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.