The U.S. Attorney for Western New York has filed more potential federal death penalty cases than most of his colleagues across the country. Since taking office in March 2010, William J. Hochul, Jr. has petitioned the Justice Department to seek the death penalty against 24 people, more than his counterparts in cities like Los Angeles, Chicago, Detroit, Miami or cities in Texas. Only two other federal prosecutors, both from more populous districts than Western New York, have filed as many death cases with Attorney General Eric Holder in the past 2 years. None of Hochul's cases has yet resulted in a capital trial, much less a death sentence, but they have cost taxpayers more than $661,000 just in the past year. This expenditure is more than the combined amount spent by the area's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. Kevin McNally, who heads the Federal Death Penalty Resource Counsel Project said, "I seriously doubt whether any of [Hochul's] defendants will actually face the death penalty at trial." The Department of Justice spends an estimated $86 million a year on federal death penalty cases. Since the reinstatement of the federal death penalty in 1988, three defendants have been executed. David Kaczynzki, a member of New Yorkers for Alternatives to the Death Penalty, said, "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money."
On April 11, a jury in Puerto Rico rejected a death sentence for a defendant convicted of murdering an undercover policeman. Instead, Lashaun Casey will be sentenced life in prison without parole. The defendant was eligible for the death penalty because the case was tried under federal law rather than the law of Puerto Rico, which abolished the death penalty under the constitution it enacted in 1952. The Commonwealth has not carried out an execution since 1927. Anti-death penalty protestors demonstrated every day during the trial. A recent poll indicated that 57% of Puerto Ricans oppose the death penalty.
On February 25, the U.S Supreme Court agreed to review a decision by the Kansas Supreme Court overturning the conviction and death sentence of Scott Cheever, who killed a sheriff during a drug investigation. Cheever argued that his own drug use made it impossible for him to have killed with premeditation, a factor necessary for a capital murder conviction. The case had been previously charged in federal court. In that case, the trial judge had ordered a mental health evaluation because Cheever was similarly claiming a lack of intent due to drug use. The federal charges were eventually dismissed, and the state took up the prosecution. At the state trial, the prosecution used Cheever's statements during the mental evaluation to rebut his claim of incapacity. The Kansas Supreme Court held that to be a violation of Cheever's 5th Amendment protection against self-incrimination. Generally, statements from a state mental health evaluation may only be used against the defendant if he has raised a defense based on a mental disease or defect. The Kansas Court held that Cheever's claim of drug use was not such a defense. The case, Kansas v. Cheever, No. 12-609, will be argued in the fall.
On September 27, a federal jury in Puerto Rico rejected the death penalty for Edison Burgos Montes, who was convicted in August of the murder of his girlfriend in 2005. The jury deliberated for two days before sentencing Montes to life in prison for this drug-related crime. Puerto Rico's constitution forbids capital punishment, but U.S. prosecutors can seek the death penalty under federal law. This is the fourth capital case tried by U.S. authorities since the federal death penalty was reinstated in 1988. None of the cases has resulted in a death sentence. Governor Luis Fortuno and Resident Commissioner Pedro Pierluisi, Puerto Rico's sole representative to the U.S. Congress, spoke out recently against the death penalty. In addition, one of the candidates for governor, Senator Alejandro Garcia Padilla, promised to try to stop the use of the federal death penalty for Puerto Rico residents. There also have been popular demonstrations against this use of the death penalty in the Commonwealth.
The recent federal capital trial of Brian Richardson in Atlanta illustrated the high costs of litigation when the death penalty is sought. Richardson’s case required more than 30 lawyers, and cost hundreds of thousands of dollars in expert witness fees. The U.S. Attorney’s Office assigned eight prosecutors to the case and appointed 20 private attorneys to represent inmates who were testifying against Richardson. The Federal Defender’s Office assigned four attorneys and two investigators to Richardson’s defense. The office spent almost $200,000 for its experts and expenses. Other costs to taxpayers included more than $150,000 billed by mental health experts who planned to testify at trial, but were prohibited from doing so. In the end, the defendant was sentenced to life without parole. U.S. District Judge Clarence Cooper barred the expert testimony after finding that prosecutors misled him as to how the experts would conduct Richardson’s mental health evaluation. Two assistant U.S. Attorneys were also removed from the case. One was stricken after recordings revealed a disturbing conversation between the prosecutor and a government snitch. The second prosecutor was barred because of a conflict of interest, but he continued working on the case behind the scenes, in defiance of the judge’s order. Brian Mendelsohn, one of Richardson’s lawyers, said, “This was a colossal waste of taxpayer money. Brian was willing to plead guilty in exchange for a life sentence from day one. This entire episode could have been avoided.”
A new book by Professor Jody Lynee' Madeira of the Indiana University School of Law follows the aftermath of the Oklahoma City bombing to explore whether the families of murder victims obtain closure from an execution. In Killing McVeigh: The Death Penalty and the Myth of Closure, Prof. Madeira recounts her wide range of interviews with those who experienced this tragedy first-hand. Regarding the book, Professor Carol Steiker of Harvard said, “Everyone seems to have an opinion about whether the execution of murders can offer ‘closure’ to the victims’ loved ones. Finally, we have a study that has investigated the largest, most media-saturated mass murder and execution in recent times….Madeira’s in-depth, fair-minded, and sensitive account opens a window for us into the struggles of those affected and explores the complicated role that our public institutions of criminal justice play in the complex and difficult work of reconstructing life after atrocity.”
Rhode Island Governor Lincoln D. Chafee (Indep.) recently explained his denial of a request to transfer Jason Pleau to the federal government for a potential death penalty prosecution. Chafee stated, " As a matter of public policy, Rhode Islanders have long opposed the death penalty, even for the most heinous crimes. To voluntarily let Mr. Pleau be exposed to the federal death penalty for a crime committed in Rhode Island would be an abdication of one of my core responsibilities as governor: defending and upholding the legitimate public-policy choices made by the people of this state." In his op-ed in the Providence Journal, the governor noted that Pleau had offered to plead guilty to murder in state court and accept a sentence of life without parole. Chafee rejected the accusation that his actions were driven by a personal opposition to capital punishment. The governor noted that Rhode Island abolished the death penalty in 1852, although a very narrow death penalty statute was put in place afterwards. That law was finally removed in 1984, and no executions occurred in Rhode Island after 1852. Read full op-ed below.