A three-judge panel of the United States Court of Appeals for the Second Circuit overturned the death sentence, asserting in a 2-to-1 ruling that federal prosecutors had violated Mr. Wilson's constitutional rights.
The judges ruled that Mr. Wilson's conviction still stands, but they essentially ordered a new hearing to determine if he should receive the death penalty. The United States attorney's office could appeal the ruling to the entire Second Circuit or to the Supreme Court . If prosecutors choose not to appeal, the case will go back to Judge Nicholas G. Garaufis of Federal District Court in Brooklyn for a penalty phase hearing before a new jury.
Another option would involve withdrawing their notice to seek the death penalty, in which case Mr. Wilson would be automatically sentenced to life in prison.
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.”
MaryAnn Andrews, who was married to Detective Andrews and who is also a detective, stood next to Mr. Palladino and wiped tears from her eyes. She told reporters she was too distraught to discuss the case. “I can't,” she said. “It's just too much.”
No federal juries have been more reluctant to sentence federal defendants to death than those in New York State. Federal prosecutors in the state asked juries to impose death sentences 19 times from 1988 through March 2008, but in only one of those cases — Mr. Wilson's trial — did a jury vote for execution, according to the Federal Death Penalty Resource Counsel Project. Experts said the reasons for jurors' reluctance were varied, but included the liberal slant of juries in the state.
Mr. Palladino acknowledged the difficulty facing prosecutors. “It's going to take a miracle to recreate a death sentence with a new jury,” he said, adding that he would encourage prosecutors to appeal.
The Court of Appeals' ruling centered on two arguments that prosecutors made to the jury about Mr. Wilson's remorse and acceptance of responsibility for the killings during the penalty phase of his trial. The judges noted that prosecutors used Mr. Wilson's demand for a trial and his failure to plead guilty as evidence that he lacked remorse and refused to accept responsibility. The judges said prosecutors had argued to the jury that Mr. Wilson's statement of remorse should be discredited because he failed to testify.
“He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can't have it both ways,” one of the prosecutors, Jack Smith, is quoted as telling the jury in the judges' ruling (Mr. Smith now leads the public integrity section for the Justice Department). “He can't do that, then say I accept responsibility.”
The defense made an objection at that point that was overruled, and the prosecutor continued, “And [say] ‘I'm sorry, only after you prove I did it.' That's not acceptance of responsibility.”
The judges wrote that they agreed with Mr. Wilson's lawyers that the comments “unconstitutionally burdened his Sixth Amendment right to a jury trial.” In addition, the prosecutor's highlighting of Mr. Wilson's refusal to testify violated his Fifth Amendment right against incriminating himself, according to the ruling.
“We're reviewing the decision and considering our options,” said Robert Nardoza, a spokesman for the United States attorney's office in Brooklyn.
In a separate opinion that one of the three judges, Debra Ann Livingston, characterized as “concurring in part and dissenting in part,” she wrote: “I conclude that if there was Fifth Amendment error here — and I find it doubtful — such error had no impact on the jury that sentenced Wilson. With regard to the Sixth Amendment, there is simply no error to review.”
A jury convicted Mr. Wilson in December 2006 of killing the two detectives. Detective Nemorin was 36, a Haitian immigrant and a father of three. Detective Andrews was 34, a Navy veteran and a father of two.
Morris J. Fodeman, one of the prosecutors in the trial, said he was surprised by the decision, in part because it focused on comments made during rebuttal summations during the last five minutes of a five-month trial.
“The decision illustrates the increasing difficulty prosecutors have in attaining and carrying out a death penalty sentence given the intense albeit justifiable scrutiny on every word uttered in the courtroom,” said Mr. Fodeman, who is now in private practice.
Mr. Wilson had been a member of the Stapleton Crew, a gang involved in robberies and drug dealing that had operated for years on Staten Island but has since been disbanded. A week before the killings, two gang members sold a gun to Detective Nemorin, who was working undercover. He arranged to buy another gun — a Tec-9 assault pistol, for $1,200 — the following week. Detective Andrews volunteered to serve as Detective Nemorin's backup.
The gang members decided to rob the detectives rather than provide the gun. On the night of March 10, 2003, Mr. Wilson, armed with a .44-caliber pistol, shot Detective Andrews in the head. Mr. Wilson then pointed the gun at Detective Nemorin and asked him where the money was. Jessie Jacobus, another gang member , testified that the detective “was pleading for his life” before Mr. Wilson pulled the trigger.
On Jan. 24, 2007, Mr. Wilson read a brief statement of remorse to the jury: “I have seen the pain that I have caused the family and friends of the victims and to my own family and friends.”
Mr. Wilson has been on the federal death row in Terre Haute, Ind. Beverly Van Ness, one of his appellate lawyers, said she was “thrilled” by the ruling: “It was the right decision, and I'm very grateful and relieved that he will be given another chance to possibly attain a life sentence.” |
