Second Circuit Rejects Death As Punishment For Exercising Rights

The question isn’t whether Ronell Wilson, 28, is guilty of a horrendous crime.  He is.  He shot two detectives, James V. Nemorin and Rodney J. Andrews, who were posing as gun buyers, in the back of the head on a dead end street in Staten Island.  The question is whether the arguments used against him that brought a jury to sentence him to the death penalty were proper.  The Second Circuit, in a 2-1 split, held they were not.

[W]e vacate the death sentences, and remand, because two arguments made to the jury by the prosecution — both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousness — impaired Wilson’s constitutional rights.  The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson’s allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” 

As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance.  As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify.  These constitutional violations were not harmless beyond a reasonable doubt.

The government’s arguments have both emotional and rational appeal.  They didn’t argue that the defendant had no right to demand a trial or choose not to testify, but that he can’t exercise those rights then argue to the contrary in the penalty phrase.  The logic is unassailable.  And yet, wrong.

The point of constitutional rights is that they can be exercised without a consequent price to pay.  For whatever reasons, Wilson did what every person is fully entitled to do, put the government to its proof at a trial and elect to sit mute rather than testify.  These rights are fundamental for everyone.  Even monsters.  Especially monsters.

Just as the jury cannot be invited to draw inferences of bad intent from the exercise of rights during the guilt phase, the exercise of rights cannot be offered to prove anything during the penalty phase either.  The logic behind the argument, which isn’t perfect in that there are reasons why a defendant would put the government to its burden despite accepting responsibility for his crime, is beside the point.  But logic doesn’t have to be perfect.  Neither does the court’s adherence to the constitution’s mandate that every defendant be afforded basic rights.

The New York Times captured the requisite irrelevant union reaction:

At a news conference, Michael J. Palladino, the president of the Detectives Endowment Association, the union that represents detectives, said the ruling sent “shockwaves through the families of Detectives Nemorin and Andrews as well as the N.Y.P.D., and probably the entire law enforcement community.” He added, “Two judges out of the three have ruled in favor of a ruthless, remorseless killer of two undercover police officers.”

It’s amazing how judges all love “ruthless, remorseless killers” when it comes to a ruling that doesn’t give the cops what they demand.  There’s no fear of backlash.  The courts will continue to love cops, no matter whether the love is unrequited.  They shrug it off as necessary union posturing.

The refusal to plead, and consequent demand for a trial (since the option of everybody calling it a day and going home isn’t on the table), is typically a carrot held out by the government for a plea.  Cop the plea and get the reduction for acceptance of responsibility under the Sentencing Guidelines.  Refuse and take your chances.  It’s not that courts are precluded from giving the reduction after trial, but it’s an easy, bright-line test.  The Guidelines like bright-line tests.  So does the government.

The problem is that rights have no meaning if there’s a price to pay for exercising them.  It’s not whether Ronell Wilson is evil.  It’s not even whether Wilson deserves the death penalty, putting aside general opposition issues.  It’s that the arguments made to the jury in the penalty phase of a capital case cannot use the exercise of rights.

Wilson argued that he accepted responsibility.  The government replied that if he did, he would have pleaded guilty.

Wilson argued that he was remorseful.  The government replied that if he was, he would have taken the witness stand and said so.

Whether Wilson accepted responsibility and was remorseful is a question.  Wilson said so.  He doesn’t want to be executed.  What else would he claim?

The obvious government argument is that the court is tying its hands, depriving it of perfectly reasonable arguments to challenge Wilson’s claims.  And indeed, the ruling does tie the government’s hands.  It does deprive the government of a perfectly reasonable argument.  But that’s precisely what constitutional rights exist to do.  They are a priority choice, made in advance, that define what a defendant is entitled to do without paying a price.  Every constitutional right does that; it would be far easier to obtain evidence of guilt if cops could search and seize at will, neither cause nor warrant needed.  But the Warrant Clause ties the cops’ hands.

The Second Circuit didn’t rule against two murdered detectives and in favor of a cop killer.  It ruled in favor of the Constitution. 

5 thoughts on “Second Circuit Rejects Death As Punishment For Exercising Rights

  1. mglickman

    Wow! Just finished Constitutional Criminal Procedure yesterday, and after seeing the route the 4th, 5th and 6th amendments have gone (basically a downward spiral) this is very nice to read.

  2. SHG

    It’s the sort of decision that strikes one as both obvious and yet enormously bold at the same time.

  3. SHG

    While the assistants in the Eastern District of New York are generally considered some of the best around, there aren’t many capital cases in the neighborhood, so they don’t get much penalty phase practice.  Maybe prosecutors in jurisdictions that execute people regularly are more adept at it.

  4. Stephen

    That’s the judicial equivalent of the police beating someone harder for making them run.

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