Judge: Government can proceed with death penalty in Yosemite homicide case

SAN FRANCISCO - A federal judge has ruled that the government can proceed with its pursuit of the death penalty against the motel handyman accused of killing a Yosemite naturalist.

In a 47-page decision filed late Monday at the Eastern District court in Fresno, U.S. District Judge Anthony W. Ishii referred often to the case of Unabomber Ted Kaczynski in rejecting all Cary Stayner's challenges to the 1994 federal death penalty statute.

Stayner, who faces an October trial in the July 21 death of Joie Armstrong, had argued that the statute is unconstitutional or being misapplied on several grounds, including that the language is broad and vague and the punishment is cruel and unusual.

Stayner also argued that the underlying indictment returned by a grand jury lacks evidence of aggravating factors and mental intent required in death penalty cases, and that he therefore could not be charged with capital offenses nor sentenced beyond life in prison.

Ishii disagreed, citing an unpublished opinion by U.S. District Judge Garland E. Burrell Jr. in United States vs. Kaczynski that explained how aggravating factors are sentencing provisions that become relevant only if there is a conviction.

''The Supreme Court has noted that aggravating circumstances are not separate penalties or offenses but are standards to guide the making of the choice between the alternative verdicts of death and life imprisonment,'' the 1997 opinion said. ''Consistent with this principle, the statutory aggravating factors have never been held to constitute elements of the substantive offense which must be contained in the indictment.

''Defendant's argument concerning the failure to obtain an indictment on the mental intent requirement ... is equally unpersuasive.''

Assistant Federal Defender Robert Rainwater declined comment Tuesday.

Ishii also denied Stayner's motions seeking to strike some of the statutory aggravating factors the government is using to justify pursuit of a death sentence, including that the crimes against Armstrong were committed after substantial planning and premeditation and carried out in an especially heinous, cruel and depraved manner.

The information backing up that latter aggravating factor is contained in a government proffer that was ordered sealed by the court. It is central to a joint motion filed by several news organizations including the Associated Press that argue Ishii deprived the public and the press their First Amendment right to be heard by failing to provide proper notice or hold a hearing before directing prosecutors to seal information that has historically been open to the public and ''plays a significant role'' in the determination to seek a death sentence.

In a related order Monday, Ishii asked defense attorneys and prosecutors to file by July 21 any objections to unsealing the proffer.

Arguments on that motion and several others will be heard by Ishii on July 27.

Stayner, who turns 39 next month, is being held in Fresno County Jail pending trial, which is being heard in federal court because Armstrong was killed in a national park. A decision is pending on whether the case will be moved to Seattle, a site agreed to by both sides, because of pretrial publicity.

Stayner faces a second trial on state charges in the February 1999 murders of Yosemite sightseers Carole Sund, 42, her daughter Juli, 15, and family friend Silvina Pelosso, 16, of Cordoba, Argentina.

Stayner confessed to killing all four women after his arrest in Armstrong's murder.


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