Airport shooter faces death penalty but actual execution is unlikely

Esteban Santiago is taken from the Broward County main jail as he is transported to the federal courthouse in Fort Lauderdale on Monday, Jan. 9, 2017. Santiago is accused of killing five people and wounding six others in the Fort Lauderdale airport shooting and faces federal charges involving murder, firearms and airport violence.
Esteban Santiago is taken from the Broward County main jail as he is transported to the federal courthouse in Fort Lauderdale on Monday, Jan. 9, 2017. Santiago is accused of killing five people and wounding six others in the Fort Lauderdale airport shooting and faces federal charges involving murder, firearms and airport violence. Sun Sentinel

Federal death penalty cases are exceedingly rare, but prosecutors are already exploring the possibility of seeking execution for a military veteran who flew from Alaska to Fort Lauderdale to gun down nearly a dozen airport travelers.

For federal prosecutors, the contemplated capital case against 26-year-old Esteban Santiago won’t be so much a whodunit — after all, he surrendered immediately after the deadly attack at Fort Lauderdale-Hollywood International Airport.

Rather, they will have to prove the former Army reservist premeditated the violent assault — and disprove the defendant’s likely insanity defense that he didn’t know right from wrong when he opened fire in a baggage claim area last Friday.

The decision to pursue the death penalty against Santiago, accused of killing five people and injuring six others, carries such gravity that it must be made by the U.S. Attorney General, with significant input from the U.S. Attorney’s Office as well as the defendant’s lawyers in South Florida.

Prosecutors will be weighing the pros and cons, deciding whether to put a federal grand jury on notice of their plans to pursue the death penalty when it considers an indictment before Santiago’s arraignment on Jan. 23.

“There just aren’t that many murder cases that lend themselves to the federal system and so almost all of them go to the state,” said Miami defense lawyer Allan Kaiser, who worked as a federal prosecutor in South Florida for 16 years. “And as rare as these cases are, you can’t just jump at the prospect of seeking a death penalty.”

Federal executions rare

Even if Santiago were convicted and sentenced to die, an execution could be unlikely.

The U.S. government, using lethal injection, has only executed three inmates since the federal death penalty was brought back in 1988.

The last execution came in 2003, when Gulf War veteran Louis Jones was put to death for raping and murdering a teenage Army recruit in Texas. The feds earlier executed Oklahoma City bomber Timothy McVeigh, and Juan Raul Garza, a drug trafficker who murdered three rivals in Texas.

James Foster, who said he trained in Anchorage with Esteban Santiago, called the Fort Lauderdale airport shooter "just a regular guy working as a security guard."

For now, there are only 60 federal inmates awaiting execution, a small fraction of the hundreds on state Death Rows across the country. They are housed at a penitentiary in Terre Haute, Indiana.

The 60th was Dylan Roof, who shot and killed nine black worshipers at a church in Charleston, S.C. A federal jury convicted him of hate crimes, and Wednesday a judge approved the recommended death sentence.

Federal prosecutors have only considered or sought the death penalty in a handful of Florida cases in the past decade.

Getting juries to go along isn’t easy.

In 2003, prosecutors asked a jury for death against Jose Denis, a former Florida State University student accused of fatally shooting a cocaine dealer, point blank in the head, during a drug rip-off in a Hialeah motel room. But jurors, unsure if he was was the one who pulled the trigger, sentenced him to life in prison instead.

The outcome displeased U.S. District Judge Federico Moreno, who said he would have imposed death — but federal law prohibits a judge from overruling the jury.

In another high-profile case in 2007, federal prosecutors filed notice of charging the death penalty against two men who shot and killed the four-person crew of the Joe Cool charter boat, dumping their bodies overboard on the high seas. But ultimately, the attorney general did not authorize the death penalty. One defendant struck a plea deal before trial, resulting in life imprisonment. The other went to trial and was convicted, then sentenced to life.

1 Florida sentence in 30 years

Only one Florida federal case has resulted in the death penalty being meted out since the U.S. government reinstated the punishment almost 30 years ago. The defendants: Daniel Troya and Ricardo Sanchez Jr., who are now on federal Death Row for the 2009 slaying of a family, including two children, on the side of the Florida Turnpike in Palm Beach County.

While most death-penalty murder cases unfold in state court, Santiago is charged federally because the violent rampage took place at an international airport. Under federal law, he could be be punished by death if convicted of the three federal felonies.

Federal prosecutors have already announced they might seek the death penalty, saying the shooter admitted after his arrest that he planned the attack and bought a one-way ticket from Anchorage via Minneapolis to Fort Lauderdale. They will try to show his premeditation and intent to kill multiple victims who were elderly and vulnerable to make their case for the death penalty.

Defense lawyers must now begin compiling “mitigation” — the details of Santiago’s biography that may spare him the possibility of execution.

In Santiago’s case, his mitigation will undoubtedly focus on his history of mental illness, his stay in an Alaska psychiatric facility and his military experience in Iraq, including possible post-traumatic stress disorder.

Two months ago, Santiago went to the FBI in Anchorage to tell agents that he was hearing voices urging him to support the Islamic State terrorist group and that the CIA was pressuring him to watch training videos. Agents referred him to local police, who took his handgun from him while he underwent a psychiatric evaluation for a few days and then gave the firearm back to him in December.

Santiago is now accused of using that same weapon, a Walther 9mm, in the deadly attack at the airport.

“This guy was clearly mentally ill. He reached out to the FBI because of his paranoia,” said Miami capital-litigation lawyer Terry Lenamon, who is not involved in the case. “There will be a lot of mitigation to work with.”

Kaiser, the former federal prosecutor who was involved as a defense attorney in the 2007 Joe Cool case, agreed with him.

It’s a tough death case. Once you start peeling back the onion, you never know what you’re going to find.

Allan Kaiser, Miami defense attorney and former federal prosecutor

“It’s a tough death case,” Kaiser said, citing Santiago’s mental health problems, his approaching the FBI and his recovering the firearm from police. “Once you start peeling back the onion, you never know what you’re going to find.”

Miami defense attorney Bruce Fleisher, who has been involved in more than 80 capital and homicide cases, said no one should jump to conclusions about Santiago’s state of mind based solely on his cold, calculating demeanor shown on an airport surveillance video of the shooting.

Fleisher said Santiago’s defense team — including the federal public defender’s office assigned to represent him this week — will have to conduct a complete historical, medical and psychiatric evaluation to assess his profile and gauge what made him snap.

“I don’t think anyone can offer their opinion until they do their due diligence,” Fleisher said. “It’s the ultimate due diligence to investigate every aspect of your client’s life. … Does he have a viable insanity defense?”

Santiago’s lawyers are expected to present mitigating factors to Miami’s U.S. attorney, who must decide whether to recommend execution as a possible sentence. Then, a Department of Justice committee in Washington, D.C., would meet to decide whether to recommend the ultimate punishment.

The process requires that defense lawyers fly to Washington, D.C., to present their mitigation again.

That’s what happened when Lenamon flew to D.C. on behalf of Reginald Mitchell, who was accused of killing an armored-car courier at the Calder Casino and Race Course. Prosecutors decided against the death penalty, and Mitchell wound up sentenced to 30 years in prison.

Ultimately, the decision will be up to the U.S. Attorney General, likely to be Sen. Jeff Sessions, who many expect to take a harder line on capital punishment than his predecessors under President Barack Obama. “We’re going to be in a Republican administration,” Lenamon said. “I think it’s a distinct possibility that they may authorize the death penalty for him.”

For the defense team, building that psychological and medical profile of Santiago will go hand-in-hand with preparing for the inevitable insanity defense.

Insanity defense difficult

But insanity defenses are notoriously difficult — lawyers must prove that a killer was insane enough that they didn’t know right from wrong at the time of the crime.

One prominent example: Miami’s Liset Hernandez, who was driven to stab her 9-month-old baby to death by voices in her head warning her of the arrival of the Antichrist. Days after the 2006 murder, Hernandez was found covered in blood, hiding inside her closet with her older daughter.

Prosecutors agreed that Hernandez didn’t know right from wrong, and she was acquitted by reason of insanity. Today, she remains at a home for the mentally ill, under court supervision.

But in Santiago’s case, prosecutors would likely be able to prove a methodical premeditation: He packed his gun in a case, flew cross-country on a one-way ticket, loaded his gun in an airport bathroom and calmly opened fire — before encountering a deputy while exiting the airport, then surrendering to police.

Santiago’s “goal-directed” behavior will make an insanity defense difficult to prove by “clear and convincing evidence,” said G.P. Della Ferra, a Miami death-penalty defense lawyer.

“You would presume if someone were in a full-blown manic episode — and didn’t know right from wrong — they wouldn’t have the capability to check in a gun, bring it to Florida, get it off the plane, load it and start firing,” Della Ferra said. “All that shows he was acting pretty rationally.”