Prosecutors may seek death penalty in Florida airport attack, but federal executions are rare

Federal death-penalty cases are rare, but prosecutors are already exploring the possibility of seeking the execution of a military veteran accused of flying from Alaska to Florida to gun down people at the Fort Lauderdale-Hollywood International Airport.

For federal prosecutors, the contemplated capital case against Esteban Santiago won't be so much to establish guilt – he surrendered immediately after the airport attack.

Rather, they would have to prove that the former Army reservist planned the assault, and disprove an insanity defense that he didn't know right from wrong when he opened fire in a baggage claim area Jan. 6.

[In Alaska, a high bar for taking guns from the mentally ill]

The decision to seek the death penalty against Santiago, accused of killing five people and injuring six others, carries such gravity that it must be made by the U.S. attorney general, with significant input from the U.S. attorney's office and the defendant's lawyers.

Prosecutors will consider the pros and cons, deciding whether to notify a a federal grand jury of their plan to pursue the death penalty when it considers an indictment before Santiago's arraignment Jan. 23.

"There just aren't that many murder cases that lend themselves to the federal system and so almost all of them go to the state," said Miami defense lawyer Allan Kaiser, who worked as a federal prosecutor in South Florida for 16 years. "And as rare as these cases are, you can't just jump at the prospect of seeking a death penalty."

Even if Santiago were convicted and sentenced to die, an execution could be unlikely.

The U.S. government, using lethal injection, has executed only three people since the federal death penalty was brought back in 1988.

The last execution came in 2003, when Gulf War veteran Louis Jones was put to death for raping and murdering a teenage Army recruit in Texas. Earlier, Oklahoma City bomber Timothy McVeigh and Juan Raul Garza, a drug trafficker who killed three rivals in Texas, were put to death by the federal government.
For now, there are 60 federal inmates awaiting execution, a small fraction of the hundreds on state death rows across the country. They are housed at a prison in Terre Haute, Ind.

The 60th was Dylan Roof, who shot and killed nine black worshipers at a church in Charleston, S.C. A federal jury convicted him of hate crimes, and last week, a judge approved the recommended death sentence.

Federal prosecutors have considered or sought the death penalty only in a few of Florida cases in the past decade.

Getting juries to vote for death penalties isn't easy.

In 2003, prosecutors asked a jury for death against Jose Denis, a former Florida State University student accused of fatally shooting a cocaine dealer. But jurors, unsure that he was the one who pulled the trigger, sentenced him to life in prison instead.

The outcome displeased U.S. District Judge Federico Moreno, who said he would have imposed death – but federal law prohibits a judge from overruling a jury.

In another high-profile case in 2007, federal prosecutors filed notice of charging the death penalty against two men who shot and killed the four-person crew of the Joe Cool charter boat, dumping their bodies overboard on the high seas. But ultimately, the attorney general did not authorize the death penalty. One defendant struck a plea deal before trial, resulting in life imprisonment. The other went to trial and was convicted, then sentenced to life.

Only one Florida federal case has resulted in a death-penalty verdict since the U.S. reinstated executions.

The defendants were Daniel Troya and Ricardo Sanchez Jr., who are awaiting execution for killing a family in Palm Beach County in 2009.

While most death-penalty murder cases are tried in state courts, Santiago is charged federally because the crime took place at an international airport.

Federal prosecutors said Santiago admitted after his arrest that he planned the attack and bought a one-way ticket from Anchorage to Fort Lauderdale. They would try to show premeditation and intent to kill multiple victims who were elderly and vulnerable to make their case for the death penalty.

[Esteban Santiago checked in more than 4 hours early for his flight, carrying only a gun case]

Defense lawyers must now begin compiling "mitigation" – the details of Santiago's life that might spare him the possibility of execution.

Santiago defense case could focus on his history of mental illness, his stay in an Alaska psychiatric facility and his military experience in Iraq.

Two months ago, Santiago went to the FBI in Anchorage to tell agents that he was hearing voices urging him to support Islamic State and that the CIA was pressuring him to watch training videos. Agents referred him to local police, who took his handgun from him while he underwent a psychiatric evaluation for a few days, and then gave the gun back to him in December.

Santiago is now accused of using that weapon, a Walther 9-mm, in the attack at the airport.

"This guy was clearly mentally ill. He reached out to the FBI because of his paranoia," said Miami capital-litigation lawyer Terry Lenamon, who is not involved in the case. "There will be a lot of mitigation to work with."

Kaiser, the former federal prosecutor who was involved as a defense attorney in the 2007 Joe Cool case, agreed with him.

"It's a tough death case," Kaiser said, citing Santiago's mental health problems, his approaching the FBI and his recovering the firearm from police. "Once you start peeling back the onion, you never know what you're going to find."

Miami defense attorney Bruce Fleisher, who has been involved in more than 80 capital and homicide cases, said no one should jump to conclusions about Santiago's state of mind based solely on the demeanor he showed in an airport surveillance video of the shooting.

Fleisher said Santiago's defense team – including the federal public defender's office assigned to represent him this week – will have to conduct a complete historical, medical and psychiatric evaluation to assess his profile and gauge what made him snap.

"I don't think anyone can offer their opinion until they do their due diligence," Fleisher said. "It's the ultimate due diligence to investigate every aspect of your client's life. … Does he have a viable insanity defense?"

Santiago's lawyers are expected to present mitigating factors to Miami's U.S. attorney, who must decide whether to recommend execution as a possible sentence. Then, a Department of Justice committee in Washington would meet to decide whether to recommend the death penalty.

The process would require that defense lawyers travel to Washington to present their mitigation arguments again.

Ultimately, the decision will be up to the U.S. Attorney General, likely to be Sen. Jeff Sessions, who is expected by many to take a harder line on capital punishment than his predecessors under President Barack Obama.

For the defense team, building that psychological and medical profile of Santiago will go hand-in-hand with preparing an insanity defense.

But such defenses are notoriously difficult – lawyers must prove that a killer didn't know right from wrong at the time of the crime.

One prominent example was Miami's Liset Hernandez, who was driven to stab her 9-month-old baby to death by voices in her head warning her of the arrival of the Antichrist. Days after the 2006 murder, Hernandez was found covered in blood, hiding inside her closet with her older daughter.

Prosecutors agreed that Hernandez didn't know right from wrong, and she was acquitted by reason of insanity. Today, she remains at a home for the mentally ill, under court supervision.

But in Santiago's case, prosecutors would likely be able to prove a methodical premeditation: He packed his gun in a case, flew cross-country on a one-way ticket, loaded his gun in an airport bathroom and calmly opened fire before encountering a deputy while leaving the airport, and then surrendering to police.