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COMMONWEALTH VS. ERNEST R. WHOLAVER Prosecutions Closing ArgumentDeath Penalty Phase MR.

CHARDO: We are a government of laws, not of men. Two hundred years agoover two hundred years agoJohn Adams included that phrase in the Constitution of Massachusetts and it has become really part of our system. We are a government of laws. We dont decide any issue including this most grave issue based on who someone is, who their family is, or any other arbitrary factor. We decide it based on the law. And our death penalty statute is designed specifically so that a sentence of death is not the result of passion or any arbitrary factor. It lists specifically what the jury is to consider and it assigns burdens to each side. Aggravating circumstances must be proven by the Commonwealth before they can be considered. Mitigating circumstances must be proven by the defendant by a preponderance of the evidence before they can be considered. If the Commonwealth proves the existence of one or more aggravating circumstances, and the defendant fails in his burden to prove the existence of at least one mitigating circumstance to the satisfaction of at least one of you, the law mandates your result. And your verdict must be death. If the defendant does prove the existence of one or more mitigating circumstances, you must weigh those against the proven

aggravators and decide which is of greater weight and importance. And if the aggravating circumstances outweigh the proven mitigating circumstances, again your verdict must be death. That is the way our system works and it is designed so that the death penalty sentence is not the product of any arbitrary notion or thought on the part of the jury. The jury operates in this portion of the trial, much as it did in the first part of the trial. There are elements that must be proven, must be weighed and certain things have to be proven that dictate the result. You are not deciding the abstractdoes this person deserve to die. You are finding the facts and you make those findings of fact that dictate your decision. So lets look at the facts in this case. There are specific aggravating circumstances alleged that we must prove. You probably didnt realize it when you were deciding the guilt phase, but in many ways you were also deciding some of the aggravating factors to reach some the conclusions that you did. For instance, with regard to all three victims, one of the aggravating circumstances is the multiple murders that the defendant has been convicted of, another murder committed at the same time or before this one. Under this aggravating circumstance, each of the murders operates as an aggravator to the other two. So the murder of Jean is compoundedaggravatedbecause of the other two murders. Because you convicted the defendant already of these three murders, that aggravator has been proven. It is an historical fact he has been

convicted of more than one murder at the same time. So, we have that aggravator as to all three victims. Aggravator No. 2 is that the defendant created a grave risk of death to another person knowingly at the time of the commission of his offensea person other than the victims. You didnt find this one yet. You found the defendant guilty of recklessly endangering another person with regard to baby girl Madison. There is a difference though. Reckless endangermenthere we must prove that the defendant acted knowingly. He knew there was this risk placed on baby girl Madison by his action and it cannot be just a risk of serious bodily injury. It must be a risk of death and you heard the testimony regarding that. First I submit that the evidence shows that the defendant fired into the head of Victoria Wholaver at close range while she held the child in her arms. That is knowingly creating a risk of death to baby girl Madison. But he left this nine-month old child alone in this house with all of her care givers dead, making no effort to summon help for her. It was mere happenstance 28 hours later, she was found by police and paramedics. It could have been much longer. And he just disregarded that, knowing that risk to baby girl Madison. So that aggravating circumstance has been proven beyond a reasonable doubt. The third aggravating circumstancethat the defendant committed each of these murders in the course of committing another felony. And you decided this one because you found the defendant guilty of burglary. These murders were committed at the time of the

burglary. The defendant was not allowed in that house because of the PFA Order and he entered with intent to commit the crime. Burglary is a felony. The murders were committed as part of that felony and that is an aggravating circumstance that you have already found by your verdict in the first part of the trial. And the fourth aggravating circumstance applies only to Elizabeth because the protection from abuse order, which was read to you in the first part of the trial, barred the defendant from having contact with Elizabeth Wholaver or coming to that house, but it was designed only to protect her. The death penalty statute says that is an aggravating circumstance only as to the protected person. On the burglary, you found that the defendant knowingly violated that PFA Order because but for that PFA Order, he would have been privileged to enter that residence. So you found that one as well. All four have been proven to you beyond a reasonable doubt. So you must move to the second part and decide whether or not mitigating circumstances have been proven. There is a list in the death penalty statute of what mitigating circumstances are and it is not exhaustive. It says any other mitigation. The firstthat the defendant has no significant history of prior criminal convictions. You will have to decide whether or not that mitigating circumstance has been proven. In this part of the trial, the defendant has the burden of proof. Now what do we mean by prior?

Well prior refers to prior to the sentencing here, this sentencing hearing, does he have a significant history? We concede the fact that prior to July 11, 2002, he hadnt been arrested. But that doesnt end the inquiry because prior to commencing the hearing today, in fact, yesterday, he had been convicted of a crime in addition to the murdersserious, serious felonysolicitation to commit murderthe murder of Frank Ramos. The law says that a crime that occurs, a conviction that occurs after the crime in question can be considered in deciding whether he has a significant history or not. In evaluating that you have to look at the circumstances of that crime and decide whether or not that represents, that incident representswhether that negates the circumstance that he has no significant history. Certainly, he started off big with the murders and solicitation. You can consider the fact that he hadnt had run-ins with the law previously. But he started big and this crime of solicitation to kill Frank Ramos is an enormous one. And if it were just a burglary, I would be hard put to say it negates that mitigating circumstance. But here he contracted with a person who he believed to be a hit man to kill another human being, Frank Ramos. That solicitation, and its enormity, trumps that mitigating circumstance and I submit to you that you should reject that and you should find that mitigating circumstance has not been proven to you.

The other is the catchallany other evidence of mitigation concerning the character and record of the defendant and circumstances of his offense, including he doesnt have a criminal history. Mr. Lappas alleged he is a loving brother, hard worker, those sorts of things. You decide whether or not that mitigating circumstance has been proven. The mere fact, just like in the first part of the trial, the mere fact a witness testified about it doesnt make it so. You must decide whether it has been proven. I submit to you that the character and record of the defendant and the circumstances of his offense are not mitigators. This defendant, who killed his own familyhe killed his own family, one of them was a child, age 15. These are circumstances of the offense. And taken as part of this catchall, they trump it. They trump that mitigator and that mitigator has not been proven to you. I submit to you that in the case of Elizabeth, four aggravating circumstances have been proven and no mitigating circumstances proven. And, under those circumstances, your verdict must be death. But even if you find, you say, you know what, I am going to find one or two of these mitigators. Even then, your verdict must be death because those aggravating circumstances, the fact that the defendant killed three people, that makes it three times as terrible. The fact that the defendant did the breaking into a house he was barred from going in and placed this baby girl of nine months in such perilthat is far more significant than the fact that he has a mother, the fact that he needs to look after his father and worked hard in his

business. By the way, he doesnt work very hard. It seemed like Scott was doing all the work from this trial. You decide which is more important, which is of the greater weight and significance. And I submit to you those facts you could say about anyone, because everyone has a mother or had a mother as some point, you could say that about anyone, are far outweighed by the aggravating circumstances presented to youabsolutely and completely outweighed. In weighing those two, you can consider, the judge will tell you, the impact of these crimes upon the victims families. That is why we presented that testimony. It wasnt a stunt. It is right out of the death penalty statute that that is a valid consideration and that is why we did it. Marianne Bittman, Sara Davis testified. And you heard from them they live with this every day and they will for the foreseeable future. Everyday Marianne Bittman finds herself crying at night. Everyday Sara Davis worries about the graves that her husband takes care of, for Jean, Vicky, and Izzy. Every day, they will live with this for the rest of their lives. And you can consider that in weighing the aggravating circumstances and they tip the scale further toward aggravating. They trump the mitigators. And you consider the effects, in the future the effect upon Madison Wholaver. Madison Wholaver will grow up without a mother. She will grow up knowing that her grandfather, this man, murdered her mother, murdered her aunt, murdered her grandmother, and tried to have her father killed. She

will grow up knowing this. And you can consider that in weighing those aggravators versus mitigating circumstances. The order of argument is reversed in this phase of the trial. I go first and, in a moment, I will sit down and Mr. Lappas will have the last word and that is justly so. I dont know what Mr. Lappas is going to say, but Mr. Lappas has a job to do and he represents Ernest R. Wholaver. Mr. Lappas does not represent life; I dont represent death. Mr. Lappas represents Ernest Ray Wholaver, Jr. an instrument of death for three human beings. This case and the circumstances of it, when applying the death penalty statute, call out for the death penalty. If this man doesnt deserve it, nobody does. On behalf of Jean, Vicky, and Izzy, I ask you for justice and the only just verdict in this trial is death.