Scott McCloskey grudgingly went before a federal jury 10 years ago to talk about his father, how he had raised six children, how he had bought a Winnebago and wanted to travel, and how Gary Lee Sampson had killed him, devastating their family.
Recounting the trial, McCloskey said he would never want to go through it again.
“We’re not ready to throw in the towel,” said McCloskey, of Plymouth. “He was found guilty, he got the death penalty, and that’s the way it should be.”
In the weeks since a federal appeals court threw out the death sentence and ordered a new sentencing trial for Sampson, an admitted serial killer, because of a problem with a juror, prosecutors and those close to the case have painstakingly been debating how to proceed: whether to move on and let Sampson serve life in prison, or whether to seek the death penalty again in a new trial.
US Attorney Carmen M. Ortiz would only comment that she will announce her decision on how to proceed once it is reached, adding, “For more than 12 years we have been committed to seeing that justice is done in this case.”
But legal analysts said the decision will be based largely on the views of the families of Sampson’s victims, and it will be a balancing act between reopening wounds from the trial a decade ago and trying to find closure.
‘I do want them to move forward. He deserves what he should get.’
“None of us want to go through this, it’s a long process,” McCloskey said. But, he said that, speaking for himself, “I do want them to move forward. He deserves what he should get.”
Mike Rizzo, whose son, Jonathan, was also killed by Sampson, said his family has already invested 12 years in the pursuit of justice and he is ready to continue.
“We want to pursue the best sentence, which would be the imposition of the death penalty,” he said. “It will open a lot of old wounds and memories we’d prefer not to have, but I think from our perspective, we can deal with it, and try to get the best sentence possible.”
Sampson, 54, pleaded guilty to the July 2001 carjacking and killing of McCloskey’s father, 69-year-old Phillip McCloskey, and of Rizzo, a 19-year-old George Washington University student from Kingston. He also confessed to the killing of Robert “Eli” Whitney, 59, of New Hampshire, in that state during the same week.
Prosecutors sought the death penalty, and a jury agreed in a sentencing trial in 2003. US District Court Judge Mark L. Wolf handed out the sentence.
In 2011, however, after years of appeals and new hearings, Wolf vacated the decision, finding that one of the original jurors had lied about a previous involvement with law enforcement as a crime victim. Wolf said he would have excluded her from the jury had he known about her past.
The US Court of Appeals for the First Circuit upheld the decision in July. Now, with the success of further appeal unlikely, prosecutors can either move on and let Sampson serve life in prison, or seek the death penalty in a new trial.
Former US Attorney Michael Sullivan, who brought the punishment a decade ago, said in an interview that Sampson deserves the death penalty and Ortiz should pursue it again.
“The death penalty has always been reserved for the worst of the worse, and clearly this is the worst of the worse,” said Sullivan, who was a Plymouth County prosecutor when Sampson committed the murders, in that district. When he became US attorney, he indicted Sampson in federal court.
“I think justice requires a jury to make that determination again,” Sullivan said. “We’re now talking 12 years after those horrific events, and justice has not been served.”
Since 1988, when federal death penalty laws were first passed, juries nationwide have had to choose a punishment for 282 defendants, and they chose death in 73 instances, or 34 percent of the time, according to the Federal Death Penalty Resource Counsel.
Sampson’s death penalty had been the first handed out in a federal court in Massachusetts, and the first deriving from a crime in the state in more than a half-century. Federal prosecutors authorized the death penalty two other times in Massachusetts. In the case of Darryl Green and Branden Morris, two Dorchester gang members, federal prosecutors ultimately dropped the charges and the men were tried in state court.
In the case of Kirsten Gilbert, the former nurse who was convicted in 2001 of administering lethal injections to patients, a jury chose a life sentence rather than the death penalty.
Prosecutors are now considering whether to seek capital punishment for Dzhokhar Tsarnaev, the Boston Marathon bombing suspect.
Attorney David Hoose, of Sasson, Turnbull, Ryan & Hoose in Northhampton, who has defended several death penalty cases, said they can become a lengthy, complex and costly process. Both local prosecutors and defense attorneys make a recommendation to the US attorney general, who then decides whether to seek a death sentence. If so, a jury would then decide after hearing arguments from both sides in a full-scale trial.
Sampson had argued several mitigating factors, or arguments against the death sentence, to both the US attorney general and to the jury: They noted that he had tried to surrender to authorities before the first murder, but an FBI clerk accidently disconnected the call. Also, his lawyers argued in his appeals that the jurors did not hear enough about brain injuries he had that had caused him to have a mental illness.
Hoose said that prosecutors could bypass some of the death penalty approval stages because a US attorney general has already sanctioned the punishment for Sampson.
But, Hoose said, lawyers will still need to go over the case and the evidence before it is presented to a jury, and then formulate final arguments for and against the death penalty. Family members will play a key role in the trial, he said.
“In an emotionally laden case like this, prosecutors aren’t going to do anything without the victims’ approval, in my opinion,” Hoose said. “The real decision is: Do we want to go through another sentencing hearing, and what are the pros and cons of it?”Milton J. Valencia can be reached at milton.valencia@ globe.com. Follow him on Twitter @miltonvalencia.