Judge rebuffs death penalty challenge

Claude Shafer Jr.

A Shenandoah County Circuit Court judge Tuesday rejected an attempt by defense attorneys to overturn the state’s death penalty as it pertains to murders in which the victim was also robbed.

Circuit Court Judge Dennis L. Hupp said the issues raised by attorneys representing accused murderer Claude Delmus Shafer Jr. were more suitable for consideration by the Virginia Supreme Court than a trial court such as his.

Shafer is scheduled to go on trial in April 2017 when he will face a possible death sentence if convicted. Authorities say he stabbed Phyllis Kline to death in her Edinburg home at 14887 Old Valley Pike on June 13, 2014. Shafer is also accused of taking prescription drugs and firearms from Kline, 65, at the time he allegedly entered the house and killed her.

Hupp rendered his decision after about 90 minutes of testimony and argument between Edward Ungvarsky, one of Shafer’s two attorneys, and Commonwealth’s Attorney Amanda Wiseley.

Ungvarsky supported his case with testimony from Scott Phillips, a sociology and criminology professor at the University of Denver. Phillips testified that he had collected and analyzed data about the administration of the death penalty in Virginia in cases of combined murder and robbery such as Shafer’s. Phillips said his research showed that death sentences were rarely imposed in such cases from 1995 until 2011. He said there have been no death sentences for murder-robbery cases in more recent years.

Phillips’ study counted the total number of murder-robbery defendants who were eligible for the death penalty and those who were actually sentenced to die. Phillips said the data showed only 5.8 percent – 10 out of a pool of 173 eligible defendants – received the death penalty during the 16-year period he studied.

Ungvarsky argued that the infrequent imposition of the death penalty in murder-robbery cases in Virginia runs afoul of a 1972 U.S. Supreme Court ruling. He contended that the ruling requires that a state’s death penalty option must be imposed in at least 15 percent to 20 percent of eligible cases. A lesser percentage means that it is used so infrequently that its administration must be considered arbitrary, capricious and unconstitutional under the Supreme Court ruling, Ungvarsky added.

“They’re still being indicted but no one is getting the death penalty out of it,” Ungvarsky said of defendants facing the same charge as Shafer.

Wiseley argued that the Supreme Court case cited by Ungvarsky did not set a minimum rate at which defendants must be sentenced to death. Doing so, she said, would encourage some prosecutors to pressure prosecutors in other jurisdictions to seek the death penalty for no purpose other than to maintain a certain statewide rate that would at least equal a number determined by the Supreme Court.

“That would be arbitrary and capricious, and that’s not what the Supreme Court said,” Wiseley told Hupp.

In rejecting Ungvarsky’s motion, Hupp said court decisions governing the administration of the death penalty since the early 1970s undermine arguments that rely heavily on the rate of death sentences to challenge the constitutionality of capital punishment. Hupp said better “guidance” given to judges and juries in death penalty case “weighs” against a data-driven accusation of arbitrariness.

“The ruling you seek ought to come from the Supreme Court of Virginia, not a trial court,” Hupp told Ungvarsky.

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com