Death Penalty for an Attempted Crime?

The tedious but vital ordeal of jury selection began in Alexandria, Va., federal court this past week for the trial of Brian Regan, the former Air Force sergeant accused of attempted espionage on behalf of Iraq, Libya and China, and of mishandling national defense information.

And here are the two most significant facts about this case:

Regan is charged only with attempted espionage; and yet

The government is seeking the death penalty if he is convicted.

This, despite the fact that since the death penalty was reinstated for espionage in 1994, there have been 10 people convicted of completed acts of espionage, some gravely serious, for whom nevertheless the government did not seek death.

Some 200 prospective jurors were called in on Monday and required to fill out an 18-page questionnaire closely examining their backgrounds and particularly seeking their views on the death penalty. Question No. 50 was particularly tricky: "Do you believe that a sentence of life imprisonment can be a severe enough sentence for one who has attempted to commit espionage?"

Prosecutors were at pains to find jurors who could impose death even for an uncompleted act. Defense attorneys wanted jurors who could weigh mitigating factors — they indicated they might introduce evidence of excessive alcohol use or mental health problems — and who might find so much mitigation that they would be willing to impose a sentence of life without possibility of release.

But at least for the first few jurors questioned, they had a tough time conveying what they wanted.

Voir Dire

The first batch of prospective jurors was brought back to court on Wednesday to be individually interviewed by the judge and the attorneys in what's called "voir dire." The courtroom must seem an awesome place to the ordinary citizen hauled in to sit in the witness box and have every word, every move, every nuance carefully scrutinized by nearly a dozen lawyers — and one defendant.

The prospective jurors seemed alternately intimidated, mystified, and eager to supply the "right" answer. One responded to Question 45 — "In what ways, if any, might your religious, moral, ethical, or philosophical views affect your service as a juror in this case?" — by quoting from the Ten Commandments, "Thou shalt not kill."

Judge Gerald Bruce Lee tried gently to determine if the potential juror could nevertheless consider applicable law: "In this case you won't be asked to apply the Ten Commandments, but the law." But once the juror satisfied the judge on that point, he wandered into another sticky area.

When Judge Lee asked, would the fact that human life was either taken or not taken sway you, the juror replied, "Yes, sir, it could." Would that be important for you to know? "Yes, sir." The bewildered man was finally led to agree that he could be equally open to both possible punishments if there is a conviction.

Then, with the juror briefly removed, chief prosecutor Patricia Haynes brought up a point previously raised in court filings: The government may introduce evidence of a completed act of espionage at the time of sentencing, bu she wasn't sure and thus did not want any question to jurors to address the issue of completed or uncompleted acts.

Defense attorneys understandably protested that if the government is going to introduce supposed evidence of a completed act as an aggravating circumstance at sentencing, it would be inappropriate not to inquire about jurors' attitudes.

The juror was led back into the courtroom to face this issue. Lee explained that during the penalty phase of the trial, "there could be evidence about attempted espionage or even a completed act of espionage … the question is whether, if there is evidence about a completed act, is that evidence that you would consider in weighing the two possible punishments?"

The anxious juror replied, "I believe the answer is yes ... I think if it was completed, yes, it would enter into it." He was led away again, and although prosecutors had no objection, the defense asked the judge to consider striking the man from the pool, on the grounds that he had been "substantially reluctant" to say he could weigh both punishments. But Lee found him qualified.

And so it went. Another prospect also responded on her questionnaire that life in prison could not be severe enough punishment, but declared she could be open to considering life. Nevertheless, she immediately added, "When I am sure that act would have endangered other lives and the national security of the United States, then I would consider the death penalty."

Defense attorney Nina Ginsberg complained to the judge, "Frankly, I can't tell if they're agreeing with what they think you want to hear, or if they misunderstand."

She then committed the kind of slip that makes reporters sit through deadly dull events like voir dire. Once again raising the issue of whether the government would attempt to introduce evidence of actual espionage, Ginsberg noted there would be questions whether such evidence would be admissible, because there would be issues of authentication, including "how the Libya letter came into their possession."

The court filings had very carefully referred to Country A instead of naming the country that allegedly had received an offer to spy from Regan, a letter that had been turned over to the U.S. government and had led to its opening the investigation of Regan. After the investigation began, letters to Iraq and China and other evidence were discovered in his computer and workspace, according to court papers. But it had not previously been made absolutely clear that what started it all was a letter to Libya.

Did Moammar Gadhafi actually turn the letter over to the United States? If so, why? Did he think it was a trap? Or was he extending an olive branch?

In the alternative, perhaps the United States had an undercover agent stationed in Libya who was able to grab Regan's letter before it reached the Libyan chief — but, as the defense has pointed out, that eventuality would preclude its being used as evidence of a completed act of espionage; it would remain an attempt.

Fending Off Death

Why is the government so adamant that a man whose letters were so replete with spelling errors that they can't be read with a straight face, a man only charged with attempted espionage, should nevertheless face death if convicted? The defense team has made many impassioned arguments about this point.

In one pleading, the defense wrote, "If the government has its way, Regan will be the first of scores of persons convicted of espionage even to be considered for execution since 1953, when Julius and Ethel Rosenberg were put to death. … [T]he damage Regan is alleged to have caused is dramatically less than the harm caused by recent spies Robert Hanssen, Harold Nicholson and Ana Montes, and significantly less than that caused by every other person charged with espionage since enactment of the federal death penalty."

The same document explains a bit more about a point I noted above. "The [government's] Notice of Intention to Seek a Sentence of Death goes beyond the allegations in the indictment, charging that Regan actually committed espionage, something the government will seek to prove only at the sentencing phase of the trial, should there be one. So that the import of that claim is not overrated, the government has informed that it will seek to prove that Regan actually mailed a letter to Country A, offering to commit espionage and enclosing several pages, a few of which were classified. Whether or not this letter actually reached a representative of Country A has not been disclosed to the defense."

Yet another defense motion explained a little further: "The defense understands that the investigation in this case began when the United States was given a letter or letters (referred to here simply as the 'letter'), which had been sent to the President of _____. The letter was very similar to a letter the government claims to have found on the defendant's computer, which is quoted at length in the Superseding Indictment in this case. The United States has informed counsel that it does not intend to use the letter actually sent to _____ during the guilt/innocence phase of the trial, but that it will seek to use the so-called letter in the penalty phase should there be one."

Later in the same pleading, the defense attorneys argue: "Assuming the truth of all the government's allegations, though Regan attempted to commit espionage, he was never successful. The very few documents he is alleged to have sent to a foreign country were, we believe, either intercepted before they were received, or were quickly turned over by the foreign country to the FBI. No damage was done. No American was put at risk. No career was ruined."

Seeking Death

In its pleadings, the government has listed many aggravating factors that it believes would support a sentence of death. The jury must agree unanimously on at least one "aggravator" that either is not outweighed by any mitigating factors, or, in the absence of any mitigators, is sufficient on its own to justify death.

The statutory aggravators are grave risk of substantial danger to the national security, and grave risk of death to another person. These are elaborated upon in the 24 separate non-statutory aggravating factors the government asserts, which include:

"The scope and sensitivity of the information which the defendant offered to compromise in return for money was particularly egregious."

Regan engaged in exceptional and meticulous planning and premeditation.

Regan was an Air Force sergeant/retiree who "nevertheless engaged in conduct which placed his fellow Air Force personnel at grave risk of death."

The countries in question , Iraq and Libya, "are aggressively hostile to the United States."

Regan "was aware of the damage he was seeking to inflict." In the letter allegedly prepared for delivery to Iraq, Regan wrote, "THE INFORMATION I AM OFFERING WILL COMPRIMISE US INTELLIGENCE SYSTEMS WORTH HUNDREDS OF BILLIONS OF DOLLARS" ... "THE KNOWEDEGE I WILL PROVIDE YOU CAN SAVE YOU BILLIONS, BY IMPROVING YOUR WEAPON SYSTEMS TACTICS, WHICH WILL LIMIT THE US CAPABILITY TO TARGET AND DESTROY YOUR EXPENSIVE AND VITAL WEAPON SYSTEMS AND FACILITIES." [All spellings are as in the original.]

Regan used "the death penalty as a marketing tool," writing: "IF I AM CAUGHT I WILL BE ENPRISIONED FOR THE REST OF MY LIFE, IF NOT EXECUTED. FOR THIS DEED, MY WIFE AND DAUGHTER WILL BE DISCRASED AND HARRASHED BY EVERYONE IN OUR COMMUNITY. CONCIDERING THE RISK I AM ABOUT TO TAKE I WILL REQUIRE A MINIMUM PAYMENT OF THIRTEEN MILLION US DOLLARS …."

The prosecutors also allege that Regan may have inflicted even more damage: "There is substantial reason to believe that the defendant moved far more than 800 pages out of the NRO [National Reconnaissance Office] and may have buried, or otherwise secreted, the material. This is indicated by his traveling with dirt (which might possibly be used to mark a burial site), Rubbermaid containers (large enough to contain a ream of paper) ... putting substantial mileage on the car indicative of out-of-area travel; by a trip he made into the woods in Farmingdale, New York, which may have been a scouting trip for a potential burial site ..."

Prosecutors also feel strongly that part of their responsibility is to vindicate congressional intent; the Congress passed an espionage law that provided the maximum penalty for even attempted espionage to be death. They also believe it was a serious offense for Regan to offer materials that could have resulted in the death of U.S. pilots over Iraq.

Curious Incident

Part of a document that was supposed to be sealed reveals thatt last October Regan was caught having tried to hide documents in a tiny hole in the wall of his cell, according to prosecutors. Most of this episode remains under seal, but it raises the intriguing suggestion that Regan may be more than a bumbling wannabe spy.

On Saturday, Oct. 12, during a routine jailhouse sweep, "documents containing a coded message were found secreted in a utility room adjacent to the defendant's jail cell. The documents consisted of five or six pages rolled up and held together with two toilet paper tubes, together with a pen. There was a small hole in the wall near the floor in the defendant's cell, through which the defendant had apparently stashed this coded message."

When the deputies confronted Regan, "he became visibly agitated," and asserted that the documents were protected by attorney-client privilege. As the documents contained no marking indicating any such privilege, the deputies took Regan to his work station 20 feet away and put the papers on a table so he could mark them.

But: "After beginning to mark the documents, Regan snatched the documents, ran across the room to his cell, and immediately flushed the documents down the toilet. When the deputies apprehended Regan and said 'What will you do about the copies we made?' Regan turned white and sat down on his bunk without replying."

Of course the deputies did not really have copies, and the pleading asks the court's permission to have the FBI examine the deputy who briefly saw the documents (the deputy had written a memo recording his recollection of what he'd briefly seen). The government argues the documents could not possibly be genuine attorney-client production, nor could Regan have had any legitimate expectation of privacy regarding something stashed in the wall. In support of the motion, the government further states:

"As the Court is aware, there is evidence that the defendant has secreted highly classified information in different locations around the country. The deputy's recollection of the contents of the message may permit the FBI to recover this information" — before somebody else gets it first!

Beverley Lumpkin has covered the Justice Department for 17 years for ABCNEWS. Halls of Justice appears every Saturday.