The Virginia Supreme Court on Thursday overturned the death sentence of a man convicted in a shooting spree that left two dead and three others injured in Virginia and New York.
While his convictions will stand, the court ordered a new sentencing for Joshua Andrews, 27, who was convicted in 2007 of four counts of capital murder, robbery, malicious wounding, abduction and various firearms charges.
Justices ruled that two of his capital murder convictions constituted double jeopardy, the constitutional protection against being tried twice for the same crime. Jurors convicted Andrews of both killing more than one person as part of the same act and of killing more than one person within a three-year period.
The state argued in June that the convictions don't constitute double jeopardy because each offense required different proof. Under one count, prosecutors had to prove Andrews committed multiple murders as part of one event, whereas the other requires proof only that he committed two or more murders over three years.
The court directed the state to choose which conviction it would use for the new sentencing hearing before the Circuit Court.
"We're pleased and we're considering all of our options," said Matthew Engle, one of Andrews's attorneys.
Prince William County prosecutor James A. Willett did not immediately return a call regarding whether he would again seek the death penalty.
A spokesman for Attorney General Ken Cuccinelli said only that he was disappointed with the ruling.
Prosecutors said Andrews forced three men to undress and get into a bathtub in a Dumfries-area apartment during a robbery on Jan. 2, 2002, before shooting them. Two of them died and another survived. After that shooting, Andrews and another man fled to New York, where they robbed and shot a convenience store clerk in Queens and shot another man in the Bronx. They were convicted of attempted murder in those shootings.
Andrews was acquitted in three other deaths.
The high court said that the trial court erred by excluding a poem Andrews wrote from mitigating evidence and that it improperly excluded the testimony of a social work expert on how Andrews's horrific childhood diminished his moral culpability.
At age 8, Andrews was pushed into a shed by some kids who set it on fire. He was horribly burned and disfigured, and kids taunted him by calling him "crispy critter" and "mummy." Also as a child, Andrews went to visit his father on death row in Texas. Before his father could be executed, another inmate stabbed him to death.
Police seized a poem written by Andrews describing his struggles as a child and how the events had hardened him, but the judge would not allow it as evidence. Meanwhile, the judge allowed prosecutors to refer to Andrews as a "killing machine," leaving the jury with the instructions to, "Turn this machine off."
Andrews' poem read: "I've been struggling in this smokeless fire for 19 years, over my lifetime I shed my pain through unwanted tears, been through hell back burning since adalescence (sic), will I enter heaven or return for final destination, born into a world filled with complete darkness, didn't understand love so my hears hardened, forereal forreal (sic)"
During oral arguments, senior assistant attorney general Steven Witmer argued the poem was "nothing more than self-serving hearsay," but justices disagreed, saying it provided evidence of his character.
The court did not rule on several other issues, including whether a juror whose boss and co-workers encouraged her to "fry" Andrews during a break in the sentencing phase tainted the outcome, because they were unlikely to occur again during the new sentencing.