A Hampton, Va., man who fatally shot his wife and 2-year-old son suffers from bipolar disorder and should therefore not be executed tomorrow night, his attorneys said yesterday.
In their request for clemency to Virginia Gov. Mark R. Warner (D), attorneys for Mark W. Bailey said their client has faced a "continuous struggle with his mental illness" that was not considered by the jurors who sentenced him to death. He also deserves leniency because he served in the Navy for a decade, including during the Persian Gulf War, they said.
Bailey's attorneys are asking Warner to commute his sentence to life without possibility of parole.
"This was really the single act of violence in his entire life and, in addition, his record of military service is described as outstanding. In the end, the question is whether we'll all be judged by our single worst act," said one of Bailey's attorneys, Robert Lee of the Virginia Capital Representation Resource Center.
Bailey, 34, awoke early the morning of Sept. 10, 1998, and shot his wife, Katherine, 22, three times in the head with a borrowed pistol as she slept in their Hampton home, according to court records. He then twice shot their son, Nathan, as the toddler was climbing out of bed.
Before leaving for work, Bailey cut the screen of a bathroom window and slashed the telephone cord in an effort to convince police that an intruder committed the killings, according to a synopsis of the case outlined in a Virginia Supreme Court opinion. Bailey initially denied any involvement in the killings, but he confessed eventually.
Bailey later said he committed the crime because of his "wife's infidelity," according to court records. The couple, who were first cousins once removed, had been having marital problems. Lee said Bailey's mental illness "heightened his sense of despair."
Tim Murtaugh, a spokesman for Virginia Attorney General Jerry W. Kilgore (R), said yesterday that his office "believes the jury's sentence should be upheld."
"Here is a guy who murdered his wife and 2-year-old child and then took steps to make it look like a break-in had occurred. He then went to work as though nothing had happened," Murtaugh said. "These are not the actions of someone who doesn't know what he's doing."
But Bailey's lawyers said the Hampton jury that sentenced Bailey to death did not get a complete picture of their client's mental problems. Lee said jurors did not know that Bailey had been diagnosed with bipolar disorder by a state physician while he was awaiting trial.
Bailey, a former Navy submariner, received several commendations during his naval career, Lee said, but he also had bouts of depression that were "offset with manic periods." Lee also noted that there is a history of mental illness in Bailey's family.
The National Gulf War Resource Center, a Silver Spring-based veterans group, also has written a letter to Warner encouraging him to commute Bailey's sentence to life in prison without the possibility of parole.
Steve Robinson, the center's executive director, said that the group is "not asking to excuse" Bailey's crimes but that it believes Bailey's mental illness and military service should be considered when determining the punishment.
The Virginia Supreme Court and federal courts have denied Bailey's appeals. Now only the U.S. Supreme Court and Warner can intervene.
If Bailey is executed, his would be the third execution in Virginia this year.