By Riley Yates
The Morning Call
ALLENTOWN, Pa. — Mass murderer Michael Eric Ballard’s death sentence will move forward now that the five-time killer has allowed his rights to further appeals to elapse, a Northampton County judge ruled Tuesday.
But while Judge Emil Giordano’s decision sets in motion a process under which a date of execution will be scheduled, it doesn’t mean that Ballard will be put to death in the foreseeable future.
That’s at least in part because of a moratorium on executions that Gov. Tom Wolf announced this year, when he said he would be issuing reprieves to any inmate facing the death chamber until a report by a committee studying capital punishment is released and acted upon.
That reality was understood throughout Tuesday’s hearing at the courthouse in Easton, even as District Attorney John Morganelli asked Giordano to lift a stay of execution in place for Ballard since November.
“There is no chance that Mr. Ballard is going to be executed any time soon in light of what the governor is doing and saying he’s going to do,” Morganelli said. “But the process has to play its way out here.”
Last month, Ballard’s one-year window to further challenge his death sentence expired without action. As a result, Morganelli filed a petition to lift Ballard’s stay, which was issued after then-Gov. Tom Corbett scheduled his execution for December.
Ballard, 41, was sent to death row in 2011 for savagely knifing to death his former girlfriend, Denise Merhi, 39; her father, Dennis Marsh, 62; her grandfather, Alvin Marsh Jr., 87; and Steven Zernhelt, 53, a neighbor in Northampton who heard screams and tried to help.
At the time of the June 26, 2010, massacre, Ballard had recently been paroled from prison, where he served 17 years for murdering an Allentown man nearly two decades earlier. The state Supreme Court upheld Ballard’s sentence in 2013, citing overwhelming evidence in support of it.
That Ballard allowed his appellate rights to expire was no surprise. He’d instructed his public defenders not to file any more appeals on his behalf, and he called them pointless in a death-row interview last year with The Morning Call.
But Ballard later decided to join two lawsuits challenging the state’s lethal injection method, telling the newspaper that he had no faith that Pennsylvania could competently carry out an execution. One of those suits, filed in Commonwealth Court, is unresolved.
On Tuesday, Ballard’s lead lawyer, Michael Corriere, argued there was no harm in waiting until a decision in that case is reached. He said the stay should remain in place until then.
“If he loses, the stay goes away. If he wins, he can’t be executed anyway,” Corriere said.
But Giordano found that he lacks the authority to continue to delay Ballard’s execution now that he has forfeited his appellate rights. Giordano said that as a county judge, he can only act under the state’s post conviction relief act, which Ballard is now time-barred from pursuing.
Giordano noted that Ballard could ask Commonwealth Court to stay his execution on its own, given the pending matter before it.
“There is no need for me to pass judgment in that case, and I will not do so,” Giordano said.
David Rudovsky, the attorney spearheading the suit, has said he believes it offers grounds for a stay. Corriere said after Tuesday’s hearing that he plans to discuss the next steps with Rudovsky to see which of them might file such a request with the higher court.
The suit argues that Pennsylvania’s protocol for lethally injecting prisoners violates state law by changing the cocktail of drugs that are used. The protocol was rewritten in recent years due to the state’s difficulties in securing the drugs from manufacturers, which have faced public pressure from death-penalty opponents.
But regardless of that case’s resolution, executions in Pennsylvania have been halted under Wolf’s moratorium. In imposing it in February, Wolf called the death penalty “error prone, expensive and anything but infallible,” but said his decision was “in no way an expression of sympathy for the guilty on death row.”
So far, Wolf has issued reprieves to three inmates, his spokesman, Jeffrey Sheridan, said Tuesday. Sheridan reiterated that Wolf plans to do so “in each future instance where an execution is imminent.”
Morganelli has argued that Wolf is overstepping his authority, an issue that is before the state Supreme Court under a legal challenge by Philadelphia District Attorney Seth Williams. If Wolf grants a reprieve to Ballard, Morganelli has said he would consider joining Williams’ lawsuit or filing one of his own.
Just three men have been executed in Pennsylvania in the modern era of capital punishment, and all were volunteers who, in effect, asked the state to carry out their sentences. The last time an inmate was put to death against his will was in 1962.
Ballard was in court for Tuesday’s hearing, but said little as the proceeding unfolded. Placed in a wheelchair to restrain him, Ballard occasionally whispered to Corriere as deputy sheriffs surrounded them. As Morganelli made his arguments, Ballard, who has let his hair grow long, appeared to chuckle on a couple of occasions.