By Matthew Russell Lee, Patreon Letter
SDNY COURTHOUSE, March 13 - Sayfullo Saipov after being found guilty on 28 counts now faces a penalty phase that may result in the death penalty for killing eight people with a van along the West Side Highway.
On May 4, 2022 U.S. District Court for the Southern District of New York Judge Vernon S. Broderick held a conference on the case and Inner City Press live tweeted it here.
On January 26, Saipov was found guilty on all counts, after jury questions about whether he did it to join or advance himself in ISIS or not. That will be a major issues, along with any mitigation, in the penalty phase.
But in the penalty phase, on March 9 for deliberations, Juror 4 did not come in, due to an undisclosed emergency with a relative (who may or may not be in law enforcement). Judge Broderick noted a Federal Defenders argument, which Inner City Press first wrote about on January 16, 2023. Inner City Press is preparing a booklet about the case. More on Substack here
With a replacement Juror 4, deliberations started over, including a note with questions about threats to behead, and ADX, thread here:
OK - now in US v Saipov death penalty deliberations - interruptus? Judge Broderick says Juror 4 has an emergency and can't come in. He has asked parties if an alternate should be called in.
AUSA Houle: Did he say he's not coming back at all, given the situation of his brother? Judge Broderick: My deputy spoke to him, he was despondent and said would not be coming back. But we could wait and see. I need to check if the relative is in law enforcement Judge Broderick: The relative was just found.
AUSA Houle: We'd like a few minutes, given that context. Judge Broderick: That's fine. I took it Juror 4 was reflecting the seriousness of the communications. That's just my read on it. Juror 4 in the box is Juror 172
Judge Broderick: Given the defense's previous arguments [that it must be the same 12 jurors in liability and death penalty phases] I anticipate them moving for a mistrial, or a partial mistrial. I want to hear from the parties. I'll give you the time that you need
Now AUSA Houle says Juror 4 was called by the NYPD and told that his brother had had a heart attack, says the US believes it would be replacement for cause. Judge Broderick: That NYPD made the call raises the seriousness of heart attack. Juror 4 was despondent
Judge Broderick: Juror 4 could be excused for cause, I believe. Waiting is still an option. We have next week, a day we start at 11, another Juror 1/37 not available - and not available after March 22 or 23. So, anything else on the first issue?
AUSA Houle: What is the defense's position? FD Patton: We agree. Judge Broderick: What do the parties think, in the context of the other issue FD Patton: For the reasons in our January 16 letter, we move for a mistrial.
Judge Broderick: I deny the motion. 3 Circuit courts have considered this issue & found that courts can use alternates. I adhere to that. If it comes to that the [2d] Circuit can weigh in
Judge Broderick: So, they'll have to start their deliberations anew. I'll tell them my instructions on yesterday's questions. I'll tell them, Start anew.
Jury entering! (and alternates) Judge Broderick: Juror 13/652 is now Juror 4, since Juror 4 has had a family emergency - he's fine, but won't be returning. Now start again. I have to bring 652 up to speed on the note yesterday, on lethal injection & moratorium
Judge Broderick: OK, Juror 652 has joined them and they have begun again. So, the waiting for (next) notes continues. Watch this feed.
OK - at 1:19 pm, Judge Broderick reading out the first note from the "new" jury with Juror 652 as Juror 4. Judge: We have a note which reads as follow: on non-statutory aggravating factor 4, is a verbal threat in prison an act of violence? Is the threat to behead?
Now here in US v Saipov courtroom at 2:35 pm, Federal Defenders at their table, prosecutors (and Saipov) not in the room. Inner City Press, writing a booklet on it, remains on the case
Saipov is brought back into courtroom; Judge Broderick is reading out loud both sides' proposed answers to juror questions, on beheading threats and how ADX Florence super max is run.
Judge Broderick: So I'll answer no, no and you are entitled to consider all the evidence that is before you. So I will call the jury out and read the note into the record and response to each question just after I read it. Ms. Rodriguez, please get the jury
Judge Broderick: This is off the record. Ms. Houle, you may not see it, but my jeans are not on. [He is robed] Jury entering! Judge Broderick: You asked, is a verbal threat in prison a criminal act of violence? The answer is no.
Judge Broderick: Nor is call for the beheading of corrections officers- it is not a criminal act of violence. .. You may now return to your deliberations. [Jury leaves] Judge: We will give the jurors the form for lunch orders for Monday. Any objection? Parties: No
Judge Broderick: Do the parties agree Ms. Rodriguez can call Juror 4 and tell him he is excused, and that we wish his brother well? We will do that. Anything else before we continue our waiting? Parties: No. [So the wait continues - Inner City Press on the case]
Now at 4:45 pm Judge Broderick asks for Saipov to be brought in from the holding cell. Judge: I have received a note from the jury, that they are not going to be able to reach a verdict today. I take that to mean they want to leave and return Monday.
While waiting for jury to confirm they want to leave for the day and week, Judge Broderick says, This is probably going to be one of the biggest decisions of their lives, I think they just want to take a little time. Judge Broderick: They say, We want to break.
Jury entering! Judge Broderick: So, jurors, enjoy your day off tomorrow. Although it's supposed to rain. So maybe watching something inside. See you Monday.
Back on February 21 members of the media were not allowed into the courtroom, only to elsewhere in the courtroom where a feed shows only part of the courtroom. Inner City Press, the first of many media in opposition, wrote to Judge Broderick, here
Here's from the day's testimony, after which Judge Broderick said the press can have a bench in the back, thread here.
On February 28 as part of the defense case, an expert on Central Asia testified. Thread here.
On March 1, the defense rested its case, sans Saipov. Inner City Press live tweeted here
On March 3, the US Attorney's Office wrote to Judge Broderick seeking to preclude the defense from arguing in closing that the jury should choose a "civilized sense of justice" over "barbarism."
Federal Defenders also wrote it, protesting the US' proposed verdict form and proposed penalty-phase instructions, and submitting its own in advance of the charge conference set for March 6.
On March 6 at the charge conference, EDNY cases and legislative history were argued, thread here
On March 7, the US Attorney's Office closing; Inner City Press was there, thread here.
Later on March 7, the defense's closing, and US Attorney's Office's reputtal, resumed thread here
On March 8, after more argument, there was the jury charge, then deliberations began with two notes (and "no" answers). The jury was let go after 5:30 and will resume on March 9. March 8 thread here.
On March 13, in the afternoon it ended - with no decision, therefore a decision not to execute. Booklet coming - for now, thread here:
OK- during death penalty deliberations on Saipov, after hours of radio silence from the jury, now prosecutors Houle & Richmond are at the front table, Saipov led in to the back. S
aipov is dressed in red. Still waiting for Judge Broderick. Meanwhile, just docketed is this: "LETTER by USA as to Sayfullo Habibullaevic Saipov dated March 13, 2023 re: Pertinent Authorities for Any Allen Charge Document."
The defense objects to an Allen charge Judge Broderick takes to the bench. Judge: There is a note from the jury, that they are not able to reach a unanimous verdict. It is signed by Juror 1. I would like to hear from the parties about polling the jury --
FD Levine: We will now file a response to the US
Judge Broderick leaves the bench to read the two sides' letter. Meanwhile, from the US' letter, a case where the judge responded "please continue your deliberations. Approximately 1 hour later, the jury returned a sentence of death. US v. Fields, 483 F. 3d 313."
Now at 2:38 pm with Judge Broderick off the bench reading the parties' Allen charge letters after a jury note that they could not reach unanimity, word comes that a verdict has been reached. Seems strange. Saipov still not back at his seat...
Update: Now Saipov *has* been brought back in by the US Marshals. He's at defense table, smoothing down his hair. Here comes Judge Broderick. Judge: Mr. Saipov, can you hear from the interpreter? Saipov: Yes. AUSA: We are proposing polling at this time...
AUSA: Each jurors should get a piece of paper which asks if they believe that further discussion could lead to a unanimous verdict. Judge Broderick: What about how long this jury has been out? AUSA: There have been a lot of mitigating and aggravating factors
FD Patton: The US is using a state death penalty case from Louisiana, under the habeus standard. Here, your Honor instructed the jury, If you conclude you are unable to reach a unanimous decision, let me know by note. They did...
FD Patton: What is the point of polling? Whether its 11 to 1, or six to six, the court should not consider that. AUSA Houle: There is also a Fifth Circuit case that acknowledges the benefits of polling. Judge Broderick: I consider how the charge was formulated
Judge Broderick: I am not going to poll the jury. I do not find it would violate Mr. Saipov's rights. But based on the instructions I gave them, they gave me the same language back. And nothing indicates that they are not fully satisfied. [Phone rings.]
Judge Broderick: Each death penalty case that comes after this one, each Judge is going to have to make his or her decision on whether to poll. Okay. My intention would be to have the alternates come out, then the jury. I'll ask if they've completed the form.
Judge Broderick: Ms. Rodriguez, if you could have the alternate jurors to come up. I'll tell them they can bring their personal items up - any objection? Well, I'll have them keep their belonging downstairs. I'll tell the jurors they can now speak, if they wish...
Update: Judge Broderick has sent the jurors back to each sign the verdict sheet. The remaining alternate jurors are still in the courtroom. The defense lawyers are passing notes among themselves, with Saipov looking on.
Judge Broderick: The jurors have sent another note, that the verdict form as been completed. Judge: Please hand the verdict form to Ms. Rodriguez, please. [Judge Broderick, wearing white COVID mask, flips through the jury form.] Judge: I'm going to read the form
Judge Broderick: So you unanimously find Sayfullo Saipov was 18 years old? Yes is checked. Now Section II. Counts 1-8 and count 28 - we unanimously find that this factor has been proved beyond a reasonable doubt. 2, the same - unanimous finding of yes.
Judge Broderick: 3, you have checked yes, we unanimously find the factor has been proved beyond a reasonable doubt. 4, you have checked We unanimously find it has been proved beyond a reasonable doubt. Part B: any non unanimous? None, is written.
Judge Broderick: Now, statutory aggravating factors. Part A1, the deaths of Diego Enrique Angelini, Nicholas Cleves, Ann-Laure Decadt, Darren Drake, Ariel Erlij, Hernan Ferruchi, Hernan Diego Mendoza & Alejandro Damian Pagnucco - unanimously, it has been proved
Judge: Again, Part B, any non-unanimous? None is written. Twice.
Now, non-statutory aggravating factors. 4(1), you have unanimously found. And 4(2), on Count 28, you have unanimously found. 4(3), the defendant did this to further ISIS - you have unanimously found Judge: 4(4), future violence - you have marked, We do NOT unanimously find this has been proved as to any of the capital counts. [Not]
Judge Broderick: 4(5), you have unanimously found the intent to instill fear. And 4(6), lack of remorse, you have unanimously found. Now the mitigating factors. Factor 1, would be incarcerated for life. 12 so find, as on H Unit at ADX Florence: 12
Judge Broderick: Also 12 each on mitigating factors 3 through 26. Mitigating factor 27, are there some who believe life imprisonment is appropriate? Number of jurors: seven. [Seven]
Judge Broderick: On the rest of item 27, there are not factors filled out. Now Section 6, Determination of Sentence. Count One - "There is nothing checked off." [Nothing checked off - continues for all other counts]
Judge Broderick: Juror Number 1, does the special verdict form indicate your decision in this case? Yes, your Honor. So say Jurors 2-12. Judge Broderick: The case is now concluded. You are free to discuss the case if you so choose.
Judge Broderick: Jurors, consider whether to discuss what happened in the jury room. You are now excused. I will come back and thank each of you.
The case is US v. Saipov, 17-cr-722 (Broderick)
Watch this site
Saipov, courtesy to Inner City Press by Elizabeth Williams
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