James Barron reports in the NYT that the Second Circuit has denied rehearing en banc in the federal death penalty case of Ronell Wilson, alias Rated R.
The defendant, Ronell Wilson, was convicted in 2006 of shooting the undercover detectives, James V. Nemorin and Rodney J. Andrews, after he climbed into the back seat of their car outside a housing project. Detective Nemorin was running a weapons sting operation and had brought Detective Andrews along for backup.
Mr. Wilson, now 28, was known by the street name Rated R. He and another gang member climbed into the back seat of the detectives' police-issued Nissan Altima. As they drove down a dead-end street, Mr. Wilson fired .44-caliber bullets into each detective's skull. It was not clear at Mr. Wilson's trial whether he knew the two were police officers.
The four dissenting judges -- led by Debra A. Livingston, who was on the three-judge panel in June and dissented in part from its ruling -- called the facts of the case "heartbreaking." She noted that Mr. Wilson murdered the first officer without warning and killed the second "even as the young officer, a father of three, pleaded for his life."
Judge Livingston was added to the panel shortly before oral argument, replacing Judge Sonia Sotomayor. The panel decision is United States v. Whitten, 610 F.3d 168 (CA2 2010). The order denying rehearing en banc is here. From Judge Livingston's dissent to this order, joined by Judges Cabranes, Raggi, and Wesley:
A side note on the federalism aspect of this case: As a matter of policy, I am generally not in favor of using the expansive post-1937 view of federal authority to prosecute as a federal crime what is essentially a local one. Exceptions are sometimes in order, though, when the state system has malfunctioned. The civil rights and kidnapping prosecutions of Klansmen during the civil rights struggle were one example. In New York, the penalty for the worst murders that was enacted through the democratic process, and never repealed, has been blocked through an outrageous act of judicial activism. The New York Court of Appeals declared a minor procedural problem to be nonseverable from the remainder of the law in defiance of express statutory language to the contrary and suspended the state's entire death penalty. The legislature is deadlocked with the pro forces unable to pass the fix while the anti forces are unable to pass a repeal. This makes New York different from states such as New Jersey or New Mexico where the legislature has affirmatively passed repeal legislation.
The majority held that Wilson's Sixth Amendment right to stand trial was violated when the government argued - albeit fleetingly - in the penalty phase that Wilson's belated claim of "accept[ance] of responsibility," which he asserted as a mitigating factor, was not credible given that it came only after the jury's guilty verdict. As more fully discussed in my principal dissent, this holding is in direct conflict with our prior holding in United States v. Fell, 531 F.3d 197, 218-21 (2d Cir. 2008), and the Seventh Circuit's decision in United States v. Mikos, 539 F.3d 706 (7th Cir. 2008), and is in considerable tension with the Supreme Court's analysis in Portuondo v. Agard, 529 U.S. 61, 67-68 (2000). The majority simply disregarded Portuondo despite the fact that: (1) it is the only case in which the Supreme Court has addressed the question of whether a prosecutor's comment in summation on the exercise of a defendant's Sixth Amendment rights can be said to unconstitutionally penalize that exercise; and (2) the Portuondo analysis and outcome are directly contrary to the majority's. Resolving the conflicts the majority opinion creates is, in and of itself, reason for the full Court's consideration of the Sixth Amendment issue.Petition for certiorari, Mr. Katyal. The case would go to an 8-justice court, but 8 is enough.
A side note on the federalism aspect of this case: As a matter of policy, I am generally not in favor of using the expansive post-1937 view of federal authority to prosecute as a federal crime what is essentially a local one. Exceptions are sometimes in order, though, when the state system has malfunctioned. The civil rights and kidnapping prosecutions of Klansmen during the civil rights struggle were one example. In New York, the penalty for the worst murders that was enacted through the democratic process, and never repealed, has been blocked through an outrageous act of judicial activism. The New York Court of Appeals declared a minor procedural problem to be nonseverable from the remainder of the law in defiance of express statutory language to the contrary and suspended the state's entire death penalty. The legislature is deadlocked with the pro forces unable to pass the fix while the anti forces are unable to pass a repeal. This makes New York different from states such as New Jersey or New Mexico where the legislature has affirmatively passed repeal legislation.
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