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Parting with a colleague from Vermont and adding another 27 pages to 2nd Circuit death penalty jurisprudence, a Northern District of New York judge has rejected a constitutional attack on the federal capital punishment statute. U.S. District Judge Thomas J. McAvoy’s ruling in United States v. Matthews, 00-CR-269, illustrates a split within the 2nd U.S. Circuit Court of Appeals on the viability of the federal death penalty. Last year, two 2nd Circuit district court judges, Jed S. Rakoff in the Southern District of New York and Vermont Chief Judge William K. Sessions III, found the statute unconstitutional. However, Rakoff’s opinion was reversed by the 2nd Circuit, where Sessions’ decision is awaiting review. As with the case before Sessions, a key issue in the matter before McAvoy was whether the evidentiary standards for the sentencing phase run afoul of due process guarantees. Sessions said they do; McAvoy said they do not. The 2nd Circuit, and possibly the U.S. Supreme Court, will apparently have to resolve the stalemate. McAvoy is presiding over one of several capital cases where U.S. Attorney General John Ashcroft overruled the recommendation of regional federal prosecutors and ordered a death penalty prosecution. The case involves three men — Lavin Matthews, 27, of Binghamton, N.Y., Christopher McMillian, 33, of Brooklyn, N.Y., and Tebiah Shelah Tucker, 26, of Fayettville, N.C. — indicted on murder, drug conspiracy and weapons possession charges. Counsel for the defendants attacked the constitutionality of the death penalty law, largely on the grounds that the “relaxed” evidentiary standards in the penalty phase violate both the Due Process Clause of the Fifth Amendment and the Sixth Amendment’s right of confrontation. Defense counsel noted that during the guilt phase of the trial, all of the federal rules of evidence, including the hearsay rule, apply. However, the standards are different during the penalty phase. The defendants before Judge McAvoy argued that the aggravating factors the jury weighs in imposing sentence are essentially the same as elements of the offense, and therefore should be subjected to the same evidentiary scrutiny. A similar argument was successfully advanced before Judge Sessions last year in United States v. Fell, 217 F. Supp. 2d 469. Sessions relied on a string of U.S. Supreme Court cases, especially Apprendi v. New Jersey and Ring v. Arizona, in dismissing the death penalty notice against accused killer Donald Fell. In Apprendi, 530 U.S. 466 (2000), the justices held that any factor that can result in a penalty beyond the statutory minimum must be charged in the indictment and proven beyond a reasonable doubt. In Ring, 01-488, the Supreme Court applied Apprendi to a capital case and held that the decisions of the trial judge on aggravating factors were the “functional equivalent of an element of a greater offense” that must be decided by a jury under the Sixth Amendment. Under Ring, Judge Sessions held, Fell should have exactly the same right to confront and cross-examine witnesses at the penalty phase that he would have during the guilt phase. Sessions also found that every element of every charged crime must be subjected to the Federal Rules of Evidence. NO INFIRMITY SEEN McAvoy disagreed. “The Federal Rules of Evidence are not constitutionally mandates per se,” the Northern District judge said in an opinion posted last week. “Indeed, there is no suggestion that criminal trials conducted before the adoption of the Federal Rules of Evidence in 1972 were constitutionally infirm.” McAvoy said that even if Congress abolished the Federal Rules of Evidence, “the Due Process Clause, as implemented through the trial court’s evidentiary gatekeeping function, would serve to ensure the admission of only that evidence that comports with the right to a fair trial.” Similarly, he said that even if Congress abolished the hearsay rules, “the requirements of the Sixth Amendment’s Confrontation Clause and the Fifth Amendment’s Due Process Clause would fill the void to ensure the accused’s right to a fair trial.” In contrast to Sessions, Judge McAvoy did not find that Congress undercut the constitutional baseline in establishing the evidentiary framework for the sentencing phase of a capital trial. Rather, McAvoy said, it “did quite the opposite and expanded the defendant’s ability to introduce evidence demonstrating why he or she should not be subjected to capital punishment.” For instance, McAvoy noted, the trial judge is afforded considerable discretion to exclude prejudicial evidence. Additionally, the aggravating factors must be proven beyond a reasonable doubt to a unanimous jury, while the mitigating factors must be proven only by a preponderance of the evidence. “Thus, when the jury balances the aggravating factors with the mitigating factors, the defendant has the advantage of the proverbial thumb on the scale,” McAvoy said. EXECUTING THE INNOCENT Also raised by the defense was the same argument presented to Judge Rakoff in United States v. Quinones, 205 F. Supp. 2d 256. In that case, the judge in Manhattan held the Federal Death Penalty Act facially unconstitutional because of an unacceptably high risk of executing an innocent defendant. However, the 2nd Circuit reversed in December and has since refused to reconsider its decision in United States v. Quinones, 02-1403. McAvoy relied on that opinion. Jury selection in the Matthews/McMillian/Tucker prosecution is under way and expected to take several weeks. Assistant U.S. Attorney Miroslav Lovric is prosecuting the case. Appearing for the defense are Gaspar M. Castillo of Castillo & Associates in Albany, N.Y., for Matthews; Terence L. Kindlon of Kindlon Shanks in Albany for McMillian; and Peter P. Charnetsky of Vestal, N.Y., and Carl J. Herman of Livingston, N.Y., for Tucker. The federal government has not executed a defendant for a crime committed in New York since June 19, 1953, when Julius and Ethel Rosenberg were electrocuted at Sing Sing Prison for relaying atomic secrets to the Soviet Union. The Rosenbergs were convicted of espionage and sentenced by Southern District Judge Irving R. Kaufman to die in the electric chair.

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