Landon May brutally murdered Terry and Lucy Smith in their Ephrata home nearly six years ago. He was sentenced to die and has been awaiting execution for nearly four years — years filled with multiple appeals to multiple courts.

May actually was scheduled to die by lethal injection March 1, but his defense attorneys obtained a stay of execution so they could file additional appeals.

That was fine by Terry Smith's two daughters, who early in the case told prosecutors they strongly oppose the death penalty and would settle for life imprisonment.

But it didn't sit well with Smith's two sisters, who believe May's appeals should be cut off and he should be put to death.

"Why does this person who killed two people have the right to years of appeals?" asks one of those sisters, Nancy Bergerstock, of Milton.

The Smith family obviously is of two minds about the death penalty.

So, apparently, is Pennsylvania. The state Legislature reinstated capital punishment in 1978, but an elaborate appeals process and numerous death-sentence reversals ensure that the ultimate penalty is rarely carried out.

In the past three decades, Pennsylvania has executed three men. Each abandoned appeals and essentially asked to die. The most recent execution occurred in 1999.

The most recent execution of a Lancaster County criminal — Franklin & Marshall College student Edward Gibbs — took place in 1951.

Of the 226 Pennsylvanians currently on death row, six — Landon May and his father, Freeman May; Orlando Baez; Francis Harris; Kevin Dowling; and Tedor Davido — are from Lancaster County.

Three others from this county — Roderick Frey, Robert Zook and Leroy Stallworth — successfully appealed their capital convictions and are serving life sentences. They are among some 50 Pennsylvanians who have had death sentences revoked since 2000.

Thanks to appeals and execution stays, more than two-thirds of the 226 Pennsylvanians sentenced to die, including three of the six Lancaster County men, have been on death row for 10 or more years.

Pennsylvania's death-row population, fourth largest in the country, also is the oldest. Some inmates have been on the row for more than a quarter of a century as appeals work their way through state and federal courts.

Given all that, some observers wonder whether the state actually has a death penalty.

"Essentially, we don't execute people in Pennsylvania," says Craig Stedman, who prosecuted the Landon May case for the Lancaster County District Attorney's Office. "Appeals delay executions indefinitely."

Gov. Ed Rendell signed May's death warrant after the U.S. Supreme Court rejected his appeal. But May's attorneys persuaded a federal district court to stay the execution so they can appeal again.

After those appeals are filed in county and federal courts later this month, prosecutors will reply. Then appellate judges will consider the case once more.

It is very likely that Landon May, who was 19 when he killed the Smiths and is 25 now, could turn 30 before the appeals process plays out.

Bergerstock believes that is wrong.

"There are cases when the death penalty isn't warranted, and some on death row don't deserve to be there," she concedes. "But they have Landon May's DNA. This case was so brutal and so premeditated, and there is not a shred of doubt."

But Stedman explains that the relative strength of the case has no bearing on the appeals process.

"Every case where we obtain the death penalty, regardless of how strong the evidence is, (the appeals process) is all by the same rules," he says. "Landon May's case could continue for many, many years."

***

An increasing number of people, but still a relatively small minority, seems to be satisfied that the system grinds slowly.

A Pew Research Center poll, released early this summer, shows that most Americans support the death penalty; but the majority has shrunk from 78 percent in 1996 to 64 percent now.

A Gallup Poll taken last year showed respondents almost equally divided when asked to choose between a death sentence or life without possibility of parole.

Meanwhile, the number of death sentences actually handed down nationwide is plummeting — from 277 in 1999 to 128 in 2005.

And the number of executions nationwide also has dropped — from 98 in 1999 to 53 in 2006.

One of the reasons for these shrinking numbers is that 123 people have been released from death row since 1973, including at least six in Pennsylvania.

Not only their death sentences, but even their convictions were overturned by appeals courts that found the defendants actually innocent of capital crimes.

The Death Penalty Information Center, which opposes capital punishment, issued a report in June that emphasized "an erosion of confidence" in the ultimate penalty, in large part because of the number of conviction reversals.

Pennsylvania's reversals in death penalty cases have come from state (about 70 percent) and federal (30 percent) appellate courts.

Many of those reversals occurred because of what appellate judges perceived as legal errors in the original trials.

For example, after spending 20 years on death row for killing a typewriter repairman and his girlfriend in Lancaster, Zook left death row last year. The Pennsylvania Supreme Court ruled that juries that sentenced him to death had not been told about a brain injury his attorneys claimed he suffered as a child.

Stallworth, who was sentenced to death for killing his estranged wife in Lancaster, also left death row last year, after the state's highest court ruled that prosecutors had misstated an aggravating circumstance in his case.

Murder convictions for both men remain in place, and they will remain in prison for the rest of their lives.

But James Karl, the county's chief public defender and past president of the Public Defender Association of Pennsylvania, says most cases aren't overturned simply because of a flawed defense in the original trial.

He says expert defense attorneys pursue a number of avenues in defeating the prosecution on appeal.

The county's Public Defender's Office carries cases through the original verdict. Then the Capital Habeas Corpus Unit of the Defender Association of Philadelphia, a federally funded stable of lawyers dedicated to overturning death penalty convictions, represents cases through the appeals process.

"They're very good attorneys and they have very good resources at their disposal," Karl explains. "They're going to go over these cases with a fine-tooth comb."

***

The Defender Association long ago took over appeals for Baez, who was sentenced to die in 1993.

Baez was convicted of murdering 22-year-old Janice "Sissy" Williams in her West King Street apartment in 1987. Prosecutors said Baez raped and beat the woman and stabbed her more than 100 times.

After the local trial, the Defender Association took the case through state appeals. In 1999, Gov. Tom Ridge signed Baez's death warrant. But execution was delayed to permit further appeals.

Two years ago, the state Supreme Court kicked the case back to Lancaster County, where it is pending.

The state Attorney General's Office has taken over the prosecution, while the Defender Association continues the defense.

The victim's mother, Janice Lee Williams, of Lancaster, supports continued prosecution. But she says Baez should have been executed years ago.

"I thought once he was found guilty and the decision was for the death sentence that it would be over," says Williams. "It's been so long. I just hope I live to see it."

Williams says she would not support life in prison without parole — an alternative backed early this summer by prosecutors and the remaining family of Jesse Dee Wise Jr., who killed six of his relatives in Leola last year.

"No, that wouldn't be right," Williams says. "(Baez) tortured my daughter. He raped her. He should have the death penalty. It's not fair for her. It's not fair for the victim or the family. We can't forget about it."

Baez has always maintained his innocence, so 14 years of appeals could extend for many more years.

Taxpayers are footing the bill for both sides of this case and almost all other capital cases — few defendants can afford to pay for their own attorneys during years of appeals — and that mounting cost disturbs both prosecution and defense.

Arguing an original capital case doesn't take much more preparation than other cases, notes Lancaster County's District Attorney Donald Totaro. But defending against death penalty appeals is considerably more costly than defending against other appeals, he says.

The Defender Association has "seemingly unlimited resources," Totaro says. That creates "a significant burden for county prosecutors, and consequently many appeals are referred to the Pennsylvania Attorney General due to lack of resources."

But Karl says Totaro has created his own problem by seeking the death penalty in a relatively high number of cases.

Two decades ago, Karl says, the county's district attorney sometimes would go more than a year without identifying a death penalty case. That trend has changed in the last decade.

Five of the county's 10 pending homicide cases are death penalty cases, Karl notes. That capital-case ratio is far greater than in the past.

"That means the death penalty is still in effect, yes," Karl says. "We have to budget for it. We have to spend our resources on it. It's an extreme drain that is controlled exclusively by the DA."

The state Legislature is also responsible, Karl explains. When the Legislature reinstated the death penalty in 1978, it listed just six aggravating circumstances that could trigger a death sentence.

Legislators have expanded that list to 18.

The district attorney would not have been able to tag several of the current homicides as death penalty cases under the old rules, Karl notes.

As one example, he cites Meghan Lippiatt, a Mount Joy woman accused of killing her two children in 2004. The aggravating circumstance — multiple murders — is one of the more recent additions.

For his part, Totaro says he simply follows the law, reviewing all homicide cases for aggravating circumstances. If such circumstances exist, his office recommends the death penalty.

"All defendants are treated equally," he says, "and there can be no suggestion that the death penalty in this county is applied in an arbitrary or discriminatory manner."

***

In recent years, a dozen states — mostly in New England and the Midwest — have found significant problems with the death penalty and have enacted bans or halted executions.

Pennsylvania has maintained the status quo, except for increasing the number of aggravating circumstances that can trigger the penalty.

Gibson Armstrong, a Republican who represents Lancaster City and western Lancaster County in the state Senate, says he's not happy with the way the death penalty is being handled in Pennsylvania, but he's not proposing changes.

"I don't think the death penalty is much of a deterrent," he notes, "but if we changed the law and made it even stiffer, that wouldn't help."

He shifts all blame back to criminals.

"We can pass all the laws we want and we can execute them twice," he says. "That's just not going to solve the problem. Unfortunately, you can't make a law to change people's values."

Michael Sturla, a Democrat who represents the city in the state House, says he is not unhappy with the present system that encourages years of appeals for death row inmates.

"There are a lot of people sitting on death row because of circumstantial evidence," he says. "I'm not a big fan of circumstantial evidence. I think we should err on the side of caution instead of just killing people so someone gets vengeance."

Sturla says he believes life without parole is as useful as a deterrent as the death penalty and, considering the pricetag of the appeals process, probably costs no more.

"All the statistics show that the death penalty doesn't serve as a deterrent," he says. "It's a fairly barbaric form of punishment."

Legislative and judicial efforts to suspend the death penalty in Pennsylvania failed several years ago. There is no pending legislation.

CONTACT US: jbrubaker@LNPnews.com or 291-8781