Free Supplement - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 03/26/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Supplement to His Response to the Government's Motion to Preclude Evidence of Family Impact ________________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, respectfully submits the following to supplement his response (document # 2141) to the government's motion in limine to preclude defense family-impact evidence (document # 2104). 1. In the recent case of United States v. Wilson, 2007 WL 81935 (E.D.N.Y. January 9, 2007), the district court rejected the government's motion in limine to preclude "testimony that the defendant's friends and family love him, that a verdict of death would have a negative impact on them, and their own personal views of the death penalty." Id. at *14. Turning to the provisions of the Federal Death Penalty Act, the court pointed out that "the jury sitting in the penalty phase `shall consider any mitigating factor' offered by

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the defendant, 18 U.S.C. § 3592(a), including `factors in 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)." Id. It held that: [t]he limiting language in 18 U.S.C. § 3592(a)(8) . . . does not trump the clear language at the beginning of 18 U.S.C. § 3592(a): "the finder of fact shall consider any mitigating factor, including the following[.]" Section 3592(a)(8) describes one type of mitigating factor, but it clearly was not intended to proscribe all factors not bearing on background, record, character, or circumstances of the offense. Id. The court further observed that the type of evidence the government was seeking to preclude "may fairly be considered part of Wilson's `background' as that term is used in Section 3592(a)(8)." Id. Cf. United States v. Davis, 132 F. Supp.2d 455, 464 E.D. La. (2001) (concluding "subhead (8) which refers to other factors `in the defendant's background, record, or character or any other circumstance of the offense' is a sub category of `any mitigating factor' rather than being the outer boundaries of what may be considered as mitigating"). 2. William is attaching the Declaration of Kevin McNally, Federal Death Penalty Resource Counsel, which includes a list of over forty federal death penalty cases in which evidence of the adverse impact the defendant's execution would have on his family was admitted in the penalty phase and listed among the defendant's mitigating factors. William had this declaration prepared in connection with a much earlier pleading, so it is dated July 12, 2005. By now, the number of cases admitting such evidence would no doubt be greater.
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3. William is also attaching the mitigating-factors portions of completed Special Findings Form from some of the cases noted in Mr. McNally's declaration, so the Court can see how this evidence has been handled. They include:

! United States v. Jay Lentz, (E.D. Va. Cr. No. 01-150-A) (mitigating factor #4:
"The execution of Jay Lentz will cause his innocent daughter, Julia Lentz, irreparable and extraordinary psychological and emotional harm"; # 5: "The execution of Jay Lentz will cause his daughter, Julia Lentz, to be without his parenting, advice and love"; # 6: "Julia Lentz will suffer additional emotional and psychological harm during the period between when Jay Lentz is sentenced to death and when that sentence is carried out"; # 8: "If sentenced to life imprisonment without possibility of release, Jay Lentz will be available to his daughter Julia as she grows older and has questions concerning her own family, including questions about her mother"; # 9: "The execution of Jay Lentz will be devastating to his family").

! United States v. Gary Lee Sampson, D. Mass. Cr. No. 01-10384-MLW
(mitigating factor "Q": "If Gary Sampson is executed, one or more other people will suffer grief and loss").

!United States v. Richard Allen Jackson, W.D.N.C. Cr. No. 1:00CR74 (mitigating
factor "T": "The execution of Richard Jackson would have a severe impact on his mother and family and his two young children").

! United States v. Khalfan Khamis Mohamed, S.D. N.Y. Cr. No. 98 CR 1023
(mitigating factor "F": "Executing Khalfan Mohamed will cause his family to suffer
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grief and loss").

! United States v. Alan Quinones and Diego Rodriguez, S.D.N.Y. S6 00 Cr. 761
(JSR) (as to Quinones, mitigating factor "k" reads: "The execution of Alan Quinones will emotionally injure innocent loved ones and cause these persons needless psychological harm"; as to Rodriquez, mitigating factor "k" reads: "The execution of Diego Rodriguez will emotionally injure innocent loved ones and cause these persons needless psychological harm").

! United States v. Kristen Gilbert, Mass. 98-CR-30044-MAP (case involved
multiple counts, and the mitigating factors for each count included # 2: "Defendant is the mother of two children, who will be adversely affected if the defendant is executed" ; # 4: "Defendant's parents and grandparents will be adversely affected if she is executed" ; # 10: "The execution of the defendant would have an adverse impact upon the children's relationship with their father").

! United States v. Oscar Antonio Grande, E.D. Va. Cr. No. 1:04CR283-A
(mitigating factor # 21: "That the execution of Oscar Antonio Grande will have a negative impact upon the life of and directly cause emotional trauma to his niece Tatiana Flores").

! United States v. Robert Norman Ostrander, W.D. Michigan 1:01-CR-218
(mitigating factor # 2: "Defendant's execution would have a detrimental emotional impact upon his daughter, Tabitha"). (Counsel for William will bring the complete Special Findings Forms from these cases to the Wednesday, March 28, 2007 instruction conference, so the Court may review
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them if it wishes to do so.) 4. The mitigating-factors portions of the Special Findings Forms in other cases are also attached, including:

! United States v. Anthony Walker, N.D.N.Y. Cr. No. 94-328 (mitigating factor
"b": "The impact of Tyrone Walker's execution on members of his family as a mitigating factor").

!United States v. Gurmeet Singh Dhinsa, E.D.N.Y. Cr. No. 97-672 (S-3)
(mitigating factor # 5: "Do one of more jurors find that other members of Mr. Shinsa's family will suffer a loss if he is executed?").

! United States v. Michael O'Driscoll, M.D. Pa. Cr. No. 4:CR-01-277 (mitigating
factor # 2: "If Mr. O'Driscoll is executed, his family will suffer grief and loss"). 5. A copy of the "Mitigating Factors" portion of the jury instructions given in United States v. Lorenzo Catalan-Roman, D.P.R. Cr. No. 02-117 (PG) is also attached. A mitigating factor at page 23 reads: "The Defendant's children, siblings and other loved ones would suffer greatly if he were executed, because of the positive aspects of his character and the manner in which he continues to treat them." 6. William herein incorporates by reference the arguments and caselaw cited in his initial Response to the Government's Motion in Limine to Preclude Family Impact Evidence. (Document # 2141). WHEREFORE, William respectfully submits this supplemental authority and requests that the Court deny the government's motion.
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Dated: March 26, 2007 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on March 26, 2007, I electronically filed the foregoing William Sablan's Supplement to His Response to the Government's Motion in Limine to Preclude Family Impact Evidence with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected]
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[email protected] By: /s/Susan L. Foreman

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