevented her from leaving her home, Scherr said. But even that seems like an unlikely stretch.

"That's the most likely one," Scherr said, "but based on the publicly available information they don't have enough."

Perhaps most telling, however, are the comments of Assistant Attorney General Delker, who made it clear that the current evidence does not support a capital charge.

"He's not the kind of guy that wings it," Scheer said of Delker. "He's a very careful when speaking to the press."