Michael Carl George stalked 15-year-old Alexander Eugene Sztanko in a forested area of Woodbridge, sexually abused and tortured him, then shot him in the head -- but that was not enough to qualify George for a death sentence in Virginia.
Despite the cruelty of the crime, as described in George's recent trial, prosecutors also had to prove that he robbed Sztanko in order to seek the death penalty under state law.
"It's ludicrous," said Prince William County Commonwealth's Attorney Paul B. Ebert. "It runs contrary to my grain to think that all these horrible acts were committed upon an individual, then to have to look for a category in order to be able to prosecute on a capital murder basis."
George ultimately was convicted and a jury recommended sentencing him to die in the electric chair -- testimony showed he had stolen money, a dirt bike and tennis shoes from Sztanko -- but Ebert and other prosecutors will ask the General Assembly to change the law.
They say murderers who sexually assault men and teenage boys should be treated the same as killers who rape women and children under 12 -- they should be eligible for the death penalty when found guilty.
"We've tried for years to get the capital murder statute changed to include forcible sodomy," said Fairfax County Commonwealth's Attorney Robert F. Horan Jr., chairman of the legislative committee of the Virginia Commonwealth's Attorneys Association, which has tried for the change three times.
" . . . If the sexual appetites of the killer include sodomy instead of sexual intercourse, even if the victim is a woman, it wouldn't be capital murder. It is illogical to say the least."
The group's proposed forcible sodomy law covers anal and oral sex.
Del. William J. Howell (R-Fredericksburg) said he will join the effort and has asked his staff to draft an amendment adding a provision on torture to the state's capital murder law.
"If a man goes into a 7-Eleven and robs it and murders the clerk, it is capital murder. So it seems that torturing someone and murdering them should be capital murder," he said.
Under existing Virginia law, it is a capital offense to murder during a rape or to murder a child under age 12 who has been abducted with intent to "defile."
Virginia has had a capital murder law for more than century; it dates to a time when laws allowed execution for crimes as petty as horse stealing.
For many years, any premeditated murder could be punishable by death; that was later changed to include only willful, deliberate and premeditated murders. In 1972, the U.S. Supreme Court struck down death penalty laws as unconstitutional. The death penalty was reinstituted four years later, but the court ruled that capital murder statutes must be narrowly defined.
In the effort to be specific, said James Willett, assistant commonwealth's attorney in Prince William, some crimes that should be covered were not included by legislators.
"I don't think that we ought to rigorously expand the areas of eligibility, but there are some blocks that need to be closed," he said.
Most capital statutes require proof that the murder was committed during a second crime such as rape, robbery or a drug deal. And many states, Ebert said, including Virginia, based their statutes on Georgia's capital murder law, which was used to challenge and reinstate the death penalty.
Oscar Brinson, legal counsel for the Virginia House Courts of Justice Committee, said the legislature in 1989 changed the wording of the state's rape law to include forced intercourse with all persons, not just women.
But another state law defines forced anal intercourse not as rape, but as a different crime not included under the capital murder law -- forcible sodomy. That has caused some prosecutors to believe that a murderer who engages in forced anal intercourse with the victim has not committed rape under the rape law's definition, and so cannot be charged with capital murder and cannot be sentenced to the death penalty.
Bert Rohrer, spokesman for the state Attorney General's Office, said he believes the rape statute does apply to forced sexual intercourse with a man, but no precedent exists because no court has ruled on it.
State Sen. Richard L. Saslaw (D-Springfield), a member of the Senate Courts of Justice Committee, said his panel has been wary of expanding the capital murder statute for fear of having it thrown out. "What we will be getting back to by loading it up is the old willful, deliberate and premeditated requirement," he said.
But the committee's chairman, Sen. Edward M. Holland (D-Arlington), said he would support an amendment to include forcible sodomy in the capital murder statute. "I can certainly see in this instance it might be necessary," he said.
Premeditated murder in the commission of an abduction with the intent to extort money.
Premeditated murder for hire.
Premeditated murder by a prisoner.
Premeditated murder in the commission of a robbery while armed with a deadly weapon.
Premeditated murder in connection with rape or attempted rape.
Premeditated murder of a law enforcement officer on duty.
Premeditated murder of more than one person in the same transaction.
Premeditated murder of a child under the age of 12 in the commission of abduction for monetary gain, or with the intent to defile the victim.
Premeditated murder in connection with the manufacture, possession or distribution of a controlled substance.