OLYMPIA, Wash. (AP) - Just last year, the Washington Supreme Court was divided 5-4 over the death penalty and speculation abounded that prosecutors wouldn't be able to use that tool much longer.
Foes contend the death penalty is "like lightning, randomly striking some defendants and not others." They noted that the Green River serial killer, Gary Ridgway, escaped the needle after killing 48 women, but that other killers drew the death penalty for killing far fewer.
Scholars and death penalty foes thought the court was edging toward abolishing capital punishment.
But on Thursday, a strong majority of the court backed away from that brink, not directly discussing the overarching constitutional debate, but defending the death penalty from attack on a number of fronts.
In a surprisingly lopsided 8-1 ruling, the state's highest court upheld the death sentence for serial killer Robert Yates Jr. The court said it refused to throw out capital punishment just because prosecutors are inconsistent in how they use it.
Pierce County Prosecutor Gerald Horne hailed the decision and said the death penalty was designed for heinous criminals like Yates, "the worst of the worst." Horne once called the state's death penalty a farce and a charade that should be abolished if the legal system can't really deal with it. But he said Thursday that prosecutors are happy to retain it as an option.
Yates was convicted for shooting two Tacoma prostitutes and suffocating them by tying plastic grocery bags over their heads. The smelter worker and Air National Guard helicopter pilot also received a 408-year sentence for murdering 13 women in Spokane, Walla Walla and Skagit counties. All those victims were prostitutes he killed in the same manner as the Tacoma women.
The author of last year's anti-death penalty dissent, Justice Charles Johnson, switched to the majority on this case. The majority opinion was written by another of last year's dissenters, Justice Susan Owens, and dissenter Barbara Madsen also joined the Yates majority. They essentially conceded that they'd lost the battle last year and would now stick with precedent.
Yates had asked the court to take a fresh look at how capital punishment is applied here, pointing to Ridgway and to Yates' own experience of agreeing to a plea bargain in Spokane County and getting life in prison for slaying 13 women, but death for killing two Tacoma women.
That disparity shows that Washington state allows "disproportionate, freakish, wanton and random" application of the death penalty, Yates' lawyers told the high court last fall.
Yates also contested Pierce County's decision to withdraw from what he called a deal with the Spokane prosecutors to take the death penalty off the table in exchange for his guilty pleas and information about his victims.
But the high court swept away all of his points, saying prosecutors' discretion to seek the death penalty as they see fit doesn't pose a basic constitutional flaw in how the state applies capital punishment.
After Ridgway avoided lethal injection, legal scholars and lawmakers began debating whether the state could ever actually use capital punishment again.
The high court answered that question in clear terms Thursday.
Owens, in her majority opinion, quoted from last year's ruling she had resisted, saying it's on point in the Yates case: "Ridgway's abhorrent killings, standing alone, do not render the death penalty unconstitutional or disproportionate. Our law is not so fragile."
Yates' attorney, Gregory Link of the Washington Appellate Project, said he and Yates were deeply disappointed in the ruling. Link declined to criticize the court, but other attorneys said the justices have backtracked.
"The court was deeply divided on the proportionality question, 5-4, and they've stepped away from that," said Jeff Ellis, an attorney who heads the Washington Coalition to Abolish the Death Penalty.
The court stuck with last year's precedent, a case involving a triple homicide in King County, and may be waiting for a later case to revisit the entire issue, he said in an interview.
The Yates' ruling "tells us the court isn't ready to engage in a serious discussion yet," he said.
State Senate Judiciary Chairman Adam Kline, D-Seattle, who has tried to persuade his colleagues to study how the death penalty is applied in Washington, said Thursday it could be years before the courts or lawmakers abolish it.
"I'll bet the sea change won't happen in my tenure in Olympia or even in my lifetime," said the 61-year-old attorney.
The case is State of Washington v. Robert Lee Yates Jr., No. 73155-1.