Case 1:01-cr-10384-MLW Document 1833 Filed 03/24/15 Page 1 of 30
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
v.
GARY LEE SAMPSON,
Defendant.
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Crim. No. 01-10384-MLW
GOVERNMENT’S TRIAL BRIEF
By and through the undersigned Assistant U.S. Attorneys, and pursuant to the Court’s
February 25, 2015 Order, ECF Dkt. No. 1816 at ¶ 1(a), the government hereby submits its trial
brief. As the Court is aware, the government submitted a trial memorandum on July 14, 2003,
ECF Dkt. No. 230, which is incorporated herein by reference. As the government has noted on
previous occasions, with the exception of evidence regarding Sampson’s 10 years as an inmate at
USP Terre Haute, the government intends to present substantially the same case-in-chief that it
presented in 2003. To that end, unless otherwise noted herein, the government presently intends
to call the case-in-chief witnesses it called in 2003. Of course, this brief is only a summary of
the government’s expected case-in-chief (not its rebuttal case, which is unknown at this point)
six months prior to trial, and the government expects to modify and supplement its case-in-chief
as its trial preparation continues.
This brief is divided into three sections:
(I)
Changes With Respect To The Government’s 2003 Witnesses: this section
discusses 2003 case-in-chief witness who are no longer available to testify,
2003 case-in-chief witnesses whom the government does not intend to call at
the September 2015 trial, and a substitute witness and handful of additional
witnesses from 2003 whom the government intends to call in 2015;
(II)
Summary of USP Terre Haute Evidence:
this section details the
government’s presently-known case with respect to Sampson’s 10 years as an
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inmate at USP Terre Haute (hereinafter, “THP”) between 2004 and 2014, after
he was sentenced to death by the prior jury; and
(III)
I.
Anticipated Legal Issues: this section includes discussion regarding a
potential Crawford issue that the Court raised, the legal and factual basis for
the one aggravating factor that the government added to its Amended Notice
of Intent to Seek the Death Penalty, “Lack of Remorse,” and the issue of what
the Court should inform the jury regarding the procedural history of this case.
Changes With Respect To The Government’s 2003 Witnesses
A. 2003 Witnesses No Longer Available Due To Either Death Or Infirmity
a. Dennis Macedo, who testified on November 6, 2003 about his relationship
with Philip McCloskey and a conversation they had regarding a tax issue just
before Sampson murdered Mr. McCloskey, is deceased. At trial in September
2015, the government plans to either read in Macedo’s 2003 testimony, 1 or
seek a stipulation regarding same.
b. Eugene Schlosser, who testified on November 17, 2003 regarding his home in
Plymouth, Vermont (which Sampson had broken into) and the alarm system
therein, is, due to his advanced age and serious medical issues, unavailable to
testify in September 2015. The government thus plans to read in Schlosser’s
2003 testimony, or seek a stipulation regarding same.
c. Dr. James Weiner, who testified on November 10, 2003 regarding the autopsy
he conducted on Jonathan Rizzo, is deceased. As discussed below, the
government intends to call Dr. Richard J. Evans in the place of Dr. Weiner.
B. 2003 Witnesses The Government Does Not Intend to Call in 2015
a. Jose Delgado, who testified on November 18, 2003 regarding the fact that
Sampson possessed a shank in a Connecticut prison in 1994, will not be called
as a witness by the government in September 2015.
b. Edward Barrett, who testified on November 19, 2003 regarding an incident
between him and Sampson at Plymouth County Correctional Facility, will not
be called as a witness by the government in September 2015.
1
As the Court is aware, in a capital sentencing proceeding, pursuant to 18 U.S.C.
§3593(c), “information is admissible regardless of its admissibility under the rules governing
admission of evidence at criminal trials…” Nevertheless, Fed. R. Evid. 804(b)(1) provides an
evidentiary basis for the admissibility of Macedo’s (and Schlosser’s) prior sworn testimony.
2
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c. Doctor William Zane, who testified on November 6 and November 10, 2003
regarding the McCloskey autopsy, will not be called as a witness by the
government in September 2015.
d. Dr. Thomas A. Andrew, who testified on November 17, 2003 regarding the
Whitney autopsy, will not be called as a witness by the government in
September 2015.
C. Substitute Witness Related to the 2003 Case 2
a. Dr. Richard J. Evans:
As the government noted in detail in its October 20,
2014 expert notice, ECF Dkt. No. 1618, the government will call Dr. Evans,
who was the Chief Medical Examiner for the Commonwealth of
Massachusetts between 1993 and 2005, to testify regarding the autopsy of
Jonathan Rizzo. To facilitate the orderly preparation of its case, save time and
resources, and consistent with the approach taken by the government in
United States v. Bulger, which was deemed appropriate by Judge Casper, the
government also intends to have Dr. Evans testify regarding the autopsies of
Mr. McCloskey and Mr. Whitney, instead of Dr. Zane and Dr. Andrew. The
government addresses below the Crawford implications of Dr. Evans’s
proposed testimony.
D. Witnesses Not Called In 2003 Who The Government Intends To Call In 2015
The government presently intends to call five non-THP witnesses whom it did not call in
2003.
The discovery with respect to these witnesses was first produced to Sampson in
connection with the 2003 trial, then again in 2014, including, when applicable, any supplemental
discovery. In total, the government expects the proposed testimony from these five witnesses
will be approximately 60-90 minutes of direct examination. A brief summary of each witness’s
involvement in this case follows.
a. Joanna Cook:
Ms. Cook was a correctional officer at the
Woodstock Regional Correctional Center in Woodstock, VT in August
2
Deputy U.S. Marshal John Wichkam testified during the government’s rebuttal case on
December 15, 2003 regarding a December 1, 2003 incident in the cell block in which Sampson
called Wickham, among other things, “a fucking pussy,” rushed at his cell door as it was being
closed, and told Wickham to come in the cell and Sampson would kill him. The Wickham
incident occurred after the conclusion of the government’s case-in-chief in 2003, and thus was
presented during rebuttal; the government, however, intends to call Wickham during its case-inchief in September 2015.
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2001 when Sampson was housed there after his arrest in this case.
During that time, Sampson visually demonstrated to Ms. Cook how he
had strangled and knifed his victims, and told Ms. Cook, among other
things, that he “liked killing people,” and if he were ever released,
“he’d do it again.” Sampson also threatened to kill the other prisoner
in his holding cell. See, e.g., SAMPSON_2014_3704-3706; Gov’t’s
June 24, 2014 discovery letter.
b. Mary Ellen Robertson: Ms. Robertson was hired to clean the cottage
at 8 Cozy Cove Road, Meredith, NH on July 30, 2001. After arriving
at the cottage at approximately 7:45 a.m., Robertson eventually
encountered Sampson in the home, who told Robertson, among other
things, that she should come back at 2:00 p.m. Robertson later left a
voicemail for the owner of the home, Mary Boucher, regarding her
encounter with Sampson. See, e.g., SAMPSON_2014_00003429;
3684-3686.
c. Laurie Herrebrugh:
Ms. Herrebrugh was working at the
Cumberland Farms in Rochester, NH on July 29, 2001 at about 8:00
a.m. when she encountered Sampson, who had just pumped $12.75 of
gas. Sampson came into the store, stated that he forgot his wallet, and
that he was staying at a hotel in Portsmouth, NH. Sampson then stated
that he would pull up to the window so that Herrebrugh could take
down his license plate number (Jonathan Rizzo’s car), which she did.
Sampson then came back into the store and gave her the registration
for the vehicle, stating that she could keep it until he came back to pay.
Sampson then went back to his car, came back in the store, and said he
should probably keep the registration in case he got stopped. See, e.g.,
SAMPSON_2014_00002843-2845.
d. Michael J. Stender:
Mr. Stender received a call from Sampson
on July 30, 2001 to tow a gold Saturn with a New Hampshire license
plate. Sampson told Stender that the starter on the vehicle, which he
said was his father’s, was gone and that he would leave the keys in the
car.
Sampson provided Stender with the number of the Quality
Inn, where he said he was staying.
See, e.g.,
SAMPSON_2014_00007612.
e. Whitney Family Representative: as the Court is aware, the
government moved, pursuant to 18 U.S.C. § 3771, to allow victim
impact evidence from a member of the Whitney family. See ECF Dkt.
No. 1792. This motion, which must be taken up and decided by the
Court “forthwith,” §3771(d)(3), was fully briefed on February 25,
2015. See ECF Dkt. No. 1817.
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The government also intends to introduce a certain number of non-privileged jail calls
and jail letters by Sampson while he was incarcerated at the Plymouth County House of
Correction between 2001-2003. In various places in the calls and/or letters, all of which were
produced to Sampson, Sampson refers to himself as one of the most “notorious” killers in the
history of Massachusetts, brags about how famous he is, brags about how many doctors and
lawyers he has, and, among other things, makes sexually deprecating remarks about numerous
females.
According to the government’s records, there were between 15-20 stipulations at the
2003 trial, including on, among other issues, chain of custody and the reliability of DNA
evidence. See, e.g., 2003 Trial Exhibits 107-120. If Sampson refuses to stipulate in 2015 to
evidence to which he stipulated in 2003, the government will need to add a significant number of
witnesses to its case-in-chief.
II.
Factual Summary of USP Terre Haute (“THP”) Case 3
Sampson was incarcerated on the Special Confinement Unit (“SCU”) of THP, also
known as “federal death row,” 4 a maximum security federal prison, from approximately 2004 –
2014. At the September 2015 trial, the government will present evidence of Sampson’s 10 years
as an inmate at THP, during which time he amassed a significant disciplinary record consisting
of a pattern of violent behavior and hostility towards prison staff and other inmates. The THP
evidence is relevant to proving both Sampson’s future dangerousness and his lack of remorse.
3
While the government does not presently intend to put on evidence regarding Sampson’s
incarceration at the two facilities in which he has been housed subsequent to this Court’s order
transporting Sampson out of THP in 2014, it reserves the right to offer that (or other) evidence it
subsequently develops.
4
At the September 2015 trial, the government does not intend to refer to the SCU as
“federal death row.” Instead, the government intends to refer to the SCU more generically as a
maximum-security federal prison, or words to that effect.
5
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This portion of the government’s case will include, but not be limited to, evidence regarding the
conditions of confinement and daily routine at THP, including the various security and staff
protocols, as well as Sampson’s security classification and the reasons therefor, Sampson’s
educational and other relevant records, Sampson’s disciplinary events and relationships with
various THP staff, and other relevant information. As set forth in more detail below, this
evidence will consist of testimony from witnesses, and documentary, audio, and video evidence.
The government presently expects to call approximately 15-18 witnesses who are either current
employees of THP, or were employees at one time during Sampson’s incarceration there. Most
of these witnesses are short, and will testify to discrete events in which Sampson either assaulted
or threatened them. All of the THP evidence referred to herein has been produced to Sampson.
i.
General Background Regarding the SCU
The title of the individual who runs the SCU is Unit Manager. The Unit Manager has
daily to weekly contact with each inmate and is intimately familiar with the day-to-day
operations of the SCU.
Through two prior unit managers, Melissa Bayless and Michael
Stephens, and one prior case manager, Todd Royer, as well as other witnesses, the government
intends to offer evidence regarding the general living conditions on the SCU, the daily/weekly
routine, and the daily operation of the SCU.
The government will also present evidence
regarding the educational and other enrichment opportunities for inmates, security protocols
(including the difference, for example, between Phase I and Phase II inmates and one, two, and
three-man holds) and other related general information for inmates housed at the SCU. This
information is necessary context for Sampson’s numerous disciplinary events and is also
independently relevant to Sampson’s future dangerousness and lack of remorse. Through these
witnesses, the government will also offer specific evidence regarding how those various security
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protocols and procedures applied to Sampson. These witnesses will also testify, consistent with
their Jencks materials, regarding their own interactions with Sampson, any involvement each had
in any of Sampson’s various disciplinary events, including any relevant threats or statements that
Sampson made to them. For example, Sampson has made jokes to Bayless about being a serial
killer, appears proud of that fact, and has said to her, “Do you know what the definition of a
serial killer is? Me. I’m a stone cold killer.” Sampson also said to Stephens – when Sampson
was not getting the attention that Sampson thought he deserved from Stephens – “you know I’ve
killed before.”
The government intends to offer evidence regarding the various educational opportunities
available to inmates on the SCU which include: (a) GED in English and Spanish; (b) English as a
Second Language; (c) Adult Continuation Education (“ACE”) Programs; and (d) College
Correspondence Programs. See ECF Dkt. No. 1397 at 13-14. The government also intends to
offer Sampson’s educational records. These records will show that Sampson has not availed
himself in any meaningful way of any of the numerous educational (or work) opportunities
available to inmates on the SCU. See id.
ii.
Sampson’s Disciplinary Events
The government’s THP evidence will focus on a series of violent assaults and other
disciplinary incidents committed by Sampson during his 10 years on the SCU.
a. Incident With Dental Hygienist Susan Wells In 2007
Susan Wells is dental hygienist employed by THP who is responsible for, among other
things, the dental health of inmates on the SCU. Shortly after starting at THP in 2007, Sampson
came into the treatment room and demanded, “I’m going to be numb for this.” When the dentist
informed Sampson that the dentist determined whether numbing medication were necessary,
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Sampson became enraged and lunged towards them despite being in body chains. The guards
intercepted Sampson and he was returned to his cell. After this incident, Wells questioned why
she had taken the job at THP, but later came to realize this incident was not typical of her
experiences with other inmates, as she has treated every death row inmate, and more than a
thousand others in THP, and never had a single experience like this one. Sampson is the only
inmate Wells fears in the entire institution. She has gotten other hygienists to clean Sampson’s
teeth in her place. On the one occasion that Wells did again clean Sampson’s teeth after this
incident, she required that additional staff be present and Sampson’s behavior was better.
b. Sampson’s Attempted Assault Of Officer In 2008
On or about December 3, 2008, as officers were distributing ice to him, Sampson tried to
grab an officer and strike him with a broom handle. Sampson stated that he was going to get the
officer any way he could, and did not care how long it took. Sampson became increasingly
agitated, stating at one point, “Fuck you, I’ll kill all you fuckers,” and tried to break the broom
handle on his knee, but failed to do so. Sampson then tried to strike the officer again. Sampson
later admitted, in a recorded call, to trying to hit staff with a broom stick in his jail calls.
The THP recorded calls and/or excerpts of calls referred to herein will likely be
introduced through SIS Technician Jason Cruze, who is familiar with the call monitoring system
at THP. Other than calls related to specific incidents, and otherwise mentioned herein, the types
of calls that the government intends to introduce will be offered primarily as evidence of
Sampson’s lack of remorse, in which Sampson makes comments, like he did to his brother in
March 2014, in sum and substance, “I’m going to die in prison but I am going to die with a smile
on my face so this whole world … they can bury me with my face down and this whole world
can kiss my Yankee white ass.”
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c. Sampson’s Attempted Stabbing Of Officer James Hughes in 2011
Material Handling Supervisor Rick LeDune, who has been employed by BOP since 1994,
operates the commissary at THP. LeDune will explain the operation of the commissary system
on the SCU generally, and Sampson’s use of commissary specifically. Sampson’s commissary is
generously funded almost exclusively by his current and former attorneys.
See, e.g.,
SAMPSON_2014_00010677 – 10678. Sampson is regarded by THP staff as one of the inmates
who receives the largest amount of commissary on the SCU. 5
On May 11, 2011, Supervisor LeDune was delivering commissary on the SCU when he
heard Material Handler Supervisor James Hughes, whom he described as “laid back,” explaining
a situation regarding a special purchase order to Sampson. LeDune heard Sampson become
increasingly agitated, and shouting profanities at Hughes.
LeDune then observed Hughes
proceed to deliver commissary to Sampson, and heard Sampson shouting, “this is a bunch of
fucking bullshit.” LeDune witnessed Hughes jump backwards away from the food slot as
Sampson was attempting to assault Hughes with a sharp pointed broomstick. LeDune, who has
never experienced another incident like this in 20 years at THP, observed Sampson’s arm was
extended through the food slot, with the broken broomstick in his hand, as he was attempting to
stab Hughes. Sampson then threw the broomstick, “javelin-like,” out of the cell in the direction
of SCU Councilor John Edwards. Edwards, who said that if things do not go Sampson’s way, he
acts out, eventually secured Sampson’s food slot along with other officers. During this time,
Sampson yelled at Edwards, “get the fuck away,” and said, “I’ll kill you, you fucking bitch,” and
5
As just two examples, Sampson purchased $206.35 in commissary on September 19,
2011, which included over 70 items, and Sampson purchased $134.70 in commissary on January
22, 2013, which included over 75 items.
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challenged Edwards to come inside the cell. Edwards noted that if he ever did open Sampson’s
cell door, he would fear for his safety.
Material Handler Supervisor James Hughes, who has worked in the commissary since
2005, noted that Sampson is one of two inmates in the entire facility about whom new staff are
warned when they start. Sampson was also described by former Unit Manager Todd Royer as
one of the two most belligerent inmates on the SCU, and someone who is “extremely threatening
if he doesn’t get his way.” 6 Sampson always tests new staff to see what he can get away with.
During commissary delivery on May 11, 2011, Hughes stopped to talk to Sampson about his
commissary order. As Hughes began explaining the problem to Sampson, Sampson got mad and
started going off, screaming at Hughes. Hughes was not going to deliver any commissary to
Sampson because he was upset, but Sampson then stopped and looked Hughes in the eyes.
Hughes asked Sampson if he had calmed down and Sampson said yes.
As Hughes was delivering commissary to Sampson, Hughes saw Sampson put something
red behind his back. Sampson waited for Hughes to step closer and then Sampson attempted to
stab at Hughes and later threw the object down the range. During this incident, Sampson yelled
at Hughes, “I’ll kill you.”
Hughes stated that the object was a broken broomstick.
The
broomstick was broken at an angle to a point. Hughes said that if he had not seen Sampson put
something behind his back, he would have been stabbed. Since this incident, with one exception
(when he was accompanied by an SCU counselor), Hughes stopped delivering commissary to
6
For example, in August 2006, Sampson became upset with a correctional officer who was
passing out lunch because there was not a meat entrée with his meal, at which time the officer
informed Sampson that he would go back and look at the food cart. Sampson then threw his tray
at the officer through the food slot and said, “get the fuck off the range.” The officer then
returned with a can of sardines for Sampson, which he threw out of his food slot onto the range.
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Sampson.
Sampson is the only inmate in THP to whom Hughes has stopped delivering
commissary.
The government will introduce the video recording of this incident at trial.
d. Sampson Threatens Councilor John Edwards In January 2012
On or about January 20, 2012, staff heard a loud banging noise coming from the lower
range of the SCU. Sampson was then observed kicking on the door. When questioned, Sampson
yelled, “where is my fucking ice?” Sampson was then instructed to return to his cell by
Councilor Edwards, to which Sampson replied, “come on this fucking range and make me your
bitch, let me out there where there are no cameras and I’ll beat your ass.”
e. Sampson’s February 2012 Threat To Kill A Guard
On or about February 6, 2012, Sampson, in a properly monitored call, was complaining
to one of his attorneys about a medical issue. During that conversation, Sampson stated, “What
do I need to do to get someone to listen to me. Come through the frigging food slot and fucking
slay one of these sons-of-bitches? Actually kill one this time. To get people to listen to me? If
that is what I need to do, I don’t have a problem with it. As soon as they open this door. Killing
someone is not a problem for me.”
f. Sampson Makes Racial Slur And Threatens To Kill A Black Inmate
On approximately February 22, 2013, as Sampson was being escorted by officers back to
his cell, a black inmate said to Sampson, “are you doing being a rat,” to which Sampson replied,
“I got nothing but time to kill you nigga.”
g. Sampson’s Assault Of Officer Larry Tindall In July 2013
In or about July 2013, Senior Officer Larry Tindall and another officer were walking
around the SCU passing out ice to the prisoners when Sampson yelled out his food slot, “heard
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one of you bitches got beat up on the range today,” and “you’re a bunch of pussies.” Tindall
responded to Sampson, “Nobody’s trying to hear that today Sampson, do you want some ice?”
Tindall was aware that there had been some type of incident at the prison that day where an
officer was head-butted by a prisoner, but Tindall did not know how Sampson knew this
information. Tindall was aware that Sampson had a history of taunting the guards and assumed
that Sampson was trying to impress the other inmates by attempting to engage Tindall with
verbal abuse. After the above-described ice incident ended, Sampson stated to Tindall, “I’m
gonna kill you if I get a chance.”
On the next day, or shortly after the above verbal disagreement, as Sampson was
returning from his recreation time, Sampson complained, “this motherfucker [referring to
Tindall] is out here again? This is bullshit that I have to put up with this guy.” As Sampson was
being escorted by Tindall and other guards, Sampson continued to verbally harass Tindall, until
Sampson pulled away from the guards, and jumped over and attempted to head-butt Tindall.
Tindall and the other guards then took Sampson down to the floor where Sampson was
continuing to fight by kicking at the officers. Sampson kicked Tindall in the head, stating, “just
get that red-headed piece of shit away from me.” During the assault, Sampson also said to
Tindall, “I have Hep C, and I hope you take that home to your boyfriend, you fucking faggot.”
Senior Officer Gregg Slaton believes that Sampson, whom he described as “calculating” and
someone who regularly yells insults at guards and racial slurs at black inmates, would have killed
Tindall if he had the chance.
After the assault, Sampson told the investigating lieutenant, “I did it. I admit it, I’ll get
him when I get a chance.” A day or two after the incident, Sampson warned Councilor Tracy
Joslyn – who described Sampson as “manipulative,” one of the five most aggressive inmates on
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the SCU, and someone who constantly made racial comments and threats to the black inmates –
that the incident with Tindall was not over and Sampson would continue to try to get Tindall.
Sampson also admitted to this incident in a recorded jail call shortly thereafter in which he said,
referring to Tindall, “he cut his ear … he has swelling on his right forearm.” Sampson also said,
“so I kicked him in the ear, and kicked him in the forearm when he was trying to block me.”
While there is no video of this actual incident, there is video of the aftermath of the incident,
which the government will introduce, as well as other potentially-related evidence.
h. Sampson’s February 2014 Threat To Stab Physician’s Assistant Mata
THP Senior Officer Greg Wheeler describes Sampson as “highly manipulative,”7
someone who, “if he doesn’t get what he wants, gets mad,” and someone with whom Wheeler is
“always on [his] toes.” Wheeler has also observed Sampson regularly verbally abuse and
threaten other inmates and correctional staff, particularly the black inmates, whom Sampson
taunts in racial terms. On February 13, 2014, Wheeler went to Sampson’s cell to notify Sampson
that Physician’s Assistant Heather Mata was at the SCU to tend to Sampson’s medical issues.
Sampson wanted to know where his wheelchair was. Wheeler noted that Sampson began talking
7
The government will offer evidence that Sampson attempts to manipulate staff to get
what he wants. This evidence will include, but not be limited to, an incident in which Sampson,
knowing his phone call was being monitored, claimed to have a sharpened object in his cell and
was threatening to use it to harm someone else or himself. This resulted in Sampson being
removed from his cell, at which time Sampson stated that he knew he would get prompt action
(which he claimed to want for a medical issue) from staff as a result of making the threat on the
phone. The government will also offer evidence of Sampson requesting medical ice, claiming it
was for his knees, when in fact he was using it to cool down his large stockpile of soda. When
the staff realized this, prison medical personnel put soap in Sampson’s medical ice so that it
would be used solely for its intended purpose. When Sampson realized there was soap in his ice,
he angrily notified the officers, “if you’re gonna put soap in the ice, get rid of this sheet
[referring to the paper ice order on his cell door],” and “I don’t want that wheelchair now.”
Sampson has also stated in recorded calls that he is “careful” about what he tells the prison
psychologist.
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about getting a wheelchair “all of the sudden” about a month ago [referring to January 2014],
and that in his opinion, Sampson had no issues walking.
When Sampson arrived to see Mata, he appeared agitated and demanded that he be
assigned a wheelchair due to his arthritic knees. 8 Mata advised Sampson that the treatment plan
for his knees was exercise and an injectable lubricant, that a wheelchair would only worsen his
condition, and that Mata was not authorized to issue wheelchairs to the inmates in any event.
Sampson responded to Mata, “Don’t get snarky with me, you don’t understand” and “You’re
giving me sub-level treatment because I’m on death row.” Sampson then became enraged, got
red in the face, and began swearing at Mata, saying, “you don’t fucking care! You’re fucking
with us because of where we are!” Mata asked Sampson not to talk to her in such a manner, but
she continued to offer the injection to him. Sampson then told the officers, “next time I’ll bring a
knife and cut one of you motherfuckers, we’ll see how you like that,” “you better get me out of
here or I’m going to tear the place apart.
If I don’t get what I want, I’m going to stab
somebody.” Mata, who has been employed at THP since 1996, stated that this was the only
threat she has ever received from any inmate whom she has treated at the prison.
As a result of this incident, Mata was in fear of Sampson. In spite of this fear, Mata
agreed to give Sampson an injection at his next appointment, as long as additional staff members
were present, because she wanted to show Sampson that he did not scare her. Mata told the
correctional officers prior to the injection, “please make sure I walk away from the injection.”
Mata stated that Sampson is volatile, particularly when he is told something he does not want to
8
According to Mata and Wheeler, Sampson only wanted the wheelchair to engender
sympathy for his upcoming court appearances.
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hear, or does not get his way. The government also intends to introduce a March 5, 2014 letter
Sampson wrote to his case manager regarding this incident and other related correspondence. 9
i. Sampson Twice Attempts To Loosen His Restraints in 2014
There are approximately 500 attorneys cleared to visit the approximately 57 inmates on
the SCU, and, according to THP staff, Sampson has more attorneys and legal team members than
most, if not all, of the other inmates. In a recorded call, Sampson has bragged that he had a
“bigger legal team than OJ, a better team.” In early 2014, during a legal visit, at Sampson’s
request, one of his attorneys adjusted Sampson’s restraints in violation of THP policy. On or
about June 30, 2014, Sampson was pulled out of the visiting room with his attorneys and was
furious. While wearing wristbands during the meeting with a defense investigator, Sampson had
asked the defense investigator to adjust his restraints, which the investigator declined to do based
on the earlier incident in which one of Sampson’s attorneys loosened his restraints. This enraged
Sampson, who yelled, “Shut the fuck up, I’m paying you,” at which time Sampson was removed
from the room and said, “Fuck it, I’m done, take me back to my cell.” While in the visiting room
with the defense investigator, it appeared that Sampson had attempted to get his restraints over
his wristbands, because when his restraints were later checked by officers, a finger could fit
between the restraints and Sampson’s arms, creating a significant security issue.
9
The government will also introduce limited other jail correspondence by Sampson,
including, but not necessarily limited to, letters Sampson wrote to various THP staff in which he
requested an increase to his commissary limit, complained to the warden that THP was selling
inmates “generic [commissary] products at brand name prices,” asked that the SCU get another
handball court, requested a color television, noting that the black and white TV was “hard on my
old eyes,” and asked for permission to get a cat as a pet.
15
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j. Sampson’s May 2014 Incident With Staff And His Attorneys
On or about May 12, 2014, Unit Manager Bayless was summoned by Sampson to a
meeting he was having with his lawyers. Prior to being summoned by Sampson to this meeting,
Bayless had heard Sampson screaming obscenities at unit staff while walking to the conference
with his attorneys. Also prior to entering the meeting, Bayless was told that Sampson had asked
an officer to loosen his handcuffs, asking the officer if the officer had ever tried to do legal work
with cuffs on. Sampson then became angry and lunged at the officer, yelling a barrage of
obscenities and “take these cuffs off and let’s go.” Bayless said it is a regular occurrence for
Sampson to threaten staff on the SCU, and she considers him a more significant security risk
than other inmates.
When Bayless entered the meeting with Sampson, Sampson said, “Fuck that officer, fuck
him, he’s provoking me.” Bayless advised Sampson that she did not feel that the officer’s
answer to Sampson’s demand to loosen his handcuffs was provocative. Sampson told Bayless
that he wanted to fight the officer and admitted to lunging at him. Bayless admonished Sampson
in front of his lawyers regarding the negative consequences of his behavior, at which point
Sampson’s lawyers told him that he should, “listen to Ms. Bayless.” This comment by his
attorneys angered Sampson, who responded to his lawyers, “I’m talking to Ms. Bayless, if you
want to continue to work with me, you’re going to have to shut your mouth.” Sampson angrily
repeated this admonishment two or three additional times to his attorneys.
Sampson asked Bayless if this incident was going to be written up by the staff, to which
Bayless later advised him that the staff had decided not to write up a report on the incident, and
Sampson thanked her.
16
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III.
Legal Issues
a. There Are No Crawford Issues With Respect To Dr. Evans’s Proposed Testimony
At the December 5, 2014 hearing, in response to the government’s expert filing in which
it noted that it intended to call Dr. Evans as an expert witness, the Court stated, “…I think that
there may be some Crawford issues embedded in that. I understand that Justice Cordy in
Commonwealth v. Nardi, 893 N.E. 2d. 1221, talked about some of these …So you want to take a
look at those questions.” See 12/5/2014 Tr. at 25.
For the reasons set forth herein, and
consistent with Judge Casper’s decision in United States v. James Bulger – which, of course was
with respect to guilt, not punishment – allowing “in all respects” the government’s motion for
Dr. Evans to testify in a similar manner, Dr. Evans’s proposed testimony does not violate
Crawford. See Bulger, 99-10371-DJC, ECF Dkt. No. 981.
As the government initially stated in its October 20, 2014 expert disclosure, in which it
also provided a copy of Dr. Evans’s curriculum vitae:
the government expects Dr. Evans to testify, in sum and substance: (a) that
he reviewed certain documents, e.g., the autopsy report, crime scene
photos, medical examiner notes, police reports, and other relevant
information; 10 (b) that, based upon his own personal review of those facts
and data, he formed an opinion as to, among other things, the significance
of the injuries to Jonathan Rizzo and Mr. McCloskey, and the cause of
their deaths; and (c) his opinion, consistent with the underlying
documents, regarding the significance of the injuries to Jonathan Rizzo
and Mr. McCloskey, as well as the cause of their deaths.
See ECF Dkt. No. 1618. As noted herein, the government also intends to elicit expert opinion
testimony from Dr. Evans regarding Mr. Whitney’s death. The government expects to offer
10
Fed. R. Evid. 703 states, “If experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they need not be admissible for the
opinion to be admitted.” All of the documents upon which Dr. Evans will rely to form his
opinions were produced to defendant in discovery and will either be offered as evidence (crime
scene photos, medical examiner photos, etc.) or marked for identification (autopsy reports,
medical examiner notes, etc.).
17
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through Dr. Evans the same exhibits that were admitted through Doctors Weiner, Zane, and
Andrew.
In cases where a new expert testifies about his own conclusions based on a review of the
underlying data, the First Circuit has held that such expert testimony does not violate the
Confrontation Clause:
Where an expert witness employs her training and experience to forge an
independent conclusion, albeit on the basis of inadmissible evidence, the
likelihood of a Sixth Amendment infraction is minimal. See United States
v. De La Cruz, 514 F.3d 121, 134 (1st Cir. 2008) (holding that the
Confrontation Clause does not limit experts offering their own opinion
regardless of the independent admissibility of the material relied upon)…
United States v. Ramos-Gonzalez, 664 F.3d 1, 5 (1st Cir. 2011); accord United States v. Soto,
720 F.3d 51, 59-60 (1st Cir.) (similar), cert. denied, 134 S. Ct. 336 (2013). 11 Notably, in De La
Cruz, the First Circuit found no error in the district court’s decision to allow the Chief Medical
Examiner of New Hampshire, who “did not himself perform the autopsy on [the victim’s] body
or conduct any toxicological tests or investigate at the scene,” to testify as to cause of death,
basing his conclusions on “police reports, crime scene photographs, and autopsy and toxicology
reports, all of which were prepared by other individuals.” De La Cruz, 514 F.3d at 132. 12
11
Although Ramos-Gonzalez found a Confrontation Clause violation because the
government’s witness “did not provide his independent expert opinion as to the nature of the
substance in question,” but rather “simply parroted the conclusion of [the non-testifying expert’s]
report,” 664 F.3d at 6, Dr. Evans will provide his own independent expert opinion. In addition,
Sampson will have the opportunity to cross-examine Dr. Evans on his qualifications,
methodology and opinions – even though, as the Court is aware, the scope of Dr. Evans’s
proposed testimony relates to issues that are not seriously in dispute. Moreover, RamosGonzalez is important because it approvingly cites De La Cruz as good law even after the
Supreme Court’s decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and
Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).
12
In De La Cruz, the First Circuit held that, “[a]n autopsy report is made in the ordinary
course of business by a medical examiner who is required by law to memorialize what he or she
saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and
18
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b. Lack of Remorse Is An Appropriate Aggravating Factor
In its Amended Notice of Intent to Seek the Death Penalty, filed on March 31, 2014, ECF
Dkt. No. 1326 (hereinafter, “2014 Notice”), the government added one non-statutory aggravating
factor to its 2002 Notice.
Specifically, with respect to Mr. McCloskey, 13 the government
alleged:
Lack of Remorse: The defendant, Gary Lee Sampson, has not expressed
genuine remorse for killing Philip A. McCloskey, as demonstrated by,
but not limited to, Sampson’s subsequent killings of Jonathan M. Rizzo
and Robert “Eli” Whitney and the carjacking of William Gregory
following the killing of Philip A. McCloskey, Sampson’s statements to
law enforcement agents, prison officials, and others following the
offenses alleged in the Second Superseding Indictment, and Sampson’s
pattern of violent, disruptive, and non-remorseful behavior, both in prison
and in court, since his arrest and incarceration for the offenses alleged in
the Second Superseding Indictment.
See id. at 5.
Lack of remorse is an appropriate non-statutory aggravating factor under §3593 and the
Constitution. See Zant v. Stephens, 462 U.S. 862, 886, n. 22 (1983) (noting that Georgia uses
“lack of remorse” as one of many aggravating factors and that “[a]ny lawful evidence which
tends to show the motive of the defendant, his lack of remorse, his general moral character, and
his predisposition to commit other crimes is admissible in aggravation, subject to the notice
provisions of the statute.”). In United States v. Caro, 597 F.3d 608 (4th Cir. 2010), an FDPA
case, the Fourth Circuit held that while a defendant’s silence may not be held against him, lack
contemporaneous reporting of a series of steps taken and facts found by a medical examiner
during an autopsy. Such a report is, we conclude, in the nature of a business record, and business
records are expressly excluded from the reach of Crawford. Id. at 133. The Second Circuit
reached a similar conclusion two years earlier. See United States v. Feliz, 467 F.3d 227 (2d Cir.
2006). Commonwealth v. Nardi, 893 N.E. 2d. 1221 (Ma. 2008) is not inconsistent with any of
the binding First Circuit cases cited herein.
13
The allegation was substantially the same with respect to Jonathan Rizzo. See id. at 8.
19
Case 1:01-cr-10384-MLW Document 1833 Filed 03/24/15 Page 20 of 30
of remorse is an appropriate aggravating factor if it is proven “by [the defendant’s] actions and
statements, not by mere silence.” Caro, 597 F.3d at 627-631. Because Caro’s “affirmative
conduct displaying lack of remorse was significant and telling,” id. at 631, lack of remorse did
not violate the Constitution. See also, United States v. Basham, 561 F.3d 302, 334 (4th Cir.
2009) (deeming evidence of drug use and sexual encounters during a crime spree highly
probative of lack of remorse); Emmett v. Kelly, 474 F.3d 154, 170 (4th Cir. 2007) (holding that a
statement, made in response to police questioning about a murder, that the victim “was ‘an
asshole’ who ‘wouldn’t loan me no money’” showed lack of remorse). 14
Following the same rationale as Caro, federal district courts have routinely rejected
challenges to lack of remorse where, as here, the government’s evidence of the factor consists of
a defendant’s affirmative statements and conduct.
See United States v. Pleau, 2013 WL
1673109, *6 (D.R.I. Apr. 17, 2013) (approving factor alleging defendant’s lack of remorse was
“indicated by his actions following the killings, and his statements to his accomplices and to law
enforcement agents”); 15 United States v. Johnson, 915 F. Supp.2d 958, 999 (N.D. Iowa 2013) (“I
have found no controlling or persuasive authority that ‘lack of remorse’ can never be a freestanding ‘non-statutory aggravating factor,’ and, to the contrary, I have found authority that it
14
In United States v. Mikos, 539 F.3d 706 (7th Cir. 2008), the Seventh Circuit approved of
lack of remorse as a stand-alone aggravating factor in even broader terms than the Fourth Circuit
in Caro. The Mikos court, using non-capital sentencing guidelines to illustrate its point,
explained that it is proper for prosecutors to comment upon a defendant’s failure to show
remorse through a confession or guilty plea. See Mikos, 539 F.3d at 718. The court further
explained that affirmative statements, such as bragging about one’s criminal escapades, are not
“the only way to show the absence of remorse.” Id. at 719.
15
Pleau also distinguished Pope v. State, 441 So.2d 1073 (Fla. 1983), noting that Pope “is
unpersuasive to the extent it conflicts with the clear consensus of federal courts.” Pleau, 2013
WL 1673109 at *6, n. 5.
20
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can be a free-standing ‘non-statutory aggravating factor.’”); 16 United States v. Casey, No. 05277, 2012 WL 6645702, *4-*5 (D.P.R. Dec. 20, 2012) (denying motion to strike “lack of
remorse”); United States v. Umana, 707 F. Supp.2d 621, 636-37 (W.D.N.C. 2010) (denying
motion to strike lack of remorse factor and explaining, “upon reading the sub-factor in its
entirety, it seems clear that the government intends to offer only affirmative statements made by
the defendant to others to prove his lack of remorse”); United States v. Rivera, 405 F. Supp.2d
662, 673 (E.D. Va. 2005) (denying motion to strike lack of remorse factor on Fifth Amendment
grounds where the government had “clarified that it does not intend to rely on Mr. Rivera’s
silence to show his lack of remorse, instead choosing to focus on transcripts of phone
conversations and the defendant’s own words, where he expresses desire for revenge against
government informants and happiness upon learning of Ms. Paz’s murder”); United States v.
Cooper, 91 F. Supp.2d 90, 112-13 (D.D.C. 2000); United States v. Nguyen, 928 F. Supp. 1525,
1541-42.
These cases clearly demonstrate that lack of remorse is a valid non-statutory
aggravating factor that may be presented in federal capital cases.
As in Caro, and the other cases cited above, the government in this case does not intend
to prove Sampson’s lack of remorse factor by commenting upon, or eliciting evidence of, for
example, Sampson’s refusal to sincerely apologize for his crimes, or his decision to take this case
to trial.
Rather, the government intends to prove this factor by introducing evidence of
Sampson’s affirmative conduct and statements, as set forth in the 2014 Notice, and which
includes, but is not limited to, the pattern of conduct and behavior described herein.
16
The district court in Johnson distinguished several cases, including United States v.
Davis, 912 F. Supp. 938 (E.D. La. 1996), finding that Davis merely held that lack of remorse was
not a proper free-standing aggravating factor in that case, due to various factual distinctions. See
Johnson, 915 F. Supp.2d at 996-999.
21
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c. The Court Should Briefly Explain The Procedural History Of This Case During
Jury Selection
The Court has raised with the parties on numerous occasions the issue of what, if
anything, the Court should tell the 2015 jury regarding the procedural history of this case, and
specifically, whether the Court should tell the 2015 jury that Sampson was previously sentenced
to death, but that sentence was later vacated. Specifically, on November 12, 2014, the Court
stated, “There’s a challenging issue here that I raised before as to whether the jury should know
that Mr. Sampson was sentenced to death previously in a flawed jury trial, so it got vacated.
Because, I said this before, A, I’m concerned if they aren’t told and then instructed by me, some
of them may know, some of them may speculate. If they see Dr. Welner, for example, for the
second time, “Didn’t you say in 2003…” See 11/12/2014 Tr. at 99. Later at that hearing, the
Court expressed its tentative view that it would need to tell the jury about the procedural history
of the case, commenting:
This is an iterative process, but at the moment, I wouldn’t just tell them it
was an error. I would tell them that the jury trial didn’t have the integrity
that jury trials generally are required to have and are especially important
in a death penalty case, and because the whole jury process in 2003 was
flawed, we have to do this all over again with a lot -- with a whole set of
new jurors, with a lot of new evidence, and that it would be improper for
them to take into account or be influenced in any way by the fact that an
unconstitutional process previously came to this conclusion. Something
along those lines.
And there is some analogy, it’s a helpful one for me to begin to think
about, to pretrial publicity. In other words, the standard isn’t to find jurors
who have never heard anything about the case but to find jurors that
ultimately I’m satisfied can put that aside and won’t be influenced by it.
See id. at 101-102.
Sampson’s murder spree in 2001, his trial and death sentence in 2003 and 2004, this
Court’s vacatur of that verdict in 2013, the pending retrial of this case have all been well-
22
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publicized. For example, a search of only the Boston Globe archives from the day after the
original sentence through November 7, 2014 reveals 102 articles about Sampson, 17 including two
front-page stories about the sentence, 18 five other front-page articles that at least mention the
sentence or subsequent overturning of it, 19 15 articles on the front of the metro section, 20 and one
each on the front of the sports and business section, 21 the vast majority of which mention either
the previous sentence or the fact that it was thrown out. A Lexis search of Boston Herald
archives, which only goes back to the spring of 2004, reveals 58 more articles. Indeed, the
procedural history is, at this point in 2015, probably the single most well-known thing about this
case; because it frames the case for an uninformed reader, even inconsequential references to
Sampson in articles about other high-profile cases, like Tsarnaev and Kosilek, often mention the
procedural history of Sampson. 22
17
http://pqasb.pqarchiver.com/boston/results.html?st=advanced&QryTxt=%22gary+sampson%2
2+or+%22gary+lee+sampson%22&sortby=CHRON&datetype=6&frommonth=12&fromday=24
&fromyear=2003&tomonth=11&today=14&toyear=2014&By=&Title=&type=current&start=0
18
See Boston Globe on November 5, 2004; December 24, 2003.
19
See id. on January 27, 2004; November 5, 2012; April 24, 2013; and April 6, 2014.
20
See id. on December 25, 2003; January 7, 2005; May 1, 2005; August 30, 2010; August 31,
2010; April 18, 2011; October 21, 2011; September 29, 2013; December 21, 2013; December 30,
2013; January 8, 2014; January 22, 2014; March 10, 2014; March 19, 2014; and September 25,
2014.
21
See id. on March 20, 2007; May 11, 2007.
22
See, e.g., Milton J. Valencia, US cites enormity of April attack in seeking Tsarnaev’s
execution, Boston Glove, Jan. 31, 2014 (“Holder’s decision means that the federal court system
in Massachusetts will have two pending death penalty cases. The US is also seeking capital
punishment for Gary Lee Sampson, an admitted serial killer. A federal jury agreed to issue the
death sentence for Sampson in 2003, but a federal judge vacated that decision in 2011, after
finding that one of the jurors withheld information. Prosecutors are seeking the death penalty in
a new trial.”); Milton J. Valencia, Judge orders Mass. to pay for inmate’s sex-change surgery,
Boston Globe, Sept. 5, 2012 (“Wolf, who was nominated to the bench by President Reagan in
23
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Because it may be difficult to prevent the 2015 jury from learning the procedural history
of this high-profile case, the government proposes that this Court follow the precedent set by
United States v. Wilson, also a high-profile penalty-phase capital re-trial, in the Eastern District
of New York in July 2013, and inquire in the juror questionnaire – without emphasizing –
whether the decision of the 2003 jury would prevent jurors in 2015 from being fair and impartial.
i. This Court Has The Authority To Ask Jurors If The Procedural
History Of The Case Would Prevent Them From Being Fair and
Impartial
It is well established that the trial court has wide discretion in how to conduct voir dire in
order to impanel an impartial jury. See, e.g., Rosales-Lopez v. United States, 451 U.S. 182, 189
(1981) (“Because the obligation to impanel an impartial jury lies in the first instance with the
trial judge, and because he must rely largely on his immediate perceptions, federal judges have
been accorded ample discretion in determining how best to conduct the voir dire.”) Aldridge v.
United States, 283 U.S. 308, 310 (1931) (“In accordance with the existing practice, the questions
to the prospective jurors were put by the court, and the court had a broad discretion as to the
questions to be asked.”) This is true in capital cases as well. United States v. Sampson, 486 F.3d
13, 39 (1st Cir. 2007); see also United States v. Orlando-Figueroa, 229 F.3d 33, 44-45 (1st Cir.
2000) (Trial courts must conduct voir dire within “the essential demands of fairness.”).
In Grogan v. United States, the Fifth Circuit explicitly held that informing jurors of a
previous proceeding in order to determine if they can be impartial is acceptable and sometimes
prudent:
1985, has been known for issuing controversial rulings based on law, but that often go against
public opinion. He was the judge, for instance, who ordered a retrial last year in the sentencing
of convicted serial killer Gary Lee Sampson, after finding that a juror withheld information about
his past.”).
24
Case 1:01-cr-10384-MLW Document 1833 Filed 03/24/15 Page 25 of 30
On voir dire examination of the jury for the second trial, the court
informed the prospective jurors that a previous trial had ended in a mistrial
and inquired of them if they had any knowledge of the proceedings at that
trial. Appellant claims that the court, in effect, told the second jury that
some members of the first jury believed appellant to be guilty. The court
has a broad discretion as to the questions to be asked on voir dire. Bellard
v. United States, 356 F.2d 437 (5th Cir. 1966). The information sought by
the judge was relevant to the qualification of the jurors and, therefore, we
find no abuse of discretion by the district court.
394 F.2d 287, 291 (5th Cir. 1967).
The case of United States v. Wilson is strikingly similar to Sampson. In 2003, Wilson
murdered two NYPD officers. In December 2006, a jury found Wilson guilty and, in January
2007, sentenced him to death. In 2010, the Second Circuit affirmed Wilson’s conviction, but
vacated his sentence. The government retried the case in 2013 which, like the Sampson re-trial
will be, was more than ten years after the crimes were committed.
Like Sampson, the Wilson case received considerable media coverage. A Lexis search
from the day the first jury sentenced Wilson to death, through the date the juror questionnaire for
the resentencing was filed with the court, reveals 31 New York Times articles, including frontpage stories on the day after the death sentence and the day after the subsequent reversal, 23 40
New York Post articles, including a front-page that simply said “Fry Baby” with a picture of
Wilson,24 and 60 New York Daily News articles, including a front-page headline the day after the
death sentence that proclaimed, “Dead Right.” 25 Like Sampson, the vast majority of the Wilson
post-reversal articles noted, often with the first mention of Wilson’s name, that he had been
previously sentenced to death. Indeed, almost every article after the Second Circuit overturned
the original sentence mentioned that fact. Faced with an almost identical set of circumstances,
23
24
25
New York Times on January 31, 2007; April 1, 2010.
New York Post on January 31, 2007.
NY Daily News on January 31, 2007.
25
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the Wilson Court decided that a minimal explanation of prior procedural history, followed by
probing questions as to whether that history would prevent a potential juror from being impartial,
was the proper way to ensure a fair trial.
Faced with the above circumstances, during the resentencing voir dire in 2013, the court
in Wilson included a basic level of information in the questionnaire about the procedural history
of the case. The questionnaire stated, in pertinent part:
This juror questionnaire is part of the process of selecting a sentencing
jury in a federal criminal case in which the jury will determine whether to
punish the defendant, Ronell Wilson, by imposing a sentence of life
imprisonment without the possibility of release or a sentence of death.
In March of 2003, Ronell Wilson killed NYPD Police Detective James V.
Nemorin and NYPD Police Detective Rodney J. Andrews. The police
officers were working undercover when they were shot in the back of the
head while seated in the front seats of a car during a gun sale.
In December of 2006, Ronell Wilson was found guilty of two counts of
intentional murder. A sentencing proceeding was then held in which the
jury sentenced Ronell Wilson to death on January 30, 2007. After these
proceedings were held, the death sentence was overturned due to errors.
The jury selected in this new sentencing proceeding will determine
whether Ronell Wilson shall be sentenced to life imprisonment without the
possibility of release or be sentenced to death.
See United States v. Wilson, 04-CR-1016(NGG), ECF Dkt. No. 1051 at 4.
This basic background information allowed the court to later inquire about potential
biases from these two events in Question 32 of the Wilson questionnaire:
32.
As noted above, the media has reported that in 2007, Ronell
Wilson was found guilty of two capital murders and sentenced to
death. In 2010, an appeals court overturned the death sentence.
a) What are your thoughts, if any, about the fact that Ronell
Wilson was previously sentenced to death?
b) What are your thoughts, if any, about the fact that this death
sentence was overturned by an appeals court?
Id. at 10.
26
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ii. Due To The Media Coverage Of Sampson’s Case, The
Considerable Time Lapse Between Sampson’s Crimes And The
2015 Re-Trial, And The Unique Procedural Mechanisms Involved
In A Federal Death Penalty Resentencing, Inquiring About
Potential Biases Due To The Prior Jury’s Verdict And The
Subsequent Reversal Is Not Only Prudent, It May Be Necessary.
As this Court has stated on numerous occasions, in order to avoid having to repeat this
process a third time, the importance of having a fair and just resentencing is particularly high.
Based on the history of this case, selecting an unbiased jury, and ensuring that jury only
considers the proper evidence, is of paramount importance. In light of the publicity Sampson has
received, it will be very difficult to empanel 18 jurors who will not, by the time deliberations
begin, be aware that a prior jury sentenced Sampson to death, and that sentence was
subsequently overturned. As such, this Court should take the precaution of querying potential
jurors about any biases regarding those two events in order to remain in control of the process
and mitigate potential mistrial or appellate issues.
The court no doubt plans to question jurors broadly about their knowledge of the case and
excuse those who cannot put aside prior knowledge. While such a safeguard is valuable, here it
is inadequate unless it also includes the case’s procedural history. First, it is probable that jurors
with limited knowledge of the case, well within the bounds of what the Supreme Court has
deemed permissible, see, e.g., Skilling v. United States, 561 U.S. 358, 381 (2010), will know
some or all of the procedural history because it has been so widely reported. Thus, inquiring of
those jurors about that knowledge is more likely to cure a potential bias than create one.
Second, the unique mechanisms of a federal death penalty case dictate that even those
jurors with a minimal understanding of the criminal justice system will logically deduce the
procedural history of this case before beginning their deliberations. For instance, jurors will
know that Sampson is guilty of capital murder and they will know that more than 14 years will
27
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have passed between the murders and the September 2015 trial. Jurors will also know that
Sampson has been in prison that entire time at THP (a federal prison), and, as 2015 witnesses are
(presumably) impeached with any inconsistencies in their 2003 testimony, as medical experts
refer back to testing that was done in 2003, jurors will undoubtedly learn that there was a
previous trial. To that same end, this Court will instruct the 2015 jury that in a federal death
penalty sentencing trial, if a single juror believes that Sampson should get a sentence of life, life
without possibility of parole is the jury’s verdict – in other words, there is no hung jury. Those
facts, coupled with the logical inferences derived therefrom and the considerable media attention
this case has generated, will inevitably lead at least one (and probably most) juror(s) to conclude
that Sampson previously received a death sentence.
If even one juror makes this logical deduction, it is foreseeable – or at least possible –
that he or she would factor it into his or her own deliberations and/or share it with other jurors,
who might then consider it themselves during deliberations. Accordingly, the most prudent
course is to, like the court in Wilson, briefly alert the jury to the procedural history of the case
during voir dire, inquire as to whether that creates any biases, and then, if necessary, further cure
any issue with an instruction during the jury charge. The alternative option – not mentioning
anything about the procedural history – would be incredibly cumbersome, would require
extensive individual voir dire and would not prevent the issue from coming up during the trial or
deliberations, or in an appeal or 2255 years after the fact in any event. 26
26
The government is presently aware of only one other federal penalty-phase retrial before
a jury, United States v. Barnette, 644 F.3d 192, 196-198 (4th Cir. 2011) (discussing factual and
procedural history of case), which involved a double murder in Charlotte, North Carolina and
Roanoke, Virginia. While it does not appear that the jury in Barnette was alerted to the
procedural history in the retrial, as of this writing, the government has been unable to determine
how that issue was developed in that case. In any event, there are important differences between
Barnette and Sampson or Wilson. Barnette’s resentencing occurred only six years after the initial
28
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iii. The Risk Of Bias Or Legal Error Stemming From The Procedural
History Of This Case Falls Primarily On The Prosecution.
As the Supreme Court has noted, the parties’ and court’s goals of voir dire often diverge.
Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). Thus, it is natural for the court and opposing
counsel to be hesitant of requests to share information with juries during voir dire. However, if
informing potential jurors about the aforementioned procedural history is harmful to either party,
it probably harms the prosecution, as the prior sentence and subsequent overturning create the
inference the previous jury “got it wrong,” thus causing the case to be resentenced. Nonetheless,
mindful that yet another mistrial or vacated sentence for a juror issue would cause immense pain
to the victims’ families and be at great cost to the taxpayers, the government advocates for the
cautious course of action.
Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By:
/s/ Zachary R. Hafer
ZACHARY R. HAFER
DUSTIN CHAO
Assistant U.S. Attorneys
crime (Sampson’s will be 14) and the media coverage paled in comparison to either Sampson or
Wilson. A Charlotte Observer archives search from when the first jury gave a death sentence to
when jury selection began for resentencing reveals just 11 articles.
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Case 1:01-cr-10384-MLW Document 1833 Filed 03/24/15 Page 30 of 30
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified in the Notice of Electronic Filing.
/s/ Zachary R. Hafer
Zachary R. Hafer
Assistant U.S. Attorney
Date: March 24, 2015
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