Mother granted new sentencing
The state Supreme Court Wednesday ordered that Michelle Tharp be resentenced for the starvation death of her daughter, because her public defender did not at trial present evidence of her mental state that might have resulted in a different verdict than the death penalty 14 years ago.
Although Justice Max Baer characterized Tharp as a tormenter, “we conclude that there is a reasonable probability that at least one juror at (Tharp’s) trial may have struck a different balance had such mental health … evidence been presented,” he wrote. Baer authored the 60-page opinion sending the case back to Washington County Court for a new penalty hearing.
The court upheld Tharp’s first-degree murder conviction in 2000 stemming from the starvation death of her daughter, Tausha Lee Lanham. Baer called the evidence of Tharp’s guilt “overwhelming,” writing that she not only denied Tausha meals but physically restrained the child so she could not feed herself and “remarkably … asked others to perpetuate the same abuse upon her own child.”
Former Washington County Judge Paul Pozonsky presided over Tharp’s 2000 trial, in which a jury convicted her of deliberately starving the 7-year-old, who weighed less than 12 pounds at the time of her death, and sentenced Tharp to die by lethal injection.
Then-Gov. Ed Rendell in 2004 signed her execution warrant, but it was stayed in federal court pending further appeals. The U.S. Supreme Court declined to review the case. According to the state Department of Corrections, Tharp is one of three women on death row.
Asked if he will continue to pursue the death penalty against Tharp, District Attorney Gene Vittone said Thursday afternoon, “I haven’t had an opporunity to digest the entire opinion yet, but I will.”
Prosecutor in the case was former district attorney John C. Pettit, who died nearly four years ago. Vittone said he, First Assistant District Attorney Chad Schneider and Assistant District Attorney Jerome Moschetta, who wrote the commonwealth’s brief opposing the vacating of Tharp’s conviction and her resentencing, will review the Supreme Court’s voluminous decision.
He said Baer’s determination “wasn’t entirely unexpected. We thought it might come back on the penalty phase.”
Tharp and her boyfriend, Douglas Bittinger Sr., now 42, were charged in Tausha’s death a few days after they falsely reported the child had been abducted from a mall in Steubenville, Ohio, April 18, 1998, when she actually died in bed at their home. Tharp, Bittinger said, refused to call 911 because she was afraid Children and Youth Services would take away her other children. The couple placed the child’s body in a car seat and ran errands with the other children in the car. At one of their stops, they purchased trash bags in Ohio and dumped Tausha’s body along a road in Follansbee, W.Va.
Tharp, 45, of Burgettstown, now an inmate at the state prison at Muncy, Lycoming County, denied she starved Tausha to death and contended that her child died naturally from medical conditions, including failure to thrive. The prosecution presented evidence Tausha surreptitiously ate cake mix, dog food or bread thrown outside for birds, picked-through trash and drank from a commode to survive. While Tharp was preparing dinner for herself and her other children, she barricaded Lanham in a pantry next to the stove.
Tharp’s attorney, Public Defender Glenn Alterio, presented no witnesses or documents in the penalty phase of her trial, and, in her appeals, she said jurors should have heard testimony about her brain damage, mental health disorders, low IQ, childhood abuse and domestic abuse by former boyfriends.
“Trial counsel’s own testimony reveals that he conducted little, if any, investigation into mitigation evidence” and provided “somewhat inconclusive testimony” about whether he contacted Tharp’s family members and whether they refused to cooperate in his investigation, Baer wrote.
Alterio declined comment Thursday on the Supreme Court decision.
Tausha was born prematurely in 1990 and spent the first year of her life in a hospital. Baer wrote, as the second of Tharp’s four children, “she was the sole target” of neglect and abuse. The other children were healthy and well-fed. In 1996, Tharp began living with Bittinger, with whom she had her fourth child. When Tharp was away, she instructed Bittinger not to feed Tausha, and, on several occasions, two or three days would pass without Tausha getting any food or drink.
Bittinger was sentenced to 15 to 30 years in prison after pleading guilty to criminal homicide, endangering the welfare of a child and abuse of a corpse. Prosecutors said Bittinger’s crime was not preventing the abuse by his girlfriend, against whom he testified at trial. He is serving his sentence at the state prison in Mercer.
Baer, in deciding the case under the Post-Conviction Relief Act, summed up Tharp’s defense at trial that she was an “unfit mother who was overwhelmed by caring for the specific needs of her child and that she lacked the specific intent to kill.” Tharp claimed to have fed Tausha the day before she died, although a medical examiner testified that she had not eaten for several days, that she suffered from malnutrition and that her teeth were worn from grinding, common in juvenile starvation cases.
A psychologist evaluated Tharp and determined she was competent to stand trial, but he diagnosed her with schizoaffective disorder, adjustment disorder with anxiety, depressive personality disorder and passive-aggressive personality disorder. The defense never called him to testify that this mental state could be a factor in the jury sparing her the death penalty.
Baer cited Tharp’s argument that she also had a difficult childhood, was abandoned by her mother, was physically abused by her stepmother and the men in her life, that her father had been convicted of both drug dealing and drunken driving, and that she had below-average intelligence, repeated 10th grade and graduated nearly last in her class.
Chief Justice Ronald Castille noted Tharp, testifying in her own defense at her trial, told the jurors of “these complicated misfortunes in her life.” Testimony by family members or presentation of school or other records “nevertheless would have been cumulative.” He disagreed, however, with Baer’s conclusion that a single juror could have been swayed.
“Ultimately, I would conclude that there is not a reasonable probability that presentation of (Tharp’s) evidence would have led to at least one original juror to have voted against imposing the death penalty.”
Justice J. Michael Eakin also weighed in. “Here, given the significant unpresented mitigation evidence readily available to (Tharp’s) trial counsel … the scale could indeed tip.”
Justice Correale F. Stevens disagreed Tharp is entitled to a new penalty hearing. “Even if it is assumed that counsel did not properly investigate and present additional mitigating evidence of (Tharp’s) mental health, I would find that it is not probable that at least one juror would have accepted any additional mitigating circumstances, or found that such mitigating circumstances outweighed the aggravating circumstance of the victim’s age,” he wrote in a four-page dissent.
Pennsylvania law requires a jury be unanimous when imposing the death penalty. Even one dissenter on the panel requires a judge to sentence a defendant to life imprisonment.
Stevens pointed out Tharp avoided taking Tausha to the doctor and removed the malnourished child when a caseworker from CYS was scheduled to visit the home. He also cited inmate testimony from a neighbor that Tharp said Tausha “belonged six feet under in a body bag,” that she never loved the girl and that “she interfered with my life.”
The Washington County court administrator’s office had not been notified Thursday morning of the Supreme Court’s decision, and until that happens, a new judge won’t be named to hear Tharp’s case.
Pozonsky, who left the county bench in 2012 under a cloud, is now facing criminal charges related to misconduct while in office, including stealing drug evidence while presiding over several criminal cases. The counts against him include conflict of interest, theft, obstruction of justice, possession of a controlled substance and misapplying entrusted government property.
At Tharp’s formal death sentencing, he played a recording of a song, “The Little Girl,” which tells of a neglected child born into a home filled with domestic violence.