Randy William Gay, who was convicted of capital murder Tuesday and sentenced to death by lethal injection Thursday, was already back in the Arkansas Department of Correction on Friday, but the process that will see him either executed or his sentence possibly overturned on appeal was just beginning.
Gay, 56, was convicted after a two-day trial in Garland County Circuit Court for the May 10, 2011, shooting death of Connie Ann Snow, 49, after the nine-woman, three-man jury deliberated for about 30 minutes. Following testimony and closing arguments in a separate sentencing hearing, the jury spent less than three hours deliberating Thursday before recommending a sentence of death.
Circuit Judge John Homer Wright denied an appeal by Gay's attorney, Mark Fraiser, to set the verdict aside in favor of the default sentence of life in prison without parole. Gay showed little reaction when the verdict was read and during the brief sentencing, he said, "Take care, Judge Wright," and Wright replied, "You too."
Fraiser said Friday that exchange "pretty much summed (Gay) up. He was always very polite and respectful to all the court personnel and the staff at the Garland County Detention Center."
Asked about Gay's reaction to the verdict, Fraiser said, "He accepted it. He didn't fight or scream or yell. He did the best one could expect under the circumstances. I felt bad for him."
Fraiser said he and his team, which included local attorneys Brian Johnson and Brandon Crawford, and Ashley Hornibrook, of Little Rock, a litigation specialist for the state who handles capital cases, "knew going in we were going to have a difficult time trying to prove this was not a capital murder case and not premeditated murder."
He said they did everything they could to get the jury to consider the lesser offenses of first-degree or second-degree murder, noting that because of Gay's two prior violent offenses if they had found him guilty of first-degree murder it would have meant an automatic life sentence. "We wouldn't have even had to have a hearing."
He said if the jury had found Gay guilty of second-degree murder he would have faced a minimum of 40 years and up to 80 years in prison, which would have been served "day for day without the possibility of parole."
"When you consider his age, that means he would be at least 96," he said, "which is tantamount to a life sentence under any scenario. The life expectancy in prison is not the same as in the free world."
Fraiser and Gay's previous attorney had discussed that with him and "he knew. He understood he was never getting out." He said they also knew what a near-impossible task they faced in trying to convince the jury. "We read the case file. We knew what the witnesses were going to say," he said.
Ironically, on Thursday, the Arkansas Supreme Court upheld the state's lethal injection law as constitutional after more than a decade of no executions being carried out.
Fraiser said he had not read the opinion yet, but that during his tenure as prosecutor in Pulaski County from 1989 to 1995, of all the capital cases he had tried where they got the death penalty, all but one were still on death row 20 years or more later. He noted the jury in Gay's case would not have known about the ruling, so it didn't influence their decision.
"I keep thinking of things I could have said or done better. I just hoped that I would be able to convince one or more of the jurors. But you have to assume you're behind going in. I really thought one or two would agree. I am disappointed on his behalf."
Fraiser said the verdict and sentence will be automatically and directly appealed to the Arkansas Supreme Court where both phases will be reviewed for any trial errors. He said that process could take eight months to a year or more, but noted the case load of the Arkansas Supreme Court was less than the Court of Appeals.
He said if the Supreme Court finds an error, "different things could happen. They could change the sentence or send it back to our court." If they affirm the verdict and sentence, the Supreme Court will issue a mandate and Wright will have 21 days to appoint some outside counsel to review it.
"It won't be us," he said, noting that at that point among the things being considered would be the effectiveness of Gay's legal representation. If some challenge was found, a Rule 37 could be filed against them and it would be the job of the attorney general or Garland County Prosecuting Attorney Terri Harris "to in a sense defend us and the job we did."
He said that ruling itself can then be appealed, with the process taking 15 to 16 months. If the verdict is still affirmed, Gay can pursue other appeals, including going to the federal level up to the U.S. Supreme Court.
"The rules in federal court have changed dramatically," he said. "They've narrowed the grounds on what you can claim."
Fraiser said the weight on his shoulders and the others on his team was "immense," noting, "I wish I could have said something more, but I don't know what I could have said."
Local on 03/21/2015