Metro

Sampson may seek mercy from jury that decides his sentence

Jurors in the federal death penalty trial of Gary Lee Sampson have heard from crime scene investigators and heard chilling taped confessions. Jurors were brought to tears during testimony from family members of Sampson’s murder victims.

Now, as Sampson’s second death penalty trial heads toward a close, jurors may hear from Sampson himself.

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His lawyers have indicated that the admitted serial killer could address jurors before they decide whether he should be sentenced to death or life in prison without the possibility of parole. It would be the first time the public has heard directly from Sampson, and the testimony could be a gamble, according to legal analysts.

“As a practical matter, you have got to have confidence that your client can pull it off, that he can testify and make a good impression,” said David Hoose, a Northampton-based attorney and one of only a few from the region qualified to handle death-penalty cases.

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“I’m sure that his lawyers have carefully considered that, and my guess is they’ll probably make a last-minute decision as to whether he can do it or not,” Hoose added.

Sampson, a drifter from Abington, confessed to killing 19-year-old Jonathan Rizzo and Philip McCloskey, 69, during the same week in 2001, as well as killing Robert “Eli” Whitney, 58, days later in New Hampshire. A jury agreed to sentence him to death in 2003, but a judge vacated that decision after discovering that a juror lied during the selection process. Prosecutors are retrying the case.

During the sentencing retrial, defense lawyers have argued that Sampson should be spared from death because his judgment was impaired by a mental illness caused by repeated trauma to the head as a child. They say he turned to drugs and alcohol, further affecting his ability to make sound decisions.

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Sampson might discuss that history when making what is known as an allocution, an opportunity for a defendant to address a court before sentencing. Defendants who are found guilty routinely seek leniency from a judge, and the statements are not made under oath or subject to cross-examination by prosecutors. Dzhokhar Tsarnaev gave such a statement to a judge before he was sentenced to death for the Boston Marathon bombings.

In Sampson’s case, however, he would be able to make his statement directly to the jury, a rare occasion to plead for mercy before the 12 jurors who must be unanimous in sentencing him to death.

In court filings, federal prosecutors objected to the allocution, saying Sampson has no constitutional right to address the jury.

Letting a defendant address jurors has been controversial in federal courts, but US District Judge Leo T. Sorokin ruled in June that allowing Sampson to address the jury would allow him to do “what every other criminal defendant is permitted to do.”

The judge set several restrictions for the allocution: Sampson must read from a prepared statement at the defense table, and he may not comment on any evidentiary or legal issues.

Sampson’s lawyers must show prosecutors the statement at least a week before he reads it in court, in case they have objections.

The goal of the statement, legal analysts say, is for jurors to have an understanding of Sampson as a person, beyond his crimes.

“I think that the obvious thing is that, even for someone who has admitted to such horrible crimes, I think the jury would see that all human beings have some spark of humanity,” said Hoose, who defended Kristen Gilbert, a veteran’s nurse who killed patients, in her death penalty trial in a federal court in Springfield in 2001

Analysts also pointed out, however, that the restrictions on what Sampson can say will limit his ability to connect with the jury. Jurors could question the sincerity of a prepared statement delivered without their ability to engage Sampson. Sampson may also feel unable to connect with jurors based on the restrictions, reducing the emotional impact of his presentation, said M. Catherine Gruber, author of “I’m Sorry for What I’ve Done: The Language of Courtroom Apologies.”

“Speaking on an emotional topic, in which you don’t get any formal response from the person you’re addressing, it really limits what you can say from the beginning,” said Gruber. She researched 52 allocutions that were made directly to a judge for her book. Although none of the cases involved the death penalty, Gruber found that allocutions that were the most sincere were also the most successful.

“An effective allocution involves talking about the harm you caused, expressing your understanding of it,” Gruber said. “That’s really the best way to go about it.”

Enzo Yaksic, cofounder of the Atypical Homicide Research Group at Northeastern University, who has followed Sampson’s case since his arrest, said Sampson’s lawyers will want to try to keep him from becoming combative or indirectly blaming his victims, and so a prepared statement may be more proper.

Yaksic questioned whether Sampson could ever seem genuine before a jury, considering the brutality of his crimes, though he cited the ability of some serial killers to “feign remorse.”

There is no general agreement among lawyers who specialize in the death penalty on whether jurors respect defendants who give allocutions.

Michael Burt, one of Sampson’s lawyers, two years ago represented a former Army soldier who killed his 5-year-old daughter, and the soldier addressed jurors.

“I feel ashamed for all the suffering I caused my daughter,” Naeem Williams had said. “I can see all of the hurt I caused Talia, who just wanted to be loved and be happy.”

Four of the jurors refused to vote in favor of the death penalty, and Williams was sentenced to life in prison without the possibility of parole.

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