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October 19, 2010

Potent dissent from Second Circuit's denial of en banc review of reversal of NYC federal death sentence

As detailed in this order, the Second Circuit today has rejected the government's request for en banc review of a split panel decision reversing a high-profile federal death sentence.  Background on this notable case can be found in this prior post, and also from the start of Judge Livingston's potent dissent fromt this en banc review denial:

The facts in this case are as straightforward as they are heartbreaking. Ronell Wilson, a violent gang member who favored the nickname “Rated R,” shot and killed two undercover police officers at point blank range, murdering the first without warning, and the second even as the young officer, a father of three, pleaded for his life.  Wilson did so because, in his own words, he “don’t give a fuck about nobody.”  The bodies were unceremoniously searched and then dumped in the street.  Two days after the wanton executions of Detectives Rodney Andrews and James Nemorin, Wilson was arrested and was found to be carrying rap lyrics he had authored -– lyrics that celebrated the gun violence of “Rated R,” appeared to brag of his recent murders, and, indeed, promised to continue committing such crimes until “I’m dead.”

A properly empaneled jury described by the district court as “among the most attentive and serious [it] had ever seen,” heard and evaluated weeks of evidence before returning guilty verdicts on five capital counts.  These jurors then absorbed another nine days of testimony at a penalty phase involving some forty witnesses and spanning nearly 1,800 transcript pages. On that record, the jury unanimously found that six aggravating factors -- including killing for pecuniary gain, killing multiple people in a single incident, and killing a law enforcement officer in the course of duty -– had been established beyond a reasonable doubt.  The jurors also found that Wilson had established thirteen of the eighteen mitigating factors on which he relied, as well as finding a fourteenth –- that Wilson “was possibly subject to peer pressure” –- on their own.  No juror concluded, however, that Wilson felt remorse for his crimes.  Nor did any juror find that he had accepted responsibility for them, rejecting Wilson’s claims to that effect made in an unsworn, uncrossed statement that he was permitted to read to the jury from the defense table. Having been instructed “to make a unique, individualized judgment about the appropriateness of imposing the death penalty” and that “no jury is ever required to impose the death penalty,” the jury imposed five capital sentences on Wilson.

Despite the impeccable record developed below and the careful and conscientious work of the district court and the jury, a divided panel of this Court vacated these capital sentences, discerning Fifth and Sixth Amendment error in a handful of words buried in the government’s summation.  For the reasons amply set forth in my dissent, I believe the panel majority’s Fifth and Sixth Amendment holdings were not only in error but that they are in profound tension, if not direct conflict, with the law of this Court, a sister Circuit, and the Supreme Court.  See United States v. Whitten, 610 F.3d 168, 205-17 (2d Cir. 2010) (Livingston, J., concurring in part and dissenting in part).

The errors in the panel majority’s analysis, moreover, have not only resulted in the unjustifiable rejection of sentences that were properly imposed for grave and merciless crimes.  If left uncorrected, they threaten to needlessly complicate both the proper conduct of death penalty phase litigation in this Circuit and elsewhere, as well as the orderly adjudication of criminal liability more generally.  I therefore respectfully dissent from the denial of rehearing en banc.

If the government appeals now to the US Supreme Court, which I assume they will, I think there is a good chance the Justices will take up this case.  And I suspect that the force of Judge Livingston's dissent increases those chances.

October 19, 2010 at 12:45 PM | Permalink


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The dissent is so potent and powerful that it makes one wonder what the hell the majority was thinking!

Posted by: mjs | Oct 19, 2010 4:06:06 PM

mjs, they wanted to spare a killer, so they grasped at whatever straw they could. It really is that simple.

Posted by: federalist | Oct 19, 2010 9:14:23 PM

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