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  • Writer's pictureThe San Juan Daily Star

Terror trial could yield Manhattan’s first death penalty in 60 years

Police respond at the scene where Sayfullo Saipov fatally mowed down eight people on a bike path, in New York on Oct. 31, 2017.

By Benjamin Weiser and Lola Fadulu

Today, U.S. prosecutors will ask 12 people to authorize a punishment that hasn’t been levied on a Manhattan defendant since 1963: death.

Sayfullo Saipov, 35, was convicted last month of fatally mowing down eight people as he raced a truck down a West Side bike path in 2017. Now comes the phase of his trial that will determine his punishment: The U.S. government wants to end Saipov’s life with a lethal injection.

To succeed, prosecutors must win a unanimous vote from the jurors, who will deliberate in a city that has been both a bastion of liberalism and a stage for repeated acts of terrorism. The clash over Saipov’s fate will test how a jury in the Southern District of New York — which includes Manhattan, the Bronx, Westchester and five other downstate counties — weighs crime against punishment two decades after 9/11.

The United States has a long history of capital punishment, but the percentage of people who support the death penalty has dwindled. At the state level, New York no longer has a death penalty, a central provision having been ruled unconstitutional in 2004.

But the federal government can still bring capital cases, which is why a jury will gather in a nondescript room in lower Manhattan to decide whether Saipov’s act of terror calls for the ultimate punishment.

New York is a global capital of commerce and culture, with 36% of its residents born abroad. Around the world, 70% of countries have banned the death penalty, including Belgium and Argentina, where six of the bike path victims were from, and Uzbekistan, Saipov’s native country.

“It’s a really tough question to say whether it’s morally right to exercise the death penalty or not, especially for your everyday person that lives in New York,” said Nick Buenaventura, 29, who stopped his Citi Bike last week to be interviewed near Watts and West streets, the scene of the attack. “To bear that weight — it’s a heavy decision.”

The Saipov jury faces a stark choice: If the jurors do not unanimously support his execution, he will receive life imprisonment without the chance of release.

The Southern District’s mix of cosmopolitan and rural areas and its diversity of race, ethnicity, financial status and political viewpoints would seemingly ensure defendants can have their cases heard by a cross-section of the community. In a death penalty case, however, the jury’s composition is tilted in the government’s favor, because people unalterably opposed to capital punishment are not allowed to sit on the jury.

Michael Mukasey, the attorney general under President George W. Bush from 2007 to 2009 and before that a longtime Southern District judge, thinks a death penalty could be imposed. “New York is famous as a place where people can be realistic in a hard-nosed way,” he said, adding that with a spike in crime in the city, “I would by no means bet the farm on it being impossible for a jury to return a death penalty verdict in this case.”

Saipov’s lawyers’ advantage is that they must persuade only a single juror to hold out. Rachel E. Barkow, a law professor and sentencing expert at New York University, said that could make it harder for the government to obtain a death penalty verdict.

“That’s difficult in any circumstance,” Barkow said. “It’s particularly difficult with a Southern District jury in Manhattan.”

Death penalty trials are rare in New York state and even rarer in Manhattan.

The last federal executions in New York state, all stemming from Southern District trials, occurred almost seven decades ago: Gerhard A. Puff, a bank robber who killed an FBI agent, was executed in 1954.

The previous year, Julius and Ethel Rosenberg died in the electric chair after a Southern District jury found them guilty of conspiring to steal atomic secrets on behalf of the Soviet Union. They each denied throughout their trial that they had been spies, and after they were electrocuted, acrimonious debate over their convictions continued through the decades.

The last state execution was in 1963, when Eddie Lee Mays, 34, was put to death for killing a woman in a bar in Harlem.

Stephen B. Bright, a lawyer who has represented death penalty defendants in Alabama, Mississippi and Georgia and teaches at Yale Law School, said that the likelihood that a jury would impose the penalty depended to a great extent on the population from which the jury was chosen.

“You try them in, say, the Southern District of Alabama, in Mobile, Alabama, you’re going to have a very different outcome,” he said.

Saipov’s case is notable because he is the first defendant to face a federal death penalty trial during the administration of President Joe Biden, who had campaigned against capital punishment.

During testimony in January, evidence showed that Saipov drove a rented pickup truck across the George Washington Bridge into Manhattan on Halloween Day 2017, then turned onto the bike path and sped south, smashing into cyclists before crashing into a school bus.

Ann-Laure Decadt, 31, a Belgian woman visiting with her two sisters and mother, was one victim. They had rented their bikes from a store called Blazing Saddles.

Dyshea Smiley, 35, a tour guide for Blazing Saddles since 2015, recalls the day of the attack clearly. “I just remember the silence after,” she said, adding, “Can you imagine a family of yours going on vacation and never coming back?”

Smiley said she had strong feelings about the Saipov’s punishment.

“I would give him the death penalty,” Smiley said. “I don’t care about his life — he didn’t care about human life.”

Gwyneth Leech, 64, an artist who has lived in New York since 1999, still uses the bike path, navigating bollards installed after the attack to keep motor vehicles away. She said a memorial plaque regularly reminds her of the lives lost, but that reverence does not require retribution.

“I’m opposed to the death penalty, so that’s it,” she said.

Saipov’s lead lawyer, David E. Patton, the city’s federal public defender, acknowledged during the trial that his client had acted intentionally and had caused “unimaginable pain and suffering.” But he disputed the government’s contention that Saipov was fixated on joining the Islamic State terrorist group. He said his client had acted alone after spending hours caught up in propaganda and martyrdom videos.

Patton has said in court that the defense plans to bring members of Saipov’s family to the United States to testify on his behalf, presumably to offer the jury a fuller portrait of Saipov, his childhood, his upbringing in Uzbekistan, his solitary hours on the road as a long-haul truck driver.

Austin Sarat, a professor of law and political science at Amherst College in Massachusetts, who has written critically about capital punishment, said that Saipov’s defense lawyers must change his image in jurors’ minds.

“The burden that the defense faces is to turn this man from a terrorist into a human being,” Sarat said.

Prosecutors, in court filings, have cited various factors that they say favor execution, including that Saipov’s attack was premeditated and carefully planned and that it was carried out in support of a terrorist organization.

The arguments over whether Saipov should live or die could last into March. Then, the 12 New Yorkers will retreat into the jury room to decide.

“I’m glad that I’m not on the jury, because I truly don’t know,” said Buenaventura, the man interviewed on the bike path. “It’s a real morality decision.”

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