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August 3, 2011

Split Sixth Circuit reverses federal death sentence on interesting grounds

A long and quite interesting Sixth Circuit opinion handed down today in US v. Gabrion, No. 02-1386 (6th Cir. Aug. 3, 2011) (available here), covers a lot of issues relating to the federal death penalty in the course of affirming a conviction and revering the death sentence.  This start to the partial dissent by Chief Judge Batchelder provides an effective summary of the majority ruling and the enduring points of disagreement within the panel:

I would affirm the district court in its entirety — both conviction and sentence.  Therefore, I concur generally in the portions of the majority’s decision that affirm the judgment of the district court without necessarily joining the majority’s reasoning or discussion.  I agree that we need not reach the issue contained in Section XIV but I do not join in the associated dicta.  I respectfully dissent from those portions of the majority’s decision that reverse the district court, specifically Sections II and III.

In Section II, the majority conducts a de novoreview of Gabrion’s claim that the district court misinterpreted or misapplied certain provisions of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591—3598.  By reading the word “any” in § 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a mitigating factor”) as unqualified and unlimited, the majority holds that these provisions mandate that a capital defendant may offer to the jury any “mitigating” evidence or argument, i.e., any evidence or argument that could conceivably make a juror question the appropriateness of the death penalty.  Reading “any” as unlimited necessarily requires the inclusion within these two provisions of Michigan’s policy against the death penalty.  The majority therefore concludes that the district court erred by excluding reference to Michigan law.

In Section III, the majority considers Gabrion’s claim that the district court violated his constitutional right to due process by misinstructing the jury on the burden of proof in the weighing of aggravating and mitigating factors, and again conducts a de novo review.  The district court instructed the jury that it need only find that the aggravating factors “sufficiently outweigh” the mitigating factors, which is language quoted directly from the statute.  See § 3593(e).  The majority finds the statutory language unacceptably vague, and therefore constitutionally infirm, and holds that a sentencing court must instruct the penalty-phase jury that it may impose the death penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.

I must respectfully disagree with both of these holdings.  I would hold that a reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case.  Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury.  I would affirm the district court.

August 3, 2011 at 05:32 PM | Permalink

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Comments

What a surprise. Merritt again.

Posted by: DaveP | Aug 3, 2011 5:37:30 PM

Under the majority's reasoning, the defense could argue as "mitigating" the idea that the good people of Norway -- a civilized and decent folk -- reject the DP for a guy much worse than this defendant, therefore........

What this illustrates, of course, is that the dissent is correct, and that the legislative drafters could not possibly have meant that federal juries considering imposition of the federal death penalty should be able to consider as "mitigating" the utterly inapplicable laws of other jurisdictions. Such a thing has zip to do with the defendant's culpabilty.

Posted by: Bill Otis | Aug 3, 2011 5:59:29 PM

Bill, greetings!

I don't see any reason why a defendant could not make the argument you cite.

Posted by: Michael R. Levine | Aug 3, 2011 6:41:48 PM

"Under the majority's reasoning, the defense could argue as "mitigating" the idea that the good people of Norway -- a civilized and decent folk -- reject the DP for a guy much worse than this defendant, therefore........"

If the federal government had general jurisdiction to prosecute murders committed by Norwegians against Norwegians in Norway, your argument might pass the straight face test.

Posted by: The Death Penalty Sucks. | Aug 3, 2011 7:44:20 PM

TDPS --

My argument is absolutely valid under the majority's reasoning. "Any" means "any," right? Isn't that what the majority said? As long as "any" is getting construed to go to things outside the defendant's culpablility, the opinions of mankind -- Norwegans and everybody else -- are fair game. "Any" does not mean opinions in the state of Michigan but nowhere else, now does it?

Posted by: Bill Otis | Aug 3, 2011 9:21:27 PM

Hi Michael --

I think TDPS disagrees with you, but what the heck. Have you seen any of your admirer Judge Reinhardt lately?

Posted by: Bill Otis | Aug 3, 2011 9:23:24 PM

Bill:
Culpability and whether a defendant's life should be spared (from their monstrosity)are analytically distinct. Even Batchelder gets that. The defendant is obviously culpable--12 jurors have decided they are eligible for the death penalty. The issue is whether an individual juror believes the DP is appropriate. That juror has already been death qualified. So now under the Batchelder regime the issue is whether the death qualfied juror should be barred from giving consideration to a mtigating factor that you or Batchelder or Congress thinks is not mitigating

Posted by: k | Aug 3, 2011 9:43:22 PM

The murderer's main fault was using federal lands in the lower peninsula. He should have committed his crime in the upper peninsula where many descendents of Norwegians - a civilized and decent folk - live.

Posted by: albeed | Aug 3, 2011 11:29:05 PM

If the federal government had general jurisdiction to prosecute murders committed by Norwegians against Norwegians in Norway, your argument might pass the straight face test.I don't see any reason why a defendant could not make the argument you cite.inter sting blog..u did good job keep it up Ur levee best..

Posted by: Gym Equipments Bangalore | Aug 4, 2011 8:00:36 AM

Actually, given that the statute says 'any' I would side with the offender here. I'm not sure whether such a rule is constitutionally required but I even think it a good idea. A offender should be able to bring up any material he thinks will sway the jury, the only limit I would place on this being a bar on repetition not perceived relevance.

Posted by: Soronel Haetir | Aug 4, 2011 8:24:57 AM

If a jury does or doesn't accept an argument -- this is argument, for heaven's sake -- about Michiganders, or Norwegians, so be it. That's what juries are for. It's funny how some prosecutors hate to have their arguments to jurors scrutinized or interrupted, but can't wait to try to muzzle defendants' arguments.

Of course, the drafters of the Bill of Rights knew that prosecutors and judges would not like juries -- they are the ultimate democratic check on governmental power. That's why the framers of the Bill of Rights mandated juries in amendments five, six, and seven -- in addition to the Constitution's original jury right. The framers of the Constitution and the Bill of Rights knew that prosecutors and judges could NOT be trusted with ultimate power in our criminal (and, where money payment is involved, over our civil) law. Jurors get the final say -- and some prosecutors and judges still can't stand that fact.

Oh, the love of power. And fear of the People. Some things never change.

That's why I love Bill Otis so much. While his service and personal views are honorable and sincere, he's a wonderful living example of what the framers of the Bill of Rights were worried about.

Posted by: Mark Pickrell | Aug 4, 2011 10:40:30 AM

Bill, unfortunately, I haven't had Judge Reinhardt on any panels lately. But I'm glad to see that Soronel Haetir agrees with me on this issue. Best regards.

Posted by: Michael R. Levine | Aug 4, 2011 12:03:55 PM


Interesting Opinion. Even putting aside the open question implicated by the execution standard issue--what exactly are the upper limits to almendarez-torres that SCOTUS has alluded to?--a few things make me think that we may not have heard the last of Gabrion. I may be off base, but...

The dissent's opinion reads like a very long, very bright flare aimed at getting the attention of the SG. It points out some of the basics for a petition: court splits and potential justices that might disagree with the majority (here, Thomas). But then it goes well out of its way to provide (1) a very succinct and quotable rationale for its opposition, with the majority's reasoning sprinkled throughout (as this post points out), and (2) long, direct quotations from the district court record, the appellant's brief, and a slew of holdings from conflicting courts. The opinion basically provides all of the legal research--and even case facts--that the SG might need. I've never seen a dissenting opinion that provides such a (transparent?) cut-and-paste template for an SG petition.

Factor in that the dissent is the chief judge and the defendant is backed by some star power (Judy Clark), and this case looks primed and ready for cert...or at the very least, an SG petition. Right?

Posted by: c. nicho | Aug 4, 2011 1:40:06 PM

Soronel --

"A offender should be able to bring up any material he thinks will sway the jury, the only limit I would place on this being a bar on repetition not perceived relevance."

Here's some material I virtually guarantee will sway the jury: "Ladies and gentlemen, my client assures me that, if you don't vote against imposing the DP, members of his gang will be visiting your families in short order to, uh, discuss the virtues of, uh, compassion."

Note that no violence is threatened. Just a visit for a friendly discussion.

Think the defense should be able to get away with that one too?

Posted by: Bill Otis | Aug 4, 2011 3:06:22 PM

Bill,

Actually, I believe that argument, or even outright bribery should be allowed. Of course in the case of intimidation following through is its own crime and in either case if the offender fails to convince the jury that offender should be executed. It is part of the balance I see, that every felon being deserving of execution, they should be allowed to make whatever argument they think will place them in the minority that is spared.

Posted by: Soronel Haetir | Aug 4, 2011 3:40:47 PM

Mark Pickrell --

"Of course, the drafters of the Bill of Rights knew that prosecutors and judges would not like juries -- they are the ultimate democratic check on governmental power."

When I was a prosecutor, I liked juries just fine. To this day, I'm disappointed that defendants flee them in droves, preferring plea bargains 90% of the time. (I'm also disappointed that prosecutors offer bargains so often).

Of course, no one thinks that juries should be exposed to everything that might be said to them that might make them more inclined to vote in the defendant's favor -- a point I just made in my comment to Soronel. The fact that there is a debate about what is legitimately "mitigating," as there is in this case, is something the Framers would be happy rather than worried about.

Posted by: Bill Otis | Aug 4, 2011 3:43:30 PM

So, the defendant could bring in any evidence, including a 500-hour discussion on the history of the death penalty, from ancient Sumeria to present, with annotations, by some history professor expert? Absurd. But I'll be some attorney out there decides that any evidence being unlimited permits him to drag out the trial for as long as humanly possible. "Can we try this in two weeks, your honor? Absolutely not. One of my mitigation experts is going to take four weeks alone, and I have four of them."

Posted by: Bill B. | Aug 5, 2011 5:03:15 PM

Bill B. --

Brutal.

Posted by: Bill Otis | Aug 5, 2011 6:00:05 PM

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