Sep 19, 2018 3 min read

A Washington County president judge has ordered that a jury be empaneled to decide if a woman convicted of starving her daughter to death should serve life imprisonment or be sentenced to death.

Michelle Sue Tharp, 49, of Burgettstown, who has been on death row since being convicted in 2000 for the first-degree murder of Tausha Lanham, 7, had sought to bar county court from convening the proceeding.

In Pennsylvania, only a jury can impose a death sentence.

A Washington County jury, after weighing evidence presented to determine a penalty, could alternatively find that Tharp deserves life imprisonment. If the jurors cannot reach a unanimous verdict, life imprisonment also would be the result.

President Judge Katherine B. Emery heard arguments from both the prosecution and the defense.

Tharp’s attorneys from Philadelphia, James J. McHugh Jr. and Elizabeth Hadayia, claimed that so much time has elapsed from Tharps’s 2000 conviction that many witnesses who testified or gave sworn depositions have died.

Emery found, however, their prior testimony could be read into the record for jurors to consider during a new penalty phase hearing.

Tharp’s attorneys also asserted that her constitutional rights to representation were violated through ineffective assistance of the Washington County public defender, a defense for which the judge found no credence.

Egregious or willful “conduct on behalf of the Commonwealth is not present here,” the judge wrote. “Rather it was the conduct of (Tharp’s) counsel that violated her rights.”

Lacking from the trial before then-judge Paul Pozonsky was testimony on Tharp’s mental state that might have resulted in a punishment other than the death penalty, her attorneys contended.

Washington County District Attorney Gene Vittone said he couldn’t comment on the merits of Tharp’s motion, but called it “unprecedented” in that Emery “said she really couldn’t find any case law to support what they were asking for, so she made the correct decision.”

Vittone said his office would continue to prepare for the hearing, and he expects the president judge to issue a case-management order that will establish a schedule.

Hadayia did not immediately return a call for comment, so it is unknown if Tharp intends to appeal Emery’s decision.

In a footnote, Emery wrote “Pennsylvania Supreme Court had the power to vacate” Tharp’s sentence and send her to prison for life without the possibility of parole.

The state Supreme Court, “however, decided instead to grant Ms. Tharp a new penalty phase hearing.”

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 asked others to perpetuate the same abuse.

Emery noted in her six-page opinion Tausha, who weighed only 11.77 pounds at age 7, lacked fat in parts of the body where it normally accumulates, and had extreme wear on her teeth from grinding.

Tausha was falsely reported to have been abducted from a mall in Steubenville, Ohio, April 18, 1998, when she actually died in bed at home.

According to trial testimony, Tharp feared Washington County Children and Youth Services would take away her other children, so the death was concealed.

Tausha’s body, in trash bags, was found dumped along a road in Follansbee, W.Va.

Tharp is serving her sentence in the State Correctional Institution at Muncy in central Pennsylvania.