Michelle Tharp’s attorneys say she should not face death for starving daughter

The mother who was found guilty in Washington County Court of murdering her starved child, Tausha Lee Lanham, in 1998 should not face the death penalty, her attorneys contend.

Michelle Tharp is escorted from a 2010 hearing in Washington County Courthouse. Photo:Observer-Reporter

A Burgettstown resident who has been incarcerated for nearly two decades for the starvation murder of her daughter should not have to face the death penalty, her attorneys said Wednesday after emerging from a conference in the chambers of Washington County President Judge Katherine B. Emery.

The Pennsylvania Supreme Court ordered in 2014 Michelle Tharp should be resentenced for the 1998 death of 7-year-old Tausha Lee Lanham, who weighed less than 12 pounds when she died, because the public defender in her trial failed to present evidence of her mental state that might have resulted in a different punishment than the death penalty.

James J. McHugh Jr., first assistant defender in the Defender Association of Philadelphia, said “so much time has passed, some 20 years since the original penalty phase, that significant family members have passed away,” so it would be impossible for them to testify about Michelle Tharp’s mental state at the time of Tausha’s death.

The lack of their testimony would violate Tharp’s due-process rights and subject her to cruel and unusual punishment, McHugh asserted.

“If we won, she would be subject to life (in prison) without parole,” McHugh said. “We’re just saying that they can’t execute her.”

McHugh and Elizabeth Hadayia, assistant federal defender, have 60 days to file a motion on behalf of Tharp, 48, who is imprisoned in the State Correctional Institution at Muncy, Lycoming County. Tharp was not present in Washington County Court Wednesday.

The prosecution will be able to respond to the motion by Tharp’s attorneys, presumably seeking to again empanel a jury to hear the death penalty phase.

“I can’t talk about negotiations,” said District Attorney Gene Vittone. “It’s still pretrial. But it’s a death penalty case right now.”

Emery will eventually schedule arguments before making a decision.

The state’s highest court upheld Tharp’s first-degree murder conviction in 2000. Justice Max Baer called the evidence of Tharp’s guilt “overwhelming,” writing she not only denied Tausha meals but physically restrained the child so she could not feed herself and “remarkably … asked others to perpetuate the same abuse upon her own child.”

Tausha was born prematurely in 1990 and spent the first year of her life in a hospital. Baer wrote, as the second of Tharp’s four children, “she was the sole target” of neglect and abuse. The other children were healthy and well-fed. In 1996, Tharp began living with Douglas Bittinger, with whom she had her fourth child.

When Tharp was away, she instructed Bittinger not to feed Tausha, and, on several occasions, two or three days would pass without Tausha getting any food or drink.

Bittinger was sentenced to 15 to 30 years in prison after pleading guilty to criminal homicide, endangering the welfare of a child and abuse of a corpse. Prosecutors said Bittinger’s crime was not preventing the abuse by his girlfriend, against whom he testified at trial. He is serving his sentence at the state prison in Mercer.

Tharp claimed to have fed Tausha the day before she died, although a medical examiner testified the girl had not eaten for several days, that she suffered from malnutrition and her teeth were worn from grinding, common in juvenile starvation cases.

A psychologist evaluated Tharp and determined she was competent to stand trial, but he diagnosed her with schizoaffective disorder, adjustment disorder with anxiety, depressive personality disorder and passive-aggressive personality disorder. The defense never called him to testify in support of an argument that her mental state should be a factor in the jury sparing her from the death penalty.

Baer, in his 2000 order, noted Tharp’s argument that she also had a difficult childhood, was abandoned by her mother, was physically abused by her stepmother and the men in her life, that her father was convicted of both drug dealing and drunken driving, and she had below-average intelligence, repeated 10th grade and graduated nearly last in her class.

Then-Washington County judge Paul Pozonsky took the unusual step of playing a country song in his courtroom at Tharp’s sentencing. “The Little Girl” tells of a neglected girl living in a house filled with domestic violence.