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August 18, 2006

Another capital twist on confrontation at sentencing

Earlier this week, as detailed here, the Arizona Supreme Court decided that Crawford and the Confrontation Clause are inapplicable at the penalty phase of a capital case.  Thanks to Crime & Consequences here, I now see District Judge David O. Carter has held in US v. Mills, No. CR02-938 (C.D. Cal. Aug. 17, 2006) (available here), that the Confrontation Clause applies to the entire penalty phase in a federal capital case.  Here is how the opinion begins:

Before the Court are two issues concerning the procedures of the death penalty phase of the Aryan Brotherhood trial: (1) whether the Confrontation Clause of the Sixth Amendment applies during the penalty phase of a capital trial; and (2) whether proof of unadjudicated crimes, when offered as evidence to prove the alleged non-statutory aggravating factor of future dangerousness, should be subject to an independent burden of proof. After considering extensive written and oral argument submitted by the parties, for the reasons set forth below, the Court hereby makes final its tentative rulings that: (1) Testimonial hearsay offered to prove statutory and non-statutory aggravating factors in the death penalty selection phase is barred by the Confrontation Clause; and (2) unadjudicated criminal acts offered to prove the non-statutory aggravating factor of future dangerousness are not subject to an independent burden of proof.

August 18, 2006 at 09:03 PM | Permalink


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The judge in U.S. v. Mills is David O. Carter, not Oliver Carter.

Posted by: | Aug 18, 2006 9:07:08 PM

The Judge's correct name is David O. Carter, not Oliver Carter.

Posted by: Howard O. Kieffer | Aug 18, 2006 9:39:29 PM

Doug, I have had no problem persuading the trial judge in my last three capital trials that the Rules of Evidence apply against the State in the determination of ags, but do not apply against the defendant in the determination of mits. Because ag determination is now a trial of a greater substantive offense and mit determination is part of a sentencing proceeding. Bruce Cunningham

Posted by: bruce cunningham | Aug 18, 2006 9:50:09 PM

A case study in how errors propagate: The AP story got the judge's name wrong. I copied it in my blog, and Doug copied it here. My apologies.

Posted by: Kent Scheidegger | Aug 19, 2006 12:33:18 AM

Thanks for the making sure I get the judge's name right. Fix made.

Posted by: Doug B. | Aug 19, 2006 6:05:18 AM

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