Someone contacted me recently, wondering whether or not I support the death penalty. I told them I do not, but not because I think it's such a bad idea to give the needle to those who are dead-to-rights guilty of a capital crime.
Rather, I have two problems with it. First, it is arbitrarily applied, subject to all sorts of legal chicanery and judicial i-dotting, the same as in all criminal cases. The main difference being that a man or woman's life may be forfeited as a result.
The second reason is that if someone is falsely accused and imprisoned, there is always hope that the individual's name might be cleared and compensation offered for time spent behind bars. But there is no compensation possible -- at least not for the condemned -- should the state wrongly take someone's life.
It's the first reason that's exemplified in the recent sentencing of racist skinhead Sean Gaines to 25 years for his role in the 2002 murder of Mark Mathes.
His third accomplice, Patrick Bearup, the son of Sheriff Joe Arpaio's right-hand-man-turned-Joe-foe Tom Bearup, is currently on death row. There's one big problem with that: Even prosecutors admit that he's not the one who actually murdered Mathes.
As I previously reported in a 2008 Bird column, Superior Court Judge Warren Granville chastised the County Attorney's Office at the time over the disparity in sentencing in the Mathes affair.
Both Nelson and Johnson plead guilty to second degree murder. Each caught 14 years with credit for time served, and could be out in 2019. Both testified against Bearup at trial.
And yet, the murder was at the behest of Nelson, who wanted vengeance for money she believed Mathes stole from her. Johnson beat Mathes unconscious with a baseball bat. The body was placed in the trunk of a car, and driven to an abandoned area, appropriately named Swastika Mine. The body was dumped, and according to court documents, Gaines shotgunned Mathes twice.
Though Bearup didn't kill Mathes, he did something equally gruesome according to the court. He clipped off Mathes' ring finger with wire cutters, possibly while Mathes was still alive. This, to obtain a cheap ring on his finger for Nelson.
Granville was not pleased that Bearup was the only defendant facing the death penalty.
He wrote in a 2007 minute entry:
"The County Attorney, as the law allows, made a unilateral decision not to withdraw the death notice for Mr. Bearup, a defendant who, even under the State's theory of the case, did not cause the physical death of Mr. Mathis.[sic] Under the State's theory of the case, Mr. Bearup acted only as support for Mr. Johnson as he baseball batted Mr. Mathis [sic] to death or to near death, and helped drag Mr. Mathis [sic] to a car trunk and the desert. Under the State's theory, Mr. Bearup's act of cutting off Mr. Mathis' [sic] ring finger while cruel and heinous, was not a cause of the death."
Granville further noted:
"This Court, nonetheless, finds that Mr. Bearup's death penalty sentence for Count 1 was not justified in the context of the relative responsibility of the co-defendants whom the County Attorney chose to withdraw the notices of death and reduce their sentencing range. It is the County Attorney's motto that `let justice be done.' This, of course, coincides with a prosecutor's unique ethical responsibility. This Court finds that justice was not done for Mr. Bearup in Count 1."
However, in 2009, the Arizona Supreme Court upheld Bearup's death sentence in a ruling you can read, here. Methodically, the court chips away at Bearup's claims until there's nothing left. He presented an "all or nothing" defense. He did not present mitigation evidence at his sentencing. He was a major participant in the murder, even if he did not strike the death blow. And so on.
Far be it from me to second guess the august legal minds of the Arizona Supreme Court. They ruled on precedents. Nevertheless, the opinion itself reads like the jurisprudence version of a Rube Goldberg contraption.
Bearup didn't do A, B, and C, so he can't do X or Y. Divided by the square root of Z, his death penalty stands.
And Sean Gaines pulls 25 years imprisonment? Even though he supposedly shotgunned Mathes? With credit for time served, he could be out in 2028.
Don't get me wrong, I have little sympathy for the lot of them. Even though my former New Times colleague Susy Buchanan profiled Gaines for the Southern Poverty Law Center's Intelligence Report, depicting him as repentant and having renounced neo-Nazism and the skinhead lifestyle, there's still the issue of Mathes' corpse and justice.
Patrick Bearup was no angel, by all accounts. I know his father was upset when I said in my 2008 column that I figured Bearup probably deserved to spend the rest of his life in prison. But to face execution, when the ringleader and the main protagonists cheat death? That's more than a little whack.
Which is why I regard the death penalty as an obscene joke, one that should be banned. The Mathes murder is but one example. There are a plethora of cases just like it, where justice is a card sharp's game. But they receive little or no attention.
The jurists and attorneys involved are all playing their assigned roles. I wouldn't argue that they shouldn't.
But if Bearup is executed while those more responsible for Mathes' slaying live on with the hope of eventual release, that just further proves that capital punishment should be abolished, because our criminal justice system is not capable of meting out such draconian judgments equitably.