Death Penalty for an Attempted Crime?

W A S H I N G T O N, Jan. 17 -- 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?"