Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL BRIEF RE FAMILY IMPACT EVIDENCE

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to William Sablan's Supplement to His Response to the Government's Motion to Preclude Evidence of Family Impact. 1. The Court has heard argument about the issue of family impact on several occasions. On January 17, 2007, the Court heard argument on the Government's Motion in Limine to Preclude Defendant Family Impact Evidence and, by Order of January 19, 2007, deferred a ruling until the penalty phase. On March 15, 2007, the Court also heard argument on the government's motion. 2. The only thing new in the defendant's Supplement is the citation to United States v. Wilson, 2007 WL 81935 (E.D.N.Y. Jan. 9, 2007). Wilson cites no case law

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 2 of 6

authority for allowing third party family impact evidence. Moreover, it declined to follow case law from other circuits, presumably including the Tenth Circuit cases cited by the government in this case. 3. The Tenth Circuit has interpreted 18 U.S.C. § 3592(a) differently than Wilson. In United States v. McVeigh, 153 F.3d 1166, 1215 (10 th Cir. 1998), the court analyzed Skipper v. South Carolina, 476 U.S. 1 (1986), and Simmons v. South Carolina, 512 U.S. 154 (1994), and concluded that "Skipper and Simmons stand for the proposition that proffered evidence is relevant to death penalty sentencing if (1) it is probative of an enumerated mitigating factor, especially some aspect of the defendant's character, or (2) it is offered in rebuttal to an evidentiary showing made by the prosecution in support of conviction or an aggravating factor." (Emphasis added.) In this circuit, the defendant must demonstrate how family impact evidence is relevant to "the defendant's background, record, or character or any other circumstances of the offense that mitigate against imposition of the death sentence." 18 U.S.C. § 3592(a)(8). (Emphasis added.) 4. The fallacy of the Wilson court's interpretation of § 3592(a) is that it would make every conceivable claim of mitigation relevant to the penalty phase. The Tenth Circuit in McVeigh rejected that proposition. In McVeigh, the defendant asserted on appeal that Judge Matsch erred by excluding evidence concerning the ATF raid at Waco, Texas that the defendant was unaware of. The Tenth Circuit held that such evidence "sheds no light on McVeigh's character, his record, or the circumstances of his crime"

2

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 3 of 6

and therefore the district court did not err in excluding it. Id. The approach of the court in Wilson would permit the introduction of evidence that has no relationship to the defendant's character. However, as stated by the Tenth Circuit, disassociating mitigating evidence from the defendant's character will have the effect of "reducing the trial to a contest of irrelevant opinions." Robison v. Maynard, 829 F.2d 1501, 1504 (10 th Cir. 1987), overruled on other grounds, Romano v. Gibson, 239 F.3d 1156, 1169 (10 th Cir. 2001). 5. The defendant's Supplement also attaches a 2005 affidavit from Kevin McNally, which was attached to the defendant's January 12, 2007 brief. That affidavit cites cases outside of the Tenth Circuit. Whether federal courts outside of the Tenth Circuit or whether some state courts have allowed family impact evidence is immaterial if the Tenth Circuit has held that family impact evidence is irrelevant to the penalty phase. In Coleman v. Saffel, 869 F.2d 1377, 1393 (10 th Cir. 1989), the court held that evidence that the defendant's wife and sister-in-law loved him "in no way concerned any aspect of his `character or record and any of the circumstances of the offense.'" The court further stated that "[W]e cannot conclude that the statements of Coleman's wife and sister-in-law qualify as `relevant mitigating evidence' on which a jury legitimately might have grounded feelings of sympathy." Id. 6. Dr. Frank Fortunati's intention of presenting a psychiatric history of each of the defendant's children and then testifying about mental disorders that the children are

3

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 4 of 6

likely to suffer if their father is executed has nothing to do with the defendant's character or the nature of the offense. Instead, it is an attempt to shift the focus away from the defendant and impermissibly invoke sympathy for the children. Coleman and Robison reinforce what 18 U.S.C. § 3592(a)(8) makes clear ­ relevant mitigation evidence relates to the defendant, not to third parties. As stated by United States v. Fell, 2005 WL 1634067 (D. Vt. July 5, 2005): "[T]estimony regarding the effect of Fell's execution should be limited to the extent it relates to his background, record or character. The Government correctly notes that sympathy for a defendant's family should not be considered by the jury in mitigation. Evidence introduced solely to elicit jury sympathy towards third partes impacted by Fell's execution will be precluded." WHEREFORE the United States requests that William Sablan be precluded from introducing evidence of the effect his execution would have on his family, from introducing evidence of his family's or friends' love and affection for him, or from introducing evidence of friends' or family members' personal views about imposing the death penalty in this case.

4

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 5 of 6

Respectfully submitted this 27th day of March, 2007.

TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

5

Case 1:00-cr-00531-WYD

Document 2440

Filed 03/27/2007

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL BRIEF RE FAMILY IMPACT EVIDENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0327 Fax (303) 454-0403 E-mail address [email protected]

6