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The death sentence of convicted Fawn Township home-invasion double murderer Paul Jackson Henry III is expected to be thrown out in less than two months.

Prosecutors, Henry's attorneys and presiding Common Pleas Judge Michael E. Bortner discussed the issue in open court on Friday, Aug. 17. Both the prosecution and defense agree that state law requires the sentence be vacated.

Defense attorneys Farley Holt and Suzanne Smith said after that happens, there are three possible outcomes.

First, Henry can accept the prosecution's offer of life in prison without the possibility of parole. But taking the deal would require him to give up all his future appeal rights, according to Holt.

Second, an entirely new jury can be chosen to decide whether Henry should receive life in prison or the death penalty.

"But that would basically result in retrying the majority of the case again," Holt said, since the new jurors didn't preside at trial and will know nothing about the case.

Third, Henry could choose to allow Judge Bortner to make that decision without a jury.

"The commonwealth cannot oppose the defendant's motion on this particular point," chief deputy prosecutor Scott McCabe told the judge, because the state Supreme Court has been clear about the issue.

After Friday's hearing, first assistant district attorney Jen Russell said it's unfortunate that the victims' loved ones cannot yet find a measure of closure.

However, she said, "It's important that the letter of the law be followed exactly," especially in death-penalty cases.

The background: A York County jury on May 22 found Henry guilty of two counts of first-degree murder and one count of robbery for a Sept. 13, 2013, Fawn Township home invasion during which Henry fatally shot Danielle Taylor, 26, and heroin dealer Foday Cheeks, 31.

Veronique Henry, 32, also was arrested and charged with the murders of Taylor and Cheeks, who was her heroin dealer and former lover.

She hanged herself in York County Prison two days after the murders and a day after she and her husband were captured in Dauphin County after a police chase.

Henry blamed his dead wife for the crimes, but jurors decided he was guilty and that he should die for his crimes.

Henry's motive was rage, York County District Attorney Dave Sunday has said.

Trial testimony revealed Veronique Henry was a heroin addict who lived with and was sexually involved with Cheeks earlier in 2016, when she and her husband were temporarily split up.

Sunday has said that while the Henrys stormed into Cheeks' home to rob him of cash and drugs, Paul Henry's real motive was rage.

The Henrys let four eyewitnesses who were sitting in the living room — two women and two teenage boys — live, despite all four having seen their faces.

Jury slip: The fact that Paul Henry didn't kill the four eyewitnesses was the sole mitigating factor that jurors listed on his verdict sheet as a mitigating circumstance to why he shouldn't be put to death.

However, they imposed the death penalty after agreeing that aggravated factors outweighed mitigating factors.

The reason the death sentence must be vacated is because there were two mitigating factors to which both the prosecution and defense stipulated. That means the jury was required to consider them.

However, jurors didn't list the two stipulated mitigating factors on the jury slip — and that means there's no way to know whether the jury considered them, as required by state law, according to Smith.

The stipulated mitigating factors were that Henry had no prior criminal convictions and that he had no misconduct write-ups while he was being held in York County Prison prior to trial.

"Since they did not write (the stipulated mitigators) down, we're arguing they didn't consider all the mitigating factors they were required to," Smith said to Bortner.

'Starting all over'? Bortner noted that selecting a new jury to make the decision is "basically starting all over again."

Rather than rule immediately, the judge ordered prosecutors and the defense to file legal briefs on this issue over the next several weeks.

Bortner said before he rules, he wants to know whether double-jeopardy rules would prevent Henry from being sentenced to death a second time.

The judge set a  hearing date of Oct. 3.

— Reach Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.

 

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