A Step Toward Nationalizing Death Penalty?

Dan Christensen, Miami Daily Business Review

The selection process began this week for a federal jury that may have the unenviable task of deciding whether former Florida State University student Jose Denis lives or dies.

Denis is on trial for his life in U.S. District Court in Miami for the torture slaying of Richard Valdez during a 1996 drug heist at a Hialeah motel. Under federal law, jurors who convict then must turn thumbs up or down on death.

Few states are as prolific as Florida in packing murderers off to death row in state cases. Denis, though, could become the first federal defendant in Florida to get a death sentence since capital punishment came back into federal fashion in 1988.

 Some observers say U.S. Attorney General John Ashcroft was behind the decision to seek the death penalty in Denis' case, because a federal prosecutor in Miami originally said the office would not likely seek it.

 If Ashcroft has his way, more federal juries in more states will be asked to sentence defendants to death, said Kevin McNally, an attorney with the Federal Death Penalty Resource Counsel Project. He calls it the "nationalization" of the death penalty.

 "What I mean by that is the federal government is bringing the death penalty to states where it is not an ordinary part of the fabric of the criminal justice system," said McNally, a Frankfort, Ky., attorney who has assisted in the Denis case. "They're bringing it to states where it's abolished, and states that haven't abolished it -- like New York and Connecticut -- but where it's used infrequently."

 Twelve states, plus the District of Columbia, do not allow the death penalty. Those states are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin.

 To date, Michigan is the only state without the death penalty where a death sentence has been handed down by a federal jury. Last March, Marvin Gabrion was ordered to die by lethal injection for the 1997 murder of a woman who was two days from testifying against him in a rape trial. Rachel Timmerman was killed on federal property -- Manistee National Forest in rural Michigan. It's the first death sentence in Michigan in 150 years, said McNally, whose clients include Gabrion.

 Gabrion, whose case is now on appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati, is one of dozens of federal murder defendants nationwide facing a potential death penalty after their cases were reviewed by Attorney General Ashcroft. In many of these cases, Ashcroft overruled the recommendations of U.S. Attorneys that the death penalty not be sought. Ashcroft personally reviews every federal capital case.

 Ashcroft's Syndrome, as the condition could be called, afflicts 28 of the 56 capital defendants whose cases have been tracked by McNally's group since the former U.S. senator from Missouri took over as attorney general two years ago. The other cases did not involve overrides.

 Twenty-six of the 28 defendants in cases where Ashcroft apparently has overridden prosecutors are black or Hispanic, McNally said.

 The 28 Ashcroft overrides -- which were identified by McNally's group through court filings and discussions with defense attorneys -- are eight more than McNally was aware of only two weeks ago. "The sheer numbers are very surprising. I sure hope it's not the beginning of a wave," he said.

 U.S. Department of Justice spokesman Bryan Sierra said Ashcroft's tight oversight of death cases is intended to "ensure consistency in the application of the death penalty" across the country. Consistency has been lacking in the past, Sierra said.

 The public, elected officials, and the courts generally support capital punishment, which gives the Bush administration leeway to expand the territorial range of the federal death penalty.

 Recent federal court decisions not only have upheld the constitutionality of the 1994 Federal Death Penalty Act -- authorizing execution for 60 types of federalized offenders ranging from killer carjackers to drug kingpins -- but they've held that local jurisdictions can't stop federal death trials in their communities.

 For example, in 2001, the 1st U.S. Circuit Court of Appeals in Boston overturned a ruling by U.S. District Judge Salvador Casellas in San Juan that two drug-related gang murder defendants couldn't be sentenced to death in Puerto Rico. The appellate court rejected Casellas' finding, argued by Miami defense lawyer William Matthewman, that Puerto Rico's constitution, which prohibits capital punishment, trumps federal death penalty statutes.

 Hardball over the death penalty is also being played in Vermont. U.S. Attorney Peter Hall in Burlington didn't want to seek a death sentence for Donald Fell, accused in a November 2000 carjacking that led to the death of Teresca King. Hall even drew up a plea agreement in which he said that death wasn't an appropriate sentence in the case. But that deal didn't happen because Ashcroft said no, according to McNally and newspaper accounts. Fell awaits trial.

 Back in Miami, death penalty opponents believe Ashcroft similarly has targeted Denis, based on the timing of events. In June 2001, an Assistant U.S. Attorney in Miami told U.S. District Judge Federico A. Moreno it was unlikely the government would seek death in Denis' case. But last May, the U.S. Attorney's Office announced the decision to seek death for Denis -- in the wake of new Justice Department rules that shifted decision-making authority to Washington.

 U.S. Attorney Marcos Jimenez in Miami said Ashcroft did not order him to seek the death penalty against Denis. Assistant U.S. Attorney Lilly Ann Sanchez, the trial prosecutor in Denis' case, declined to discuss the details of the case.

 Defending Denis are Chief Miami Assistant Public Defender Reuben C. Cahn and solo practitioners Thomas F. Almon Jr. and Paul D. Petruzzi.

 The bright side for Denis, if you can call it that, is in the low percentage of death sentences in federal capital cases. According to McNally, two out of every three times the federal government seeks death, it doesn't get it. "Juries just aren't returning them, even in the most god-awful cases," McNally said.

 Two federal prisoners have been executed since the return of capital punishment in federal cases -- Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza, both in June 2001.

 Only two federal prisoners have ever been executed in Florida, including one in South Florida. Rumrunner James Horace Alderman was convicted in U.S. District Judge Henry Clayton's courtroom of gunning down two Coast Guardsmen, Sidney Sanderlin and Victor Lamby, and Secret Service agent Robert K. Webster in 1927. Alderman was hanged on the old U.S. Coast Guard base at Bahia Mar in Fort Lauderdale on Aug. 17, 1929.