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Detail
of Bartolomeo Vanzetti and
Nicola Sacco from the cartoon of a mural by Ben Shahn © Estate of Ben
Shahn /Licensed by VAGA, New York, NY
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Fall 2002 Newletter
THE
FEDERAL DEATH PENALTY IN MASSACHUSETTS
Margaret E. Ross
In March
2001, for the first time in many decades, members of a Massachusetts
jury were faced with a death penalty decision. Kristen Gilbert, a nurse
at the Veterans Affairs Medical Center in Northampton, was convicted
of the murder of four patients and the attempted murder of three more.
Her trial came about because of what could be called a legal quirk:
Although Massachusetts has not allowed the death penalty since 1975,
Gilbert was eligible for execution under federal law because her crimes
were committed on federal property.
Although
Professor James Acker of the State University of New York at Albany
has described the Gilbert case as “a curiosity,” the Gilbert
case may be a sign of things to come in Massachusetts. US Attorney Michael
Sullivan, well-known for his pro-death penalty stance, is now seeking
approval from Attorney General John Ashcroft to try Gary Lee Sampson
for the death penalty for the murder of two Massachusetts men.
Gary Sampson
Case
In the
current discourse about the federal death penalty in Massachusetts,
Gary Sampson’s case is the most significant. Among other crimes,
Sampson is accused of kidnapping and murdering three men, including
two in Massachusetts. While prosecutors had a strong case for life without
parole in state court, Sampson has now been indicted in federal court
for carjacking, according to his attorneys “to expose him to the
death penalty.” Part of what this means is that federal prosecutors
will have to prove that Sampson’s intent was to get the victims’
automobiles. US Attorney Sullivan has stated that “The federal
carjacking statute was created as a deterrent for just this type of
violence.”
In the
Boston Globe Sampson’s attorneys “attacked the federal indictments
as a political maneuver to bring the death penalty in a state where
there is no death sentence.”
His lawyers
also contend that the Sampson case carries no particular federal interest,
unlike the Gilbert case, where the murders took place at a federal facility.
Furthermore Sampson’s attorneys argue that the death penalty is
not warranted since Sampson tried to turn himself in to the Boston FBI
the day before killing his first victim. When Sullivan was asked by
the Globe whether “the call could mitigate against the death penalty,
Sullivan said; ‘It’s a 55-second call. Beyond being able to
confirm a call was made, there’s no corroboration beyond that.’”
Sampson’s
defense team has told the Globe that in February 2002 and again at the
beginning of August, Sampson offered to plead guilty to murder charges
in exchange for life without parole. Sullivan has reportedly spurned
these offers.
On August
8, 2002, Sullivan brought a superseding indictment against Sampson in
order to address concerns raised by the US Supreme Court’s June
ruling in Ring v. Arizona. This decision ended the practice of having
a judge, rather than a jury, decide the critical sentencing issues in
a death penalty case. The Court also ruled that federal prosecutors
must spell out in the indictment aggravating elements that merit capital
punishment, rather than waiting until the penalty phase of the trial.
The Globe quotes Sullivan as saying, “In order to avoid any potential
legal issues that might arise under the Supreme Court decision Ring
v. Arizona, and to preserve the Attorney General’s right to determine
whether the case should … be charged as a capital case, the government
has superseded the original indictment charging Gary Lee Sampson.”
The Justice Department was scheduled to review Sampson’s case on
August 19, 2002. Sampson’s attorneys planned to make a presentation
before the closed-door quasi-judicial proceeding, which is described,
in further detail below.
Developing
a Death Penalty Review System
Janet
Reno first established the protocol for handling federal death penalty
cases in January 1995, when the new Federal Death Penalty Act of 1994
entered into effect. While there was already a death penalty law on
the books with the Anti-Drug Abuse Act of 1988 (the so-called “Drug
Kingpin Statute”), the Death Penalty Act expanded the capital punishment
to some 60 offenses and the number of potential cases grew considerably.
Although the Attorney General makes the ultimate decision about whether
to pursue a death penalty case, the Justice Department set up a multi-tier
death penalty review process. The purpose of this system is, as Justice
Department officials have stated, is “to ensure, as best possible,
consistence and fairness of treatment of similarly situated defendants
across the nation” and to “help demystify [the] work by making
it more transparent and regularized.” Some justice officials (as
well as some defense lawyers) say the department’s review system
is a more elaborate version of what goes on in many states when a prosecutor
discusses a case with his or her staff and perhaps meets with defense
counsel off the record. Nonetheless, there has been some debate about
how the process works as well as its efficacy.
At first, Reno set up a Capital Case Review Committee to hear arguments
of lawyers on both sides and make recommendations to the Attorney General.
Then in November 1998, with a growing number of cases, Reno added another
layer of review with the larger Capital Case Unit, which reviews all
incoming cases in which the government could by law seek the death penalty.
The United
States Attorneys’ Manual Guidelines: Basic Process
Once a
US Attorney’s office charges a defendant with one of the 60 or
so crimes that are “death eligible” under federal law, it
is obligated to refer the matter to the main DOJ, along with materials
from defense counsel and a recommendation as to whether or not to seek
the death penalty. Section 9 of The US Attorneys’ Manual outlines
the process to be followed by federal prosecutors seeking to charge
a defendant with a crime subject to the death penalty. A “Death
Penalty Evaluation” form and detailed death penalty evaluation
memo must be prepared and sent to the Justice Department by the US Attorney’s
office in every “death-eligible” case, whether or not the
US Attorney wishes to seek the death penalty. This form and other internal
correspondence regarding the decision to seek the death penalty are
not subject to discovery by the defendant or his attorneys. Prior to
seeking indictment for an offense subject to the death penalty, the
US Attorney is “encouraged, but not required, to consult with the
Capital Case Unit and other appropriate sections of the Criminal Division.”
Once the
materials are received by the Criminal Division, a lawyer with the Capital
Case Unit reviews the file and within a few weeks presents an analysis
to the top officials in the Unit. The analysis, along with the Unit’s
proposed recommendation, is then sent to the Review Committee. Under
Reno’s leadership, the Review Committee would meet with the local
assistant US attorney working on the case, defense lawyers, and the
relevant staff from the Capital Case Unit. The Ashcroft guidelines,
however, state while “[c]ounsel for the defendant shall be provided
an opportunity to present to the Committee … [i]f the Committee
decides to permit oral presentation, it will ordinarily occur via video
conference.” The defense counsel make their argument first and
are not permitted to hear what the US attorney says. The US attorney
has a chance to rebut the defense, present the government’s viewpoint
and then leaves the room.
After considering
all information submitted to it, the Committee makes a recommendation
to the Attorney General. As mentioned earlier, the Attorney General
makes the final decision about whether the Government should file a
Notice of Intention to Seek the Death Penalty. Defense lawyers are not
informed of any decision until the Attorney General’s formal announcement.
Role of
Defense Counsel and Right to Counsel
As described
in a 1999 Legal Times article, the Review Committee process sometimes
has a chilling effect on defense counsel making their best arguments
against seeking the death penalty. Prosecutors have been known to use
information against defendants in trial that defense counsel presented
to the review committee, as happened in the case of Timothy Holloway
in Tennessee. Holloway’s attorney Richard Kammen has said “When
you present information to the review committee, you do it at your peril.”
As a result, some lawyers choose not to offer any argument to the review
committee.
Another
concern raised by defense lawyers is that cases have gone before the
Review Committee without defense lawyers present. In the Pena-Gonzalez
case, the Justice Department review committee convened even though no
defense counsel were present. The Justice Department officials believed,
as the U.S. Attorney Guillermo Gil argued, that “defense counsel
have no legal or constitutional right to appear before the DOJ committee
to present their argument and evidence. Defense counsel appear by invitation
in accordance with internal Department of Justice guidelines which do
not explicitly confer any rights upon a defendant.” In August 1999,
the U.S. district court judge found that the DOJ procedures for reviewing
Pena-Gonzalez’s case violated his rights to due process and assistance
of counsel. Nonetheless, the US Attorneys’ Manual states that “No
decision to seek the death penalty shall be made without affording defense
counsel an opportunity to present evidence and argument in mitigation,
but a decision not to seek the death penalty may be made without awaiting
any such submissions.”
Decision
To Prosecute Under Federal Law Rather Than State Law
Under Ashcroft’s
leadership, the death penalty review system has been further modified.
Shortly after taking office in 2001 Ashcroft quietly revised the guidelines
to make it easier to bring death penalty cases in states that do not
have capital punishment. Although the guidelines require a “substantial
federal interest” more than the fact that the crime took place
in a state where the death penalty is not authorized, U.S. attorneys
are also encouraged to consider whether “appropriate punishment
upon conviction” is available at the state level. In recent months,
Ashcroft’s Justice Department has aggressively pursued the federal
death penalty against defendants in Puerto Rico, Massachusetts and other
anti-capital-punishment strongholds.
Even in cases where the US Attorney does not intend to request the death
penalty, the Death Penalty Evaluation Form must nonetheless be submitted
to the Assistant Attorney General for Criminal Division. This document
must contain a statement of the reason the United States decided not
to seek the death penalty or charge a capital offense. Ashcroft is so
aggressive about the death penalty that he is frequently overruling
his own prosecutors to demand capital charges. In fact, Ashcroft has
overruled U.S. attorneys 12 times and he has approved death-penalty
prosecutions in nearly half of the federal cases where capital charges
might apply.
The Questionable
Future of the Federal Death Penalty
Ashcroft’s
aggressive policy seems destined for a major showdown with the courts
over the question of capital punishment. A dramatic example is a recent
court decision in New York State. In United States v. Quinones, federal
district court judge Rakoff struck down all death penalty aspects of
the case, ruling that the Federal Death Penalty Act violated due process
and was unconstitutional by cutting off defendant's ability to establish
actual innocence. Judge Rakoff lays out a case against federal capital
punishment in terms so clear that even the pro-death-penalty Washington
Times editorial page called it “a disturbingly powerful legal opinion”
that casts light on a “new factual reality.” Despite what
seem to be setbacks here in Massachusetts, perhaps we can look forward
to living in a country that is free of capital punishment.
Margaret
Ross is an attorney starting practice in criminal defense.
Footnotes:
- Los
Angeles Times, December 14, 2000.
- Boston
Globe, October 25, 2001.
- Boston
Globe, October 26, 2001.
- Boston
Globe, October 26, 2001.
- Boston
Globe, October 26, 2001.
- Boston
Globe, October 26, 2001.
- Boston
Globe, August 9, 2002
- Death
Penalty Information Center, News from the U.S. Supreme Court: Ring
v. Arizona (www.deathpenaltyinfo.org/Ring.html)
- Boston
Globe, August 9, 2002
- Boston
Globe, August 9, 2002
- Boston
Globe, August 9, 2002
- Legal
Times, June 7, 1999
- Legal
Times, June 16, 1999.
- United
States’ Attorneys’ Manual, Title 9 (Criminal) at www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm
- US Attorneys’
Manual, Section 9-10.040.
- US Attorneys’
Manual, Section 9-10.020.
- US Attorneys’
Manual, Section 9-10.050.
- US Attorneys’
Manual, Section 9-10.050
- Legal
Times, June 16, 1999
- Legal
Times, June 16, 1999.
- Legal
Times, August 10, 1999; Resource Guide for Managing Capital Cases:
Volume I: Federal Death Penalty Trials, (Federal Judicial Center,
2001).
- US Attorneys’
Manual, Section 9-10.055
- Boston
Globe, June 1, 2002.
- US Attorneys’
Manual, Section 9-10.070
- LA Weekly,
July 12, 2002.
- US Attorneys’
Manual, Section 9-10.040.
- Washington
Post, July 2, 2002, LA Weekly, July 12, 2002.
- LA Weekly,
July 12, 2002, Washington Times, July 2, 2002.
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