Jurors deadlocked Friday on whether two kingpins of the Aryan Brotherhood prison gang who orchestrated a decades-long reign of murder from their cellblocks should be executed.
As a result, Barry "The Baron" Mills, 58, and Tyler "The Hulk" Bingham, 59, will live out their final years where they have spent most of their adult lives and where their names already carry near-mythic weight: behind bars.
The same jury convicted the pair of racketeering and murder in late July, after a five-month trial in U.S. District Court in Santa Ana. The case involved 17 murders or attempted murders dating to 1979, when Mills stabbed another inmate to death in an Atlanta prison for cheating the gang on a drug deal.
Jurors told the judge they were split 9 to 3 in favor of the death penalty for Mills, and 8 to 4 in favor of a life sentence for Bingham.
Under Mills' and Bingham's leadership, prosecutors said, the Brotherhood killed to enforce obedience among vast prison populations, run the drug trade, eliminate government informants and keep its own members loyal to the gang's strict code.
The gang's violence culminated in 1997, when Mills and Bingham, incarcerated at the Supermax federal prison in Florence, Colo., smuggled a message in invisible ink to another Brotherhood leader, Al Benton, at the federal prison in Lewisburg, Pa. The message urged Benton to wage war on black inmates, prompting him and his soldiers to launch a blitz that left two black inmates dead.
"They thought about it, they plotted and they sent a message," prosecutor Terri K. Flynn told jurors, contending that the premeditation involved in the Lewisburg murders argued for the death penalty for Mills and Bingham. "This was not a spur-of-the-moment event."
As the leaders of a gang that employed elaborate ruses to communicate, such as cloaking messages with a 400-year-old binary alphabet system and embedding notes in the text of library books, Mills and Bingham remained a threat to guards and other inmates, the prosecutor said.
Even at the Supermax, the nation's tightest lockup, they were able to thwart the best efforts to watch them. "These men were still able to start a nationwide race war from that prison," the prosecutor said. "They know how to get around the secure facilities."
Mills oversaw the Brotherhood's reign of violence even as he was serving a life sentence for the 1979 murder, the prosecutor said, asking jurors to consider what besides death might deter him from further crime. Like Bingham, Mills has two prior convictions for robbery with a firearm and has been incarcerated most of his adult life.
It would not be adequate punishment, the prosecutor told jurors, "to send them back to prison, to send them back to the place where they are legends."
Defense attorney H. Dean Steward said the aging defendants would spend the rest of their lives in maximum-security cells and posed no further threat, especially because the Bureau of Prisons had improved security enough to intercept any clandestine communication among the Brotherhood. "They can easily bottle this up," Steward said.
Arguing to keep Mills and Bingham alive, the defense attorney said that Benton, who personally committed one of the Lewisburg murders, received just a nine-year sentence in exchange for his testimony and probably would be paroled.
"How can you, under any fair system, send Al Benton home and kill these men?" Steward asked jurors.
During the penalty phase of the trial, the defense sought to paint Bingham as more than a prison warlord. Jurors saw childhood photos of Bingham, as well as many taken from 1981 to '85, when he was a free man, married with three sons. The sons took the stand to say they loved their father.
Penny Allamprese, Bingham's ex-girlfriend, testified that she met him when she was 12 and he was 14 with "auburn hair," a "beautiful smile" and a "girl on each side." Her mother forbade her to date him, she said, so they ran away together.
"He stole a car and met me at midnight," she said. "We were going to Texas to get married." Instead, a sheriff's deputy caught them in Barstow. Over the years, she said, Bingham has sent her hundreds of poems, many documenting the horrors of prison life.
The defense called no family members for Mills, who has been in prison continually since the 1970s and is known to have only one relative. Instead, defense attorney Steward stressed that prison was a violent environment with harsh rules where survival meant finding friends.
The jury had been deliberating on the death penalty for a week when it announced its deadlock Thursday to U.S. District Judge David O. Carter, who told the panel to deliberate further. Friday afternoon, jurors sent word that they still could not agree, prompting the judge to declare a mistrial. In federal death penalty cases, if jurors cannot reach a unanimous verdict, defendants receive a default penalty of life in prison.
"It's bittersweet," Michael White, Bingham's defense attorney, said afterward.
"On the one hand, I'm relieved it's not death. On the other hand, I'm sad that Tyler Bingham is going to spend the rest of his life in prison." White said the government had wasted a lot of money by seeking the death penalty in a case that didn't call for it.
Still, the government is calling the case a victory because Mills and Bingham now have no chance of parole. Before the trial, Bingham had been scheduled to be released in four years; Mills had been serving life without parole.
The outcome "sends a message that convicts can't kill other convicts," said prosecutor Flynn, adding that she hoped the case would serve as a deterrent to further prison violence.
Speaking of the nine juror votes to execute Mills, she said: "Now he knows how close he came. Hopefully, that's something he takes into consideration before he sends a message out to declare another race war."
Gregory W. Jessner, the former prosecutor who spearheaded the indictment against the gang and now is in private practice, said the guilty verdicts might empower the Bureau of Prisons to keep Mills and Bingham in even tighter confinement, curtailing their ability to communicate.
Along with Mills and Bingham, lesser gang members Edgar "The Snail" Hevle and Christopher Gibson were convicted in July of conspiring to murder black inmates. They face 20 years to life in prison when Carter sentences them in October.