Death sentence overturned in 2002 Cape Girardeau County murder

Mark A. Gill will face another jury that will decide whether he receives the death penalty for the 2002 kidnapping and murder of Ralph Lape, Cape Girardeau County Prosecuting Attorney Morley Swingle said Tuesday.

Speaking hours after the Missouri Supreme Court overturned Gill's original death sentence, Swingle said he will follow the wishes of Lape's family and again seek the death penalty. Swingle could have allowed the high court decision to stand and Gill to receive a sentence of life without parole.

Death penalty cases always involve two trial phases. The first phase determines a defendant's guilt. The second phase shows evidence to determine whether the crime was heinous enough for the death penalty and whether circumstances exist for the jury to show mercy. If a jury does not recommend a death penalty, a judge must impose life without parole.

A new penalty trial will mean all the evidence of guilt, along with the evidence in favor or against a death sentence, must be presented again to the new jury, Swingle said.

"The worst thing that can happen is a sentence of life without parole because there is no chance of a not-guilty verdict," Swingle said. "But we will call all the witnesses to prove the horrible nature of this crime, that this was a kidnapping, torture killing."

Gill, 39, has been on death row since April 2004, when a New Madrid County jury found him guilty of abducting Lape from his home, binding him with plastic ties and duct tape and murdering him in a cornfield near Portageville, Mo. A second man, Justin Brown, is serving life in prison without parole for his role in the crime.

In a unanimous ruling, the court found that Gill's trial attorneys failed to discover and use information about child pornography on Lape's computer to rebut testimony on Lape's character.

"It is a good result for Mr. Gill," said Bill Swift, the attorney with the Missouri Public Defender's Office who handled the appeal. "It orders a new penalty phase, and it is a desired result for him in this case. We had also argued for an entire new trial, but what the court granted is a good result."

Gill sought to overturn his death sentence on several grounds, including alleging misconduct by Swingle during plea negotiations, the court allowing victim impact testimony about Lape's character and ineffective work by Gill's attorney.

In the opinion, Judge Mary R. Russell rejected most of those claims. The claim that Gill's attorneys failed him has merit, Russell wrote, because Gill's attorneys didn't look closely at files containing depictions of child pornography and bestiality. The computer was found with Gill when he was arrested in New Mexico.

"If Gill's counsel had discovered the sexually explicit material on the victim's computer, they could have used the evidence in two ways," Russell wrote. "First, they could have used the sexually explicit material to persuade the prosecutor to limit the testimony to victim impact rather than to elicit positive character evidence. Second, Gill's counsel could have used the sexually explicit material to rebut the State's positive character evidence about the victim."

Russell did not fault Swingle for the defense oversight. He provided reports of the files and folders on the computer and there were file names that should have attracted attention, she noted.

The new penalty trial will again demonstrate the effect of the loss of Lape on his family, Swingle said. And character could be an issue again. If so, Swingle said he intends to raise doubts about whether Lape was responsible for the files on the computer.

"One thing I would emphasize is that Mark Gill tortured and killed Ralph Lape and stole his life from him and with this issue about pornography on the victim's computer he is now trying to steal his reputation," Swingle said.

In addition to the murder charge, Gill was convicted of kidnapping, armed criminal action, robbery and automobile tampering.

rkeller@semissourian.com

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