Mother on death row could be resentenced
A jury could be impaneled to again consider the death sentence of Michelle Tharp, the woman convicted 15 years ago of starving her daughter to death while the family was living in Burgettstown.
Tharp, 46, who is a prisoner at the State Correctional Institution at Muncy in eastern Pennsylvania, did not return to Washington County for the conference Friday afternoon.
Her attorneys, James J. McHugh Jr. and Elizabeth Hadayia, with the Federal Community Defender Office in Philadelphia, met with First Assistant District Attorney Chad Schneider and President Judge Katherine B. Emery on Friday afternoon.
“This was just a pretrial conference,” McHugh said.
Asked if a new jury will, in fact, be impaneled, McHugh said, “We don’t know that. At the present time, the case has been remanded for that. That’s what the Supreme Court ruled. Anything further than that, we’re getting ahead of ourselves. We’ll receive another order from Judge Emery. There’s really nothing to discuss today. Chad’s a new attorney on the case.”
Schneider said at this point, he expects yet another pretrial conference.
The Supreme Court order did not specify any time line for Tharp to be resentenced when it said last fall that she must be given a new penalty hearing for the death of Tausha Lanham, 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. A jury could have instead given her life in prison.
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.
The court upheld Tharp’s first-degree murder conviction. 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.
Gov. Tom Wolf has said he won’t sign any death warrants, a stance the District Attorneys Association of Pennsylvania claims is illegal.
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, on 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 denied she starved Tausha to death and contended that she 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.
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 schizo-affective 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.
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.