Fayette Circuit Judge Ernesto Scorsone said Wednesday he did not think a blanket policy of Fayette Commonwealth's Attorney Ray Larson's office to seek the death penalty in all murder cases involving aggravating circumstances is illegal.
Scorsone's comment came after a half-day of testimony and discussion regarding motions in the case of murder defendants Dominique Lewis and Heather McGlothen. They are accused in the slaying of McGlothen's grandmother, Marilyn Hegge, who was found bludgeoned to death in her bed at her home on Red River Drive on Nov. 30, 2008, her 78th birthday.
Public defender Tom Griffiths, one of Lewis' attorneys, argued the commonwealth's attorney's office was violating the U.S. and Kentucky constitutions by not making any plea offers or by not exercising its discretion in murder cases involving aggravating circumstances. Griffiths also argued the commonwealth's attorney's office was violating the Kentucky Racial Justice Act of 1998, which prohibits prosecutors from seeking the death penalty because of race.
"The Commonwealth cannot take the position that they may seek death against all African-American defendants simply because they adopt a policy of seeking death against everyone," Griffiths wrote in one of the motions.
Attorneys for McGlothen joined Lewis' attorneys in motions pertaining to the policy of Larson's office.
Scorsone said he was in the legislature when the racial justice act was passed and supported it. He said he saw no evidence of racial discrimination in this case.
"We intend to enforce the law. That's my job," Larson said later Wednesday. Defendants decide whether a murder case is an aggravated murder case, he said. An armed robber decides whether to take the money and run or whether to take the money, kill the witness and run, he said. To blame the prosecutor, he said, is "baloney."
Police have said they think Lewis, 28, conspired with McGlothen, 24, his girlfriend, to kill Hegge. Police have also said Lewis has confessed to Hegge's murder and that McGlothen admitted to placing charges on Hegge's credit card after Hegge was killed.
In addition to murder, Lewis and McGlothen also face several other charges in the case.
Defense attorneys also are asking Scorsone to suppress as evidence at trial letters the defendants exchanged while in jail. Lexington police detectives testified that they were tipped off about the letters by a prisoner housed near McGlothen at the Fayette County Detention Center. The letters, they said, contained information about the murder. Defense attorney Adam Zeroogian raised questions about the fact the original affidavit and search warrant for searching the defendants' jail cells for the letters can't be found in court records and the fact that there were no dates and times put on those documents by the officer who signed them.
McGlothen's attorneys asked that she and Lewis have separate trials, and that Scorsone suppress McGlothen's statement to police.
A third defendant in the case, David Lewis, the brother of Dominique Lewis, was charged with burglary and tampering with physical evidence. David Lewis, in a plea deal, pleaded guilty to evidence tampering. The burglary charge was dismissed. In early 2010, he was sentenced to five years in prison, which was enhanced to eight years because he was a persistent felony offender. David Lewis was accused of helping to hide evidence of the crime in rural Jessamine County.
McGlothen and Dominique Lewis are scheduled to go on trial Aug. 1.
