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Grisly murder prompts NH death penalty bill

By Norma Love
Associated Press / January 30, 2011

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CONCORD, N.H.—The gruesome machete murder of a mother in her bed shocked New Hampshire's governor and House speaker into supporting legislation making fatal home invasions punishable by death.

But their backing alone does not assure success in New Hampshire, where lawmakers have been more inclined over the years to repeal the state's narrow death penalty law than to expand it.

House Speaker William O'Brien is the prime sponsor of a bill named for Kimberly Cates, a woman from O'Brien's hometown who was killed in a 2009 burglary in her home. Her 11-year-old daughter was attacked but survived.

The young men charged in her death could not have faced the death penalty because the crime did not fall into one of the six types of murders eligible for death under New Hampshire's statute, one of the narrowest in the nation.

The six types of murders are: killing an on-duty law enforcement officer or judge, murder for hire, murder committed in connection with a kidnapping, murder committed during rape, murder committed during certain drug offenses and murder committed by a convict already serving a sentence of life without parole.

The law was last expanded in 1994 to add killing a judge.

A 19-year-old man has been convicted of Cates' murder and sentenced to life without parole. A 21-year-old co-defendant's trial is scheduled for next month. Three other youths pleaded guilty to lesser charges.

Crafting a law concise enough to address the crime that triggered the home invasion outcry also could be difficult because legally, there is no such crime as home invasion.

Senior Assistant Attorney General Will Delker said O'Brien's bill covers a wide variety of behaviors from one burglar killing another to keep merchandise stolen from a house to himself to a death resulting from a fight with an estranged spouse.

"This bill actually also would cover someone who entered the house initially lawfully by invitation and then was told to leave and didn't and maybe a fight ensued and someone died in the course of that fight," he said.

O'Brien has picked up support from Democratic Gov. John Lynch, though Lynch wants to research the proposal further.

"The governor believes there are some crimes so heinous the death penalty is warranted, and he supports expanding our statute to include some cases of home invasion. He believes we must closely with the attorney general and the legislature to carefully craft legislation," said Lynch spokesman Colin Manning.

O'Brien's push to expand the death penalty is reminiscent of a similar effort 14 years ago when then-Democratic Gov. Jeanne Shaheen with House Republican leaders' support sought to expand the death penalty to cover a variety of crimes, including causing the death of a child under age 13.

The bill was inspired in part by the rape and murder of 6-year-old Elizabeth Knapp. Then-Attorney General Philip McLaughlin weighed charging Richard Buchanan with capital murder, but couldn't due to the narrowness of New Hampshire law. DNA tests later proved Buchanan not to be Knapp's killer.

McLaughlin, who now opposes capital punishment, said he kept Knapp's picture on top of a bookcase in his office after that as a reminder an innocent man had been accused of the crime.

Shaheen and House leaders' efforts to add child murders to the capital murder statute failed.

Three years later, the Legislature voted instead to repeal the death penalty. Shaheen vetoed the bill and the law remained on the books.

Then again, in 2009, the House voted to repeal capital punishment, but the Senate rejected the bill and joined the House in studying the death penalty. Reflecting the state's continued lack of consensus on the issue, the study commission voted 12-10 in November to recommend retaining the penalty.

Delker said New Hampshire has averaged 18-20 slayings annually over the past 40 years. He could not estimate how many might be considered capital crimes under O'Brien's proposal. Murders that fall under the existing six categories are not automatically eligible for a death sentence. Each case must be measured against aggravating factors that look at, among other things, the defendant's intent, the defendant's criminal record, the age of the victim and the heinous nature of the crime.

Home invasions similar to the Mont Vernon case are rare in New Hampshire. Delker and others say the last similar case was the murders of two Dartmouth College professors 10 years ago in their Hanover home. Two teenagers stabbed the couple as part of a plot to escape their small-town lives and become professional assassins. One was sentenced to life without parole and the other to 25 years to life.

Delker noted that only three people have been charged with capital murder since Shaheen's attempt to broaden the law. Two men are serving sentences of life without parole and the third is on death row for killing a police officer.

In its 380-year history, New Hampshire has executed 24 people, but none since 1939.

Barbara Keshen, chairwoman of the New Hampshire Coalition to Abolish the Death Penalty, said O'Brien's effort to expand the law should be rejected, though she understands why it was proposed.

"This is about a community that's in pain for what happened to people who were cherished members of that community. It is a way for society to send a strong message of disapproval," she said.

State Sen. Jack Barnes, a Raymond Republican and bill co-sponsor, believes it is more than a message. Murders in a home deserve to be punishable by death, he said. The definition of the crime is simple, he said.

"The lights are off; the doors are locked; it's a home invasion," he said.