A federal judge in Boston has ruled that if juries
convict two alleged gang members of murder next year, different juries
must decide whether the men should get the death penalty.
US District Judge Nancy Gertner said the usual practice
of a single jury considering both guilt and punishment tips the balance
unfairly toward conviction, because people who oppose the death penalty
are disqualified from serving on juries in capital punishment cases.
Death penalty critics applauded the decision, which
they believe is the first of its kind in the federal courts. Similar
orders have been issued a few times in state courts, they said, including
once in New Jersey. "She's clearly identified some serious problems
with the way capital cases have been tried in this country,"
said David Bruck, a lawyer with the Federal Death Penalty Resource
Council. "I think she will only be the first of many judges who
will be addressing these problems in the years to come."
The ruling was made in the case of two Dorchester
men accused of murdering a gang rival during Boston's Caribbean Carnival
in August 2001. US Attorney Michael J. Sullivan sought the death penalty
against Darryl Green and Branden Morris with the blessing of US Attorney
General John D. Ashcroft, who has made it easier for federal prosecutors
to seek the death penalty, especially in states such as Massachusetts
that do not have a state death penalty.
Ordinarily, capital cases in federal and state courts
are divided into two phases. Before a jury is chosen to consider guilt,
prosecutors have the right to disqualify any potential juror who opposes
capital punishment and would be unable to vote to put a convicted
defendant to death.
But lawyers for Green and Morris, who sought the order
for separate juries in both their trials, said that a growing body
of evidence shows that purging such jurors produces a panel that is
disproportionately white and male and more likely to convict defendants.
Gertner agreed.
"Updated data presented by defendants in this
case overwhelmingly shows that death-qualified jurors are significantly
more conviction-prone than jurors who are not death-qualified,"
she wrote in her order Wednesday.
Gertner also said that although the US Supreme Court
has ruled that using a single jury throughout a capital case passes
constitutional muster, the high court never said the Constitution
requires it.
Randolph Gioia, who represents Green, called Gertner's
order a seminal decision that will probably influence other federal
judges.
Max Stern, one of Morris's lawyers, was also pleased,
saying that federal prosecutors look for a "hanging jury for
the guilt phase of the trial."
Federal prosecutors, who opposed the defense lawyers'
request for two juries at each trial scheduled for early next year,
are reviewing the order and would not comment, said Samantha Martin,
a spokeswoman for Sullivan. She said, however, that appealing it is
an option.
John Nowacki, a spokesman for the US Justice Department,
declined to comment.
However, several legal specialists and critics of
capital punishment said the government might not be able to appeal
Gertner's ruling, because appeals of pretrial motions in federal court
are usually limited to instances in which a judge excludes evidence
or dismisses some of the charges.
"Neither side gets to appeal pretrial rulings
that they [merely] don't care for," said Bruck, who has represented
defendants in more than 15 death penalty trials, including Susan Smith,
who was convicted of drowning her two small children in South Carolina.
Smith was sentenced to life in prison.
Lawyers for Green and Morris had asked Gertner to
appoint different juries to decide guilt and punishment, based on
academic studies showing that disqualifying jurors who oppose capital
punishment generally leads to excluding blacks and women.
About 48 percent of blacks oppose the death penalty,
compared to 22 percent of whites, according to polls cited by the
defense lawyers. Moreover, blacks are already underrepresented in
jury pools in federal courts in Massachusetts, the lawyers said.
If the same juries are used in both the guilt and
penalty phases of the two trials, Green and Morris, who are black,
"will almost certainly be tried by all-white juries," Gioia
wrote in a memorandum to Gertner. The lawyers also cited an ongoing
study by William J. Bowers, principal investigator of the Capital
Jury Project at Northeastern University, indicating that about half
of jurors who have been picked for capital cases make their sentencing
decision before the penalty phase of the trial begins.
"Jurors may be instructed to make the decision
about guilt and the decision about punishment separately . . . but
we found out by interviewing jurors that that's not the way it works,"
Bowers said in an interview yesterday. He has questioned 1,200 jurors
who served on 353 death penalty trials in 14 states over the past
decade.
In response to the motion by the defense lawyers,
Assistant US Attorney Theodore B. Heinrich, a prosecutor in the cases,
contended that empaneling two juries for each trial will mean that
many witnesses will have to testify twice, once during the guilt phase
of each trial and once during the punishment phase.
"The government's interest . . . is to avoid
the unnecessary repetition of trauma, fear, and risk associated with
testifying for witnesses and victims of the charged violence and to
avoid the equally unnecessary devotion of resources required to repeat
the production of such
evidence," he wrote.
Gioia conceded that using separate juries for each
phase might prolong each trial by several months and increase costs.
But those are small prices to pay, given the stakes,
he said. "This case is about a matter of life and death,"
he said.
Authorities say that Green and Morris belonged to
the Esmond Street Crew. They were charged along with three others
in a 17-count federal indictment in July 2002 with using violence
to protect a crack cocaine and marijuana ring operating out of a second-floor
apartment on Esmond Street in Dorchester.
Green and Morris are charged with murder in aid of
racketeering, a federal offense that carries the death penalty, in
connection with the killing of 23-year-old Terrell Gethers.
Green is scheduled to go on trial in January, along
with one of the defendants not accused of a capital crime. Morris
is to be tried in April, along with another defendant not accused
of a capital crime. The fifth defendant is scheduled to be tried alone
in July.
There is no death penalty in Massachusetts law, but
US prosecutors can seek capital punishment in some cases. Since the
federal death penalty was reinstated in 1988, the Green and Morris
cases are the third and fourth in which the US attorney in this state
has sought the death penalty.
In one prior case, Gary Lee Sampson received a death
sentence for a weeklong series of carjackings in which he killed three
people. In the other, VA nurse Kristin Gilbert was convicted in 2000
of murdering four of her patients, but was spared execution and sentenced
to life in prison.
Jonathan Saltzman can be reached at jsaltzman@globe.com.