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Lawyers for two men awaiting a capital trial in the Southern District of New York are trying to persuade a judge that there is more than one reason to declare the Federal Death Penalty Act unconstitutional. Almost three months after the 2nd U.S. Circuit Court of Appeals reversed Judge Jed S. Rakoff’s ruling that the act violated the U.S. Constitution, the lawyers for accused murderers Alan Quinones and Diego Rodriguez are asking the judge to reject the act on different grounds. Last year, Rakoff cited an unacceptably high risk that an innocent person may be executed as reason that the act violates the Constitution’s due process clause. On Tuesday, Kevin McNally argued in a hearing before Rakoff that he should become the second judge in the courts of the 2nd Circuit to find that the relaxed evidentiary standards that apply during the penalty phase of a capital trial make the act unconstitutional on its face. Last September, in United States v. Fell, Judge William K. Sessions III of the District of Vermont found that the act violated due process because the aggravated findings required to vote for death in the penalty phase lacked the same procedural and evidentiary protections afforded the defendant in the guilt phase of trail. Briefs in the Fell case were recently filed in the 2nd Circuit, where arguments may be heard in late April. Although Judge Rakoff said Tuesday he might rule in Quinones before the 2nd Circuit hands down a decision in Fell, his questions and comments then indicated he was not persuaded by McNally’s new arguments. The focus during the Tuesday hearing was on Ring v. Arizona, where the U.S. Supreme Court held that aggravating factors that need to be shown before a defendant is sentenced to death were the “functional equivalents of an element of an offense,” and must therefore be proven beyond a reasonable doubt. The Ring decision has triggered a split among courts driven in part by the unique problems of the bifurcated capital trial system. Once a defendant is found guilty, the jury moves to the penalty phase, where it is asked to consider statutory aggravating factors, such as whether the defendant committed the offenses in an “especially heinous, cruel and depraved manner.” Should the jury find one of the statutory aggravating factors beyond a reasonable doubt, the prosecution can then proceed to offer non-statutory factors that weigh toward imposition of the death penalty, and the defense can offer mitigating factors that weigh against death. Only two weeks ago, in the murder and drug-conspiracy case United States v. Matthews, Northern District of New York Judge Thomas J. McAvoy disagreed with Judge Sessions and found that the relaxed evidentiary standards in the penalty phase do not violate due process. And Rakoff showed some skepticism on Tuesday. In addition to his attack on the relaxed evidentiary standards for the penalty phase on Tuesday, McNally argued that any fact that the prosecution intends to show to win a death verdict in the penalty phase, even non-statutory aggravating factors, should be alleged in the indictment and proven beyond a reasonable doubt. “That can’t mean that every piece of evidence is an element,” Rakoff responded. AGGRAVATING FACTORS McNally also argued the act was fatally flawed because prosecutors, including those in Quinones, were returning to grand juries after the Ring decision and obtaining superseding indictments that allege statutory aggravating factors. And he said that giving the government the leeway to use non-statutory aggravating factors, without strict evidentiary and procedural protections, essentially leaves it up to the prosecution to decide the elements of an offense. “Why should the government be able to usurp the power of Congress to determine which of these elements make up a higher capital offense?” he asked the judge. Rakoff did not accept that characterization. “When the government responds to a Supreme Court case by getting a superceding indictment, it doesn’t seem to me they are usurping anything,” he said. Assistant U.S. Attorney David B. Anders told the judge that the defense was “hanging on the word ‘element,’” when “in practice” courts have held that the type of information heard by a jury during the penalty phase is “far different from elements.” Anders has sought to defuse the evidentiary issue by pledging to Judge Rakoff that the government will accept the Federal Rules of Evidence during the penalty phase in Quinones, a promise that the judge indicated Tuesday would “eliminate” McNally’s objection. McNally and his co-counsel are still awaiting word from the 2nd Circuit on a request for a rehearing en banc on Rakoff’s original decision. The three-judge panel that reversed Rakoff’s ruling in December refused a request for a rehearing last month. But the Quinones defense team has since been allowed to submit a supplemental brief seeking a rehearing by the entire court.

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