Federal prosecutors still want death penalty for western Michigan man

By Ed White Associated Press DETROIT (AP) -- Prosecutors in western Michigan said last Friday they want an appeals court to restore a federal death sentence for a man convicted of drowning a woman in a national forest. The government met the deadline to ask the full 6th U.S. Circuit Court of Appeals to set aside a recent decision by a three-judge panel and reopen the case with a fresh round of arguments. In 2002, Marvin Gabrion was convicted of killing Rachel Timmerman, a Newaygo County woman who had accused him of rape. Michigan doesn't have the death penalty, but he was prosecuted in federal court because the victim was found in a national forest. The appeals court threw out Gabrion's death sentence in a 2-1 decision in August. The court said the defense should have been allowed to argue that Michigan's ban on capital punishment could be a factor for the jury to consider when choosing death or life in prison. The trial judge had barred it. The three-judge panel said U.S. District Judge Robert Holmes Bell in Grand Rapids must start the sentencing phase from scratch, likely with a new jury. But in a court filing last Friday, prosecutors claimed the panel's analysis was wrong. "The panel's holding involves a question of exceptional importance because it is based on an expansive, untenable reading" of federal law, the U.S. attorney's office said in urging the full appeals court to intervene. "Neither Michigan's lack of a death penalty nor the fact that Gabrion murdered Timmerman near the forest boundary has any bearing on his personal culpability for the crime," prosecutors said. It is rare for the appeals court to throw out the work of its panels. More than a dozen judges at the Cincinnati-based court are eligible to vote on whether to reconsider the case. Gabrion's lawyers also asked the full court to get involved but for different reasons. They claim he's mentally ill and unfit for a death sentence if one is ordered again. They want an evidentiary hearing to be held in Grand Rapids. "Every lawyer appointed to represent Marvin Gabrion, all five, have asserted that he is unable to communicate rationally with counsel and is incompetent," attorney Kevin McNally wrote. "This has been given no weight. We have seen and heard this man." McNally said Gabrion assaulted his co-counsel and is delusional, paranoid and self-destructive. Gabrion, 57, is on death row at a federal prison in Terre Haute, Ind. His death sentence was the first in Michigan since 1937. He was accused of killing Timmerman, 19, in the Manistee National Forest in 1997, her body bound with chains and blocks and discovered in a lake. If the body had been found just a few hundred feet away on state property, the case would not have been in federal court -- and the death penalty would not have been an option. Published: Tue, Sep 20, 2011