It's
fair to say that Arturo Garcia will rot in prison. He's been sentenced to 2 Hard
50 sentences, plus up to 13 ¾ more years for killing 3 men in the grisly Club
Mexico murder case. With his sentences running consecutively, the 30-something
failed businessman will have more than 100 years without parole to contemplate
his heinous actions and watch the world pass him by.
It seems like a just punishment.
But it certainly also raises
questions about what merits an execution in Kansas -- and what doesn't.
Here is a guy who not only commits
cold-blooded murder, but enlists (or intimidates) others to help him cover up
his crimes over several days by butchering his victim's bodies, bagging up the
body parts, hauling them to another county, dousing them in gasoline and setting
them aflame amid trash. And that's the polite version of the story.
Yet the prosecution chose not to
seek the death penalty.
Clearly, the Club Mexico case
involved, as spelled out among the legal conditions for the death penalty,
"desecration of the victim's body in a manner indicating a particular
depravity of mind."
If execution is just, then surely
justice would have been served by pursuing execution in this case. But that
little word --"if" -- is of vital importance.
Even if one grants that the state
has the right to take a life to avenge a crime, it's hard to make a case for
justice, knowing that the consideration and application of the penalty vary by
jurisdiction and the decision makers' sensibilities. It's not quite the luck of
the draw, but it might as well be.
And given the expense of a typical
capital punishment case, it's no wonder that some officials would be hesitant to
take on the additional burden to their already tight budgets. Late last year,
the Kansas Legislative Division of Post Audit found that it costs an average of
$1.26 million to successfully prosecute death penalty cases in Kansas, well
above the $740,000 average for cases that result in Hard 40 or Hard 50 prison
sentences.
Further, this brand of justice is
not swift. No execution dates have been set for any of the seven men on Kansas'
death row. The extended appeals process and the heightened due-process standards
set by the U.S. Supreme Court ensure that many, many years pass at taxpayer
expense before the actual punishment is meted out in any given case.
Mr. Garcia was not deterred by the
existence of the death penalty, nor has he been touched by it in the course of
his trial and sentencing. If his punishment of a lifetime behind bars is logical
and appropriate, as determined by the court, then how can the arbitrary nature
of punishment by death be defended?
(source: Editorial, Wichita Eagle)
Response by District Attorney Nola Foulston as written and
sent:
July
23, 2004
By
Email
For
Immediate Publication in its Entirety
The
Editorial Staff
Wichita
Eagle
825
East Douglas
Wichita,
Kansas 67201
In
the July 20th Eagle editorial entitled “Justice”, the board
commented on the murder conviction of Arturo Garcia, and pointedly raised the
question of “what
merits an execution in Kansas -- and what doesn't”, suggesting, in essence,
that if there was ever a guy who “deserved it”, Garcia was a candidate for
the death penalty. The case of Arturo Garcia is not the benchmark case by which
all others cases are to be judged.
In
sum and substance the Eagle puts out that because of the gruesome facts of the
case, and their reliance on a statement
in
the law that they believe applies, that this case should have been charged as a
death penalty case. Because it was not, the Eagle makes the case that this is
yet another example as to why there should be no death penalty.
The
Editors opined that the facts of the Club Mexico case as they “politely”
described them, “spelled out the legal conditions for the death penalty”,
yet the prosecution chose not to seek that remedy. The “legal conditions”
that the editorial board relied upon to suggest that the Garcia case should have
been a death penalty case in fact do not
apply to death penalty cases. They
said “Clearly,
the Club Mexico case involved, as spelled out among the legal conditions for the
death penalty, "desecration of the victim's body in a manner indicating a
particular depravity of mind."
The
desecration of a victim’s body is NOT an aggravating factor that may be
considered in seeking the death penalty.
In
1999, in response to the decision of the Supreme Court of Kansas case of State
v. Spry, 266 Kan. 523, the Kansas legislature redefined the definition of the
Hard 50 aggravating factor “heinous, atrocious and cruel” by adding language
to include the mutilation of the victim’s body before or after death. This
definition was exclusive to the Hard 50 and was not amended in the definitions
of the aggravating factors applicable to the death penalty.
There
is no such definition within the aggravating factor of a death penalty case.
However gruesome and cold-blooded the killings by Arturo Garcia were, the
mutilation of the bodies of the victims subsequent to their death could not be
used to support an aggravating factor in a death penalty case.
The defendant was appropriately charged, appropriately convicted and
appropriately sentenced.
In its
editorial, the Eagle, believing that if a death penalty case should have been
filed and was not, that there must be some other underlying reason why the
District Attorney did not pursue this remedy. They suggest the usual litany of
anti-death penalty diatribe as to why this might be the case: the enormous costs
of litigation, the lengthy appeals process, varied decision-maker sensibilities
etc. One might get the picture of a group of prosecutors wringing their hands
and bemoaning their fate… “Gosh, this may really bust our budget” or
“Gee, I’m too sensitive to file this capital case”…. Perhaps as
the Eagle suggests, there is a Wheel of Misfortune to decide what cases will be
prosecuted to the fullest extent of the law, to a medium extent, to a lower
extent, or perhaps to no extent at all.
Is
that what the Eagle meant by calling prosecutor’s decision making the “luck
of the draw”? Evidently, Arturo
Garcia hit the jackpot and is now facing at least 111+ years behind bars.
You
certainly have the right and the privilege as editors of our only paper to
comment upon issues of concern to our community.
However, when you choose to do so, you are required to correctly report
on the law that applies to the case you are criticizing so that the public is
not misled. Had
our office been contacted, your error could have been avoided.
District
Attorney Nola Tedesco Foulston
and
Staff
18th
Judicial District of Kansas
Response of District Attorney Nola Foulston as Printed
(July 27, 2004)
Posted
on Tue, Jul. 27, 2004Law didn't apply in Garcia murders
BY NOLA TEDESCO FOULSTON
An
Eagle editorial pointedly raised the question of "what merits an execution
in Kansas -- and what doesn't," suggesting that if there was ever a guy who
"deserved it," Arturo Garcia was a candidate for the death penalty
("Justice: Hard 50 undercuts argument for execution," July 20
Opinion). The Garcia case is not the benchmark by which all other cases are to
be judged.
The
editorial board put out that because of the gruesome facts of the case and the
board's reliance on a statement in the law that it believed applied, this case
could have been charged as a death penalty case. Because it was not, the
editorial board made the case that this is yet another example of why there
should be no death penalty.
The
editorial board opined that the facts of the Club Mexico case, as it
"politely" described them, "spelled out the legal conditions for
the death penalty," yet the prosecution chose not to seek that remedy. The
"legal conditions" that the editorial board relied upon to suggest
that the Garcia case could have been a death penalty case in fact do not apply
to death penalty cases.
The
desecration of a victim's body is not an aggravating factor that may be
considered in seeking the death penalty. In 1999, in response to the decision of
the Kansas Supreme Court case of State v. Spry, 266 Kan. 523, the Kansas
Legislature redefined the definition of the Hard 50 aggravating factor
"heinous, atrocious and cruel" by adding language to include the
mutilation of the victim's body before or after death. This definition was
exclusive to the Hard 50 and was not amended in the definitions of the
aggravating factors applicable to the death penalty. There is no such definition
within the aggravating factor of a death penalty case.
However
gruesome and cold-blooded the killings by Arturo Garcia were, the mutilation of
the bodies of the victims subsequent to their death could not be used to support
an aggravating factor in a death penalty case. The defendant was appropriately
charged, appropriately convicted and appropriately sentenced.
The
editorial board suggested that if a death penalty case could have been filed and
was not, there must be some other underlying reason why district attorneys do
not pursue this remedy. It suggested the usual litany of anti-death penalty
diatribe as to why this might be the case: the enormous costs of litigation, the
lengthy appeals process, varied decision-maker sensibilities, etc.
The
editorial board certainly has the right and the privilege to comment upon issues
of concern to our community. However, when it chooses to do so, it is required
to correctly report on the law that applies to the case it is criticizing, so
that the public is not misled. Had our office been contacted, the error could
have been avoided.
