ALBUQUERQUE, N.M. — Nine jurors voted for death, and three voted for life.
That means convicted murderer John Charles McCluskey will receive a life sentence without possibility of release, rather than death.
After a process strung out more than five months, the federal jury was in court just five minutes Wednesday as the judge read their verdict form giving a life sentence to McCluskey.
A death sentence requires unanimity among the jurors, and they could not reach that level of agreement during four days of deliberation.
The 30-page special verdict form asked jurors to look at 160 mitigating factors weighing against death and seven aggravating factors weighing in favor of death in the Aug. 2, 2010, kidnapping and murder of Gary and Linda Haas.
The retired couple had left Tecumseh, Okla., headed for a Colorado fishing vacation when they were kidnapped for their travel trailer and pickup at a rest stop on Interstate 40 in eastern New Mexico. They were shot about an hour later at a remote site north of the interstate by McCluskey, according to trial testimony and the jury’s verdicts in other phases of the complicated federal death case.
McCluskey, 48, had escaped just days earlier from a state prison in Arizona with Tracy Province, also an inmate, and with the help of McCluskey’s cousin and girlfriend Casslyn Welch, who provided money, supplies and reconnaissance of the prison. Both were codefendants in the federal case charging conspiracy to commit carjacking and murder and testified for the government in exchange for life sentences.
U.S. District Judge Judith Herrera, who presided over the trial, invited jurors to meet with her in chambers following the verdict and told them attorneys for the prosecution and the defense would be anxious to hear about their deliberative process.
“I think that some jurors saw that John’s life has value,” said Theresa “Teri” Duncan, who was appointed to represent McCluskey within days of the murders.
For example, she said witnesses told about what a great friend he was when he was young and about his life in prison in Pennsylvania. McCluskey entered that system in his mid-20s and remained until he was older than 40, during which he was a prized, hard worker and an inmate who counseled others to avoid the kind of trouble that can erupt in that environment.
She said other witnesses who knew McCluskey in Arizona “talked about how respectful he was to older people.” Among them was Sissy Honea, who told the jury about McCluskey sending her a card during the trial to offer his condolences when her life partner died.
“That meant something to her,” Duncan said. “She brought John’s capacity for kindness up to the present. That was one of the more compelling things that the evidence showed for the right juror.”
Gary Haas’ younger sister Linda Rook, reached by phone in Oklahoma following the verdict, said she was in a state of shock after her uncle – one of several family members who attended trial religiously – called to tell her about it.
“I’m just going to have to learn to accept it some way,” Rook said. “He (McCluskey) already had a life sentence, so he’s essentially getting nothing for what he did to my brother and sister-in-law.”
Rook brought her mother, Vivian Haas, to Albuquerque in August to hear testimony in the guilt-innocence part of the trial.
That testimony began with the detailed escape planning from the northern Arizona privately operated facility; the escape itself and subsequent hijacking of two truckers in northern Arizona; the fugitive trio’s acquisition of another vehicle before carjacking the Haases, mostly to get their roomy and air conditioned travel trailer. Codefendants Province and Welch, who have been promised a prison version of the witness protection program, testified about what they called McCluskey’s unexpected, unnecessary and infuriating shooting of the Haases and about their post-escape wanderings to Wyoming and other parts.
In a second phase, prosecutors proved the statutory factors required for a death verdict.
And in a final, “selection” phase, prosecutors argued that McCluskey was such a danger that he couldn’t be safely housed even in a federal prison and that he deserved to die for killing a special couple. The defense brought in mitigation witnesses about McCluskey’s life and social history.
Despite the outcome, Rook said she was appreciative of the jury’s work and that of prosecutors who’ve spent over two years on the case.
The official word, however, from acting U.S. Attorney Steve Yarbrough was not disappointment.
“The jury decided not to seek death but they found him guilty of every count charged,” Yarbrough said. “The process played out the way it was supposed to.”
Asked if the millions of dollars spent on a death penalty prosecution was worth it, Yarbrough said that wasn’t his call.
“It isn’t my decision. Congress passed the law and the president signed it,” he said. “It’s ultimately the call of the (U.S.) Attorney General, who looks at it in terms of other cases across the U.S.” in pursuit of uniformity.
The extensive jury verdict form asks each juror to certify that race, color, religious beliefs, national origin or gender of the defendant or victim was not a factor involved in reaching their decision.
Assistant U.S. Attorneys Greg Fouratt and Linda Mott and Department of Justice Attorney Michael Warbel began selecting a jury in July with Duncan, lead attorney Michael Burt of San Francisco and Ruidoso attorney Gary Mitchell. All of them were paid for by the government.
The jury, plus four alternates, was drawn from throughout the state and included some from southern New Mexico, three from northern New Mexico and others from the Albuquerque and Rio Rancho area. There were three men and nine women.
McCluskey, who is being held at the Torrance County Detention Facility, is expected to remain there until he is formally sentenced. No date has been set.
Mitchell said the defense team understands how tragic the event was for the victim’s family, and offered condolences to them.
Duncan said she believes the McCluskey verdict “is consistent with New Mexico attitudes toward the death penalty.
“We’re just a state that values life, and the verdict shows that we continue to show our commitment to life,” she said.