OLYMPIA – An attorney for a convicted murderer argued in court Monday that his client suffers from diminished capacity to “appreciate the wrongfulness of his conduct” due to a traumatic brain injury and is entitled to an exceptional sentence that could shave five years off his prison term.
Michael Kerby, 50, pleaded guilty to second-degree murder in February in connection with Gerald Haag’s strangulation death in January 2010 in Haag’s home off 101st Avenue Southwest, south of Tumwater.
Kerby’s attorney, Larry Jefferson, has asked the court to give Kerby a 10-year prison sentence – five years less than what is being asked for by the prosecution.
Jefferson wants Thurston County Superior Court Judge Gary Tabor to give Kerby a sentence below the standard range. Under Washington law, a judge can grant an exceptional downward sentence under certain circumstances.
Jefferson argues in court documents that because of a brain injury Kerby suffered in a 2006 motorcycle accident, his “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired.”
Expert witnesses testified on behalf of the prosecution and defense during Monday’s hearing. The hearing will continue at 1:30 p.m. today.
A defense expert wrote a report indicating that Kerby had suffered “a severe head injury with ‘bilateral frontal lobe contusions’” and that he “bruised the part of his brain responsible for thinking, reasoning and problem-solving,” court papers state.
“It has been established that Mr. Kerby was a law-abiding individual that supported himself and his family before his brain injury,” Jefferson wrote. “After his motorcycle accident he lost everything. He went from being a law-abiding person to a homeless veteran, brain-damaged and with no family support.”
Haag and his sister, Cynthia Rodriguez, met Kerby at a local welfare office and invited him to stay with them at their home on 101st Avenue in return for Kerby helping renovate a home on their property.
Kerby and Haag spent the evening of Jan. 14, 2010, drinking. According to the Sheriff’s Office, Rodriguez reported that after she went to bed, she heard the two men talking as late as 4 a.m. the following morning. Kerby later told a corrections officer that he drank a pint of vodka and about 20 beers on the night of Haag’s death.
When Rodriguez woke up Jan. 15, “the defendant was up and dressed, but she could not find her brother and her purse was missing,” court papers state. “When she asked where her purse was, the defendant brought it out of Haag’s bedroom. The defendant then told her that he had killed Haag and was going to chop up the body. Rodriguez then ran to her van and jumped in. The defendant ran after her, but she was able to keep him out of the van and then drove it away.”
Rodriguez said Monday that when she and her brother met Kerby, he was in a wheelchair. She said Kerby told them he used a wheelchair because of a war injury. She later saw him walking the day of her brother’s homicide, she said.
Rodriguez said she was terrified that Kerby was going to kill her that morning. She said she believes Kirby deserves the death penalty and should not be awarded a lower prison sentence. She added that she believes Kerby is faking his brain injury.
“Fifteen years is not enough,” she said outside court Monday.
Thurston County sheriff’s detective Eugene Duprey testified Monday that during an interview Kerby admitted to killing Haag. He also said that Kerby told him he was a “Special Ops” soldier and that Kerby became agitated and began speaking in an Irish or Scottish accent. Kerby said he wanted to die, and said he would try to kill himself by holding his breath, and then said he was trying to swallow his own tongue, Duprey said.
Deputy Prosecuting Attorney James Powers has argued in court records that Kerby is not entitled to a downward deviation from the standard sentencing range.
The prosecution has recommended a 15-year prison sentence, the midpoint of the standard sentencing range. The recommendation “reflects a judgment that some mitigation within the standard range is appropriate in light of the defendant’s mental health problems,” court papers state.
Powers concluded in his sentencing memorandum, “The blame for this murder must not be put upon the defendant’s mental illness, but upon the defendant’s choice the night of this murder to act upon his rage and kill Mr. Haag.”
Closing arguments are expected today.
Jeremy Pawloski: 360-754-5465