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Despite the rapid-fire increase in the number of federal crimes punishable by death, only a handful of federal juries in New York state have been asked to order the execution of a defendant. Since the so-called “Drug Kingpin” statute was passed in 1988, making large-scale traffickers death eligible, and the explosion of capital crimes passed by Congress beginning with the passage of the Federal Death Penalty Act in 1994, four cases, involving six defendants, have gone to the penalty phase of a capital trial in New York. And each time, the jury has voted to impose life in prison instead of death. The common denominator in all four cases has been attorney David Ruhnke. Ruhnke, who represented all six defendants during the capital phase of their trials, said that New Yorkers’ skeptical attitude toward the death penalty affects the strategy of both defense lawyers and prosecutors. “What’s wonderful about the New York metro area is that the jury pool overall is going to come into the process with death penalty attitudes that are dramatically different than anywhere outside of a major metro area,” he said. “It just gives you, as the defense attorney, an edge in the jury selection process because the prosecution winds up having to use their peremptory challenges on people who have anti-death attitudes who are otherwise qualified to sit on the panel.” The attitude of New Yorkers toward the death penalty is widely credited with the U.S. Department of Justice’s decision to try Zacarias Moussaoui, who was arrested prior to Sept. 11 but is believed by authorities to be the “20th hijacker,” in Virginia. But Eastern District U.S. Attorney Alan Vinegrad said the decision to seek the death penalty in New York is less focused on the jury pool than on the circumstances surrounding the case. As for the perception that New York jurors are less likely to vote for the death penalty, Vinegrad said, “Although I’m certainly aware that some people think that, I can’t really say it affects the decision-making process.” “If the facts of a case cry out for capital punishment, I can’t say we’d be dissuaded from seeking it because the chances of obtaining it here are less than in other parts of the country.” In New York, defendant Thomas Pitera, also known as “Tommy Karate,” was the first to face death under the Drug Kingpin statute, 21 U.S.C. 848, in 1992 after an Eastern District jury convicted him of seven murders as part of a racketeering enterprise. A divided jury returned a verdict of life imprisonment before Judge Reena Raggi. In 1995, Tyrone Walker and Walter Diaz were charged under the drug law in a conspiracy murder case in the Northern District before Judge Thomas J. McAvoy. Walker came within an eyelash of being the first federal defendant to be executed in New York since Julius and Ethel Rosenberg were electrocuted for passing atomic secrets to the Soviet Union in 1953. Some of the 11 panel members on the Walker jury who voted for death, stymied by a lone holdout, appeared at Walker’s sentencing to protest his life sentence. That same panel also voted a life sentence for Diaz by a vote of 11-1. In 1999, Eastern District Judge Edward Korman presided over the trial of gas station mogul Gurmeet Singh Dhinsa, who was prosecuted under the federal death penalty statute. The same jury that convicted Dhinsa of ordering two murders voted to sentence him to life in prison. Last year a Southern District jury found overwhelming evidence that two members of Osama bin Laden’s al-Qaida terror network committed the August 1998 bombings at U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Despite hearing heart-wrenching testimony from family members of some of the 224 people who died in the explosions, the panel deadlocked 9-3 for death in the penalty phases for Mohamed Rashed Daoud Al-’Owhali and Khalfan Khamis Mohamed. Ruhnke, who represented the two terrorists in the death phase of trial, called the terror cases “a different breed of cat” because, like the case of Oklahoma City bomber Timothy McVeigh, there was little question the prosecutors would seek the death penalty. McVeigh is one of only two people nationwide who have been executed since the revival of the federal death penalty statute. There are currently 20 people on federal death rows throughout the country. DECISION PROCESS Kevin McNally, head of the Federal Death Penalty Resource Counsel, said that of the 240 cases nationwide in which the federal government has filed notice to seek the death penalty since 1988, 204 of those prosecutions “have been resolved in some fashion,” either through plea bargains or the government’s decision to withdraw its request for the death penalty. New York follows that pattern, he said, with 18 federal defendants authorized for the death penalty following review by the U.S. attorney general. McNally, who has defended more than 50 capital cases since 1976, works with attorneys David Bruck and Richard Burr to coordinate the defense of death penalty cases with federal defenders nationwide. Former Eastern District U.S. Attorney Loretta Lynch said that for any prosecutor, “the hardest question is whether or not to seek the death penalty — to decide whether or not someone has forfeited their right to live.” “You start with having to have not just strong, but overwhelming evidence, but that’s just the beginning of the process,” Lynch said. “The Eastern and Southern districts generate a lot of death penalty eligible cases, but, in the end, the number of cases where New York prosecutors actually recommend to the attorney general to seek the death penalty are very few.” The process by which the government weighs whether to seek the death penalty is three-tiered. The first step is for U.S. Attorneys, with the aid of in-house committees, to review the evidence and decide whether a case merits capital punishment. The case is then sent to the Justice Department’s Capital Case Unit, which consults with members of the capital defense bar and then makes its own recommendation to the U.S. attorney general. In the end, the call on whether to seek the death penalty is left to the U.S. attorney general, who can ignore the local prosecutor’s recommendation. Defense attorneys are normally given a chance to argue against a recommendation of capital punishment at the local level, before the U.S. Attorney makes a recommendation to Washington. On some occasions, they are given the opportunity to press their case in Washington by presenting evidence to the attorney general’s committee. In about 90 percent of the cases, a decision by the local U.S. Attorney against seeking the death penalty is respected by the attorney general, McNally said. In the Southern District, he said, there have been four defendants for whom the U.S. attorney general sought the death penalty over the recommendations of the local prosecutor. McNally has been a key player in challenges to the constitutionality of the Federal Death Penalty Act, 18 U.S.C. � 3591. One of the central challenges to the statute in the Southern District came in 2000 in United States v. Kee, 98 CR 778. In that case, Charles Michael Kee, a member of the “Bloods” street gang, was charged with murder as part of a 17-count racketeering conspiracy indictment in 1998. Although then-Southern District U.S. Attorney Mary Jo White was opposed to seeking the death penalty, she was overruled by U.S. Attorney General Janet Reno. Reno’s authority to make that decision was challenged by McNally and lawyers with the Legal Aid Society. Kee ultimately was sentenced to life in prison after entering a guilty plea. But Southern District Judge Denise Cote, in Kee, upheld the federal death statute, finding that the law requires only that it be the “institutional belief of the government, by virtue of its internal decision-making process, that it is appropriate to seek the death penalty.” Cote’s decision was echoed by those of federal judges in other jurisdictions. The U.S. attorney general also sought the death penalty in the Southern District case United States v. Jose Santiago, 98 CR 290. Santiago, who was charged under the Federal Death Penalty Act with murder in aid of racketeering, pleaded guilty before trial in April 2000 and was sentenced to life in prison. The last two defendants against whom Washington is seeking the death penalty even though White recommended against it are Alan Quinones and Diego Rodriguez, who are charged with the murder of a police informant. Their trial in United States v. Quinones, 00 CR 0761, is scheduled to begin in September before Judge Jed S. Rakoff. Although the case involves a drug ring, capital punishment is being sought under the Federal Death Penalty Act. A second challenge in Kee’s case involved the process by which jurors are asked to weigh a verdict of death following conviction. During the penalty phase, jurors are first asked to decide unanimously the existence of certain “gateway factors” with regard to each capital count, such as whether the killing was intentional. If they find at least one gateway factor, the jury moves on to weigh “statutory aggravating factors,” such as whether the crime was committed with substantial planning and premeditation, or whether the defendant killed more than one person. Should the panel find at least one statutory aggravating factor in the crime, they then proceed to “non-statutory aggravating factors,” such as whether the defendant continues to pose a risk to others, and the impact of the crime on members of the deceased’s family. Whether or not non-statutory aggravating factors are found, the jury is then asked to weigh “mitigating factors,” such as the defendant’s lack of a prior criminal record, and the defendant’s lesser culpability when compared with that of others in the crime. Finally, the jury is free to consider any other aggravating or mitigating factors it feels should be taken into account. An example of a mitigating factor considered by the jury in the embassy bombing cases was that some members of the panel felt that executing Al-’Owhali and Mohamed would make the men martyrs. In the end, however, two jurors later said that issue was not a critical part of the panel’s decision to impose a life sentence. In the Kee challenge, McNally argued that the Federal Death Penalty Act was incomprehensible to jurors. But Cote found that the U.S. Supreme Court has made it clear that “juries may be entrusted with the application of these sentencing schemes,” and the studies offered by the defense were insufficient to “rebut the strong and well-established presumption that jurors fully understand and follow the instructions they are given.”

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