Court rules pair can't have separate juries

A federal appeals court ruled yesterday that two Dorchester men who could face the federal death penalty if convicted of a gang-related slaying are not entitled to separate juries, one to decide guilt and another to decide punishment.

The US Court of Appeals for the First Circuit overturned a decision by US District Judge Nancy Gertner, who had ruled that the practice of a having a single jury consider guilt and punishment in death penalty cases tends to result in a jury that is more prone to convict.

Gertner, citing studies presented by the defense, concluded that so-called ''death-qualified" juries are more likely to convict because people who admit they could never vote for death are disqualified from serving.

In its ruling yesterday, the appeals court did not delve into the issue of fairness but focused on the wording of the Federal Death Penalty Act and concluded that Gertner had improperly interpreted the law and did not have the power to order separate juries to hear the cases.

The appeals court ruling was criticized harshly by lawyers for Darryl Green and Branden Morris, who are awaiting federal trial on charges that they were part of a racketeering enterprise, the Esmond Street crew, that murdered gang rival Terrell Gethers during Boston's Caribbean Carnival in August 2001.

''The First Circuit has chosen to make it easier to execute a black man in this state by overturning Judge Gertner's thoughtful decision," said Boston lawyer Randolph Gioia, who represents Green. ''They've given the government another ace in an already stacked deck, and they didn't have to do it. It's a disgrace."

Boston lawyer Max Stern, who represents Morris, called the decision ''a breathtaking step backward for efforts to bring fairness to death penalty cases."

US Attorney Michael J. Sullivan, whose office is prosecuting Green and Morris in what is the third federal death penalty case to be brought in Massachusetts, said the federal appeals court is following the rules that Congress set on how death penalty cases should proceed.

Disputing defense assertions that juries qualified to hear death penalty cases are more inclined to convict, Sullivan said, ''Jurors take their responsibilities very seriously. The weight of the evidence first and foremost determines guilt."

Death penalty critics had applauded Gertner's decision when it was issued last November, saying it was believed to be the first of its kind in the federal courts, though similar orders have been issued a few times in state courts.

Green is scheduled to stand trial in September, along with a codefendant, Jonathan Hart, who is not charged with murder and does not face the death penalty. Morris is scheduled to be tried later with Torrance Green, who does not face the death penalty.

Lawyers for Green and Morris had asked Gertner to impanel one jury to decide guilt and, if necessary, another to decide punishment, based on studies that show that blacks and women are more likely to be disqualified from capital cases since higher percentages of those groups oppose the death penalty.

The lawyers argued that Green and Morris, who are both black, will probably face an all-white jury in federal court, where the jury pool has a low percentage of minorities.

Assistant US Attorney Theodore B. Heinrich, who is prosecuting the cases, argued that it would be unfair to require witnesses and victims in the case to go through the trauma of having to repeat their testimony before a second jury for the punishment phase.

Boston lawyer Charles Rankin, who has been involved in federal death penalty cases, said the appeals court had focused on the wording of the federal death penalty statute ''without any concern at all about how this works in the real world."