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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. Inner City Press is preparing a booklet about the case. More on Substack here

With a replacement Juror 4, deliberations started over, including a note with questions about threats to behead, and ADX, thread here:

OK - now in US v Saipov death penalty deliberations - interruptus? Judge Broderick says Juror 4 has an emergency and can't come in. He has asked parties if an alternate should be called in.

AUSA Houle: Did he say he's not coming back at all, given the situation of his brother? Judge Broderick: My deputy spoke to him, he was despondent and said would not be coming back. But we could wait and see.  I need to check if the relative is in law enforcement Judge Broderick: The relative was just found.

AUSA Houle: We'd like a few minutes, given that context. Judge Broderick: That's fine. I took it Juror 4 was reflecting the seriousness of the communications. That's just my read on it. Juror 4 in the box is Juror 172

 Judge Broderick: Given the defense's previous arguments [that it must be the same 12 jurors in liability and death penalty phases] I anticipate them moving for a mistrial, or a partial mistrial. I want to hear from the parties. I'll give you the time that you need

Now AUSA Houle says Juror 4 was called by the NYPD and told that his brother had had a heart attack, says the US believes it would be replacement for cause. Judge Broderick: That NYPD made the call raises the seriousness of heart attack. Juror 4 was despondent

Judge Broderick: Juror 4 could be excused for cause, I believe.  Waiting is still an option. We have next week, a day we start at 11, another Juror 1/37 not available - and not available after March 22 or 23. So, anything else on the first issue?

AUSA Houle: What is the defense's position? FD Patton: We agree. Judge Broderick: What do the parties think, in the context of the other issue FD Patton: For the reasons in our January 16 letter, we move for a mistrial.

Judge Broderick: I deny the motion. 3 Circuit courts have considered this issue & found that courts can use alternates. I adhere to that. If it comes to that the [2d] Circuit can weigh in

 Judge Broderick: So, they'll have to start their deliberations anew. I'll tell them my instructions on yesterday's questions. I'll tell them, Start anew.

 Jury entering! (and alternates) Judge Broderick: Juror 13/652 is now Juror 4, since Juror 4 has had a family emergency - he's fine, but  won't be returning. Now start again. I have to bring 652 up to speed on the note yesterday, on lethal injection & moratorium

Judge Broderick: OK, Juror 652 has joined them and they have begun again. So, the waiting for (next) notes continues. Watch this feed.

 OK - at 1:19 pm, Judge Broderick reading out the first note from the "new" jury with Juror 652 as Juror 4. Judge: We have a note which reads as follow: on non-statutory aggravating factor 4, is a verbal threat in prison an act of violence? Is the threat to behead?

Now here in US v Saipov courtroom at 2:35 pm, Federal Defenders at their table, prosecutors (and Saipov) not in the room. Inner City Press, writing a booklet on it, remains on the case

 Saipov is brought back into courtroom; Judge Broderick is reading out loud both sides' proposed answers to juror questions, on beheading threats and how ADX Florence super max is run.

Judge Broderick: So I'll answer no, no and you are entitled to consider all the evidence that is before you. So I will call the jury out and read the note into the record and response to each question just after I read it. Ms. Rodriguez, please get the jury

 Judge Broderick: This is off the record. Ms. Houle, you may not see it, but my jeans are not on. [He is robed] Jury entering! Judge Broderick: You asked, is a verbal threat in prison a criminal act of violence? The answer is no.

Judge Broderick: Nor is call for the beheading of corrections officers- it is not a criminal act of violence. .. You may now return to your deliberations. [Jury leaves] Judge: We will give the jurors the form for lunch orders for Monday. Any objection? Parties: No

Judge Broderick: Do the parties agree Ms. Rodriguez can call Juror 4 and tell him he is excused, and that we wish his brother well? We will do that. Anything else before we continue our waiting? Parties: No. [So the wait continues - Inner City Press on the case]

 Now at 4:45 pm Judge Broderick asks for Saipov to be brought in from the holding cell. Judge: I have received a note from the jury, that they are not going to be able to reach a verdict today. I take that to mean they want to leave and return Monday.

 While waiting for jury to confirm they want to leave for the day and week, Judge Broderick says, This is probably going to be one of the biggest decisions of their lives, I think they just want to take a little time. Judge Broderick: They say, We want to break.

Jury entering! Judge Broderick: So, jurors, enjoy your day off tomorrow. Although it's supposed to rain. So maybe watching something inside. See you Monday.

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.

 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

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