BOSTON — When Gary Sampson was sentenced to death for killing 69-year-old Philip McCloskey and 19-year-old Jonathan Rizzo during a weeklong crime rampage, jurors were shown gruesome photographs of the two men after they were stabbed repeatedly by Sampson. In an appeal to be heard by a federal appeals court this week, Sampson argues that jurors who condemned him to die decided his punishment not based on evidence, but on the emotional impact of the graphic crime scene photographs. Sampson, a drifter who grew up in Abington, is the first person sentenced to death in Massachusetts under the federal death penalty law. The state has no death penalty and has not executed anyone in more than half a century. Sampson killed McCloskey and Rizzo several days apart in July 2001 after each man picked him up hitchhiking. He also confessed to killing a third man — Robert "Eli" Whitney, 58, in Meredith, N.H. — and was sentenced separately in that case to life in prison. His weeklong crime spree ended in Vermont when he surrendered to state police after carjacking another man who jumped out of his car and got away. Sampson confessed and later pleaded guilty, so the jury was never asked to decide whether he committed the crimes. But the jury heard the killings described in detail during the sentencing phase of the trial. Sampson told police he held a knife to McCloskey and forced him to drive to a wooded area in Marshfield, where he tied him up with his belt and stabbed him 24 times. In his confession, Sampson said he carjacked Rizzo three days later and told the college student he would not hurt him, but would tie him up and leave him in the woods. He said he then stabbed Rizzo repeatedly and slit his throat as he sat on the ground, tied to a tree. In their appeal, Sampson's lawyers argue the photographs of the crime scenes produced "wailing and tears" from family members who were in court — including Rizzo's mother — which in turn enflamed the emotions of the jury. David Ruhnke, a death penalty expert in Montclair, N.J., who is Sampson's lead attorney, would not comment on the appeal. In their written brief, Sampson's defense team argues the photographs were unnecessary because Sampson had pleaded guilty and they were not needed to prove the case against him. "The unfortunate effect of their expression of emotion — without denigrating or challenging the sincerity of the emotions expressed — was that the jury was exposed to a constant presentation of victim-impact evidence, far beyond what the district court or the law properly allowed," Sampson's attorneys wrote. A spokeswoman for U.S. Attorney Michael Sullivan would not comment on the claims made in Sampson's appeal. A spokeswoman for the U.S. Department of Justice also declined to comment. In their written brief, prosecutors argued the judge allowed jurors to see only a small subset of all of the crime scene photographs. "The photographs brought the government's allegations to life for the jury in a way that other evidence, such as bare testimony and charts, could not," they said. During the trial, Sampson's defense team presented testimony from psychiatrists who said he suffered from organic brain dysfunction. But the jury rejected his mental illness claims, a finding Sampson's lawyers say was not consistent with the evidence. Prosecutors depicted Sampson as a calculating criminal who preyed on Good Samaritans. Sampson's lawyers also argue the jury's finding that McCloskey was a vulnerable victim was not supported by the evidence. They said Sampson did not know that McCloskey was in poor physical condition. McCloskey's son, Scott, said that argument is hard to fathom. "He was a 69-year-old man who just went through triple bypass surgery. How was he not vulnerable?" Scott McCloskey said yesterday. "He was carjacked and he was brutally murdered. How can he not be vulnerable. He's an old man." Scott McCloskey, who plans to listen to the arguments before the 1st U.S. Circuit Court of Appeals tomorrow, said that for his family, Sampson's appeal brings up emotions that are never far from the surface. "We think about it all the time anyway, but when this comes up, of course you start thinking about it all over again," he said. "People think as time goes on, it fades, but it doesn't. I think about it every day."
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