DECLARATION OF KEVIN McNALLY REGARDING EXECUTION IMPACT TESTIMONY. 1. I currently serve as the Director of the Federal Death Penalty Resource Counsel
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1 DECLARATION OF KEVIN McNALLY REGARDING EXECUTION IMPACT TESTIMONY 1. I currently serve as the Director of the Federal Death Penalty Resource Counsel Project, assisting court appointed and defender attorneys charged with the defense of capital cases in the federal courts. I have served as Resource Counsel since the inception of the Resource Counsel Project in January, The Project is funded and administered under the Criminal Justice Act by the Office of Defender Services of the Administrative Office of the United States Courts. 2. My responsibilities as federal resource counsel include the monitoring of all federal capital prosecutions throughout the United States in order to assist in the delivery of adequate defense services to indigent capital defendants in such cases. This effort includes the collection of data on the initiation and prosecution of federal capital cases. 1 1 The work of the Federal Death Penalty Resource Counsel Project is described in a report prepared by the Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS CONCERNING THE COST AND QUALITY OF DEFENSE REPRESENTATION (May, 1998), at The Subcommittee report urges the judiciary and counsel to maximize the benefits of the Federal Death Penalty Resource Counsel Project..., which has become essential to the delivery of high quality, cost effective representation in death penalty cases... Id. at 50. A recent update to the Report stated: Many judges and defense counsel spoke with appreciation and admiration about the work of Resource Counsel. Judges emphasized their assistance in recruiting and recommending counsel for appointments and their availability to consult on matters relating to the defense, including case budgeting. Defense counsel found their knowledge, national perspective, and case specific assistance invaluable. 1
2 3. In order to carry out the duties entrusted to me, I maintain a comprehensive list of federal death penalty prosecutions and information about these cases. I accomplish this by internet news searches, by reviewing dockets and by downloading and obtaining indictments, pleadings of substance, notices of intent to seek or not seek the death penalty, jury instructions and findings and by telephonic or in person interviews with defense counsel or consultation with chambers. This information is regularly updated and is checked for accuracy by consulting with defense counsel. The Project s information regarding federal capital prosecutions has been relied upon by the Administrative Office of the United States Courts, by the Federal Judicial Center and by various federal district courts. 4. Federal capital juries have received evidence and listened to testimony about the impact the defendant s execution would have on them and other family and friends in numerous cases. Such evidence has generally been presented to federal capital juries without objection by prosecutors. Juries have found execution impact as a mitigating circumstance in, among others, the following cases: LIFE SENTENCES: United States v. Ramon Molina and John McCullah (E.D. OK CR No. 1: S) (Seay); United States v. Anthony Walker and Walter Diaz (N.D. NY CR No ); United States v. Dennis Moore (W.D. MO CR No CR W 9); United States v. Phouc Nguyen (D. KS CR No ); United States v. Dean Anthony Beckford deraldeathpenaltycases.aspx 2
3 (E.D. VA CR No. 3:96 CR 66); United States v. Rashi Jones (E.D. VA CR No. 97 CR 129); United States v. Raheem and Shaheem Johnson (E.D. VA CR No A); United States v. Gurmeet Singh Dhinsa (E.D. NY CR No (S 3) (ERK)); United States v. John Bass (E.D. MI CR No ); United States v. Plutarco Tello (W.D. MO CR No /05 CR W 2); United States v. Willis Haynes (D. MD CR No. PJM ); United States v. Marcus Sanders (S.D. AL CR No CB);United States v. Kristin Gilbert (D. MA CR No MAP); United States v. Khalfan Mohamed (S.D. NY CR No. S6 98 CR 1023); United States v. Tommy Edelin (D. DC CR No ); United States v. Xavier Lightfoot (W.D. MO CR No. 00 CR 395 ALL); United States v. Coleman Johnson (W.D. VA CR No. 3:00CR00026); United States v. Christopher Willis (E.D. VA CR No ); United States v. Joseph P. Minerd (W.D. PA CR No ); United States v. Carl Haskell (W.D. MO CR No. 00 CR 395 ALL); United States v. Tebiah Tucker (N.D. NY CR No. 00 CR 269 ALL); United States v. William Sablan (D. CO CR No. 00 CR 531 ALL); United States v. Michael O Driscoll (M.D. PA CR No. 4:CR ); United States v. Jay Lentz (E.D. VA CR No. 01 CR 150 ALL); United States v. Cornell Winfrei McClure (D. MD CR No. 01 CR 367 ALL); United States v. Johnny Davis (E.D. LA CR No. 2:01 CR 282 ALL); United States v. Andre Cooper and Jamain Williams (E.D. PA CR No. 01 CR 512 ALL); United States v. Robert and Michael Ostrander (W.D. MI CR No. 01 M 639 ALL); United States v. Wayne Bridgewater and Henry Michael Houston (C.D. CA CR No GHK); United States v. Luis Gonzales Lauzan (S.D. FL CR No. 02 3
4 CR ALL); United States v. Hernaldo Medina Villegas and Lorenzo Catalan Roman (D. PR CR No. 3:02 CR 117 ALL); United States v. Shawn Arnette Breeden (W.D. VA CR No. 03 CR 13 ALL); United States v. Brent Simmons (W.D. VA CR No. 5:04 CR sgw ALL); United States v. Ishmael Cisneros and Oscar Antonio Grande (E.D. VA CR No. 04 CR 283 ALL); United States v. Kenneth McGriff (E.D. NY CR No (ERK) (VVP)); United States v. John Street (W.D. MO CR No. 4:04 CR GAF ALL); United States v. Khalid Barnes (S.D. NY No. 04 CR 186); United States v. James Dinkins (D. MD No. 1:06 CR JFM); United States v. Steven Green (W.D. KY No. 5:06 CR TBR); United States v. Jermaine Michael Julian (M.D. FL No. 8:07 CR 9 T 27TGW); United States v. Patrick Albert Byers, Jr. (D. MD No ); United States v. Antonio Argueta (D. MD No. 8:05 CR DKC); United States v. Maurice Phillips (E.D. PA No. 2:07 CR JCJ); United States v. Anh The Duong (N.D. CA No. 5:01 CR JF); United States v. George Lecco(S.D. WV CR No. 2: ); United States v. Timothy O Reilly (E.D. MI No. 05 CR 80025); United States v. Vincent Basciano (E.D. NY No. 05 CR 0060 NGG); United States v. Brian Richardson (N.D. GA No. 1:08 CR 139); United States v. Edison Burgos Montes (D. PR No. 06 CR 009 JAG); United States v. LaShaun Casey (D PR. No. 3:05 CR 0277 JAG); United States v. Larry Lujan (D. NM No. 05 CR 924) and United States v. Steven Northington (E.D. PA No. 2:07 CR RBS). 2 2 The district court in Western District of Virginia federal death penalty case in May 2006 entered a pretrial order denying the government s motion to precluded the admission of execution impact evidence at trial. See United States v. Caro, 2006 WL (W.D. Va. 2006). 4
5 DEATH SENTENCES: United States v. Bruce Webster (N.D. TX CR No. 4:94 CR 121 Y) 1; United States v. Bountaem Chanthadara (D. KS CR No ); United States v. Louis Jones (N.D. TX CR No CR 0015 C); United States v. Darryl Johnson (N.D. IL CR No. 96 CR 379); United States v. David Paul Hammer (M.D. PA CR No CR 239); United States v. Aquila Marcivicci Barnette (W.D. NC CR No. 3:97 CR 23 P); United States v. Billie Jerome Allen (E. D. MO CR No. 4:97 CR 0141 ERW (TCM)); United States v. Richard Stitt (E.D. VA CR No. 2:98CR47); United States v. German Sinisterra (W.D. MO CR No /05 CR W 2); United States v. Dustin Higgs (D. MD CR No. PJM ); United States v. Marvin Charles Gabrion (W.D. MI CR No. 1:99 CR 76); United States v. Keith Nelson (W.D. MO CR No H 01); United States v. Angela Johnson (N.D. IA CR No. 00 CR 3034 MWB); United States v. Richard Jackson (W.D. NC CR No. 00 CR 74 ALL); United States v. Gary Sampson (D. MA CR No. 01 CR ALL); United States v. Sherman Fields (W.D. TX CR No. 01 CR 164 ALL); United States v. William Emmett LeCroy (N.D. GA CR No. 02 CR 38 ALL); (E.D. NY CR No. 1:04 CR NGG ALL); United States v. Alfonso Rodriguez (D. ND CR No. 04 CR 55 ALL); United States v. Ronell Wilson (E.D. NY No. 1:04 CR NGG); United States v. John Johnson (E.D. LA No. 2:04 CR HGB SS); United States v. George Lecco and Valerie Friend (S.D. WV CR No. 2: ); United States v. David Runyon (E.D. VA CR No. 4:08 CR 16) and United States v. Ronell Wilson (E.D. NY No. 1:04 CR NGG). 5
6 5. Such testimony is regularly heard in state death penalty trials. See, e.g., State v. Smith (Union County Indictment No. 94 GS , 907). Rejection of such testimony has been found to be error. See, e.g., Romine v. State, 305 S.E.2d 93 (Ga. 1983) (error where the defendant, who murdered his parents, was not allowed to present the testimony of his grandfather that he did not wish his grandson to be executed); State v. Stevens, 879 P.2d 162 (Or. 1994) (trial court erred in excluding the testimony of the defendant s wife that she believed the execution of her husband would have a negative effect on their six year old daughter) and Richmond v. Lewis, 506 U.S. 40, 43 (1992) (recognizing Arizona s practice of accepting evidence of the effect [defendant s] execution would have upon his family as mitigation evidence) (dicta). The federal government has been allowed to present such evidence. See United States v. Battle, 1999 WL (11 th Cir. 4/28/99) (allowing the testimony by three prison guards about the murder of a fellow officer. Eleventh Circuit upheld direct questions to the prison guards of the effect of a life without parole sentence on inmates at the institution... ). 6. The information detailed herein is maintained in the ordinary course of business of the Federal Death Penalty Resource Counsel Project and is accurate to the best of my knowledge, ability and belief. 6
7 I declare under the penalty of perjury under the laws of the United States of American, 28 U.S.C. 1746, that the foregoing is true and correct. Executed this 6 th day of September, /s/ Kevin McNally Kevin McNally 7
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