By LARRY NEUMEISTER
Associated Press

NEW YORK - A judge's failure to question jurors who indicated that they oppose the death penalty is not enough to overturn the convictions of two men in the 1999 killing of a police informant, a federal appeals court says.

The 2nd U.S. Circuit Court of Appeals in Manhattan was considering the appeals of two men convicted and sentenced to life in prison for the capital murder of Eddie Santiago. During the penalty phase, jurors unanimously decided not to impose death.

In a decision dated Dec. 28, the appeals court upheld the convictions of Alan Quinones and Diego Rodriguez, rejecting defense arguments that their convictions should be reversed because the trial judge did not orally question jurors who indicated on questionnaires that they were opposed to the death penalty.

While the appeals court encouraged judges to question potential jurors orally about opposition to the death penalty, it said such questioning is not required on constitutional grounds.

The men were convicted in 2004 of racketeering, drug trafficking and the murder of Santiago, an informant for the New York Police Department.

The three-judge appeals panel noted that other trial judges in Manhattan have routinely questioned jurors who wrote in questionnaires that they oppose the death penalty.

"The practice is commendable," the 2nd Circuit panel said. "The bluntness or hesitancy, confidence or discomfort displayed by prospective jurors as they respond to questions about the possibility of returning a capital verdict often reveals as much about bias as the actual answers given," the appeals court said.

The Supreme Court has held that prospective jurors can be excluded from jury service in capital cases if they indicate that they will automatically vote for or against the death penalty in every case.

In federal court, judges conduct voir dire, the process of questioning jurors about their background and potential biases.

The appeals decision came in a case in which U.S. District Judge Hon. Jed Rakoff ruled six years ago that the federal death penalty was unconstitutional. The 2nd Circuit overturned his findings before the trial.