Judge says prosecutors can appeal decision to order second death penalty hearing for serial killer Gary Lee Sampson

A federal judge has authorized prosecutors to appeal his decision to order a second sentencing hearing to consider whether serial killer Gary Lee Sampson should be executed for carjacking and killing two people in 2001.

US District Judge Mark Wolf granted prosecutors’ request for an interlocutory appeal—an appeal lodged before legal proceedings end—to the First US Circuit Court of Appeals.

Wolf rejected arguments by Sampson’s lawyers that prosecutors could not appeal until the second hearing was over.

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Sampson was sentenced in the first hearing to be executed. It was the first death penalty to be handed down in federal court in Massachusetts and the first in the state in more than half a century.

But Wolf found last year that Sampson’s constitutional rights to an impartial jury had been violated because a juror had lied about “important questions relating to her ability to be impartial.” He then ordered a new hearing. In today’s ruling, Wolf officially vacated Sampson’s death sentence. Proceedings in his court will now be put on hold, pending the appeal.

Wolf said “a second hearing to determine whether Sampson should live or die will be lengthy, expensive, and anguishing for the families of Sampson’s victims.”

“It is, therefore, appropriate,” he wrote, “to give the First Circuit the opportunity to decide whether the decision that a second sentencing hearing is legally required is now appealable.”

If it finds that an appeal is in order, he said, the appeals court could also decide whether to take it up, and then decide whether he correctly interpreted the law in ordering the new sentencing hearing.

Sampson killed two men, Jonathan Rizzo and Philip McCloskey, in Massachusetts in July 2001. He pleaded guilty to federal charges, which carried the possibility of the death penalty. A jury found in 2003 that he should be sentenced to death.

Sampson was also convicted in state court in New Hampshire on charges of killing Robert “Eli” Whitney in Penacook, N.H., later the same month.