OKLAHOMA CITY —
An attorney for an Oklahoma death row inmate asked the state's highest criminal appeals court Tuesday to instead give him a life term, arguing that a judge didn't account for mitigating circumstances when re-sentencing her client to death for the 2003 murder of a state highway patrolman.
Lee Ann Peters, an Oklahoma Indigent Defense System lawyer who represents Ricky Ray Malone, told the Oklahoma Court of Criminal Appeals' five justices that she believes it's within their power to re-examine Malone's re-sentencing, including testimony about the hardships he faced and good work he did as a paramedic one-time Duncan firefighter.
Malone, 38, shot trooper Nikky "Nik" Green twice in the back of the head after wresting Green's gun from him during a struggle on a country road near Devol, in Cotton County. Green was trying to arrest Malone for allegedly operating a mobile methamphetamine lab out of Malone's sister's car. Some of the attack was captured on Green's vehicle's dash-cam.
A jury convicted Malone of murdering Green and sentenced him to die for the December 2003 attack. In 2007, however, the appeals court upheld the conviction but ordered Malone re-sentenced, ruling that the prosecutor said things that were "egregiously improper and unfairly prejudicial" during closing statements at Malone's trial.
The new sentencing hearing was conducted in 2010 before a Comanche County judge, who sent Malone back to death row.
Peters asked the appeals court to weigh whether the crime's aggravating circumstances, including that the victim was a law enforcement officer who died in the performance of his duties, outweigh mitigating circumstances that would justify a lesser sentence.
"Mr. Malone had made significant contributions to society," Peters said during oral arguments in Malone's appeal. "He fashioned a life that was really good and admirable."
She said Malone was a paramedic who had previously saved lives before a failed marriage and the death of his mother led to his addiction to hydrocodone and eventually meth.
"He was under the influence of meth when he shot Trooper Green," Peters said. "Without the meth addiction, he would have never committed this crime."
Assistant Attorney General Seth Branham scoffed at the idea that the appeals court can replace the judge's sentence with one of its own.
"It turns the whole scheme on its head. It just doesn't make sense to me," Branham said. "I don't believe you're the original sentencer. I don't believe that's the appellate function."
Branham also said claims that Malone had a drug addiction sound more like a plea for clemency that would be more appropriate before the state Pardon and Parole Board.
The appeals court justices questioned whether their standard of review would allow them conduct yet another sentencing hearing.
"That completely disregards our entire system," said Judge Gary Lumpkin of Madill, who described Green's murder as "conscious and cold-blooded."
"No remorse, cold-blooded," echoed Judge Charles Johnson of Ponca City.
The judges also seemed to reject Peters' argument that they are prohibited from considering the dash-cam video in deciding Malone's appeal.
"Common sense dictates that all of that evidence is going to be considered," Lumpkin said.
Images from Green's dashboard camera show him struggling with a man who takes away his weapon. Green pleads for his life on the video, saying: "Please don't kill me. I've got kids and a wife."'