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February 8, 2013

Notorious NY cop killer loses Atkins claim and will face federal death penalty again

As reported in this New York Times article, headlined "2 Detectives’ Killer Is Eligible for Death Penalty, Judge Rules," a lengthy federal court ruling handed down yesterday has cleared the way for an infamous murderer to face the death penalty again. Here are the basics:

A New York City man who was sentenced to be executed for the murder of two undercover police officers in 2003 — and who made headlines once again this week after it was revealed he impregnated one of his prison guards — was found by a judge on Thursday not to be mentally retarded and therefore eligible to be put to death.

The man, Ronell Wilson, shot and killed two undercover detectives — James V. Nemorin and Rodney J. Andrews — during a failed gun-buy operation on Staten Island in 2003. A federal jury found Mr. Wilson guilty of murder and handed down the first death sentence by a federal jury in the city in more than half a century.

An appeals court upheld the conviction but not the death sentence, saying the prosecution unfairly prejudiced the jury during sentencing. That meant the question of whether Mr. Wilson would face capital punishment or would face life in prison would have to be heard by a new jury.

Lawyers for Mr. Wilson sought to block the prospect that he could receive another death sentence by arguing that he was mentally incompetent. But Judge Nicholas G. Garaufis of United States District Court in Brooklyn ruled that Mr. Wilson was not mentally retarded, either at the time he committed the crime or now.

The 55-page ruling did not mention the latest controversy surrounding Mr. Wilson — that he had a sexual affair with one of his prison guards at the Metropolitan Detention Center in Brooklyn and that she is now eight months pregnant with his child. The guard, Nancy Gonzalez, 29, was arraigned in federal court on Tuesday on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex.

If Mr. Wilson had been found to be retarded, a death penalty ruling would violate the Eighth Amendment ban on cruel and unusual punishments, as well as the Federal Death Penalty Act, passed by Congress in 1988 and amended in 1994. It states that a “sentence of death shall not be carried out upon a person who is mentally retarded.”...

Judge Garaufis noted that over the course of his life, Mr. Wilson had been given nine I.Q. tests. The methods of the testing varied, but Judge Garaufis found that because eight of those tests showed him to be at least three points above the benchmark for legal retardation, which is 70, Mr. Wilson was not retarded.

In addition to the I.Q. tests, Judge Garaufis said he based his ruling on the opinions of the clinicians who administered the tests. “The clinical judgments of Wilson’s test administrators support the court’s analysis,” he wrote. “And most of them believed his observed scores represented an underestimate of his true intelligence.”

But the judge noted that the ruling did not mean Mr. Wilson would ultimately face execution for his crimes. “This does not mean that he will receive — or deserve to receive — the death penalty,” he wrote, “but only that any such penalty would not violate the Federal Death Penalty Act or the Eighth Amendment.”

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article: "that he had a sexual affair with one of his prison guards at the Metropolitan Detention Center in Brooklyn and that she is now eight months pregnant with his child. The guard, Nancy Gonzalez, 29, was arraigned in federal court on Tuesday on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex. "

me: now there is one woman who has made some incredibly poor life choices. becoming a single mother, federal criminal, and a sex offender over a murderer with borderline intelligent level (at best) may well qualify as the stupidest crime ever committed by a woman. Hope they can find a good home for that kid if she goes to prison - with parents like that, that kid will need a lot of help.

Posted by: erika | Feb 8, 2013 10:37:57 AM

and i have to ask, with the victims being NYPD detectives, why is this case even in federal court?

Posted by: erika | Feb 8, 2013 10:54:47 AM

@erika
The killings were related to the killer's firearms trafficking business.

Posted by: MikeinCT | Feb 8, 2013 11:31:35 AM

erika --

As I was saying on an earlier thread, you sometimes have quite intelligent observations about law, and your first comment here so demonstrates.

God help that kid. Between being the offspring of such parents, and being raised on the public dole, his life chances look dim indeed.

Posted by: Bill Otis | Feb 8, 2013 12:10:54 PM

erika:+:
"...NYPD detectives, why is this case even in federal court?"

MikeinCT:+:
The killings were related to the killer's firearms trafficking business.

InnoceProj666:
Chafee's ¡ NY doppelgänger ! was unavailable.

We must seek another machination to liberate the innocent!

Posted by: Adamakis | Feb 8, 2013 1:40:09 PM

Even if there's a technically-valid federal jurisdictional hook, it seems to me (as a New York voter and taxpayer) that if New York's dysfunctional political class can't get its act together to enact an enforceable death penalty statute for copkillers, then one ought to be able to kill a (non-federal - I suppose if the victims here were at the time they were killed acting in some de facto federal role as by e.g. secondment to BATF my view might change) cop in New York without being exposed to the death penalty. Episodic federal intervention in cases where public opinion might think the death penalty warranted will just interfere with the sort of political dynamic that could lead to better legislation at the state level; shielding New York's voters from suffering the full consequences of what and who they vote for will just prolong Albany's dysfunction. (Alternatively, if the actual will of New York's voters as faithfully reflected via the legislature is that copkillers should not be put to death, I see no reason why that will should not be respected; cops who don't like it can seek employment in friendlier states. If the flawed N.Y. death penalty statute enacted in '95 and judicially invalidated in '04 w/o ever being put to use had been promptly reenacted in a more litigation-proofed version, one could view ad hoc federal intervention seeking the death penalty for an '03 killing as a pragmatic fix for a case which had fallen between the cracks timingwise, but that's not how it played out.)

This is not a death-penalty-specific concern. I think that as a more general matter intermittent/episodic federal prosecution (in cases where one might have expected state prosecution as the norm even though, as is often the case, theoretical grounds for federal jurisdiction exist) where the federal prosecution is motivated by a concern that the sentencing in state court will be too lenient compared to what might be expected in federal court will tend to interfere (especially since it will tend to happen in the more high-profile/headline-grabbing cases, where voters/politicians/media-types would be more likely to notice an overlenient sentence in state court) with public pressure for less lenient sentencing for the relevant type of offense in the relevant state, thus prolonging the perceived problem it seeks to address.

Posted by: JWB | Feb 8, 2013 1:47:28 PM

JWB --

One problem is that the legislature cannot be counted upon to reflect the electorate's wishes. In your neighbor to the east, Connecticut, the legislature eliminated the DP even though popular sentiment in the state still supports it.

I agree heartily with your overall point that people, whether ordinary citizens or cops, should be required to live with their own choices, and can vote with their feet (which they can still do in this country, for the moment). But it gets complicated because the electoral landscape, in any given election, very seldom produces clear choices (and this is even assuming that candidates will live up to their myriad promises if elected). It's also complicated because the choices that actually get embraced by the legislature are visited upon all the citizens, including the ones who voted for something else.

California is an illustration of the problem. In November 2010, voters rejected, by referendum, an initiative to legalize pot. But, because "medical" pot is legal under California state law, the voters' choice was in effect a nullity. Pot is ALREADY widely available for recreational use, because the so-called restrictions on the "medical" purpose of pot are simply not enforced. The whole regimen of "restrictions" is a joke.

It is in large part for this reason that the feds have started to crack down on these "medical" pot dispensaries. When the expressed will of the state's voters is more-or-less openly ignored by state authorities, there is a better case for federal invervention.

As you note, such intervention takes the pressure off both the snoozing authorities, and the voters who could (theoretically) wake them up, but in the short run, it's a difficult conundrum.

Posted by: Bill Otis | Feb 8, 2013 2:22:58 PM

It is usually said that the federal obligation to guarantee the states a "Republican Form of Government" is basically non-justiciable, but if ignoring the actual output of a state's representative government on the grounds that the feds are doing so in order to fulfill the supposedly frustrated will of the states' voters isn't a violation of that obligation, I don't know what would be.

Posted by: JWB | Feb 8, 2013 2:59:39 PM

Bill: Your macro analysis in your response to JWB is "One problem is that the legislature cannot be counted upon to reflect the electorate's wishes" and therefore, someone, and in this case the DOJ should step in to ensure that the electorate's wishes are operationalized seems to support the concept of nullification -- that the electorate should be able to nullify those legislative things that do not reflect the electorate's wishes. Your apparent affinity for tryanny by the majority identifies you as a person who eschews our republican form of government in favor of a democracy. A review of history shows that all true democracies devolved into dictatorships -- the framers knew it and that is why we are a republic. The Tenth Amendment is a bulwark against a dictatorial federal government. So, isn't the DOJ's prosecution of this murderer violating the spirit of the Tenth Amendment?

Posted by: ? | Feb 8, 2013 3:03:58 PM

? --

"Your apparent affinity for tryanny by the majority identifies you as a person who eschews our republican form of government in favor of a democracy."

Your apparent affinity for tryanny by the minority identifies you as a person who's still rooting for King George.

But if a point be made of it, you bet, I like California's referendum system. So did those liberals and libertarians in California who expressly used it in 2010 to try to get recreational pot. Do you think they were trying to invoke "tyranny by the majority?" So did those Californians just three months ago who used it to try to eliminate the death penalty. Were they too invoking "tyranny of the majority?"

To the best of my knowledge, no California or federal court has held California's referendum system to be unconstitutional in any way. If you know of a case I'm missing, please give me the citation.

"A review of history shows that all true democracies devolved into dictatorships -- the framers knew it and that is why we are a republic."

The reason we are a republic is that the Framers wanted to get rid, not of democracy, but the opposite of democracy -- the Crown.

"The Tenth Amendment is a bulwark against a dictatorial federal government. So, isn't the DOJ's prosecution of this murderer violating the spirit of the Tenth Amendment?"

The murderer had every opportunity to raise that question in his Second Circuit challenge to his conviction. Either he didn't raise it or he raised it and failed.

And if the New York state legislature has had any objection, on Tenth Amendment grounds, to the feds going after this particular killer, I haven't heard of it. Do you know of any? If there has been no such challenge, is there a reason you think you would be better positioned to raise a states rights argument than the state itself would be?


Posted by: Bill Otis | Feb 8, 2013 3:36:35 PM

Thanks Bill. I finally figured you out.
1.If Bill is part of the majority, then the majority is correct.
2.If Bill is part of the minority, then the minority is correct.
3.If elected officals don't do what Bill wants then it is ok substitute Bill's view over that of the majoritiy of the elected officials. Especially if that means crying to the feds.
Reminds me a song by the Spin Doctors entitled "Little Miss Can't be Wrong"
Sing along and substitute "Bill" for the lyric "Little Miss"
Available at: http://www.youtube.com/watch?v=cXWbMu4PtpE

Posted by: ? | Feb 8, 2013 4:20:35 PM

@?
Are you aware of the logical fallacy called the 'straw man argument'? It appears you rely on it completely.

Posted by: MikeinCT | Feb 8, 2013 6:00:39 PM

? --

"Thanks Bill. I finally figured you out...If elected officals don't do what Bill wants then it is ok substitute Bill's view over that of the majoritiy of the elected officials."

To the exact contrary, I have said over and over that people should follow governing law whether or not they agree with it. It is for that reason, and only that reason, that I pay every dime I owe of Obama's fat tax increases. It is also for that reason that I oppose jury nullification.

"Especially if that means crying to the feds."

I'm not "crying" to anyone, nimwit. It's the dopers who cry when they get caught turning a nice profit by knowingly violating the law. And if you didn't know, it's the Constitution, not anyone's crying, that makes federal law supreme.

But now that you made me think of it...Can I go to Mississippi and open a segregated restaurant? I understand that is (or was) OK under state law, too. Oh, but wait. Starting in late 1950's, some folks went, as you would say, "crying to the feds."

Posted by: Bill Otis | Feb 8, 2013 7:25:37 PM

"...Can I go to Mississippi and open a segregated restaurant? I understand that is (or was) OK under state law, too. Oh, but wait."

You should be able to. With one third of MS being black, a nearby competitor who did not discriminate would put you out of business. However, it was lawyer enacted statutes forcing discrimination that hurt our country, not the discrimination of private individuals. Without those laws, the market would have ended slavery peacefully, severely punished businesses that discriminated, and done so without killing 600,000 people, perhaps 850,000. Then a legally immune, lawyer founded and managed fraternal organization, the KKK, served as the terror arm of the Democratic Party to enforce the discrimination, lawlessly, committing mass murder, seizure of productive male property, and probably giving most of it to local law enforcement lawyers, prosecutors and judges. Stupid left wing black lawyers are going after innocent corporations for reparations for acts committed 150 years ago. Reparations are a mask for corporation hatred, the hatred of the successful, and the legalized piracy to plunder it. However, here is a law student question. Can a title ever get quieted if acquired in a lawless lynching? These idiot left wing hater lawyers should be going after local government and lawyers to seek the value of the seized property for the estates of lynching victims. They never will because they are big government hacks.

Anti-discrimination laws have been highly disruptive of the nation, and have had devastating effects on the groups they intended to help. For example, the disabled are now unemployable, being walking law suits. The same will become true of gays, and marriage legalization. Gays' wages are now a full standard deviation above the national average because they are valuable workers, not distracted by family problems. Now, one will not hire one because the spouse may bust the health insurance budget with a surprise case of AIDS. Biggest example of devastating effect on the intended beneficiary of anti-discrimination law? Race. In the 1950's, black statistics had a tiny disparity from those of whites, slightly higher crime victimization, slightly higher unemployment, slightly lower wages. After the Civil Rights Acts, disparities went through the roof. Thank the idiot lawyer from the upside down world of the Twilight Zone.

Posted by: Supremacy Claus | Feb 9, 2013 4:53:16 AM

Our good professor who raised a 8A argument in support of blocking an execution when the state itself didn't want to do so even when there is some sort of federal hook might agree with JWB to some degree.

I'm sympathetic to the argument as policy though don't find the constitutional case compelling. I'm also against the death penalty and more sympathetic to many around here to various constitutional claims against it.

As to JWB's argument, I don't think many residents are even that aware of the federal prosecution. States w/o a death penalty have heinous murders. States that technically have one but basically never carry any out (I might cite CA here -- 13 executions since the 1970s) do as well. Like torture and other things, the states determine that the d.p. will not on the whole make things better.

Polls aren't how this will is determined in a republican system. OTOH, I don't think the system is violated if representatives of another sovereign, namely the federal government, choose to execute someone with a federal hook. At least not in the way suggested. (From the founding, some suggest the death penalty itself is non-republican, an illegitimate use of power.) I do think esp. when the federal hook is weak and the punishment is far from minor (see below) that prosecutorial discretion should respect local decisions here.*

Two people involved in the crime that led to the death sentence was sentenced 15 years to life (second degree murder) in state court.

http://www.nytimes.com/2007/05/09/nyregion/09mbrfs-murders.html?ref=ronellwilson

[* I think this can be applied locally too. Some years back, my local prosecutor (elected by the people) refused to apply the death penalty to a local case involving a slain police officer. The governor, elected in part because he supported the death penalty, replaced him with the state attorney general, who did apply the death penalty. This was upheld in court. The person involved was killed in prison. I opposed this move at the time but honestly think the governor probably technically had the power to do it. http://www.law.cornell.edu/nyctap/I97_0217.htm]

Posted by: Joe | Feb 9, 2013 10:37:57 AM

Yet another Atkins disaster. Sadly, it will take the court forty years to overrule this monstrosity and thousands of people will came to harm because of it.

Posted by: Daniel | Feb 9, 2013 3:22:15 PM

Bill,

There was a recent nationwide poll where Americans overwhelmingly disapproved of federal marijuana prosecutions in states that have legalized marijuana. Admittedly that poll does not include medicinal marijuana prosecutions but I doubt that would change the calculus much. I think that your incredibly intellectually hypocritical on the public approval rate of the death penalty and federal marijuana prosecutions.

Link to poll:
http://reason.com/assets/db/13595247617339.pdf

Posted by: MMK | Feb 9, 2013 4:31:58 PM

**you're not your.

Posted by: MMK | Feb 9, 2013 4:32:51 PM

loved this one bill! shows how fucked up our sytem is!

"California is an illustration of the problem. In November 2010, voters rejected, by referendum, an initiative to legalize pot. But, because "medical" pot is legal under California state law, the voters' choice was in effect a nullity. Pot is ALREADY widely available for recreational use, because the so-called restrictions on the "medical" purpose of pot are simply not enforced. The whole regimen of "restrictions" is a joke."

Seems to me the first place to start "cracking down" as you call it would be on those who are not doing their jobs ENFORCING the law.

Why mess with 10,000 other people because 2,000 enforcmers are fucking off?

Posted by: rodsmith | Feb 9, 2013 8:24:06 PM

MMK --

1. Since I'm sure you wouldn't want to be hypocritical, does this mean that you support the DP's being imposed by the feds in states that have abolished it, if poll results show majority support for the DP in those states?

You seem to want to make public approval the key, and, if so, I would think you'd support the DP in jurisdictions where it has such approval (which would be virtually all of them, including, e.g., Connecticut, which recently legislatively abolished the DP despite the fact that it maintains majority support among Connecticut residents).

Do you?

2. "There was a recent nationwide poll where Americans overwhelmingly disapproved of federal marijuana prosecutions in states that have legalized marijuana."

Only two states have legalized dope, and both states still make selling dope, other than by state-authorized or licensed dispensaries, illegal.

I am not aware of a single federal prosecution in either state, since these limited legalization measures were enacted, for pot possession or sale for amounts that would not also be illegal under the states' new measures. Are you? Could you cite the cases?

If not, and if therefore the feds aren't doing any prosecutions in the two legalized states for amounts those states themselves still criminalize, I don't see how I'm being hypocritical in supporting federal prosecutions.

Posted by: Bill Otis | Feb 10, 2013 12:47:02 PM

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