More Death-Penalty Sentencing

United States v. Galan, No. 08-4552 (6th Cir. Aug. 19, 2011) (unpublished). Panel of Judges Guy, Cook, and Stranch.

Defendant appealed his drug-conspiracy conviction and his life sentences for murder with a firearm in the course of a drug conspiracy. Court affirmed the drug-conspiracy conviction, but vacated the life sentences. Remanded for resentencing.

The defendant's first argument was that the district court erred in not instructing the jury concerning the effect of the five-year statute of limitations applicable to the drug conspiracy charge. Plain-error review b/c argument not raised in district court. Five-year statute of limitations under 18 U.S.C. 3282(a). Conspiracy here was a "chain conspiracy." Evidence supported jury's decision to convict the defendant for the charged conspiracy.

Bigger issue was the alleged sentencing error. Defendant argued that district court erred in instructing the jury to choose b/t death or life imprisonment. Defendant argued that the court should have instructed the jury on imprisonment for any term of years as well. Plain-error review here too. Government conceded and appellate court agreed that plain error occurred. Under 18 U.S.C. 924(j)(1), the murder was punishable by death "or by imprisonment for any term of years or for life." Section 924(j) incorporates only the definition of murder found in 18 U.S.C. 1111(a). It does not incorporate 1111(b)'s penalty provisions. Failing to give the jury the option of permitting the judge to sentence a defendant to a term of years is plain error. Resentencing necessary.

Interesting Death-Penalty Dissent

Abdur 'Rahman v. Colson, No. 09-5307 (6th Cir. Aug. 17, 2011) (to be published). Majority of Chief Judge Batchelder and Judge Siler. Judge Cole in dissent.

Death-penalty case out of Tennessee. Long appellate process. This opinion arises from 2254 claims. The petitioner argued that the prosecution had withheld Brady evidence: pre-trial statements by an accomplice that a sort of gang had influenced the crime and coerced the petitioner into committing it; and a detective's account of the petitioner's self-destructive behavior while in custody (showing serious mental-health issues). Petitioner argued that this evidence may have allowed one or more jurors to conclude that life in custody rather than death was appropriate.

The majority rejected the petitioner's cumulative-error argument on procedural grounds.

The majority found that the petitioner knew of the exculpatory information in the accomplice's statements. The majority also concluded that the petitioner may have known the essential facts of the detective's report on the head banging. Or the petitioner's counsel should have discovered the facts through investigation. And suppression of the report (by the prosecution) did not undermine confidence in the sentence. The majority found that the evidence "would have done little to establish Abdur 'Rahman's mental illness." Or it could have been viewed, according to the majority, as evidence of culpability. The majority affirmed, finding no Brady violations.

Judge Cole dissented. His dissent is worth reading and brings to the forefront issues of justice, the role of counsel (for both the government and the defense), and the challenges defense counsel face.

He writes, "To be sure, the majority has put forth support for its positions, as I have for mine; but viewed at a distance a pattern emerges, and it reveals that the majority’s animating concern—even in this

pre

-AEDPA case—has not been to ensure that a conviction was had without constitutional error, but to efface in the name of federalism, finality, and comity any errors that were present."

He continues, "Getting there is easier than you think. It merely requires a ceaseless commitment to privilege formalism over every other legal value; nowhere is that simpler to do than in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all the errors vanish. The spell does break eventually, when someone looks hard enough to see past the sleight of hand. Whether the revelation will come to a person with the authority to spare Abdur’Rahman, and in time, I do not know."

He finds that "At least one juror could reasonably be predicted to see the case in a different light and vote for life after considering all the withheld evidence in mitigation and the detrimental effect that evidence would have had on the prosecution’s case for death."

His conclusion is haunting: "A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims, one thing about this case is undeniable: the prosecutor desecrated his noble role. He failed grossly in his duty to act as 'the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88 (1935). Abdur’Rahman may face the ultimate penalty as a result; Justice will bear a scar."

Marvin Gabrion's Death Sentence Reversed

United States v. Gabrion, Nos. 02-1386/1461/1570 (6th Cir. Aug. 3, 2011) (to be published).

Panel of Chief Judge Batchelder, and Judges Merritt and Moore. Judge Merritt delivered majority opinion; Chief Judge Batchelder concurred in part and dissented in part.

It's a long opinion (74 pages). I have not been through it all yet, but it's a big issue, so I wanted to post right away. The conclusion is:

"Accordingly, the jury verdict at the guilt phase of the trial is affirmed and the verdict of death at the sentencing phase is reversed. The case is remanded to the District Court for a new trial on the sentencing phase of the case pursuant to 18 U.S.C. § 3595."

Chief Judge Batchelder "would affirm the district court in its entirety — both conviction and sentence." She summarizes her position: "I would conclude that the district court was not obliged to admit evidence or argument concerning Michigan’s abolition of the death penalty; nor was it required to instruct the jurors that, in order to impose the death penalty, they must find 'beyond a reasonable doubt' that the aggravating factors outweighed the mitigating factors. Therefore, I respectfully dissent from these two portions of the majority’s decision. I otherwise concur in the majority’s judgment."

I am hoping to review the entire opinion thoroughly and post in more detail ASAP.