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No one disputes that convicted Fawn Township home-invasion double murderer Paul Jackson Henry III's death sentence must be thrown out, a York County judge said.

Whether Henry can face the death penalty a second time is what Common Pleas Judge Michael E. Bortner will have to decide.

At a hearing Wednesday, Oct. 3, Bortner met with Henry's prosecutors and defense attorneys to try to hammer out what should happen next.

Bortner opened the hearing by saying all sides agree that while Henry's conviction stands, he must be resentenced.

That's because when jurors unanimously agreed May 24 to sentence him to death, they didn't properly fill out their jury slip.

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

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

There were two mitigating factors to which both the prosecution and defense stipulated, meaning the jury was required to consider them.

But jurors didn't list either of 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.

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.

Double jeopardy? On Wednesday, defense attorneys Suzanne Smith and Farley Holt argued that Henry must be sentenced to life in prison because it would be double jeopardy to subject him to a second death-penalty sentencing hearing.

Smith said it's unfair for Henry to be subjected to "an unending stream of 'we're going to put you to death.'"

She likened the jury's failure to follow the law to prosecutorial misconduct and argued that double jeopardy should apply.

"Holding the commonwealth responsible for that — is that reasonable?" Bortner asked.

Smith replied that "it's not a fairness factor to the commonwealth, it's a fairness factor to Mr. Henry."

But chief deputy prosecutor Scott McCabe disagreed.

"There's absolutely no support for her case at all," he said. "Fairness is what the law says it is."

McCabe argued that the U.S. Supreme Court and Pennsylvania Supreme Court "have said the opposite (of Smith's argument) repeatedly."

'We've pretty much agreed': Bortner said he will consider the arguments and rule soon. He noted in the hearing that "we've pretty much agreed" a new penalty hearing "is going to occur."

Assuming Bortner orders a new penalty hearing for Henry, Smith said she intends to argue that one proposed aggravating factor should be barred because although prosecutors argued for it, jurors didn't find it to be a factor, based on their jury slip.

In securing the death penalty for Henry, prosecutors argued that jurors should find three aggravating factors — that Henry's actions posed a grave risk to others, that more than one person died and that the killings were committed during the course of a felony.

Jurors cited the first two as aggravators they accepted but did not list the third. Smith said it should be precluded from any new hearing.

McCabe argued that prosecutors aren't restricted from raising any aggravating factors they choose, even ones they didn't raise at the first penalty hearing.

"So you're saying it's a brand-new ball game?" Bortner asked, and McCabe agreed.

More: Jurors sentence convicted double murderer to death

More: Alleged Fawn Twp. double murderer blames dead wife

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, 2016, 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 killings, 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 had 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.

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

 

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