Death penalty in major crimes not a given

High-profile criminals often escape maximum due to mitigating factors
2011-01-23T00:00:00Z 2011-01-23T00:33:57Z Death penalty in major crimes not a givenMarisa Taylor Mcclatchy Newspapers Arizona Daily Star
January 23, 2011 12:00 am  • 

WASHINGTON - Reacting to the Arizona shooting with anger, sadness and shock, a majority of Americans think that suspect Jared Loughner should be sent to death row if he's convicted, according to one poll. But if statistics are any indication, he has a good chance of escaping execution.

Federal prosecutors have had little luck persuading juries to send defendants to death row. Of 467 defendants whom U.S. attorneys general in Washington have authorized to face the federal death penalty since it was instituted in 1988, only 15 percent have received it.

The list of criminals who've escaped federal death row includes convicted killers: Unabomber Ted Kaczynski, Oklahoma City bomber Terry Nichols and Olympic Park bomber Eric Rudolph.

Experts say the cases reveal something about the death penalty that Loughner's attorneys undoubtedly will use to their advantage: Once juries or prosecutors know the details of suspects' lives and circumstances - even in the most heinous cases - they can be hesitant to mete out the ultimate punishment.

When questions are raised about the defendant's mental state, as in Loughner's case, that decision can be even more difficult, even for staunch supporters of the death sentence.

"It's one thing in the abstract to say you're for the death penalty," said Gerald Zerkin, a senior assistant federal defender in Richmond, Va., who's represented several defendants charged with capital crimes, including convicted Sept. 11 plotter Zacarias Moussaoui. "It's something else entirely to hand down a death sentence."

Although the Justice Department is weighing the death penalty for Loughner, defense attorneys might persuade prosecutors to seek life in prison to avoid trial. More than 40 percent of the cases that U.S. attorneys general approved for the death penalty were settled out of court, according to the Federal Death Penalty Resource Counsel Project. Many times, prosecutors are persuaded not to seek the death penalty because the victims' relatives wish to avoid trial, experts said.

But Aitan Goelman, a former federal prosecutor who helped prosecute the Oklahoma City bombing case, said Attorney General Eric Holder undoubtedly would feel pressure to seek the death penalty given that a congresswoman was shot and six people were killed, including a federal judge and 9-year-old girl.

"If you have the federal death penalty and you don't seek it in this case, what case do you seek it in? Goelman asked.

Goelman, however, acknowledged that it would be a tough call for prosecutors because of the way federal law is written. "It bends over backwards to give the defendant the benefit of the doubt," he said.

In Loughner's case, prosecutors might seek the death penalty because of indications that Loughner carefully planned the failed assassination of Rep. Gabrielle Giffords. On an envelope the FBI found, he's said to have written: "I planned ahead."

However, defense attorneys are expected to argue against the death penalty by pointing to evidence that he's mentally ill.

Under federal law, prosecutors and juries are required to weigh such evidence.

At the sentencing stage, "there's no bright line" in determining when mental illness is enough of a factor to save someone from the death penalty, said David Bruck, a clinical professor of law at the Virginia Capital Case Clearinghouse.

"It is very rare for someone to be acquitted by reason of insanity," he said. "But it is extremely common for people to avoid the death penalty because of their mental illness."

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