NYC bike path killer may face death penalty as sentencing looms

A jury on Monday will begin considering whether an Islamic extremist who killed eight people on a New York City bike path should get a death sentence, an extraordinarily rare penalty in a state that hasn't had an execution in 60 years.

Sayfullo Saipov, 35, was convicted last month in the 2017 attack, in which he intentionally drove a truck at high speed down a path along the Hudson River, mowing down bicyclists on a sunny morning hours before the city's Halloween celebrations.

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The same jury that found Saipov guilty will return to work, hearing from additional witnesses in the trial's penalty phase. Anything less than a unanimous vote for death will mean Saipov will spend the rest of his life in prison.

The crashed vehicle used in what is being described as a terrorist attack sits in lower Manhattan the morning after the event on November 1, 2017 in New York City. (Photo by Spencer Platt/Getty Images)

Saipov's lawyers hope to convince jurors that a life term is punishment enough for the attack that killed five friends from Argentina, a woman from Belgium and two Americans.

New York does not have capital punishment and hasn’t executed anyone since 1963, but Saipov’s trial is in federal court, where a death sentence is still an option, though one rarely sought with success. The last time a person was executed for a federal crime in New York was in 1954.

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President Joe Biden put a moratorium on federal executions after taking office and his Justice Department has not, until now, initiated any new death penalty proceedings.

Saipov's lawyers have argued it is unconstitutional for prosecutors to seek his execution when the government has stopped seeking death in so many other cases, including some with defendants who killed more people.

"There is no rhyme, reason, or predictability as to why the government chooses to seek death in some murder cases but not in others," they wrote in one recent court filing.

They noted that then-President Donald Trump quickly urged a death sentence, tweeting a day after the attack that Saipov "SHOULD GET DEATH PENALTY!" The lawyers said it was Trump’s way of furthering "his anti-immigrant agenda."

Investigators work around the wreckage of a Home Depot pickup truck a day after it was used in a terror attack in New York on November 1, 2017. / AFP PHOTO / Jewel SAMAD (Photo credit should read JEWEL SAMAD/AFP via Getty Images)

"There is a legitimate concern that the death penalty sometimes (and impermissibly) turns on the defendant’s race, ethnicity, national origin, and religious beliefs," they wrote.

Even in deadlier attacks, including the 2019 racist attack at a Walmart in El Paso, Texas, that killed 23 people, death was not sought, the lawyers noted. The gunman in the Walmart attack could still receive the death penalty, however, under separate state capital murder charges in Texas.

The lawyers said it seemed arbitrary for the U.S. Justice Department to "spare some defendants but single out Mr. Saipov, a Muslim immigrant, for the death penalty even though their culpability is arguably greater."

Prosecutors are expected to focus on Saipov's victims. In the first phase of his trial, jurors heard from survivors who described the horror and sorrow at losing loved ones and the pain they continue to suffer from injuries. More of that kind of emotional testimony was expected as prosecutors present their case over the next week.

Saipov, meanwhile, has been unrepentant since he was shot after emerging from his truck and waving pellet and paintball guns at a police officer. Later, in a hospital bed, the Uzbekistan citizen smiled as he requested that a flag of the Islamic State group that inspired his rampage be put on his room's wall, prosecutors said.

Prosecutors plan to introduce evidence intended to show jurors that, if kept alive, Saipov may still be able to communicate with sympathizers.

They noted in one pretrial document that a Federal Bureau of Prisons officer was prepared to testify that Saipov last year asked a guard to give a bag of candy to another inmate who is subject to strict rules to prevent communication with others. The bag, prosecutors said, contained a message for the other inmate saying they soon would be with their fellow religious enthusiasts.

Saipov’s lawyers said even before trial that he would be willing to plead guilty and consent to life in prison if death was not sought.

Any death sentence rendered by the jury would likely by subject to years of appeals.

New York's last federal death penalty case involved a man who murdered two police officers in 2003. Federal juries in Brooklyn twice imposed a death sentence, first in 2007 and again in 2013, but each time that sentence was ultimately overturned on appeal.