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JUDGE SPARES OBESE KILLER FROM GALLOWS

A federal judge ruled Monday that obese convicted killer Mitchell Rupe may not be sent to the gallows, saying the polygraph of a key witness was improperly barred during Rupe's sentencing and that hanging the 409-pound man carried too great a risk of decapitation.

"A hanging that is likely to result in decapitation . . . is contrary to public perception of standards of decency" and would violate the U.S. Constitution's ban on cruel and unusual punishment, District Judge Thomas Zilly said in his decision.Rupe, 41, was convicted of shooting two bank tellers to death in a 1981 robbery in Tumwater.

In overturning the death sentence, Zilly cited the trial court's refusal to admit a polygraph test that indicated a key witness against Rupe was lying.

Before executing him, the state must either successfully appeal Zilly's decision or persuade a new sentencing jury to impose the death penalty.

In that event, the state could appeal the ban on hanging Rupe or attempt to execute him by lethal injection. The only alternative is life in prison without possibility of parole, Assistant Attorney General John Samson said.

"We are talking another year, perhaps two years, before we can execute him," Samson said.

The trial court withheld the polygraph information because the witness' nervousness, lack of sleep and hostility toward police made the test result suspect.

Two experts told Zilly during a July hearing that the witness' answers suggested he was lying about his involvement in the robbery.

Rupe claimed at his trial that it was the witness who had committed the crimes.