Police state : unconstitutional double jeopardy


Richard Moore


October 26, 2005 

Bill Would Allow Second Attempts at Federal Death Sentence

If all 12 members of a jury in a capital case in federal
court cannot agree on whether to impose the death penalty,
a convicted defendant is automatically sentenced to life
in prison.

But that may be about to change. A little-noticed
provision in the House bill that reauthorized the
antiterrorism law known as the USA Patriot Act would allow
federal prosecutors further attempts at a death sentence
if a capital jury deadlocks on the punishment. So long as
at least one juror voted for death, prosecutors could
empanel a new sentencing jury and argue again that
execution was warranted.

The Senate bill does not contain the provision, and
representatives of both chambers will soon meet to discuss
the differences between the two measures and potential

Sentencing deadlocks in federal capital trials are not
unusual. In a federal terrorism trial in New York in 2001,
for instance, the government  sought the death penalty
against two operatives of Al Qaeda  for their roles in the
deadly bombings of two American embassies in East Africa
in 1998. The jury deadlocked 9 to 3 in favor of death in
both cases, interviews conducted by The New York Times
later revealed.

Mary Jo White, who was the United States attorney in
Manhattan at the time, said the experience was
frustrating. "I respectfully disagreed with that jury,"
she said.

But Ms. White said she opposed the provision in the House

"I don't think the government should have two bites at
that apple," said Ms. White, who is now in private
practice at Debevoise & Plimpton. "There's something
untoward about giving the impression that you're jury
shopping for the death penalty."

California and a handful of other states already allow new
capital sentencing hearings.

The federal government should follow suit, said Michael
Rushford, the president of the Criminal Justice Legal
Foundation, which supports the rights of crime victims.

"You can have a jury of 12 and have one juror overrule the
other 11 in the sentencing phase of a capital case," Mr.
Rushford said. "You're not really allowing the process to
go through."

Jesselyn McCurdy, legislative counsel at the American
Civil Liberties Union, disagreed. "If there is one person
who has a doubt about whether someone should be put to
death," she said, "that should be doubt enough."

The jury provision is probably constitutional, people on
both sides of the death penalty debate said. "It's one of
the many situations where the Supreme Court leaves us to
our folly," said David I. Bruck, a lawyer with the Federal
Death Penalty Resource Counsel Project, a group that
assists lawyers defending federal capital cases.

The provision was introduced as part of an amendment to
the bill in July by Representative John Carter, Republican
of Texas . Mr. Carter, a former Texas trial judge, called
it a "common-sense clarification to the federal death
penalty" and said it was supported by the Justice

Federal prosecutors have obtained relatively few death
sentences in recent cases. In the past year, according to
statistics compiled by the counsel project, 5 of the 22
juries that heard federal capital cases imposed death
sentences. During John Ashcroft's term as attorney
general, from 2001 to 2005, 18 of the 63 juries that heard
capital cases imposed death sentences.

Though the number of federal crimes eligible for the death
penalty continues to rise, the federal government
prosecutes relatively few capital cases. There have been
three executions in the federal system since 1988, when
the first modern federal death penalty law was enacted.
There were almost 900 executions in the states in the same

Mr. Ashcroft was a proponent of the aggressive use of the
federal death penalty law, sometimes overriding the
recommendations of local prosecutors. Attorney General
Alberto R. Gonzales's approach in this area is less clear,
legal experts said. None of the cases in which he has
authorized capital charges have reached trial, they said.

State prosecutors said the federal jury provision could
start a welcome trend.

"It sounds pretty even-handed," said Joshua Marquis, the
district attorney in Clatsop County, Ore. Just as juries
must generally reach unanimous verdicts for conviction or
acquittal, he said, they should be required to reach a
unanimous decision on life or death.

Franklin E. Zimring, a law professor at the University of
California, Berkeley, disagreed.

"It's not supposed to be a level playing field," he said.
"It's supposed to be a penalty available when nothing else
will do."

Jennifer Daskal, a lawyer with Human Rights Watch in
Washington, said the requirement that jurors in capital
cases  be open to imposing the death penalty already
favored prosecutors. The possibility of repeated attempts
to obtain death sentences from such "death qualified"
juries, she said, would only heighten the advantages
prosecutors have.

Mr. Bruck said the provision in the House bill, if it
became law, could embolden prosecutors to keep trying
until they found a jury willing to sentence the defendant
to death.

"Flip a coin enough times," he said, "and it will land on
its edge once."

Copyright 2005 The New York Times Company 


"Apocalypse Now and the Brave New World"

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