Sonoma County prosecutors are still deciding whether to seek the death penalty against a Colorado man accused of shooting to death three would-be partners in a marijuana deal gone bad.
Mark Cappello, 46, of Central City, Colo., is suspected of killing the men execution-style in a house near Forestville on Feb. 5 as they prepared at least 69 pounds of pot for transport to New York.
If convicted of three counts of murder with special circumstances, Cappello could be eligible for death by lethal injection under at least three scenarios. Judge Robert LaForge last week ruled there was enough evidence presented at a preliminary hearing to prove Cappello was lying in wait, committed multiple murders and did it for financial gain — all grounds for the death penalty.
District Attorney Jill Ravitch, who has yet to pursue capital punishment in any case since taking office in 2011, is not expected to announce a decision when all sides come back to court Thursday to set a trial date.
Assistant District Attorney Christine Cook said Friday prosecutors were following an official protocol for making such decisions that involves presenting a case to a review committee and soliciting input from the victims' families. Defendants are also permitted to make arguments against it.
Cook did not say when a decision would be made.
"The process is still underway," Cook said.
Cappello's attorney, Michael Meehan, said he believes prosecutors will eventually go for it. But he doesn't think they can prove the charges, in part because the district attorney's case relies so much on testimony from a co-defendant, Odin Dwyer, 38, also of Colorado, who along with his father profited most from the slayings, Meehan said.
He said Odin and Francis Dwyer, 66, of New Mexico, ended up with all of the weed taken from the house on Ross Station Road. Also, father and son were the ones who dumped the suspected murder weapon, a .45 caliber semi-automatic pistol, Meehan said.
"The evidence points as equally to Odin Dwyer as it does to Mark Cappello," Meehan said. "He never received anything from this."
Meehan said Cappello's role in the deal was to transport pot purchased by victims Todd Klarkowski, 43, of Boulder, Colo., and Richard Lewin, 46, of Huntington, N.Y., from the third victim, Raleigh Butler, 24, formerly of Sebastopol.
Cappello enlisted the Dwyers to do the actual driving, Meehan said.
But statements Odin Dwyer made to police suggest Cappello planned to double-cross the victims all along. At a hotel on Santa Rosa Avenue, Cappello wiped his gun and bullets with alcohol, Dwyer said.
Once inside the Forestville house the morning of Feb. 5, he insisted the victims remove the batteries from their cellphones to prevent detection by law enforcement, Dwyer said.
Cappello also made up a fictitious person named "Vick" whom he told the victims was waiting in a car nearby to make sure no one was surveilling the house, Dwyer said.
Also, he said Cappello was expected to bring $275,000 the day of the killing. He told the victims he left it at the hotel and would get it later, creating tension among him and the group, Dwyer told police.
"He thought the tension was elevated, heated," Detective Brandon Cutting of the Sonoma County Sheriff's Office testified last week.