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Metro

Appeal possible in Sampson ruling

US prosecutors may seek death

JON HILL/ASSOCIATED PRESS

US prosecutors want to appeal a judge’s ruling related to the case of convicted killer Gary Sampson, shown in a 2001 photo.

The US attorney’s office says it wants to appeal a federal court judge’s ruling that entitled Gary Lee Sampson to a new sentencing trial, indicating that the government wants to pursue the death penalty for the confessed killer.

It would be the first death penalty handed out in a federal court in Massachusetts and the first resulting from a crime in the state in more than a half-century.

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Federal prosecutors said in court documents yesterday that they have received permission from the US Office of the Solicitor General to pursue the appeal of the decision by US District Court Chief Judge Mark L. Wolf.

Wolf ruled in October that Sampson was entitled to a new sentencing trial because a juror in his sentencing trial in 2003 lied during a selection process, possibly tainting the jury’s verdict.

Sampson, who is now 52, pleaded guilty to charges in a series of killings in 2001, but federal law requires that a jury determine whether the death sentence should be handed out. Wolf said the woman withheld vital information during a jury selection process, that her husband had pointed a gun at her and threatened to kill her, that he had substance abuse problems, that she took a restraining order out against him, and that her daughter had served jail time for drug abuse. If the juror had disclosed that information, she might have been excluded from the jury.

The question of whether the federal government can appeal the decision remains an open legal question, however.

Wolf had asked prosecutors and defense attorneys to come to an agreement on whether prosecutors can appeal the type of decision the judge made. The question is whether Wolf’s ruling is final and subject to an appeal, or whether it remains part of the ongoing proceedings that should remain before his court.

Federal prosecutors argued that the decision is final and can be subject to appeal. That position notwithstanding, the prosecutors asked Wolf to consider invoking another law in making his decision that would allow them to seek an immediate stay of any more proceedings in Wolf’s court until a decision could be made on an appeal.

Defense lawyers argue that prosecutors have no authority to appeal the decision, meaning that Sampson should immediately be entitled to a new sentencing trial.

But they agreed that any further proceedings should be stayed until a decision can be made.

Prosecutors and defense lawyers agreed on a schedule to submit further motions to the court, and Wolf will be asked to decide whether to make his decision final and to stay the proceedings.

Short of an appeal, prosecutors have alternatives: to let Sampson serve a term of life in prison or to retry the sentencing case. Under a retrial, Sampson’s ability to appeal - and thus temporarily vacate his conviction - starts all over.

William E. McDaniels, an attorney for Sampson, could not be reached for comment yesterday.

At least one of the family members of Sampson’s victims recently called for Sampson to be subject to the death penalty.

“To me, justice won’t be served as long as he is alive,’’ said Mike Rizzo, father of victim Jonathan Rizzo.

Sampson was also convicted of killing Philip McCloskey and Robert Whitney in 2001.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.

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