San Francisco Federal Jury Convicts Defendant Dennis Cyrus and Returns Next Week to Decide Death Penalty - Will They Sentence Cyrus to Die and Break a 63 Year Run?

Yesterday, the jury came back in a San Francisco federal courtroom, and found Dennis Cyrus guilty of a number of gang-related acts, including the murders of three men - including Ray Jimmerson, who had informed the cops about the gang's assorted criminal activities.

The Distinction Between State and Federal Prosecutors

It was the first time since 1991 that San Francisco has seen a trial where capital punishment was even on the table - two of its district attorneys had followed an internal determination not to seek the death penalty, even if the law allowed for capital punishment. But they are state officials, and this is a federal proceeding.

Over in the Northern District of California's federal district court, the U.S. Attorney makes the call on whether or not to ask for the death penalty, and this U.S. Attorney has decided to do so in Cyrus' case. It's the first time since 1946 that the federal prosecutors have sought the death penalty in the Northern District. The last time that the U.S. Attorney's Office in this federal district asked for capital punishment in a crime was in the 1946 trial of two men who had escaped from Alcatraz and in the process, had killed two guards and three prisoners.

So why now, 62 years later, is capital punishment being sought? Why now? Why Dennis Cyrus?

Some are saying it is merely the allegiance to standard operating procedure for the Department of Justice under the Bush Administration. During Bush's era, U.S. Attorneys were to seek the death penalty in federal cases uniformly across the country, without looking to the state law of their region. In fact, there were times during the Bush Years where federal prosecutors sought the death penalty in courtrooms that sat in states which did not even allow for capital punishment under their state laws.

Now, under the Obama Administration, some have expected a change in stance. However, there has been no official statement forthcoming from the Justice Department - and the Dennis Cyrus case gives us a big hint on what that stance might be. Silence can speak volumes.

Meanwhile, as in Florida, the sentencing phase will begin for Dennis Cyrus shortly. Next week, the federal jury will reconvene and begin hearing evidence on aggravating circumstances and mitigating factors as they determine, using federal law, whether or not Dennis Cyrus should die because of the crimes for which they have found him guilty.

And the manner of death?

As a general rule, federal executions are controlled by the Violent Crime Control and Law Enforcement Act of 1994 (18 U.S.C. 3596), which provides that the federal judge must order execution in a manner authorized by the state in which the federal court sits. If that state does not have a death penalty, then the federal judge must make a choice: he or she picks a state with capital punishment to be responsible for the actual execution.

California does provide for capital punishment. Lethal injection is to be used, unless the prisoner requests death by inhalation of lethal gas (the gas chamber).

Jury Votes Federal Death Penalty for Florida Turnpike Killings

There is a federal death penalty, just like there is the option of capital punishment in the majority of states, and Oklahoma City bomber Timothy McVeigh comes to mind as a well-recognized example of the federal death penalty statute in action. (McVeigh's 2001 execution was the first exercise of federal capital punishment since 1963.)

However, this week was the first time since federal capital punishment was authorized once again by Congress, over twenty years ago, that a Florida jury actually voted to put someone to death as punishment for their crime.

Perhaps you've heard of the Turnpike Killings.

On March 31, 2009, defendants Daniel Troya and Ricardo Sanchez, Jr. stood to hear an unanimous jury verdict that condemned the two men to death for the killing of Luis Julian Escobedo, 4, and Luis Damian Escobedo, 3, back in October 2006, while voting that the two defendants should receive life sentences for the killings of Luis and Yessica Escobedo. The jury deliberated almost four days before returning with their decision.

Of course, this is a drug-related crime. The Escobedo couple was involved with a drug cartel run by Daniel Varela, who has been sentenced to life in prison on drug trafficking charges, and it is undisputed that the deaths were related to the distribution and sale of cocaine in South Florida.

This is far from over.

An obvious consideration upon appeal will be the diminished mental capacity of Sanchez. Some have suggested that it is telling factor for appeal that the jury's vote imposes the death penalty because of the deaths of two children, but not for the two adults - that this gives us information regarding the jury's decision-making in sentencing (an obvious emotional component).

However, the federal death statute has a statutory aggravator for the age of the victim (18 U.S.C. 3592(c)(11)) and the vulnerability of the victim is to be considered. A victim can be considered particularly vulnerable due to a young age, as well as being advanced in years or suffering an infirmity. Those arguments suggesting that the distinction in sentences given regarding the child victims forms a strong basis for appeal may not have a strong statutory foundation.

Nevertheless, these death penalty decisions will be vigorously appealed. Count on it.

U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) - but does 32 years in a Death Row cell amount to cruel and unusual punishment?

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn't mean we don't have a lot to consider from the opinion that did spring forth. Let's ponder the following:

Justice John Paul Stevens' Statement

First, I've read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, "[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer's Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson's spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson's accomplice - who might have been more culpable than Williamson in the underlying crime - was not sentenced to death. Interesting point.

Justice Clarence Thomas' Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court's denial of certiorari. In it, Thomas opined ""[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel, ..." and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn't This Cruel - If Not Unusual? Oh, and What About the Budget?

States across the country are arguing - and deciding, case in point being New Mexico (see last Monday's post), that capital punishment is too darn expensive given the state of the economy.

And, here comes a case where the U.S. Supreme Court has the opportunity to address this situation - is it cruel to keep a man, isolated, in a 6 foot by 9 foot cell, for over 30 years after he's had constitutional guarantees of a speedy trial that apparently aren't going to grant him anything close to a speedy appellate process?

Wouldn't providing for a speedy appellate process in death penalty cases not only help prisoners on Death Row, but help society as a whole by streamlining the costs of capital punishment?

This practicality was the jumping-off place for Justice Stevens in his Williamson Statement, where he pointed to his past work in Baze v. Rees, 533 U.S. __ (2008), slip op. at 12, quoting his prior words there, " ... time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."

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