2 jurors held out giving Tooley death penalty

Citizen's Voice (Wilkes-Barre, PA) ^ | 9/17/2003 | Lisa Napersky

[Born Conservative]

2 jurors held out giving Tooley death penalty

By Lisa Napersky , Citizens' Voice Staff Writer

09/17/2003

A man who served on the jury that found Larry Tooley guilty of first-degree murder said he deeply regrets that the panel failed to sentence the defendant to death.


"I am very, very disappointed," said the juror, a 43-year old Mountain Top resident. "It will bother me for the rest of my life."

Tooley, 46, of Wilkes-Barre, was convicted last week of shooting to death 16-year-old Casey Zalenski during a burglary of the victim's Franklin Township home on Nov. 8, 2002.

The jury was unable to reach a unanimous decision Monday on whether Tooley deserved to die for his crime, so the defendant was automatically sentenced to life in prison without parole.

A pair of jurors, each with a different reason, spared Tooley's life.

"One of them had an aversion to the death penalty, and the other believed defense counsel's story about what a hard life the defendant had," said a juror. "We tried really hard to convince them that the evidence - the sheer horror of the crime - was enough to warrant death."

In his opening statement during the penalty phase of the trial, defense Attorney William Ruzzo reminded jurors repeatedly that they alone had the power to order the death of another human being.

"You've already sentenced him to death by imprisonment," Ruzzo said of Tooley. "Now you must decide whether the state kills him with your permission, or if he dies in prison after living a lonely life."

Ruzzo also asked jurors not to "tinker with the machinery of death."

The panel member who agreed to discuss the verdict said both dissenting jurors were set in their opinions.
"The decision just carried with it an awesome weight," he explained. "I know one of them truly struggled and was visibly upset. We just couldn't convince them. I will regret it until the day I die."

The juror said the decision to convict Tooley of first-degree murder was much easier.

"He basically executed a 16-year-old boy," he noted. "The third shot, after the victim was lying on the floor near death, made it even more heinous."

The juror said the testimony of the victim's younger brother, Tommey, as well as that of expert witnesses, had a tremendous impact on the jury's decision that there was "no reasonable doubt" that Tooley was the killer.

"For the sake of the Zalenski family, I wish we could have convinced those two jurors," he said. "The only consolation is that at least he will never see daylight again."

The last time a Luzerne County jury reached a death penalty verdict was in December 1994, when Michael Bardo was sentenced to death for molesting and brutally killing his 3-year-old niece and dumping her body in Solomon Creek. Bardo remains incarcerated awaiting appeals.

[Born Conservative]

The convicted murderer in this case is a total sociopath. After his conviction and before his sentencing, he was asked about whether he was worried about getting the death penalty; his reply was "I gotta die sometime".

For a little background, he and his girlfriend went to a house in a rural area to rob it (the girlfriend had been a babysitter for the family). 2 of the kids were home (it was during the school year; not sure if they skipped school or were sick). Tooley was upstairs, and the girlfriend heard gunshots. She came upstairs and found Tooley standing over the 16 year old; he said to her "I had to put 3 hollowpoints into him". The other brother escaped out of a window before Tooley got to him.

[SouthernFreebird]

One of them had an aversion to the death penalty

I thought on a DP case the jurors had to be open to the possibility of sentencing the perp to deathrow...? Sounds like this juror was opposed to capital punishment in any case and did not give a verdict on the merits of this case.

[ClearCase_guy]

Some people love the idea of jury nullification. But it works both ways. If somebody really hates the DP, they can sabotage a case like this one.

I used to support jury nullification. Now I think it's childish, immoral, deceitful, and wrong.

[ernie pantuso]

How is this "sabotage" and juror nullification? All the jurors convicted him of first degree murder. The only issue that didn't obtain unanimity is the sentence.

[ernie pantuso]

One can have an aversion to something and still be willing to doing that something if the circumstances are right. Happens all the time with people--for example, an aversion to heights or roller coasters doesn't prevent those from doing those things.

In capital cases, jurors can be seated who are not automatic, gung-ho give-em-death-and-then-have-a-trial mentalities. As long as they can honestly consider a death sentence, and agree to vote for it if the circumstances warrant, they are not stricken as potential jurors. Persons who are as automatically supportive of the death penalty as yourself in all first degree murder cases--as well as conversely, persons who are automatically opposed to the death penalty under any circumstances--are the persons who are stricken from sitting as jurors in capital cases.

[geedee]

I thought on a DP case the jurors had to be open to the possibility of sentencing the perp to deathrow...?

That's what I thought. If this juror said he, or she, wasn't opposed to the death penalty . . . then proved to be against it during deliberations, I would think some kind of action is warranted against him.

Of course, I'm from Texas. According to Amnesty International, we're nothing but naked savages running around with shrunken heads dangling from our . . . uhhh . . . our . . .

[ClearCase_guy]

Not being present, I cannot claim to know all the details on this case, I believe you are correct when you say:

persons who are automatically opposed to the death penalty under any circumstances--are the persons who are stricken from sitting as jurors in capital cases.

Now, the original article says (and this is vaguely worded, IMO) there was someone on the jury who had "an aversion" to the death penalty. If that is a simple reluctance, it's no harm, no foul, I think. However, if by "aversion" they really mean "automatically opposed to the death penalty under any circumstances" then I think they should have been stricken from sitting as juror.

My point was that if a juror did not have an open mind on the death penalty, and was going to vote against death no matter what (though perhaps willing to vote to convict), then it is a bit like jury nullification. They are supposed to decide on the merits -- but perhaps on this aspect, they had a closed mind and wanted to circumvent what others perceived to be justice. YMMV.

But I am glad they at least voted to convict.

[ernie pantuso]

Thanks for the clarification. I agree.

[Born Conservative]

Too bad this crime was tried in Pennsylvania rather than Texas...