Federal prosecutors said Friday that they will once again seek the death penalty for Gary Lee Sampson, the serial killer who for 10 years has fought off capital punishment in a series of court appeals.
The prosecutors said in a letter to US District Court Judge Mark L. Wolf that they want to empanel a new jury to decide whether Sampson should be executed as soon as possible, saying the evidence in the case remains the same. If anything, the prosecutors said, Sampson has continued his violence while in prison: He allegedly thrust a sharpened broomstick at prison staff, threatened to kill them, and assaulted inmates.
“Justice . . . requires that a jury again determine the appropriate sentence for Sampson,” prosecutors said in the 10-page court filing. A hearing is slated for Jan. 13.
Sampson, now 54, pleaded guilty to the 2001 carjackings and killings of 19-year-old Jonathan Rizzo of Kingston and 69-year-old Phillip McCloskey of Taunton in what prosecutors called among the most horrendous crimes of the time. That week, he also killed Robert “Eli” Whitney, 59, of New Hampshire, in that state.
A jury in 2003 agreed to hand out the death sentence for Sampson. But after years of hearings, Wolf vacated the decision in 2011 after finding that one of the jurors in the death sentence trial failed to disclose that she had past encounters with law enforcement.
The judge said he would have excluded her from the jury if he had known, based on a possible prejudice against someone charged with a violent crime.
The US Court of Appeals for the First Circuit upheld the decision in July, and prosecutors were left to decide whether to let Sampson serve a life prison sentence or seek a new sentencing trial, what could be a costly, drawn out, and emotional process.
Relatives of Rizzo and McCloskey told the Globe that they wanted prosecutors to pursue the death penalty again. The relatives, however, have been critical of Wolf’s decision to overturn the initial jury verdict, and they questioned whether the judge’s decision was a way to protect Sampson from the death penalty.
Wolf angered relatives after the trial by saying that he believed Sampson was indeed mentally ill, but he did not give his personal view on the death penalty.
“We generally, as a group, think the rehearing of the penalty phase is really unwarranted, and it’s just an affront to us, the victims’ families, in term of who [Sampson] is and what he’s done,” said Rizzo’s father, Michael.
“We are generally offended by this entire thing,” he added, “But if we’re going to hold the jury impartial through this whole thing, we need to hold judges to be impartial, as well, and I don’t think he can pass that standard.”
Judges are not allowed to comment on cases, but Wolf has said in past hearings that he was seeking to “strike some balance between the need for this case to progress and my usual desire to get it right.”
The prosecutors’ announcement Friday comes as US Attorney General Eric Holder is deciding whether to seek the death penalty for Dzhokhar Tsarnaev, the alleged Boston Marathon bomber.
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.
Robert Sheketoff, a well-known lawyer in the federal court system who initially defended Sampson a decade ago, said a death penalty trial can be as complex and emotional as a trial to determine guilt or innocence.
He said it took several weeks to pick a jury in Sampson’s case, and the trial lasted several more weeks. Prosecutors submitted evidence in favor of the death penalty, defense attorneys argued against it, and the jurors also heard from the family members.
“It’s about as emotional as it gets,” Sheketoff said.
At the original trial, Sampson’s lawyers had argued several mitigating factors. 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.
Wolf recently asked the lawyers in the case to determine whether Sampson is suffering from a mental illness that should be considered in the new proceedings, and prosecutors said there is no evidence that he does.
Assistant US Attorney Zachary R. Hafer, who is now the lead prosecutor in the case, also questioned whether Wolf should reconsider recusing himself from the case. Wolf knows Hafer’s family, attended his wedding a decade ago, and gave him favorable job recommendations.
In past hearings, Wolf and Hafer agreed there was no conflict, but Hafer asked the question again now that he is the lead prosecutor, according to court records.
“In a death penalty case, the concerns regarding finality are particularly acute,” Hafer said in the court filing Friday.
Sheketoff said that prosecutors properly filed the request, saying, regardless of how Wolf handles it, it was their job to protect the record against any appeals.
“They don’t want to have to do this a third time,” he said.