Plea Bargaining an Issue in Second Circuit Death Penalty Decision

The New York Times reported last week on the case of Ronell Wilson, whose death sentence for killing two New York City undercover police detectives in 2003 has been overturned by the United States Court of Appeals for the Second Circuit. The decision is noteworthy because federal juries in New York State are historically reluctant to sentence defendants to death. According to the New York Times, federal prosecutors in New York have asked for the death sentence in 19 cases from 1988-2008, but in only one case - that of Ronell Wilson - has the jury returned a verdict of death.

The case also involves plea bargaining. As reported by the New York Times:

The Court of Appeals’ ruling centered on two arguments that prosecutors made to the jury about Mr. Wilson’s remorse and acceptance of responsibility for the killings during the penalty phase of his trial. The judges noted that prosecutors used Mr. Wilson’s demand for a trial and his failure to plead guilty as evidence that he lacked remorse and refused to accept responsibility. The judges said prosecutors had argued to the jury that Mr. Wilson’s statement of remorse should be discredited because he failed to testify.

“He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can’t have it both ways,” one of the prosecutors, Jack Smith, is quoted as telling the jury in the judges’ ruling (Mr. Smith now leads the public integrity section for the Justice Department). “He can’t do that, then say I accept responsibility.”

The defense made an objection at that point that was overruled, and the prosecutor continued, “And [say] ‘I’m sorry, only after you prove I did it.’ That’s not acceptance of responsibility.”

The judges wrote that they agreed with Mr. Wilson’s lawyers that the comments “unconstitutionally burdened his Sixth Amendment right to a jury trial.” In addition, the prosecutor’s highlighting of Mr. Wilson’s refusal to testify violated his Fifth Amendment right against incriminating himself, according to the ruling.

Unless the decision is later overturned, the Second Circuit ruling means that a new penalty phase will occur in the case before a new jury. Another alternative is for the government to withdraw its notice to seek the death penalty, which would result in an automatic sentence of life in prison.