A federal judge in Boston has ruled that if two alleged gang members are convicted of murder, different juries must decide whether they should get the death penalty. The Boston Globe quotes U.S. District Judge Nancy Gertner as saying that the usual practice of a single jury considering both guilt and punishment tips the balance unfairly toward conviction, because people who oppose the death penalty are disqualified from serving on juries in capital punishment cases. Death penalty critics applauded the decision, which they believe is the first of its kind in the federal courts. Similar orders have been issued a few times in state courts.
The ruling came in the case of two men accused of murdering a gang rival during Boston’s Caribbean Carnival in August 2001. U.S. Attorney Michael J. Sullivan sought the death penalty with the blessing of U.S. Attorney General John Ashcroft, who has made it easier for federal prosecutors to seek the death penalty, especially in states like Massachusetts that do not have a death penalty. Ordinarily, capital cases are divided into two phases. Before a jury is chosen to consider guilt, prosecutors have the right to disqualify any potential juror who opposes capital punishment and would be unable to vote to put a convicted defendant to death. Attorneys for the Boston defendants said a growing body of evidence shows that purging such jurors produces disproportionately white and male panels hat are more likely to convict defendants.