Dally Prosecutors May Have Lost Best Chance for a Death Sentence

With the jury irreversibly deadlocked in the death penalty phase of Michael Dally’s trial, legal analysts say prosecutors may have lost their best chance to send the convicted killer to death row and now must think hard about whether it is worth going through the process again.

In coming weeks, prosecutors will have to weigh a myriad of factors, including the emotional toll that a retrial would take on the victim’s family and friends, many of whom were called to the stand to bolster the prosecution’s death penalty push.

And even if prosecutors decide to go through the process of picking a new jury and retrying the penalty phase, analysts say they could have a tough time convincing jurors that Dally deserves to die for his role in his wife’s murder.

“I think the prosecutors in some ways already have had their best shot,” said Loyola Law School professor Laurie Levenson, noting that the jury that convicted Dally in the first place could not be persuaded to put him to death.

“The prosecution has to think about whether this is the type of heinous crime where justice will not be served unless he gets the death penalty,” she said. “And they have to really look hard at whether they have anything better to present the second time around.”

After finding Dally guilty earlier this month of plotting his wife’s murder for financial gain and while lying in wait, jurors were charged with deciding whether the 37-year-old former grocery clerk should live or die.

They could not. After three days of deliberations, jurors Friday declared themselves hopelessly deadlocked, with seven voting for death and five holding out for life in prison without the possibility of parole.

“It’s a victory for the defense, especially if the prosecution decides not to go forward,” said George Eskin, a former Ventura County prosecutor and defense attorney.

“I don’t know what prosecutors are going to decide. They certainly have invested a great deal into getting a death verdict in the first place, and the question becomes whether they will be satisfied with what they’ve got.”

What prosecutors have at the very least is a life sentence without parole for Dally, guaranteed by his conviction on the murder charges, analysts said.

But when they come back to court May 11, they could announce the decision to launch into a second penalty phase, which would require going through the long and complicated process of picking a new jury.

For this trial, prosecutors and defense attorneys spent a month sorting through more than 500 prospective panelists to assemble a group of 12 regular and six alternate jurors who had not heard about or formed opinions on the case.

Then there would be the trauma of the penalty phase itself, where friends and family of the victim and the defendant would be required to repeat emotionally wrenching testimony.

“I think they’d be wasting their time to get another jury,” said John Mostachetti, a juror in the trial of Dally’s lover, Diana Haun. Haun was convicted in September of carrying out the killing and was sentenced to life in prison without parole after a subsequent penalty phase.

Mostachetti said if he had been sitting on Dally’s jury, he would have voted for death.

“To me, he deserves what basically happened to Sherri Dally,” he said. But for the prosecution at this point to push on with the case “just seems like such a big waste of money and time.”

Dally’s niece, Hannah Murray, said she believes that if another jury is brought in to hear the penalty phase, her uncle has a good chance of escaping with his life.

“I think he’ll have a better chance with a new jury,” she said. “I think they will get a jury that will listen to facts more instead of what the public has been feeding them for the last two years.”

It is not unusual for juries to deadlock when it comes to deciding whether a defendant should live or die.

Earlier this month a Santa Monica jury deadlocked when trying to decide the penalty for a woman convicted in the Mother’s Day slaying of two people in a Universal CityWalk parking lot.

Santa Monica Superior Court Judge Leslie Light declared a mistrial on Donna Lee’s penalty, leaving it up to prosecutors to decide whether to retry her and seek death or accept the sentence of life without parole guaranteed by her murder conviction.

And in Orange County, juries have deadlocked twice while trying to decide whether to execute a former Fullerton mechanic convicted of killing his parents and younger brother in 1994. The last jury deadlocked 11-1 earlier this year in favor of sending Edward Charles III to death row.

Los Angeles criminal defense attorney Gerald L. Chaleff said it is one thing to get 12 people to agree on a defendant’s guilt or innocence and quite another to ask them to agree to put a defendant to death.

“I think you’ll find that even for people who strongly favor the death penalty, it becomes a difficult thing to put another human being to death,” Chaleff said. “This is a person they have watched in court, they have seen his family and have seen people come and support him, so it becomes a very difficult task.”

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