Although there is no dispute that defense attorneys engaged in racial discrimination when selecting a mostly black jury to hear a federal murder case against two white supremacists in 1999, neither defendant has shown he was prejudiced as a result, a federal appeals court said Monday in upholding the conviction and death sentence of Danny Lee of Yukon, Okla.
In rejecting Lee’s latest petition for a new trial, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis used similar reasoning as that used by another three-judge panel last week in rejecting co-defendant Chevy Kehoe’s similar petition.
Lee, 40, is on death row in a federal facility in Terre Haute, Ind., while Kehoe, 40, is serving a life sentence without the possibility of parole at a federal prison in Virginia.
Both men were convicted in a 1999 jury trial in Little Rock of racketeering and three counts of murder in aid of racketeering in connection with their cross-country crime spree, which spanned several years and included the January 1996 slayings of a Pope County gun dealer, his wife and her 8-year-old daughter. Their bodies were found in the Illinois Bayou near Russellville with plastic bags tightly duct-taped over their heads.
Kehoe and Lee killed the family, federal prosecutors said, to steal gun dealer Bill Mueller’s large cache of guns and $50,000 in cash that they believed he had recently inherited and buried on his property in the small town of Tilly because he didn’t trust banks. Kehoe and Lee wanted to use the weapons and cash to establish a whites-only nation in the Pacific Northwest, prosecutors said. Kehoe, who had several children with simultaneous wives, was trying to use his offspring to populate an “army” to defend and expand the new nation, prosecutors said.
Although the men were jointly tried and convicted, the jury considered each man’s sentence separately.
The panel ultimately sentenced Kehoe to life in prison after at least one juror found that 16 mitigating circumstances weighed against the death penalty for him and rejected several aggravating factors argued by the government. The mitigating circumstances included Kehoe being a product of a dysfunctional family in which his parents influenced him to accept extremist political views and Kehoe possibly leading a productive life in prison. The aggravating factors jurors rejected included Kehoe being a future danger to society and committing the murders after substantial planning.
Lee, who was sentenced second, didn’t persuade jurors that his troubled upbringing and possible mental impairment from a head injury mitigated his guilt. In his case, jurors agreed with prosecutors’ arguments that if he were allowed to live, he posed a threat of future danger to society, even behind bars. Other aggravating factors that jurors agreed with included Lee having a history of committing violent crimes, committing the murders with the expectation of receiving something of monetary value and killing more than one person in a single criminal episode.
Although the local U.S. attorney, Paula Casey, had sought to drop the pursuit of the death penalty for Lee after jurors rejected it for Kehoe, partly because Kehoe killed the child after Lee was unable to go through with it, the Department of Justice insisted that jurors consider the death penalty for Lee as well.
U.S. District Judge G. Thomas Eisele, the presiding judge who is now retired, granted a new sentencing phase for Lee, saying he could force the Justice Department to reconsider the local prosecutor’s request. But the 8th Circuit overturned Eisele on that, leaving Lee’s death sentence intact.
In his direct appeal, Lee didn’t raise allegations that both he and Kehoe raised in subsequent petitions - that they were denied their Sixth Amendment right to competent counsel when their attorneys decided to use all 30 of their peremptory strikes during jury selection to strike white people from sitting on the panel, solely because of their race. The attorneys later said their strategy was based on a stereotype that black jurors are less likely to impose death and are more distrustful of the government than white jurors. Kehoe and Lee both held strong anti-government views.
Both defendants claimed on appeal that the strategy created a “structural error” that raised a question about the composition and integrity of the jury, creating a presumption of prejudice. But both 8th Circuit panels said the defendants didn’t show the defense strategy was prejudicial to the point that in its absence, there was a reasonable probability that the outcome would have been different.
The panel that decided Lee’s case said: “Nothing in the record shows that the jury made its decisions on anything other than the evidence presented.” The judges said the difference in the two men’s sentences also doesn’t show that Lee was prejudiced by his attorneys’ actions, because the evidence against the men “was not identical, and the fact that the jury sentenced the two defendants differently supports that the jury was not simply motivated by racism to impose the death penalty. … The differing sentences for the two men shows that the jury impartially weighed the aggravating and mitigating factors to determine the appropriate sentence for each defendant.”
The panel added: “Counsel’s race based jury selection strategy was designed to produce a jury that would closely scrutinize the government’s case and be less likely to impose the death penalty. While this strategy did not create the desired result, no evidence has been provided to show that the resulting jury was biased against Lee.”
The opinion was written by U.S. Circuit Judge Diana Murphy of Minneapolis and joined by U.S. Circuit Judges Lavenski Smith of Little Rock and Raymond Gruender of St. Louis.
Northwest Arkansas, Pages 7 on 04/30/2013