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Wednesday, October 26, 2005

This would be a major change in death penalty cases

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The New York Times
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 compromises.

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 bill.

"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 Department.

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 period.

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