We learned this week that the man that the Justice Department has sent to Boston to assist in the capital prosecution of Dzhokhar Tsarnaev, the alleged Boston Marathon Bomber, was previously cited by a Federal Judge in Virginia for serious prosecutorial misconduct in a different high-profile death penalty case, which resulted in dismissal of kidnapping charges and a new murder trial for the defendant.
Steven D. Mellin, a member of the Justice Department’s Capital Case Section, which, according to its website, exists to “to promote consistency and fairness in the application of the death penalty,” has been assigned as a specialist on the Tsarnaev case, which is set to go to trial in January.
But as the Washington Post reported back in 2004 in an extensive examination of the capital prosecution of Jay Lentz, U.S. District Judge Gerald Bruce Lee ruled that Mellin improperly introduced evidence that wound up in the jury room, which, according to jury members, proved decisive in their guilt verdict.
In his 70-page ruling, Lee said Mellin was the last person to have the planners. He said Mellin had waved one of them in his closing argument. And he accused Mellin of having been “less than candid” about the matter. The judge said the material contained in those books — notes about threatening phone calls Lentz had allegedly made to his ex-wife; references to restraining orders she had sought; the phone number of a domestic violence hotline — had destroyed Lentz’s defense. At the courthouse, the tangled web and the virtually unprecedented allegation by a federal judge against an officer of the court have been followed with both fascination and disgust.
Here is the key excerpt of Lee’s ruling, courtesy of OpEdNews.
The Court concludes that Mr. Mellin’s testimony indicates much more than a lack of credibility, rather it demonstrates his intent to act outside the Orders of this Court and the confines of the law. In sum, the Court finds that Mr. Mellin’s actions with the calenders suggest his conduct was not a benign act or negligent error. Rather this action was reckless, and it was intentional.
This violation, which led to the dismissal of the kidnapping charges, and a new trial on the murder charge, had its own rather disturbing backdrop. According to the Post,
Long before he was accused of planting evidence, the prosecutor had caused concern among Lentz’s defense team because he knew the victim (he and his wife took a parenting class from Doris Lentz in 1995), had followed her disappearance in the media for several years, requested to work on the case when he came to Alexandria and flew to Indiana to participate in Lentz’s arrest in 2001.
Mellin vehemently denied he planted the evidence, and suggested Judge Lee simply didn’t like him.
But the question remains: if the Capital Case Section exists “to promote consistency and fairness in the application of the death penalty,” is this the man the Justice Department ought to be sending to assist in what may be the most emotionally charged federal capital cases of the last decade?
Prudence suggests otherwise.
You haven’t did your homework on Mellin. An appeals court through this out – and Lentz was found guilty again, and recordings of him trying to put hit on witnesses and confessiong his involvement. Do some real research for making these accusations.
Shifting this discussion to the Tsarnaev case itself, I believe that the prosecutorial penalty phase tactics used to slant the jury’s verdict toward death were totally unconscionable and unconstitutional.
This is not to say that there is any way to have a “fair” or “consistent” death penalty, and that is not, of course, the fault of either the prosecutors or the jurors. However, the abuses in this case are extraordinary, and appear right on the face of the record, even in the few transcripts and various press reports I’ve read so far.
The Boston Marathon bombings and the murder of Officer Sean Collier, of course, were horrible crimes. In a sane criminal justice system, which the State of Massachusetts has had since 1984, Dzhokhar Tsarnaev’s trial would be fairly simple and straightforward. He would be convicted of murdering Krystle Campbell, Martin Richard, Lingzi Lu, and officer Collier based on either his own acts or on conspiracy and aiding and abetting his brother Tamerlan. He would get four sentences of life imprisonment without parole (LWOP), and likely additional sentences for the carjacking of the heroic Dun Meng and the Watertown shootout. Case closed.
With the Federal Death Penalty Act of 1994, things get more complicated — but there are some basic norms. Above all, while the bombings themselves are indeed most aggravated crimes, the life or death decision must focus not just on the crimes, however horrible, but on character and record of Tsarnaev himself. We are judging not his worst acts in isolation, but his whole life — and he was only 19 at the time of the crime.
To say that an offender is “the worst of the worst,” or “irredemable,” is a judgment that constitutionally cannot be made of anyone who commits their murderous acts before the age of 18, see Roper v. Simmons (2005). We know that juveniles, although they may do horrible, coldly premeditated things, still have unformed characters: in neurological terms, their brains have not yet fully developed (reaching that point maybe around the mid-20’s).
Now we look at Tsarnaev as a whole person. He has no criminal record before the bombings, and had serious family problems, and also many admiring teachers and friends who recognized his human qualities.
After his arrest when he was found in that boat in Watertown, he cooperated with authorities, and throughout his pretrial custody committed no act of violence. There was an episode in a holding cell where he played around in front of a surveillance camera, at point making a rude gesture. Marshal Kevin Roche cautioned him that his gesture signalled disrespect; Tsarnaev apologized, and agreed to cause no more trouble from then on, and acted accordingly. Marshal Roche testified that this was a small matter as compared with the conduct with many other prisoners in that holding cell.
Under Skipper v. South Carolina (1986), good conduct while in custody is a mitigating factor in a death penalty case; here, it also suggests that Tsarnaev would be a peaceful and cooperative prisoner when serving LWOP at Florence ADX.
In the death penalty cases, aggravating conduct while in custody may involve possession of illegal weapons such as garrotes; or assaults on correctional officers or other prisoners, etc. An immature gesture followed by an apology and good behavior hardly weighs against Tsarnaev where life or death is at issue — except to a Caligula, Nero, or overzealous prosecutor.
Also, the prosecution treated Tsarnaev’s act of shopping at Whole Foods and buying milk after the bombings as somehow monstrous. If he had robbed Whole Foods, that would have been proper nonstatutory aggravation. But simply shopping, eating, and drinking, are things people do after participating in all kinds of violence; they neither aggravate nor mitigate, at least for death penalty purposes.
One open question not fully addressed in the transcripts and reports I’ve seen so far concerns the possible effects of Jahar’s wounds suffered to his face and head (including an injury to the base of his skull maybe invovling a concussion) on his facial expression, body language, and demeanor. These aftereffects may have impaired his rapport with the jury — a factor the jurors were instructed to ignore, but might remain the proverbial elephant in the room.
Also, there is the question of comparative culpability: was the younger Jahar under the influence of his older brother Tamerlan? This could serve as an additional mitigating factor — but, regardless, the result seems clear.
The bombings and assassination of Officer Collier were themselves most aggravated and horrible: pressure cooker bombs, like the somewhat similar cluster munitions and also napalm used in Vietnam, are unspeakable weapons.
But Dzhokhar Tsarnaev, a 19-year-old under the sway of a destructive ideology sincerely but delusively held, is obviously better than his worst acts — as shown by his peaceful conduct both before and after. To turn him into the ultimate “unrepentant terrorist” through sophistical prosecutorial arguments and funhouse mirror optics (photographs of the four murder victims juxtaposed with Tsarnaev’s holding cell gesture) is to show what the penalty verdict calls “reckless disregard” for human life.
What the prosecutors were seeking was not a fair evaluation of aggravation and mitigation, but a ritual of human sacrifice, with the younger Tsarnaev brother as the one available candidate.
The remedy is simple: abolish the death penalty. The reversal of Tsarnaev’s death sentence is one important step to this goal.