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In Saipov Death Penalty Deliberations Juror 4 Absent Now Mistrial Raised Under FDPA 3593

By Matthew Russell Lee, Patreon Letter

SDNY COURTHOUSE, March 9 - Sayfullo Saipov after being found guilty on 28 counts now faces a penalty phase that may result in the death penalty for killing eight people with a van along the West Side Highway.

  On May 4, 2022 U.S. District Court for the Southern District of New York Judge Vernon S. Broderick held a conference on the case and Inner City Press live tweeted it here.

On January 26, Saipov was found guilty on all counts, after jury questions about whether he did it to join or advance himself in ISIS or not. That will be a major issues, along with any mitigation, in the penalty phase.

 But in the penalty phase, on March 9 for deliberations, Juror 4 did not come in, due to an undisclosed emergency with a relative (who may or may not be in law enforcement). Judge Broderick noted a Federal Defenders argument, which Inner City Press first wrote about on January 16, 2023: "On January 16 - MLK Day - the Federal Defenders filed a motion or notice with Judge Broderick that if Saipov is convicted in this liability stage of any capital count, the alternate jurors should be dismissed, under the Federal Death Penalty Act. This means that losing a single juror in the second phase would put it all back to square one, August 2022."

  The statute - miscited in the Federal Defenders' January 16 filing as 3595 when it is 3593, states:

"18 USC 3593(b)(1)  (b)Hearing Before a Court or Jury.—If the attorney for the government has filed a notice as required under subsection (a) and the defendant is found guilty of or pleads guilty to an offense described in section 3591, the judge who presided at the trial or before whom the guilty plea was entered, or another judge if that judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. The hearing shall be conducted—  (1)  before the jury that determined the defendant’s guilt;"

 Does "the jury" mean the same 12 people? Or does it include the alternates? Since it hasn't been litigated, it may mean a longer wait for Juror 4. Watch this site - Inner City Press is preparing a booklet about the case.

Back on February 21 members of the media were not allowed into the courtroom, only to elsewhere in the courtroom where a feed shows only part of the courtroom. Inner City Press, the first of many media in opposition, wrote to Judge Broderick, here

Here's from the day's testimony, after which Judge Broderick said the press can have a bench in the back, thread here.

On February 22, there was a single witness, about ADX Florence. Thread here.

On February 28 as part of the defense case, an expert on Central Asia testified. Thread here.

On March 1, the defense rested its case, sans Saipov. Inner City Press live tweeted here

On March 3, the US Attorney's Office wrote to Judge Broderick seeking to preclude the defense from arguing in closing that the jury should choose a "civilized sense of justice" over "barbarism."

  Federal Defenders also wrote it, protesting the US' proposed verdict form and proposed penalty-phase instructions, and submitting its own in advance of the charge conference set for March 6.

On March 6 at the charge conference, EDNY cases and legislative history were argued, thread here

On March 7, the US Attorney's Office closing; Inner City Press was there, thread here.

Later on March 7, the defense's closing, and US Attorney's Office's reputtal, resumed thread here

On March 8, after more argument, there was the jury charge, then deliberations began with two notes (and "no" answers). The jury was let go after 5:30 and will resume on March 9. March 8 there here:

OK - now in death penalty trial endgame in US v Sayfullo Saipov for killing 8 on bike path, before jury charge,

Judge hearing yet more arguments before having the jury come in. Now Judge Broderick says he's going to finalize and print out the jury charge - jurors are still in the bullpen and he says he'll see if they can have lunch then listen for two to three hours "which is what it's going to take"

 Finally the jury is being brought it to hear the charge. First Judge Broderick asks Saipov to confirm he waived his presence for arguments, since he was praying and eating lunch - the lunch the Federal Defenders briefed if not cooked for him?

 Near 1:30 pm, Judge Broderick starts reading 43 page jury charge, the final version which is been docketed

There's also the 18 page verdict form to be giving out after the charge.In half-full Saipov courtroom, after the charge, two quartets of lawyers as two US Marshals stand ready to bring Saipov back in from holding cell if there is a note. Too early for a verdict...

 Can - and, separately, will - the Saipov jurors discuss the *method* that would be used for execution, and DOJ moratorium?   Here comes Judge Broderick back to the bench.

Judge Broderick: So I will tell them it is inappropriate and they should not discuss it. But my understanding is that in NY, it would not necessarily be lethal injection, right? Since NYS does not have the death penalty, the decision on method would fall to me?

 Judge Broderick: It's concerning that they're starting off with an incorrect assumption. But I'm sticking my head where it need not go. I'll call out the jury and read them the response. Let's get the jury.

Jury entering! Judge Broderick: You asked, Knowing that the method of execution is lethal injection, can we discuss that? Can we mention the current moratorium on execution by AG Merrick Garland? I instruct you these are not proper considerations, do not discuss

 Now at 5:40 pm, Judge Broderick returns to the bench.

 Judge Broderick: Any objection to my calling upstairs the 5 alternatives as well as the 12?

AUSA: No. FD: No. Judge: OK, bring them up.  This can be off the record - Mr. Dalack, no letter tonight. I'm up. Jury entering! Judge Broderick: Jurors, return tomorrow. Do not discuss the case except when the 12 are together.  [Jurors leave]

Judge Broderick: Yesterday Juror 9 / 292 used the public restroom. I wanted to inform the parties.  Counsel: Thank you. All leave.

 Inner City Press will stay on the case.

The case is US v. Saipov, 17-cr-722 (Broderick)

Watch this site

Saipov courtesy to Inner CIty Press by
                            Elizabeth Williams
Saipov, courtesy to Inner City Press by Elizabeth Williams


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