Case changed with agreement DA: Risks outweighed gains with first-degree

N.C. District 25 Attorney Jay Gaither on Friday defended and supported his office's decision to pursue a second-degree murder charge for Elisa Baker.

Gaither's defense aligned with comments he made Thursday about what could have happened in the Zahra Baker case if the state had not made the plea agreement with Elisa and her defense attorneys.

"As our team prepared to meet with legal counsel for Elisa Baker, we discussed with law enforcement all of the possible outcomes of rejecting any offer of assistance that Elisa Baker might seek to provide," Gaither said Thursday in a statement after Elisa Baker was sentenced to 15-18 years in state prison for the murder of 10-year-old Zahra. "After reviewing all of the evidence, assessing the slim possibility that existed of ever recovering Zahra's body and recognizing that without more evidence the state had no case against Eliza Baker or any other suspect, the team concluded it was near certain that without the cooperation of Elisa Baker the disappearance of Zahra would remain unsolved and those responsible for her murder would go unpunished."

In addition to pleading guilty to second-degree murder, Elisa Baker also pleaded guilty to felony charges of obstruction of justice and bigamy.

She also admitted to aggravating factors that included a history of psychological and verbal abuse of Zahra, and to the dismemberment and desecration of Zahra's body to hinder the criminal investigation.

Gaither said Friday that the aggravating factors were important in the plea agreement that was reached between the state and Elisa Baker's defense lawyers, and important for the subsequent sentencing. He said a second-degree murder conviction can carry a sentence as low as about 10 years, depending on a defendant's criminal record and other variables, such as the aggravating factors.

"It's not common to have aggravators," Gaither said. "Aggravating second-degree murder was always a good result. All experts agree this was the proper path to take. I am satisfied under our law and with our facts that I pursued justice as well as I could."

Gaither called a quest for a first-degree murder conviction an "illogical option," due to the risk that Elisa Baker could have avoided all responsibility for her role in Zahra's death.

The plea agreement stipulated that Elisa Baker's charge be limited to second-degree as long as her statement to law enforcement was truthful.

It also allowed for a first-degree prosecution if Elisa was untruthful, but her statements and evidence would have been excluded.

"If we wanted to disrespect the memory of Zahra, (first-degree) would have been an option," he said. "Simply for what, to temporarily satisfy the frustrations of people? It's unfair to look back with Monday morning quarterbacking and say we should have done something."

Gaither said the creation of a plea agreement began in late October 2010, when Elisa Baker's defense attorneys approached him about her willingness to help law enforcement with the investigation of Zahra's death.

He said a decision was made in January to indict Elisa on second-degree murder charges, lower-level felonies and the aggravating factors.

"We were not precluded from backing up and going first-degree at any time," Gaither said. "We still didn't have the evidence."

Gaither said the decision was made this month – with the backing of law enforcement and Zahra's supporters – to accept the guilty second-degree murder plea and consolidation of charges for sentencing this week.

Had the charges not been consolidated, they would have been addressed separately at hearings in Haywood, Wilkes, Surry and Buncombe counties.

Gaither said his office was concerned that it could have been a long time before a hearing on the second-degree murder charge. He said there was also concern about how juries at venues in other counties would have treated charges such as bigamy if they stood separately from a second-degree murder charge.

"There's some reason to believe the conviction (for minor felonies) is not a slam dunk," he said. "At best, a 50-50 chance."