Connecticut’s Last Lightning Strike: |Bridgeport Capital Appeal Hits 2nd Circuit

     MANHATTAN (CN) — Nearly half a century after U.S. Supreme Court Justice Potter Stewart equated U.S. capital punishment with getting “struck by lightning,” the appeal of a convicted triple-murderer in Connecticut illustrates the truth of that observation.
     Many death-penalty opponents have argued that the rarity of the penalty makes its cruel and unusual, but the Second Circuit appeared preoccupied Monday with a different question: whether a jury condemned Azibo Aquart based on the lie of a government witness.
     When he was sentenced to death in December 2012, Aquart became Connecticut’s first federal inmate on death row in decades.
     There had been 11 men on death row in Connecticut at the state level earlier that year. Each has since had his sentence converted into a life term, however, because Connecticut abolished the death penalty in April 2012.
     But Aquart’s case is rare, even by the standards of federal capital punishment.
     In their brief to the Second Circuit, Aquart’s attorneys note that only 2 percent of all 3,911 federal death-eligible cases resolved to date have led to such a sentence.
     The statistic is mentioned after a reference to the late Justice Stewart’s famous lightning remark in Furman v. Georgia, a 1972 case that began the country’s de facto 16-year moratorium on the federal death penalty.
     Though President Ronald Reagan reinstated executions in 1988 with the passage of the Anti-Drug Abuse Act, Aquart’s marks the first appearance of such a sentence in Connecticut since that time.
     It follows a typical pattern of the death penalty in the United States. Like most federal death-row prisoners, Aquart — who also goes by the nicknames “Dreddy” and “D” — is black.
     Federal prosecutors contend that the Department of Justice’s charging decision toward Aquart is not unfair or racist, but a reflection of the “heinous” crimes on Aug. 24, 2005, when Aquart bludgeoned three people in Bridgeport with a baseball bat.
     “He brought a murder kit to a murder,” Assistant U.S. Attorney Jacabed Rodriguez-Coss told the Second Circuit’s three-judge panel Monday.
     The government says Aquart had been selling crack cocaine out of his apartment at 215 Charles St., and was angered by competition from another resident, Tina Johnson.
     Joined by three accomplices, Aquart broke into Johnson’s apartment, restrained its three occupants and beat them to death. They left bodies in the apartment and drilled its door shut.
     
     “Yo, Come Get You Some”
     Of the four men charged for the triple-murder, Aquart alone faced a capital trial. A key government witness had been crucial in depicting Aquart as the crew’s sadistic leader.
     John Taylor told the jury that he saw Aquart “bashing” Johnson “like he was at a meat cleaver — that he was at a meat market, beating them.”
     In another chilling remark, Taylor claimed Aquart invited him to join in by saying: “Yo, come get you some.”
     Prosecutors contend that DNA and fingerprints make up a trail of forensic evidence that corroborates Taylor’s story as well, but Aquart’s attorneys say there is good reason to disbelieve the witness’s account.
     Though Taylor had been facing three possible life sentences at the time, his cooperation earned him a sentence of just nine years in prison.
     Aquart’s attorney Beverly Van Ness said Taylor knew he would get leniency for his cooperation, but he burnished his credibility with the jury by saying he expected to die in prison.
     “I don’t think I’m never going home,” Taylor said at trial, before breaking into tears.
     U.S. Circuit Judge Richard Wesley appeared skeptical of Van Ness’ argument.
     Interpreting Taylor’s remarks as an expression of his hopes and fears, Wesley noted that Taylor also told the jury that he hoped the judge would show him leniency.
     “So, I don’t understand how you parse that answer into some kind of lie,” Wesley said. “He doesn’t know. He doesn’t know. There’s no promise. What’s he lying to? He should have said, ‘I hope to go home today, but I’m not certain I ever will?'”
     U.S. Circuit Judge Reena Raggi, who spent 15 years as a trial judge in the Eastern District of New York, wondered why Aquart’s attorneys did not try to test Taylor’s prediction during cross-examination.
     Every defense attorney can name a cooperating witness who got a sweetheart deal, and Raggi invoked a famous mob snitch tried in her former courthouse: Sammy “The Bull” Gravano, who got a five-year sentence for testifying against John Gotti.
     Van Ness replied that the defense did not know at the time about a generous sentence dealt to another cooperating witness in Connecticut.
     Their skepticism aside, the judges agreed that Taylor’s testimony played a critical role in the prosecution. Judge Wesley called him the witness the “lynchpin” of the government’s case.
     Assistant U.S. Attorney Tracy Lee Dayton, who also served as one of the trial prosecutors, emphasized the strength of the forensic evidence and phone records, but she acknowledged that Taylor “was an incredibly important witness.”
     Dayton told the court that Taylor’s testimony even surprised her.
     “I expected him to say, ‘I don’t know; it’s up to the judge,'” the prosecutor said.
     Instead, she said, Taylor’s direct examination ended when the witness started crying and reached for tissues.
     Taylor may have been wrong about his expected sentence, but Dayton insisted that he had been sincere. This prompted Raggi to ask why the prosecutor had not questioned Taylor about his mistaken belief.
     “This was your lead cooperator,” Raggi emphasized. “I wonder whether the government thought that he expected that he thought he would never go home, or if he didn’t know.”
     Dayton answered: “I don’t believe we had a duty to clarify that at that point.”
     
     “The Whole Thing Is Very Unusual”
     The final member of the panel, Senior U.S. Circuit Judge Guido Calabresi, seemed disturbed that the prosecution washed its hands of this responsibility.
     “Let me tell you something that is bothering me,” he told the prosecutor. “Seeking a death penalty in a case like this is quite unusual. This was done here, and I take it that it was done because basically, you believed that Taylor was fundamentally telling the truth as to what happened.”
     Calibresi questioned whether, in that judgment, the prosecutors had taken over the role of the jury.
     “I’m being maybe more open than I should be, but that’s what’s bothering me about this case, because the whole thing is very unusual,” he said.
     The 83-year-old jurist took long view of the history of this punishment, remarking that one person had been executed for Aquart’s crime federally in half a century, and “maybe three people have” in the past 90 years.
     Dayton had been quick to point out that she played no role in the charging decision, which the Department of Justice made through a process going right up to the U.S. attorney general.
     Prosecutors argued in a brief last year that the Second Circuit has no power to decide whether the rarity of the death penalty causes it to violate the Eighth Amendment’s prohibitions on cruel and unusual punishment.
     “If the law is to change on this issue, that change must come from the Supreme Court,” Connecticut U.S. Attorney Deirdre Daly wrote.
     In nearly two hours of oral arguments, Aquart’s attorneys largely avoided pressing this constitutional attack. Should the U.S. Supreme Court eventually hear Aquart’s case, the uniqueness of the case could interest Justice Stephen Breyer, who wrote a famous dissent in 2015 that says the death penalty’s declining usage provides all the more reason to abolish it.
     Meanwhile, Judge Calibresi ended proceedings by asking attorneys to submit further briefings considering a syllogism: that capital punishment is cruel and unusual, where it is unusual.
     “It would suggest that capital punishment might not be cruel or unusual in those states that apply it with sufficient frequency to a particular crime that it is not arbitrary, but might be cruel or unusual in those particular states where it’s done once in a blue moon for some reasons,” he asked.
     Judge Raggi, who led the panel, noted that she and Calabresi had been debating federalism and the death penalty since U.S. v. Fell, which allowed federal prosecutors to dismiss jurors who oppose capital punishment in states that ban it.
     While Raggi wrote the majority opinion in that case, Calabresi argued in a dissent that a jury of one’s peers “entails the right to be tried by a set of people who truly represent the point of view of a state and district.”
     Whether the old fault lines will re-emerge in Aquart’s case remains to be seen. The Second Circuit reserved decision on Monday, inviting further arguments from the parties in written briefings through November.

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