"The capital trial is not so much about the case you're trying [at that moment], but the next five to seven years," says former Richmond Commonwealth's Attorney, David M. Hicks, who left office in December.
If the death penalty is handed down against Gray, whose trial for the Jan. 1 slayings of the Harvey family started Aug. 14, the decision must withstand intense scrutiny over the next five years. Death penalty cases are automatically reviewed by the Virginia Supreme Court, then after that, the federal appeals process kicks in.
That makes Learned Barry, deputy commonwealth's attorney, the most important player for the prosecution, Hicks says. Barry is the only attorney on the prosecution's team who has prosecuted a capital murder case, Hicks says. Neither Richmond's Commonwealth Attorney Michael N. Herring nor Matthew Geary, chief deputy commonwealth's attorney, has prosecuted a capital murder case before.
That's not to mention Circuit Court Judge Beverly W. Snukals, who will be presiding over her first capital murder trial.
Hoping to prevent a flawless trial are Gray's defense attorneys. Their main goal, Hicks says, is to create errors on the record that could undo a death-penalty ruling.
Gray faces five counts of capital murder in the slayings of the four Harvey family members. Although prosecutors say Ray Joseph Dandridge is also guilty in the Harvey murders, they are first trying him for the Tucker/Baskerville slayings.
Under Virginia law, if both men are tried simultaneously for the same crimes, only one could be convicted of capital murder. By breaking up the trials, prosecutors can seek the death penalty for both men. Dandridge's trial is scheduled for Sept. 18.
That strategy carries a risk, however. With separate trials, the chance for mistakes and inconsistencies increases, Hicks says.
Another thing working against prosecutors is that the jury's ruling must be unanimous in a capital conviction. Therefore, "watch the defense do all they can to humanize Mr. Gray," defense attorney Steven D. Benjamin says. Gray's attorneys will reportedly focus on alleged sexual abuse Gray suffered at the hands of a family member.
"Although they will never use the word sympathy," Benjamin says, "I think they would hope that a juror would sympathize with the child Ricky Gray." Defense attorneys may also seek to distinguish Gray's role in the killings from Dandridge's, Benjamin says: "They will try to separate him from a worse evil if they can."
Having the trial start in late summer is risky, Hicks says, because jury selection is critical. Conventional wisdom, he says, is that vacation schedules potentially dilute the pool of highly educated jurors. (Read: People with higher incomes, hence more education, are more likely to be vacationing.)
To gauge potential jurors' feelings on the death penalty, defense attorneys had "a valid point" in wanting to show them crime-scene photographs of the Harveys' two young daughters, Benjamin says. (The defense's request to do so was denied by the judge). Benjamin says it's important to be able to ask jurors if they would still be able to consider imposing a life sentence after seeing such gruesome evidence. S