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February 19, 2005

A federal capital trifecta!

A thoughtful reader was kind enough to send me a copy of a (long) decision addressing pre-trial issues in a federal capital case which was filed yesterday by Chief US District Judge Mark Bennett (ND Iowa) in US v. Johnson, No. CR 01-3046-MWB (N.D. Iowa Feb. 18, 2005).  The first 95 pages of the opinion, according to my source, "has the virtue of being a cure for insomnia," but pages 96-118 merits everyone's attention because here Judge Bennett provides perhaps the first ever comprehensive explanation and justification for "trifurcation" in a federal death penalty case.  You can download the whole opinion below.

Judge Bennett's analysis in Johnson is fascinating, and earns extra points in my book for its many cites to the copious law review literature on capital sentencing procedures.  It also reaches this wonderfully nuanced conclusion:

[N]otwithstanding that § 848 [the federal capital sentencing statute] expressly provides for a "bifurcated" proceeding, and there is no constitutional requirement for proceedings in a different form, the court concludes that § 848(j) permits, and the circumstances in this case require, that the proceedings in the case be "trifurcated," as described above.

Given the remarkable efforts that the government has recently gone through to get the high-profile capital case in Houston tried exactly as they wish (some background here), it will be interesting to see if there might be an immediate appeal from this trifurcation order.

Download johnson_trifurcate_opinion.pdf

February 19, 2005 at 10:50 AM | Permalink


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I have not read the opinion, but I sure as hell hope that the district judge found that the constitution compelled trifurcation, because if he did not, then I don't see how a federal judge may rely on his own notions of what's better policy to violate the clear command of a statute. There is "no constitutional requirement for proceedings in a different form"? How about the separation of powers doctrine?

Posted by: Steve | Feb 19, 2005 1:36:45 PM

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