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May 28, 2013

By 12-4 vote, Sixth Circuit affirms federal death sentence for Michigan murder in national forest

Today via a lengthy en banc ruling, the Sixth Circuit affirmed a federal death sentence against various challenges in US v. Gabrion, No. 02-1386 (6th Cir. May 28, 2013) (available here). Here is the break-down of the votes among the 16 circuit judges involved:

KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER, C.J., and BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and DONALD, JJ., joined.  CLAY, J. (pp. 35–37), delivered a separate opinion concurring in the judgment only, in which COLE, J., joined.  MOORE, J. (pp. 38–65), delivered a separate dissenting opinion, in which MARTIN, WHITE, and STRANCH, JJ., joined.

And here is how the opinion of the court gets started:

Marvin Gabrion was scheduled to be tried in Michigan state court for a rape charge on June 5, 1997. But that trial never happened. Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman — the 19-year-old woman he allegedly raped — and took her to a remote location in the Manistee National Forest, bound and gagged her and weighed her down with concrete blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow, weedy lake, where she drowned.  Gabrion also abducted and killed Timmerman’s infant daughter.

Timmerman’s murder was a federal offense because it occurred in a National Forest. See 18 U.S.C. § 1111(b).  A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death.  The district court sentenced him accordingly. Gabrion now challenges his conviction and sentence on numerous grounds.  We reject all of his arguments, and affirm.

May 28, 2013 at 03:19 PM | Permalink

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Comments

It is truly astonishing that the court did not even mention the fact that, if and when Mr. Gabrion is executed, he will be the first person EVER to be executed for a federal crime committed in a State that absolutely forbids capital punishment. That such a fact goes unmentioned just shows how much the very conventional among us are under the spell of the idea that the federal government can basically do whatever it wants, the States be damned.

Posted by: Michael J.Z. Mannheimer | May 28, 2013 3:48:07 PM

Not so astonishing since it was irrelevant:

national forest, federal crime --> federal law.

| "Timmerman’s murder was a federal offense because it occurred in a National Forest. See 18 U.S.C. § 1111(b).
A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death." |

The end for all those who know what the definition of is, is.

Posted by: Adamakis | May 28, 2013 4:03:45 PM

This is also poingnant:

"The [4-member] dissent is mistaken, therefore, when it suggests that mitigation, for purposes of the
Eighth Amendment is not a moral concept. Of course it is, as the plain terms fo the Supreme Court's precedents make clear.
See, e.g., Penry, 492 U.S. at 319; Enmund, 458 U.S. at 801."

Posted by: Adamakis | May 28, 2013 4:04:34 PM

Fn3 of the dissent explains it position is not "that mitigation, for purposes of the Eighth Amendment is not a moral concept," but that the position "mitigation is only a moral concept is misplaced." [argument made]

The poignancy of the majority on the point is therefore unclear.

As to the first comment, it doesn't seem relevant given the majority's argument. Reference is made to a defense argument that the jury should be able to determine if a death sentence based on a location a short distance either way is justified. That limited argument fits here, but if the crime was something like the killing of a postal inspector or treason, it wouldn't matter -- the person would be liable even if the crime was not committed on federal land. In fact, the argument doesn't even seem to work if the crime was committed deep within the forest, not a short distance from state land.

Did the defense raise the no federal death sentence 'in' a state without a death penalty data point? I guess it might be relevant to having the jury at least consider the matter though as I have noted in the past, I find the professor's general 8A argument weak.

Also, the "absolutely" point is a good qualifier. Michigan abolished the death penalty in 1846 though Wikipedia (yeah) tells me that it technically left it open for treason. Someone was executed there by the feds for bank robbery before the treason exception was revoked. I find it pretty weak to argue that just because the state left it open for a single crime that it would be okay for the feds to apply it for another crime. The USSC also in Kennedy v. LA classified such "crimes against the state" as different.

There is really a very small sample size here. Is there a breakdown of crimes on federal lands in states w/o a death penalty as compared to those with one that shows any implication that the feds took this into consideration? I guess it would be worth noting but I am not "astounded" by the absence.

Let it be noted as others well know I'm against the death penalty.

Posted by: Joe | May 28, 2013 5:10:21 PM

The minority is breathtaking in its embrace of legalism over law. But probably the most revealing item tipping off the minority's arrogance is footnote 8, which is a true gem:

"8/ The six circuit courts to have addressed this issue thus far mirror the majority’s approach and
are also lacking in any statutory analysis. See Runyon, 707 F.3d at 516; United States v. Fields, 516 F.3d
923, 950 (10th Cir. 2008); United States v. Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007), cert. denied,
553 U.S. 1094 (2008); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007); United States v. Fields,
483 F.3d 313, 345–46 (5th Cir. 2007), cert. denied, 552 U.S. 1144 (2008); United States v. Purkey, 428
F.3d 738, 750 (8th Cir. 2005)."

Translation: "This is a great Memorial Day parade, but have you noticed that my boy is the only one marching in step?"

Posted by: Bill Otis | May 28, 2013 5:11:31 PM

Prof. Mannheimer --

Why is it shocking that federal law prevails on federal land?

In 1965 in Mississippi, would you have wanted the feds -- consistent with state law but not with federal law -- to prosecute a black person who sat in a restaurant with whites inside a National Park?

Posted by: Bill Otis | May 28, 2013 5:42:31 PM

The first comment has a minor point when noting "truly astonishing that the court did not even mention the fact" given the claim made. Still, be interesting to note if the defendants' lawyers actually made it.

But,the "basically do whatever it wants" is tiresome hyperbole. I'm all for minority points of view -- I'm against the death penalty after all -- but it weakens your case when you exaggerate. The feds cannot do lots of things. The hyperbole isn't convincing when its down by you, by Volokh Conspiracy type "federalists," (not a reference to the person using that name here) or those on the left on a range of issues.

Even if we want to limit federal criminal power, a crime in a national forest is really not what I would focus upon.

Posted by: Joe | May 29, 2013 10:39:20 AM

Wasn't seeking the federal DP in federal jurisdictions in states that do not have the DP a change brought by the Ashcroft Administration?

Posted by: John | May 29, 2013 12:46:07 PM

I recall that Ashcroft made a policy of overriding local prosecutors who took local interests into consideration but not sure if there was some absolute rule was in place so that if Timothy McVeigh blew up a federal building in a state w/o a death penalty that he would not have been given the penalty.

Posted by: Joe | May 29, 2013 12:52:20 PM

Could this have implications for the Tsarnaev case?

Posted by: Liz McD | May 29, 2013 9:05:26 PM

Bill Otis:

Please explain how the claim that (1) the federal government must REFRAIN from PUNISHING someone in excess of that allowed by local law, logically encompasses the claim that (2) the federal government must AFFIRMATIVELY PROSECUTE someone for violating a state law on federal land in the absence of a federal statute.

Come on, Bill. You're better than that.

Posted by: Michael J.Z. Mannheimer | Jun 1, 2013 11:18:02 AM

Prof. Mannheimer --

"Please explain how the claim that (1) the federal government must REFRAIN from PUNISHING someone in excess of that allowed by local law, logically encompasses the claim that (2) the federal government must AFFIRMATIVELY PROSECUTE someone for violating a state law on federal land in the absence of a federal statute."

It doesn't have to "encompass." It merely has to state a neutral principle of general application.

That principle, to which you certainly seemed to subscribe in your May 28 comment, is that, in dealing with federal enclaves, the feds should be guided by state policies as embodied in state law. But why, then, should federal deference be given to the state's choice about what punishments to seek, yet withheld from the state's choice about what prosecutions to undertake?

What you want to do reflects a different "principle": The "principle" that when state law is more favorable to the defendant, we must employ it, but when state law is LESS favorable to the defendant, we must ignore it.

With all respect, however, that is not a "principle" at all, and certainly not a "principle" that respects federalism, which seemed to be your point a few days ago. Instead, it's merely a pro-defendant bias, in which the principle of federalism is invoked when useful, but otherwise tucked away in the attic.

Posted by: Bill Otis | Jun 1, 2013 4:15:32 PM

Bill:

No. If you had read any of my work, based on years of exhaustive research, you would know that this is not merely a pro-defendant bias or opportunistic federalism. (As an aside, you might want to explain how my criticism of Atkins, Roper, and Kennedy are consistent with a pro-defendant bias or opportunistic federalism.) It is grounded in what I believe, based on that research, the Anti-Federalists probably thought the Cruel and Unusual Punishments Clause meant, encapsulated by the principle I set forth above: the federal government must refrain from punishing someone in excess of that allowed by state law for the same offense in the State where the criminal conduct occurred.

Now, we can argue over (1) whether the Anti-Federalists really believed this and (2) why we should give primacy to what the Anti-Federalists thought. And we can quibble over the finer points of how to operationalize this principle. But you should start off by reading my work, which you so obviously have not done.

Posted by: Michael J.Z. Mannheimer | Jun 3, 2013 1:41:24 PM

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