Judge declares mistrial in death phase of Aryan Brotherhood trial

SANTA ANA, Calif. - A federal judge declared a mistrial Friday in the death penalty phase of the trial of two Aryan Brotherhood leaders convicted of murder, racketeering and conspiracy after jurors announced they were unable to reach a unanimous verdict.

The ruling means Barry “The Baron” Mills and Tyler “The Hulk” Bingham will serve life in prison without parole. U.S. District Judge David O. Carter scheduled their sentencing for Nov. 13.

The same jury convicted Mills and Bingham in July. Jurors were then asked, in a separate proceeding, to determine whether Mills, 58, and Bingham, 59 should be sentenced to death or life in prison without possibility of parole.

After 3 1/2 days of deliberations, jurors told Carter on Thursday they were deadlocked, but he ordered them to return to the jury room and attempt to resolve their differences. After spending another day deliberating, they announced it would not be possible to reach a unanimous decision.

“We are honestly and conscientiously unable to agree after a full consideration of the evidence,” the foreman said in a note sent to the judge.

The case against Mills and Bingham was part of a larger indictment that federal prosecutors hope will eventually dismantle the Aryan Brotherhood, the violent white supremacist organization that is accused of running powerful gambling operations and drug rings from inside some of the nation’s most notorious prisons.

Among other things, the jury convicted Mills and Bingham of inciting a race riot at a prison in Lewisburg, Pa., in 1997 by conspiring to send a secret message to Aryan Brotherhood members. Frank Joyner and Abdul Salaam, alleged members of the rival DC Blacks prison gang, were killed during the uprising.

Charges against the pair were brought under the Racketeer Influenced and Corrupt Organizations law, and they were convicted of offenses known as Violent Crime in Aid of Racketeering - laws originally passed to target the Mafia. The so-called VICAR verdicts made Mills and Bingham eligible for the death penalty.

Experts say the full indictment, which lists 32 murders and attempted murders, makes up one of the largest federal capital punishment cases in U.S. history. Assistant U.S. Attorney Stephen Wolfe said up to 16 people potentially face execution in a half-dozen trials scheduled in the coming months in Orange County and Los Angeles.

Jurors told Carter Friday they were split nine to three in favor of death for Mills and eight to four in favor of life in prison for Bingham.

He asked if the extra day of deliberations had any impact on the vote and they said only slightly, adding one juror moved from voting for life in prison to voting for death for Mills.

After Carter declared the mistrial, authorities escorted the jurors from the courtroom to their cars, and the judge said their identities would not be revealed.

Mills was already serving two life terms for nearly decapitating an inmate in 1979, but was eligible to apply for parole until Friday’s ruling. Bingham, in jail on robbery and drug charges, would have been released in 2010.

Both were housed in ADX, the maximum-security prison in Florence, Colo., prior to the trial and will likely return there. Prosecutors said they will be held in solitary confinement 23 hours a day in a high-security wing that houses notorious convicts such as al-Qaida member Zacarias Moussaoui and Unabomber Theodore Kaczynski.

Assistant U.S. Attorney Terri K. Flynn said the government’s failure to win a death penalty verdict was “not a defeat.”

“These two have effectively been gutted and they will be hidden away somewhere they can’t do any more harm,” she said. “It sent a message not only to the Aryan Brotherhood but to all the prison gangs that inmates can’t kill other inmates, and if they do they will be prosecuted to the fullest extent of the law.”

One of Mills’ attorneys, Mark Fleming, said his client was “relieved and appreciative” that the jury had spared him the death penalty.

Bingham attorney Michael White said his client was also relieved but that both were concerned about being housed once more in ADX.

“They’re very concerned about what their life will be like. The ADX can be very restrictive, and the question is, how restrictive will they make it,” White said.

Defense attorneys argued that one of the reasons jurors should spare the defendants’ lives was because the inmate who actually killed the two black prisoners struck a deal with prosecutors. Under the deal, he was sentenced to nine years in prison and testified in the trial against Mills and Bingham.

Carter said he wanted to poll the jury in an effort to determine if that information had an impact on its members.

“These cases are costing millions of dollars. … I think with the millions and millions of dollars they should be forthcoming,” he said.

During the trial, government witnesses revealed many of the secret inner workings of the Aryan Brotherhood. Among other things, they told of a secret note, written in invisible ink made from urine, that was passed from Bingham’s high-security cell in Florence, Colo., to Lewisburg. The note read: “War with DC Blacks, TD.”

Mills and Bingham were also convicted of a count of murder for the killing of Arva Lee Ray, a prisoner slain at the Lompoc, Calif., penitentiary in 1989, as well as counts of racketeering that included acts of murder and attempted murder.

Two other men who went on trial with Mills and Bingham - Edgar “The Snail” Hevle and Christopher Overton Gibson - will be sentenced to life in prison.

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