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Lawyers cite serial killer’s ill health in death penalty case

Gary Lee Sampson’s lawyers say he has chronic hepatitis and stage four cirrhosis of the liver.

AP/File

Gary Lee Sampson’s lawyers say he has chronic hepatitis and stage four cirrhosis of the liver.

Lawyers for Gary Lee Sampson said Tuesday that they will ask the US Department of Justice to reconsider whether prosecutors should seek the death penalty for the admitted serial killer, saying that Sampson has serious medical ailments and could die in prison before a sentence of capital punishment is carried out.

“The fact of the matter is, Mr. Sampson’s health is precarious, and it’s real,” one of his lawyers, William E. McDaniels, said during a US District Court hearing in Boston.

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McDaniels disclosed for the first time that Sampson, now 54, has chronic hepatitis and stage four cirrhosis of the liver that has effectively prevented any efforts to treat the hepatitis.

He said that Sampson is nearing end-stage liver disease and that roughly 85 percent of people who reach that stage die within five years.

He questioned whether prosecutors should continue to seek the death penalty, a process that, with appeals, could outlast Sampson — while at the same time subjecting family members of his victims to another grueling sentencing trial.

“His life is basically catching up with him,” McDaniels said.

Michael Rizzo, the father of 19-year-old Jonathan Rizzo, one of Sampson’s victims, said after the hearing that he was offended officials would consider the concerns for victims’ family members in a way that would benefit Sampson.

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He said relatives of Sampson’s victims agreed that he should be sentenced to death.

“It is the appropriate penalty for him to suffer, the way we have had to suffer,” Rizzo said.

Sampson, a drifter from Abington, pleaded guilty in 2003 to the carjacking and killing of Rizzo, a college student from Kingston, as well as Philip McCloskey, a 69-year-old father from Taunton.

That same week, he also killed Robert “Eli” Whitney, 59, in New Hampshire. Sampson was sentenced in that state to life in prison.

After a lengthy sentencing trial, a US District Court jury in Boston ordered that Sampson receive the death penalty. He had asked to be sentenced to life.

US District Senior Judge Mark L. Wolf vacated the jury’s decision in 2011 following a lengthy appeals process, after finding that one of the jurors lied and withheld information about her prior encounters with law enforcement.

The US Court of Appeals for the First Circuit upheld the decision in July. Prosecutors maintained that they would seek the death penalty again.

In Tuesday’s hearing, Wolf sought to outline a schedule for the case.

He ordered the lawyers to decide by Feb. 24 on a schedule for any presentations to the Department of Justice regarding the decision to seek the death penalty, and he also ordered prosecutors to set a date for when the Justice Department would consider its decision final, if it is not now.

Wolf also said he does not believe he has to recuse himself. Assistant US Attorney Zachary Hafer, who is now the lead prosecutor in the case, raised the question based on his new role.

Hafer’s wife’s family knows Wolf personally, and the judge attended Hafer’s wedding in 2004.

The judge said he does not believe he would have a conflict of interest, noting he has already overseen the case for 10 years.

He said the US attorney’s office could remove Hafer if it believes he would have a conflict before the judge.

Wolf gave attorneys until Tuesday to file any arguments on the issue.

A hearing for the case schedule was set for March 7.

Rizzo, who has been critical of the judge’s handling of the case before, said Wolf should reconsider whether he should serve on the trial.

“From day one, he has had a no-death-penalty agenda, a not-on-my-watch agenda,” Rizzo said, expressing frustration that the judge vacated the death penalty decision based on the impartiality concerns of one juror.

“If we’re going to hold jurors to that standard, we have to hold the judge to that standard as well, and I don’t think the judge can pass that test,” he said.

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